Vol. 4 No. 1 (January, 1994) pp. 7-9
THE CONSTITUTION OF JUDICIAL POWER by Sotirios A. Barber. The
Johns Hopkins Press, 1993. 279pp. Cloth $25.95
Reviewed by Ira L. Strauber, Department of Political Science,
Grinnell College
Prof. Barber has written one of the most intellectually serious,
stimulating, and ingenious jurisprudential arguments I have read
in quite some time. I say that as someone who does not share
Barber's central premise that philosophy is essential to
constitutional interpretation, and as one who doubts that
philosophy necessarily leads teachers and critics to worry about
the right things in constitutional law and politics. Yet, as
unconvinced as I am of much of what he has to say, I am equally
convinced that readers will be generally impressed with how
Barber says it. Indeed, I expect to return to this engaged and
engaging book again and again, to challenge myself to make better
arguments about the purposes that ought to govern reading and
writing about the Constitution.
The epistemological imperative that drives Barber's jurisprudence
is moral realism: basically it is the idea that moral entities,
like "justice," have a real existence. Barber argues
that moral realism is embedded in the Constitution, and
celebrates its appearance in the writings of Publius, John
Marshall, and Ronald Dworkin in order to defend the thesis that
an originalist interpretation of the Constitution requires
fidelity to individual and minority rights that justifies, and
even mandates, Warren Court-like judicial activism. Barber's
animus is directed specifically against the New Right (e.g.,
Raoul Berger and Robert Bork), and more generally against
elements of skepticism, relativism, antirationalism, and
conventionalism wherever he finds them in constitutional
commentary (e.g., in legal realism generally, and also in the
writings of Alexander Bickel, Walter Berns, Michael Perry,
Stanley Fish, and even in the work of Ronald Dworkin whom he
otherwise takes up as an ally).
Barber intends to convince us that opposition to moral realism,
individual and minority rights, and judicial activism is
indefensible because that opposition cannot be justified
successfully by the political philosophy of the founding,
consistent and coherent theories of judicial review, or
contemporary ethical theory. He also would have us see the
opposition to his positions as a product of intellectually and
morally degraded ethical theories that are inconsistent,
incoherent, and just flat wrong when applied to the normative
structure and content of the Constitution. Moral realism is also
identified as the best philosophical defense for a liberal civic
culture that teaches citizens to be open to the heterogeneity of
differences of opinion, to commend themselves to the principle
that differences are to be settled by reason, not force, and to
aspire to search for political and moral truths in the same way
as science teaches one to get closer to natural truths. These are
obviously exceptionally ambitious, to say nothing of contentious,
intentions, and the author, more often then not, is up to
fulfilling them.
One of the great strengths of the inevitably abstract arguments
made in defense of these intentions, and the criticisms or
attacks (and make no mistake, these are sometimes attacks)
against the opposition, is their accessibility. Barber's own
arguments for moral realism and Constitutional interpretation are
remarkable for their clarity, and readers will be readily able to
assess them for their authoritativeness and for how effective
they are against the claims of relativism, skepticism, and
conventionalism.
Perhaps equally impressive is the internal logic of this work.
Barber identifies this logic as "Socratic," and as I
understand it as a model for applying moral realism, it requires
the intellectual and moral commitment, to oneself and others, to
read the Constitution as embodying The Good (my word, not his).
This is a commitment to the principle that the Constitution
embodies historically transcendent conceptions of rights and
powers that are TRUE and that one MUST strive to imitate, but
should not expect to replicate, in the contingent world of
politics. We meet this commitment by accepting the challenge that
every belief and opinion, even moral realism, has to be
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tested against the best versions of the truths of the
Constitution we have at our disposal.
This commitment has an aesthetic beauty to it, not because I came
away with a specific picture of the range of these Constitutional
truths, but because the author's commitment to the values of
consistency, coherence, and moral imagination is a noble, even
brave, contrast to modernist, to say nothing of post- modernist,
skepticism that, to some considerable extent, has undermined
those values and the very idea that those engaged in
Constitutional interpretation are part of a shared moral and
political enterprise that requires self-reflection and self-
constraint.
On the other hand, however beautiful this commitment may be,
Barber's Socratic abstract claims lead to some problems. One of
these concerns the role of philosophy in defense of moral realism
and judicial activism. Barber contends that a Socratic approach
shifts the burden of proof on to those who would deny the
imperatives of a moral realistic reading of what the Constitution
requires. And one manifestation of this shift is an hostility to
history in the sense that it is always philosophy, and never
history, that must have the last word (pp. 68, 200). This shift
becomes worrisome when Barber's Publius -- much of which is
familiar, but some of which arises out of Barber's
"therapeutic" reconstruction of what Publius wrote (p.
49) -- turns out to be a defender of a judicial monopoly of power
that "honor[s] individual and minority rights" (pp. 32,
40). Now, on its own terms I found Barber's Publius interesting
and persuasive; yet I also think that Robert Burt's more
historical (albeit mostly Madisonian) and more complicated
Publius, in THE CONSTITUTION IN CONFLICT (1992), which is less
enthusiastic about how much political sovereignty the Court
deserves (Burt, p. 40), is just as plausible as Barber's
rendition. Thus the problem: why does fidelity to the
Constitution require me to choose a philosophical over an
historical Publius as the basis for the truth about judicial
activism? I, for one, do not have a positive answer to this
question. I do know that pragmatic and consequentialist reasons
are ruled out because Barber stipulates that Dworkin's
jurisprudence "made the argument for moral philosophy so
effectively that all sides should have accepted it as a
commonplace by now" (p. 68). But those benighted souls who
are either disinclined to take Dworkin or Barber's word for the
superiority of moral philosophy, or who are inclined to think
otherwise, are left, I think, with no other alternative but to
learn to love philosophy, and thereby the Constitution, or to
leave them both to those who do.
The potentially stipulative aspect of philosophy and moral
realism recapitulates itself at two other levels as well. For
example, Barber argues that in our polity, characterized as it is
by conflicts over fundamental values, a commitment to the
Constitution requires legal philosophers "to impute
underlying values to a people despite their conflicts and in the
face of historical change" (pp. 60-61). Barber recommends
that these conflicts be viewed "as conflicting versions of
some truly common good to which we all aspire, whether we know it
or not (p. 108). I understand this commitment to fundamental
values as an exhortation, and indeed I sometimes share in it. But
I also am compelled to think about the well-argued and often
poignant claims made by those who write about the law and
politics of differences of gender, sexual, race, and class
identity. These claims cast doubt on the search for moral unity
and integration, however self-reflective it may be, because it is
seen as a potentially inhumane and unjust exercise that
sacrifices differences for unity. These claims give me pause
about the extent to which that exhortation for truth, and the
confidence in philosophy behind it, oversimplifies the
complicated, and perhaps, tragic problems in constitutional law
and politics. And since Barber does not address substantive
issues of law and politics, it is impossible to say whether or
not moral realism gives itself over to such simplifications or
not.
At another level, there is the question of the audience for this
Socratic approach to the Constitution that is led by
philosophers. The "compulsion" behind moral realism,
says Barber, is "to get to the bottom of the moral questions
that
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trouble ordinary citizens" (p. 217). This idea of being a
philosopher to one's fellow citizens (p. 188) is a noble one,
with historical antecedents in both classical Greece and our own
polity with Publius' Federalist Papers. But I wonder about such a
role for a philosopher today, given what philosophy does and what
ordinary citizens need. To his credit, Barber is alive to this
question; he recalls Michael Walzer's warning about the gap
between philosophical reflection and the practical choices of
politics, but only to summarily dismiss it by saying that Walzer
ought to have understood "ordinary prejudice" better by
taking into account, from Barber's point of view, that
nonacademic persons assume a difference between truth and
convention.
Quite aside from what may be an uncharitable (and unjust?)
dismissal of what Walzer understands and has done in his writing,
those of us who read social scientific arguments, like McClosky
and Brill on the dimensions of intolerance in this polity (1983),
are likely to wonder what it means to say that "one's fellow
citizens" hold to the difference between truth and
convention when it comes to morality and politics. Indeed, one
might wonder whether abstract talk about citizens' conceptions of
truth and convention can really include persons outside the
classrooms of the better undergraduate institutions, and whether
the issues that trouble ordinary citizens, let alone their
prejudices, are really on the Socratic agenda.
Of course, all the problems that I have raised here might well be
attributed to my skepticism about the role of philosophy in
constitutional interpretation. But then I have the comforting
thought that perhaps even my skepticism is within both the letter
and the spirit of Barber's argument. After all, what I have done
is to raise doubts about where the Socratic approach takes me,
but I have not rejected taking the trip. There can be but one
Socrates, or an Aristotle; and the rest of us have to accept that
we are a Cephalos, a Glaucon, an Adeimantus, or a Thrasymachus,
and that means we do our best to follow a teacher who wants us to
try to make ourselves better than we would otherwise be. The
virtue of this book is that it challenges us to be more self-
reflective academics, and it is a challenge well worth the
taking. This is a delightful book.
REFERENCES
Burt, Robert A. (1992). THE CONSTITUTION IN CONFLICT. Cambridge:
Harvard University Press.
McClosky Herbert and Alida Brill. 1983. DIMENSIONS OF TOLERANCE.
New York: Russell Sage Foundation.