From: The Law and Politics Book Review

Vol. 11 No. 5 (May 2001) pp. 184-186.

CONSTITUTIONAL STRUCTURE AND PURPOSES: CRITICAL COMMENTARY by Michael Conant. Westport, Connecticut: Greenwood Press, 2001. 184 pp. Cloth $59.95. ISBN: 0-313-31669-4.

Reviewed by Kenneth M. Mash, Department of Political Science, East Stroudsburg University. Email: kmash@po-box.esu.edu.

Although it is ultimately an empirical question, most students of the U. S. Supreme Court would probably agree with Michael Conant's assessment that Supreme Court opinions do not do a very good job of "inform[ing] all lower courts and all interested citizens of the meaning of constitutional clauses as applied to the facts of contested cases (p. 5)." If asked to explain why this is the case, one could probably come up with several hypotheses. For example, one might point to the fact that a justice crafting an opinion must face the strategic personal and political realities of finding majority support or they might argue that because justices are political actors, they are concerned first and foremost with the results in cases. However, this is not how Conant views the problem. He sees the problem as epistemic. Thus, he proposes an "epistemological critique of judicial reasoning (p. 1)." Therefore, when reading this book, it is necessary for readers to temporarily suspend their political presumptions.

Conant begins by reviewing the epistemological problems in law that prevent "scientific advance." These arguments will be familiar to most social scientists. Thus, he points out that compared to the natural sciences, there is little agreement on the "meaning of basic terms and primary relationships that is necessary for one generation of scholars to build on the published learning of previous generations (p. 6)." Unlike the relationship between practitioners and academics in other disciplines, judges will ignore the general consensus of the legal academic community. Furthermore, major premises are often assumed, but scholars and appellate courts do not properly discuss the factors upon which legal principles are founded. He also believes that dissenting opinions add to constitutional uncertainty because justices are not bound to their opinions in dissents and because they give off the impression that the law may change. In his call to a scientific approach to law, Conant seems to be very much a positivist. Yet, when it comes to defining law, he sees no problem in adopting Justice Oliver Wendell Holmes' realism. Thus, one comes to the consistent irony of this work. Although CONSTITUTIONAL STRUCTURE AND PURPOSES: CRITICAL COMMENTARY aims for structure and clarity in the law, the consistency of the argument and the organization of the book are anything but clear.

Despite the tone of most of the first chapter, this work is not primarily concerned with general epistemic clarity; it is concerned with constitutional interpretation. Conant aims to argue that in order to reduce constitutional uncertainty courts should "give the greatest weight to briefs and arguments that center on the structure and purposes of the clause in contest in a constitutional case (p. 19)." These purposes, he believes, can be found from the plain meaning of the text, historical usage, and by treating the Constitution as a unified whole, i.e., understanding how the different parts of the Constitution affect each other. He distinguishes his search for purpose from attempts to discover the subjective intent of the Constitution's framers, which he labels as "totally indeterminate (p. 2)." Instead, he proposes that courts should avoid pragmatic reasoning by determining each constitutional clause's original meaning. This can be accomplished by reviewing the underlying social problems and issues that led to the clause’s adoption. Furthermore, justices should reject STARE DECISIS and the canons of construction in cases where they would lead to opinions inconsistent from a clause's determined constitutional purpose.

The remainder of the book is comprised of five interesting chapters devoted to separate studies of constitutional "structure and purposes." The author uses the first study, "The Slave Trade at the Constitutional Convention: The Commerce Clause and the Limited Political Horizon of Delegates," to demonstrate the interrelationship of various constitutional clauses. According to Conant, historians have ignored the issue of why the slave states would accept compromises that could possibly lead to future prohibition, regulations or taxes on the slave trade. However, he argues that "the key compromises of the convention demonstrated the interdependence of the scope of the Commerce Clause with the demand of the Southerners that slaves be counted for representation in the lower house of Congress (p. 34)." Chapter Three addresses the treatment of the Equal Protection Clause in BROWN v. BOARD OF EDUCATION OF TOPEKA (1954) and PLESSY v. FERGUSON (1896). He argues that Justice Brown’s opinion in Plessy was incorrect because it did not apply the original meaning of the clause, i.e., the total elimination of official racial discrimination. He then explores how Chief Justice Earl Warren dealt with the clause in Brown. In Chapter Four he argues that the Court has repeatedly refused to overrule its holding that baseball is not subject to the Sherman Anti-Trust Act. He believes that once the Court recognized the scope of Congress’ power under the Commerce Clause, it no longer was required to follow STARE DECISIS with regard to baseball’s exemption from the Sherman Act.

In Chapter Five Conant explains that while the Court reached the correct result in United States v. Lopez (1995), it applied the wrong standard. He argues that because possession of a gun is not commerce, and because Congress did not include a commerce jurisdiction clause or findings of impact on commerce with the Gun-Free School Zones Act, the Court should have held that “noncommercial activity is presumptively not subject to regulation under the Commerce Clause (p. 123).” Consequently, the Court should have followed the original meaning rather than reacting to prior opinions dealing with scope of the commerce clause. In the next chapter the flag-salute cases are the vehicles for demonstrating that the structure and purposes of the Bill of Rights should provide the context for civil rights cases. Thus, Conant criticizes Justice Felix Frankfurter’s opinion in MINERSVILLE SCHOOL DISTRICT v. GOBITIS (1940) for not recognizing that a statute is presumptively unconstitutional if it violates the rights of a special class, even if that statute would ordinarily be facially valid for a majority of people or situations. In the final chapter the author turns to the Court’s opinions in the flag-burning cases to argue that “the changing use of English language over time is not a constitutionally approved method of amending the Constitution p. 141).” In other words, Conant argues that the Court’s expansion of freedom of expression to cover flag burning does not comport with the First Congress’ definition of freedom of speech.

Although interesting, the studies and the work as a whole are intellectually unsatisfying. Throughout the work Conant treats a wide array of complex constitutional principles, complicated rules of construction, intricate constitutional histories and his main thesis in summary fashion. For example, it the first study Conant lays out an argument meant to convince the reader that the slave states sought to guarantee their legislative power to counter the breadth of the Commerce Clause. Although he may ultimately be correct, it is a rather complex argument that is dealt with in the course of about a dozen pages. The reader is informed that there is "massive evidence" that the Commerce Clause was meant to give Congress plenary power to regulate all foreign and domestic transactions. However, the reader is provided with a four-paragraph argument that raises as many questions as it provides answers (pp. 34-35). The same may be said of Conant’s interpretation of the Equal Protection Clause, the meaning of free speech, etc. To be fair, these are case studies and, at least in the first chapter, he notes that he will only summarize the main elements. Nevertheless, there is an overall tendency to oversimplify complex constitutional controversies and to leave the impression that the author’s opinion and brief explanations represent the settled understanding in the field, when, in fact, there have been volumes written on these controversies. It does seem odd that a work focusing on clarity and purpose would provide such slight support for major arguments. Furthermore, the individual chapter sections are not connected well and even the main theses of each of the chapters are not coherently applied throughout the chapters.

The main fault with the work is that after each of the studies, the reader is left to figure out how exactly it relates to the main thesis of the overall work. There are statements concerning the main arguments of each chapter, but after that, the reader is abandoned. At no point in any chapter, in fact, nowhere in the book's introduction or elsewhere does it explain how the studies support the major thesis. One is left wishing there were, at least, a concluding chapter to the book to tie the piece together. If one has the time and patience, it is possible to connect the dots and appreciate some very good points. Ultimately, however, this book tries to do far too many things in too short an amount of space.

REFERENCES:

BROWN v. BOARD OF EDUCATION OF TOPEKA, 347 U. S. 483 (1954).

MINERSVILLE SCHOOL DISTRICT v. GOBITIS, 310 U. S. 586 (1940).

PLESSY v. FERGUSON, 163 U. S. 537 (1896).

United States v. Lopez, 514 U. S. 549 (1995).