ISSN 1062-7421
Vol. 12 No. 1 (January 2002) pp. 13-17.

CONSTITUTIONAL SELF-GOVERNMENT by Christopher L. Eisgruber. Cambridge: Harvard University Press, 2001. 272 pp. Cloth $45.00. ISBN: 0-674-00608-9.

Reviewed by Wayne D. Moore, Department of Political Science, Virginia Polytechnic Institute and State University.

Christopher L. Eisgruber is the Laurance S. Rockefeller Professor of Public Affairs at Princeton University. He is also a member of the Center for Human Values and Director of the Program in Law and Public Affairs at Princeton. He wrote CONSTITUTIONAL SELF-GOVERNMENT while a member of the faculty at the New York University School of Law.

In this book, he joins company with two groups of constitutional scholars, each of which has strong voices within the literature on law and courts. First are those who argue that moral reasoning should be a central component of constitutional adjudication. Second are those who argue that judges should foster democratic deliberation. Though many have treated these goals as competing if not contradictory, Eisgruber brings them together under the umbrella of a provocative conception of constitutional self-governance. In his view, judges enforcing moral principles should be viewed as performing a type of democratic representation and not more simply as policing, preempting, or otherwise limiting democratic choice.

CONSTITUTIONAL SELF-GOVERNMENT thus addresses one of the central preoccupations of constitutional theory: how to solve or dissolve the alleged
"counter-majoritarian difficulty." Eisgruber's handling of this issue is quite elaborate, and I highly recommend his book for the treatment he provides there. Along with presenting abstract analysis of problems of constitutional theory, the book explores how his approach may contribute to rethinking how judges should resolve a range of interpretive controversies.

The book has six chapters, along with an introduction and conclusion. Chapter 1 addresses matters of institutional design and political theory, with a focus on how constitutional inflexibility can promote democratic governance and not simply hinder it. The second and third chapters develop his case for an active judiciary. The remaining chapters deal with issues of judicial interpretive methodology.

Throughout the book, Eisgruber relies on at least two potentially competing conceptions of democracy. Initially, he defines "democracy" formally as "government by the people" (p. 9). He presumes, however, that "'[t]he people' cannot act except through institutions" (p. 13). In addition, he claims that "[p]opular sovereignty is an attractive idea only if we interpret 'the people' to refer to 'the whole people,' and not just a majority, or any other part, of the people." In his view, then, "[t]o
qualify as democratic, a government must respond to the interests and opinions of all the people" (p. 19). The book's most important contribution is its
elaboration of a

Page 14 begins here

conception of judicial role that is purportedly consistent with this aspiration.

Eisgruber's treatment of this issue is complicated by his invocation of "democratic goals" that may be viewed as extending beyond "government by the people." For example, he claims that the goal of "impartiality" requires "that government give all of its citizens a fair share" in the distribution of benefits and burdens. The goal of "effective choice" requires a democratic government to "deliver what its citizens want." The goal of "public deliberation" demands that "individuals become engaged in argument, even if they will often lack the power to affect how the argument plays out" (pp. 83-87). Passages like these are reminiscent of Ronald Dworkin's argument in FREEDOM'S LAW (1996) that the defining aim of democracy is for governmental institutions to treat all members of a political community with equal concern and respect. Although one may attribute such goals or aims to the people of the United States as a whole, these criteria may also be used--as Eisgruber
occasionally does--to evaluate governmental processes or outcomes independently of whether they involve or result from decisions by the people themselves or may reasonably be attributed to them.

Eisgruber also follows Dworkin in relying heavily on a distinction between "specific rules" and "abstract principles." As examples of the former, he refers to the Constitution's guarantee of two senators per state, the requirement that a president be a natural-born citizen at least thirty- five years old, and Article V's amending provisions. He assumes that it would be "almost impossible" for current generations to change these "rules that Americans inherit from the past." In his view, judges need no special legal expertise--and need not engage in abstract moral analysis--to interpret and enforce these provisions. They are justified as positive law and can be reconciled to democratic theory because they "endow later generations with useful political institutions that make democratic ideals easier to achieve" (pp. 2-3).

Eisgruber's primary focus, though, is on the Constitution's "abstract provisions." He claims that they serve two main pro-democratic functions. First, they "mark[] the seriousness of some issues." Second, they "invite arguments about abstract topics" that may serve as "bases for the adjudication of legal rights." By serving the latter function, "judges will play an important role in the country's collective effort to make judgments about the principles named in the Constitution" (pp. 41-42). Here are the heart and lungs of CONSTITUTIONAL SELF-GOVERNMENT.

Eisgruber concedes that it is "tricky" to distinguish "abstract provisions" from "specific rules" (p. 121). His handling of this distinction is complicated, moreover, by his effort to collapse distinctions between enumerated and unenumerated rights. Despite his initial suggestion that specific rules are relatively unproblematic to interpret, including in the respect that they do not require complex moral reasoning, later in the book he characterizes most of the provisions in the Bill of Rights as simultaneously "specific" and "ambiguous." In this context, moreover, he emphasizes the inadequacies of the "specific list of rights" in the Bill of Rights and
suggests that the Constitution might be better if it contained "only general guarantees like those articulated in the Ninth and Fourteenth Amendments." In
any event, he claims that unenumerated rights are no less legitimate or more contestable than enumerated rights

Page 15 begins here

(pp. 115-20).

Eisgruber gives several reasons why he thinks federal judges (especially justices of the U. S. Supreme Court) are uniquely situated to represent the people's moral commitments. First, these judges have a democratic pedigree. Elected officials select them because of their political views and connections, one result of which is that their views of justice are not likely to be radically at odds with the mainstream. Second, judges are "disinterested" not only by comparison to other politicians, but also by comparison to ordinary citizens. Because "they are insulated from the pull of interests that might distort the judgment of other decision-makers," judges
are more likely to uphold distinctions between moral principle and self-interest. Third, judges have incentives to take personal responsibility for their decisions. Fourth, judges must give a public account of their reasoning. All these factors, according to Eisgruber, support a conclusion that justices of the U.S. Supreme Court should "construct the American people's best judgment about justice" when adjudicating cases based on the Constitution's abstract language (pp. 8, 57-71).

Along with promoting impartiality and effective choice, judicial review promotes two other forms of "democratic flourishing," according to Eisgruber: participation and public deliberation. In treating these issues, he again aims to turn conventional understandings on their heads. For example, he rejects arguments that emphasize the importance of political participation at the state level. Instead, he argues that participation is more meaningful at the national and local levels. In addition, he claims that courts are institutionally better designed than legislatures to supervise the states, because "American legislatures . . . are prone to gridlock," whereas "[a]
single complaint suffices to trigger judicial inquiry" (pp. 94-95). Chapter 3 also includes interesting analysis of Lincoln's treatment of the roles that legislatures, executive officials, and judges may play in shaping public opinion.

The remaining chapters comment on various issues of judicial methodology while analyzing selected interpretive issues. Among other things, Eisgruber criticizes the "aesthetic fallacy"--the view that the U.S. Constitution is fully coherent and non-redundant. Judges should recognize that the constitutional text reflects political compromises and thus is both incomplete and contains "unfortunate errors" (pp. 113-15). Judges can remedy some of the omissions by interpreting expansively open-ended guarantees of rights. On the other hand, judges should treat "bad provisions" like the second amendment as obsolete or at most "toothless" (pp. 20-26).

Not surprisingly, Eisgruber criticizes originalism as an interpretive methodology, and he denies that judges should rely on evidence of traditions to identify protected liberties. In the course of analyzing the constitutionality of governmental regulations of sexual conduct and commercial transactions, along with principles of federalism, he relies on distinctions between "comprehensive" and "discrete" moral principles. His view, in short, is that judges have a comparative advantage enforcing particularized side-constraints on governance but are ill equipped to evaluate the overall fairness of an economic or political system.

Eisgruber's analysis is engaging, refreshing, and insightful. There is much to commend in his treatment of problems of constitutional theory and political practice.

Page 16 begins here

This book will be of particular interest to analytic legal scholars, along with political scientists concerned with matters of democratic and constitutional theory. Although his central preoccupation is with how federal judges should interpret and enforce the law of the U. S. Constitution, he deals with broader issues of political theory and constitutional politics. In addition to being required reading for many persons who do research and teach in these areas, the book may contribute substantially to courses within law schools and graduate programs. It is also suitable for advanced undergraduate courses on constitutional law and politics.

As I hope to have made evident already, CONSTITUTIONAL SELF-GOVERNMENT is a provocative book. Not all will accept Eisgruber's theoretical premises, normative aims, or interpretive conclusions. Few are likely to disagree that human beings should pursue justice and that constitutions may facilitate
their doing so. However, many will reject Eisgruber's claims about what constitutes justice and how best to pursue its imperatives. Similarly, many will remain
unconvinced that the U. S. Constitution should be understood as committed primarily if not exclusively to democratic self-governance, by his characterizations of "democracy" and "the people," or by his argument that judges' representing the people's moral commitments through a "disinterested" and "forward-looking approach to constitutional adjudication" is "the only way for interpreters to respect the Constitution's democratic purposes, and hence the only legitimate way for interpreters to resolve the meaning of the Constitution's abstract moral language" (p. 207).

Several issues in particular warrant further consideration. One is Eisgruber's claim that democratic criteria are the only appropriate ones to evaluate the U. S. Constitution's legitimacy. Admittedly, there are good reasons to rely on such criteria to interpret and evaluate constitutions like that of the United States having at least some "democratic" features and aspirations. But democracy is not only an end in itself; it is also a means to other ends; and in any event it is overly confining to conceive of "constitutionalism" as limited to the pursuit of "democracy." Do not constitutions and their judicial interpretation and enforcement have legitimacy for a variety of reasons that extend beyond the ways they promote democracy? Would it not be more congruent with rejection of the "aesthetic fallacy" to allow for additional theoretical perspectives and evaluative standards?

Second, Eisgruber suggests that a unitary conception of "the people" is the only one consistent with premises and principles of democratic self-government. He recognizes, however, that constitution-makers might choose to "fragment power in order to increase the likelihood that the government will be responsive to the interests of minorities as well as majorities" (p. 19). Thus might not a constitution treat the constitutional identities of "the people" as correspondingly fragmented? And might not a constitution authorize judges to represent and guard the people's plural identities and capacities, not only authorize actions by or on behalf of "the whole people"?

Eisgruber's treatment of this issue hinges, in turn, on his conception of the imperatives of justice as "impartial" in at least two ways. First, they are independent of interests. Second, they embrace the moral commitments of "the whole" rather than parts of "the people." Such a conception of justice can accommodate influential versions

Page 17 begins here

of liberalism such as John Rawls's (1996). However, Eisgruber's position, like Rawls's, is vulnerable to criticism insofar as (a) deep consensus on principles of justice may be lacking at the aggregate level within pluralistic societies, and/or (b) principles of justice may be conceived as tied to interests and partial commitments rather than being severable from either.

Third and relatedly, Eisgruber claims that unelected judges with life tenure and high prestige are more likely than the people at large or elected officials to respect the "impartial" demands of justice. Perhaps so. But not necessarily so, even if one accepts such a conception of morality. Can we be confident that decisions by nine judges in a relatively narrow range of constitutional cases are more likely to represent the moral voice of "the people as a whole" than are the combined results of deliberations and actions by the people at large and governing officials who purport to represent them in various capacities and ways? We have even more reason to be skeptical of Eisgruber's claims if we regard principles of political justice (if not justice more generally) as constituted at least in part by interest-based and/or partial commitments--including along the dimensions of inclusiveness and perspective as suggested in the previous paragraph. One's position on this issue is likely to hinge on whether one agrees with Eisgruber that "[w]hen other political institutions have pandered to the American people's baser selves, the Court has frequently had backbone enough to stand up for the people's values" (p. 210).

At stake is not only how one conceives of "the people" or principles of morality and justice reasonably attributable to them, but also how one conceives of the functions of constitutions in general and the U. S. Constitution in particular. Do they reflect and reorder the messiness of politics or provide institutional mechanisms to rise above the influence of particular interests and parochial commitments? Are the demands of positive law and political morality merged in the case of the U. S. Constitution or potentially and practically at odds?

The measure of a book's value is not whether one finds its arguments fully persuasive, internally consistent, or suitably qualified. More important for a book like this with far-reaching analytic aims is whether it stimulates and contributes to constructive reconsideration of important issues of constitutional politics -- including in ways that enable seeing them in new lights. That is the central function of constitutional theorizing. On this score, CONSTITUTIONAL SELF-GOVERNMENT succeeds admirably. It is well worth engaging.

REFERENCES:

Dworkin, Ronald. 1996. FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION. Cambridge: Harvard University Press.

Rawls, John. 1996. POLITICAL LIBERALISM. New York: Columbia University Press.

**************************************************************************

Copyright 2002 by the author, Wayne D. Moore