The Democratic Constitution.

Vol. 14 No.12 (December 2004), pp.969-975

THE DEMOCRATIC CONSTITUTION, by Neal Devins and Louis Fisher. New York: Oxford University Press. 2004. 320pp. Cloth. $72.00 / £44.00. ISBN: 0-19-517122-5. Paper. $19.95 / £12.50. ISBN 0-19-517123-3.

Reviewed by Ken I. Kersch, Department of Politics, Princeton University. Email: kkersch@princeton.edu

Why abandon a belief

Merely because it ceases to be true.

Cling to it long enough, and not a doubt

It will turn true again, for so it goes.

Most of the change we think we see in life

Is due to truths being in and out of favor. (Frost 1914)

The central argument of Neal Devins’ and Louis Fisher’s THE DEMOCRATIC CONSTITUTION, that “constitutional law is shaped by the larger political culture” (p.vii), and that “constitutional principles emerge from a dialogue among all three branches of government as well as the states and the general public” (p.3) would have, in an earlier place and time, seemed unremarkable. Certain developments, however, have lead contemporary students of American constitutionalism to slight the self-evident fact that constitutional limitations are as much the product of political practice as of judicial pronouncement. Foremost amongst them is that, since the Warren era (1953-1969) – and especially with the rise of what Scot Powe has called “history’s Warren Court” in the 1960s (Powe 2000) – goal-oriented reformist legal academics have had a vested professional interest in championing the idea and the ideal of judicial supremacy, which holds the U.S. Supreme Court to be the final and authoritative tribune of all legitimate constitutional meaning.

This scholarly slant, unsurprisingly, has had pervasive effects on the way in which generations of students have been taught to think about the Court and its rulings. Before the 1960s, many students learned about the Court and its pronouncements as an important part – but as just a part, nonetheless – of the broader American political system. In the age of the core curriculum, and at a time when political history had not yet been knocked from its pedestal by the new social history, students commonly received a grounding in the basic texts of American political thought—through readers such as Henry Steele Commager’s DOCUMENTS OF AMERICAN HISTORY (Commager 1940) and Richard Hofstadter’s GREAT ISSUES IN AMERICAN HISTORY (Hofstadter 1958). These readers interspersed judicial opinions with constitutional arguments made elsewhere in the polity – in political speeches (like those of Webster, Clay, and Calhoun), social movement declarations (such as Seneca Falls or the Populist Party Platform), veto messages (Andrew Jackson on the National Bank and the Maysville Road). Following what many considered to be the heroic ascendancy of history’s Warren Court, however, both scholars and the students they taught became less and less interested in the ways in which broader currents of political thought (and understandings of government fashioned [*970]outside the Court such as Jeffersonianism, Jacksonianism, Hamilitonianism) and a succession of reformist intellectual and social movements, and perceived policy imperatives and enthusiasms, informed the development of constitutional practice and doctrine.

At this time, constitutional theory – an extended consideration of the ostensible “problem” of judicial review (which was essentially a decades-long rumination on the problem of how right-thinking, progressive people once highly skeptical of judicial power could, in light of the Warren Court experience, justify its aggressive use for certain desirable purposes) – moved to the center of the discipline. Political scientists in the 1960s did not need a weatherman to know which way the wind blows: half of the scholars studying the court within political science shifted towards simply reading lines of cases in classic law school fashion and structured their classes, as did law school professors, around the central problem of judicial review. As for the other half, in a parallel development drawing upon the new scientism of the Sputnick era (and fueled by its NSF grants), attitudinalists devoted increasing time and energy to explaining the “votes” of individual justices, yielding the finding that liberal justices vote liberally and conservative justices vote conservatively. Rational choice scholars qualified this insight with the observation that sometimes liberal and conservative justices have to do a little strategic bargaining to get what they want.

The results of these paired narrowings were not pretty. For the legalists in the political science departments – who, for all intents and purposes signed up as auxiliary members of the legal academy – the Constitution was all Court, all the time, and the law (rightly read by the lights of the latest pronouncement of a set of Olympian constitutional theorists like Ronald Dworkin or John Hart Ely) was everything. The Sputnick crowd, casting about for hypotheses to take on and prove, were blessed by these developments, and devoted their lives to refuting the political science department legalists. Over time, this tiresome fight between those court-focused scholars who acted as if the Court were everything, and those court-focused scholars who claimed that the Court was nothing, crowded out other sorts of questions that might have stimulated interesting new work in the public law field. One of the baneful effects of the prominence of these debates is that students, who were shunted into reading either legal theory (such as Ronald Dworkin’s) or the latest article on judicial behavior (depending upon which camp their teacher fell into) no longer had any use for the basic documents and doctrines of American political thought, since, in theory, given the prevailing points of entry, these documents and doctrines had no relationship to the way that judges decide cases. Along the way, the capacity to appropriately contextualize the Court and its decisionmaking process, along with an appreciation for the richness and complexity of the American constitutional tradition, was lost.

Thankfully, and as many readers by now well know, the times they are a’ changin’. As the extreme scientism of the Sputnick era has been challenged by scholars with an orienting interest in context (under the banners of the “New [*971] Historical Institutionalism” and “American Political Development”), and as politics and the judiciary have turned rightward, judicial supremacy has gradually lost its cachet in the academy, and an interest in “the constitution outside the courts,” in the guise of accounts of “popular constitutionalism,” and the relationship between court doctrine and inter-branch relations, social movement activity, amongst other subjects, has come into favor. This altered context has made scholars who focus on what were once familiar political and institutional dynamics suddenly seem fresh. This turn is promising because it opens up lines of potential research which have lain dormant for many years now. Louis Fisher, along with his co-author here, Neal Devins, are amongst the few who can claim to have gotten in on the ground floor. Indeed, Fisher, a traditionalist student of inter-branch relations who has been cultivating this garden for most of his career, is newly hot. In THE DEMOCRATIC CONSTITUTION, Fisher and Neal Devins re-articulate for a new and growing audience Fisher’s approach to understanding the paths of constitutional meaning.

Few surpass Devins and Fisher in the scrupulousness and comprehensiveness of their knowledge of the constitutional text, as well as of the ways in which, over the course of American history, the meaning of the text has been parsed, separately and conjunctively, by the Court, the Congress, and the executive branch. Those who use Louis Fisher’s superb AMERICAN CONSTITUTIONAL LAW text in teaching constitutional law, as I do, will be familiar with much of the material here. Those who are less familiar with that text, however, will profit from having that material transformed from casebook to regular book form, and encapsulated in a concise, readable text. What the authors provide is not so much new substantive scholarship, but rather a model for the way they believe constitutional questions should be discussed. Their approach is to embed discussions of court rulings within broader discussions that take account of the full complexity of the nation’s constitutional life. The authors’ historical knowledge is deep enough for them to have seen it all. This knowledge precludes them from isolating any single dynamic or institution as central to the establishment constitutional meaning – a state of affairs likely to trouble those political scientists whose primary quest is for parsimony. The authors find constitutional argument and contention in messages, speeches, and pronouncements of all three branches of the federal and state governments, as well as in popular discourse. They find that in some cases these hew to rulings of the courts, but in many they do not. Sometimes they pick up on themes articulated by the courts, and sometimes the courts pick up on themes articulated by them. Sometimes forces outside the courts defy court rulings. Sometimes they follow them. Sometimes a court ruling is indeed the end of the story. Often, it is not. And sometimes it is the end of the story on one dimension, but not on another. The Court, in some contexts, is as likely to provoke political struggles as to settle them. In some cases, the Supreme Court simply ratified political settlements reached elsewhere. The chief argument in THE DEMOCRATIC CONSTITUTION is [*972] that, far from amounting to a mess and a muddle, however, this thick constitutional reality is significant in its own right as a characteristic feature of a constitutional tradition that is truly democratic (hence, the book’s title). Indeed, it is the very structure of the Constitution that not only makes this lively, de-centered, and popularly contentious constitutional tradition possible, but desirable.

The heart of the book consists of seven chapters of about 25 pages each in which the authors present chronologically ordered case studies illustrating the processes by which constitutional meaning has been formed democratically (that is, given their implicit definition of the term, contentiously, provisionally, and dialogically) within the American constitutional tradition in a succession of touchstone areas of contemporary American constitutional law – federalism, separation of powers, the war power, privacy, race, speech, and religion.

The chapter on federalism opens, for example, with the characteristic statement that “The meaning of federalism has been determined more by Congress, the President, and the political process than by judicial rulings” (p.53). The authors then present a short overview of the original understanding of constitutional federalism, with a discussion of its underlying principles, and the theory, as articulated in the FEDERALIST PAPERS, of how best to embody those principle in the institutions of government. From there, Devins and Fisher move on to brief consideration of the bank controversy, discussing both the Supreme Court’s decision in MCCULLOCH v. MARYLAND (1819) and disagreements about the bank’s constitutionality between Jefferson and Edmund Randolph, on the one hand, and Alexander Hamilton, on the other, and culminating in Andrew Jackson’s constitutionally grounded veto. There is then a four paragraph discussion of interaction between the Court and Congress in the 1850s concerning the dormant commerce power. This is followed by discussions of inter-governmental contention over the regulation of intoxicating liquors, and inter-governmental and inter-branch contention regarding child labor laws. The New Deal standoff between Franklin Roosevelt is recounted next, followed by the “dialogue between judges and legislators” (p.63) over the constitutionality of civil rights statutes affecting public accommodations, which includes an account of the political decision made by the Kennedy administration to rely on the commerce clause as the constitutional anchor for the landmark civil rights legislation of the 1960s. There is then an account of Nixon’s New Federalism, and the paired cases of NATIONAL LEAGUE OF CITIES v. USERY (1976) and GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT (1985) (which overruled USERY only nine years after it was handed down). A short overview of the Rehnquist Court’s federalism initiatives follows. In the interest of context, this discussion is framed with an account of the Republican “Contract with America.” The chapter concludes with the observations that “[i]ssues long identified with local government (education, health, welfare, and law enforcement) are now largely a matter of federal-state cooperation. On questions of civil rights and social justice . . . [*973] Congress has persevered in the face of both state and Supreme Court resistance. Following the Supreme Court’s rejection of child labor and public accommodations legislation . . . Congress eventually prevailed. . . . Litigation, although helping to define federal-state relations, operates largely at the margins…. The Court continues to be an important player, but does not dominate federal-state relations” (p.75). To cover this ground clearly and accessibly in the short space of 25 pages is a feat in and of itself, and one at which the authors, impressively, succeed.

The chapter on speech – to take an example from one of the chapters focusing on individual rights – opens with the observation that “the commitment to individual conscience and free speech predates rulings by the Supreme Court and other judicial bodies” (p.173). Devins and Fisher then present an account of free speech in the early republic, with an emphasis on Sedition Act prosecutions. This is followed by an introduction to political contention over free speech arising out the brewing conflict over slavery. Next is an account of the legislation passed in World War I restricting certain forms of speech, with a characteristically helpful emphasis on legislative deliberations concerning the constitutionality of the Espionage Act. Early twentieth century landmark free speech decisions are presented briefly, along side a demonstration that the Court was coming under the influence of academic theorists like Zechariah Chafee, Jr., and of a growing solicitude in the executive branch for civil liberties, which subsequently gave way to domestic security concerns during the Cold War. The context is radically altered, Devins and Fisher explain, with the civil rights and the anti-war movements in the 1960s. There is then a discussion of the congressional role in setting parameters of search warrants affecting the press in the late 1970s, political debate over a constitutional amendment prohibiting flag desecration, the FCC’s Fairness Doctrine, and the “dialogue” between Congress and the courts over the regulation of indecency. In this area, Devins and Fisher note, the Court has loomed large. Nonetheless, they add, “there is also no dispute that [this history illustrates] that Court decisionmaking is moored to social and political forces” (p.193). The Court is part of “a political process” that “leaves it to the Court to establish constitutional standards. . . . Within those standards, the burden remains on the elected branches to craft appropriate legislation and agency regulations.” Devins and Fisher conclude the chapter with the observation that “speech’s emergence as ‘the people’s privilege’ owes as much to the rough and tumble of politics as it does to the Supreme Court” (p.193).

The substantive core of THE DEMOCRATIC CONSTITUTION is bracketed by its most spirited chapters, the first on “Judicial Supremacy as Orthodoxy,” and the last on “The Ongoing Dialogue.” In these more theoretical forays and literature critiques, the authors take on the conventional wisdom concerning the place of the Court in our constitutional tradition. Here, Devins and Fisher are aggressive – and, indeed, piqued – by the prevailing constitutional provincialism they see all around them, and make the case that much of this work is seriously misguided. Those looking for a short and effective attack on the assumption of [*974] judicial supremacy will enjoy and profit from reading these chapters.

THE DEMOCRATIC CONSTITUTION has the virtues of clarity and concision. Those looking for short, digestible sketches of political and constitutional contention concerning, for example, the Bank of the United States, child labor laws, the independent counsel, school desegregation, school prayer, executive power in wartime, abortion rights, homosexuality, and affirmative action, will find this book is a handy resource. Teachers may find it especially useful for filling out lectures that tutor students in a more richly contextualized understanding of the development of American constitutional law.

For scholars, it raises a number of questions. For me, at least, it first raised the question of whether the mere demonstration of what the authors themselves concede is the long since “richly documented,” but apparently forgotten, fact that “constitutional law is produced by many forces: political and legal, non-judicial and judicial, national and local, public and private” (p.217) is, at this point, enough. Given the nature of contemporary social science, it is quite possible that this argument, articulated again and again, will become familiar boilerplate public law in the journals for the next twenty years. As such, the argument would make a contribution to political science. But it would make fewer contributions to the store of our knowledge of American history, American politics, and political ideas, since those with a reasonably sophisticated understanding of American political history and American political thought in other disciplines (like history) already know these things. Second, the book raised the related question of whether simply labeling these processes “democratic” or a “dialogue” and packing away one’s pen is something of a cop-out. They are certainly “democratic” if the point is to contrast the model of constitutionalism presented here with the old Warren Era judicial fiat model. But if we move beyond the most abstract conception of “democracy” and towards more nuanced categorizations, we should be open to the possibility of finding that strands of this tradition of contention and complexity that are anti-democratic or democratic in different and distinctive ways. Similarly, “dialogues” certainly occur. But that term is much too pacific and consensual to apply to much of what is going on.

The problem is that the concept of “democracy” in THE DEMOCRATIC CONSTITUTION is under-theorized. Maybe, contrary to what I have just argued, the authors should not have moved toward breaking down the broad conception of democracy into a set of more narrowly definable processes. Perhaps Devins and Fisher are trying to make the broad, systemic point that these processes are, in fact, the life blood of robust constitutional democracies—in the U.S. and elsewhere. If so, one direction to proceed from here would be to drop Warren Court judicial supremacy as the foil, to define the distinctive features of robust constitutional democracies (following someone like Seymour Martin Lipset), and then to situate the U.S. – precisely because of the processes that Devins and Fisher describe – as a paradigmatic example of such a system. This would advance the discussion beyond the paths that trigger yet another theoretical defense of the [*975] power of judicial review and make the affirmative case for the virtues of the American constitutionalism as a rich, and richly complex, political tradition. It may also suggest to those in other countries, who believe that the successes of American constitutionalism are rooted chiefly in the institutionalization of judicial supremacy as exercised by an all-powerful high court, that they may need to re-examine their premises.

Happily, there are signs of creativity and ambitiousness in the work of a growing number of scholars suggesting that a fair number are willing to move beyond making the simple (but important) point that courts are not everything. Many, particularly those who take constitutional development as their subject, are moving beyond the abstractions of “democracy” and “dialogue” to trace the varieties and complexities of the processes at work here. Others, often trained in comparative politics and concerned with the pressing questions of post-totalitarian, post-authoritarian, and post-colonial regimes, are taking up questions of the prerequisites of stable and successful constitutional democracies. The Devins and Fisher book can be seen a herald for much of this new work. It is a helpful overview, unburdened by the presumptions of judicial supremacy, of the rich tradition of American constitutional practice.

REFERENCES:

Commager, Henry Steele (ed.). 1940. DOCUMENTS OF AMERICAN HISTORY (2nd ed). New York: F.S. Crofts & Co.

Fisher, Louis. 2001. AMERICAN CONSTITUTIONAL LAW (4th ed). Durham, NC: Carolina Academic Press.

Frost, Robert. 1914/1969. “The Black Cottage,” in NORTH OF BOSTON [1914], collected in THE POETRY OF ROBERT FROST: THE COLLECTED POEMS, COMPLETE AND UNABRIDGED (Edward Connery Lathem, ed.). New York: Henry Holt and Co.

Hofstadter, Richard. 1958. GREAT ISSUES IN AMERICAN HISTORY: A DOCUMENTARY RECORD. New York: Vintage Books.

Powe, L.A. Scot, Jr. 2000. THE WARREN COURT AND AMERICAN POLITICS. Cambridge, MA: The Belknap Press of Harvard University Press.

CASE REFERENCES:

GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, 469 U.S. 528 (1985).

MCCULLOCH v. MARYLAND, 17 U.S. 315 (1819).

NATIONAL LEAGUE OF CITIES v. USERY, 426 U.S. 833 (1976).

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