From The Law and Politics Book Review

Vol. 8 No. 10 (October 1998) pp. 382-385.

CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES by William N. Eskridge, Jr. and Sanford Levinson (editors). New York, NY: New York University Press, 1998. 286 pp. Cloth $60.00. ISBN 0-8147-5131-8. Paperback $21.00 ISBN 0-8147-5132-6.

Reviewed by James C. Foster, Department of Political Science, Oregon State University.

 

This fall, there has been some traffic on THE LAW AND COURTS DISCUSSION LIST [lawcourts-l@usc.edu] regarding interaction between scholarship done by political scientists and that produced by law professors. The gist of these postings—some interesting, a few silly—is that greater interaction ought to be fostered. Colleagues seeking an example of what such exchanges might promise can find one in the collection of "constitutional conversations" edited by Georgetown’s Eskridge and Texas’ Levinson.

This volume’s genesis traces to a Crescent City (New Orleans) conversation in jest between these two law professors "about the ‘stupidest’ provision in the Constitution" (p. 1), a conversation that took a serious turn when their colleague, John Ferejohn, suggested that "[a] scholarly conversation about constitutional stupidities would be a useful way to think systematically about the Constitution as a foundational, constitutive document" (p. 1). As these things sometimes go, conversation led to a symposium (at The Law and Interpretation Section of the American Association of Law Schools), which led to a forum in print (12 Constitutional Commentary (1995): 139-225), which led to a book. The book collects an introduction and thirty nine essays written by thirty nine scholars—mostly law professors with a smattering of political scientists. The authors list reads like a contemporary Who’s Who—an "A list" of sorts—of that part of the academy concerned with constitutional theory. (Scanning the Table of Contents reminded me of the lists of distinguished participants in two recent compilations in a different, albeit also political, genre: "Where Have All the Flowers Gone: The Songs of Pete Seeger," and "What’s That I Hear: The Songs of Phil Ochs.")

Contributors’ essays are divided into two parts. Essays in each part were written in response to a different question. Part I addresses: "What is the stupidest provision of the current Constitution?" The word "current" is important because Eskridge and Levinson laid down the ground rule that "[t]o avoid repetitious essays on slavery and Prohibition, we asked our respondents to nominate constitutional provisions that have survived . . ." (p. 2). (Prohibition nevertheless does come up as Laurence Tribe’s contribution identifies the Twenty-First Amendment as a "dumb" way to repeal the Eighteenth (p. 98).) Part II addresses: "What is the worst decision you would feel compelled to reach under your own favored theory of constitutional interpretation?"

Strictly speaking, the book is not really a "conversation" but rather a serial set of essays in which the authors occasionally respond in passing to points made in other essays. The most "conversational" essays are Eskridge and Levinson’s three contributions: "Introduction: Constitutional Conversations" (pp. 1-11), "How Stupid Can a Coasean Constitution Be?" (chap. 22), and "Antigone and Creon," (chap. 39). Linking these variegated writings—lending gravity to what may appear to be a novelty project (a "parlor game" as Philip Bobbitt characterizes it (pp. 18-21))—is the question of legitimacy. Both stupid provisions and tragic interpretations undermine constitutional authority. Why should American citizens adhere to a document containing many pointless provisions, and still other provisions interpreted by independent judges in ways that increase human misery? In short, if the document is wanting, why should we continue to want it? The authors whose briefly developed views are collected in Constitutional Stupidities, Constitutional Tragedies do not explicitly address this question. But, as a teaching tool, as distinguished from an entertaining read with star quality, this book offers law professors and political scientists alike abundant points of entrée through which we can engage our students in discussions of constitutional rights and wrongs.

LAW AND POLITICS BOOK REVIEW readers will choose their own favorites among the essays collected in Constitutional Stupidities, Constitutional Tragedies. Individual selections will be driven by each reader’s preferences. It would be a fool’s errand (not to mention presumptuous) for me to single out "the best." Still, I am not reluctant to specify some of the book’s "greatest hits" as far as I am concerned.

Here are three of my favorites as conversation starters:

Frederick Schauer posits that the Framers created "The Constitution of Fear" (chap. 17). His essay raises engaging questions about American political culture, constitutional design, and governmental capacity. He writes:

[N]o amount of attention, however appropriate it might be, to individual clauses and individual constitutional doctrines can transcend the fact that the degree of distrust of government in the United States appears to exceed that of most other countries in the world, including many in which citizens have far more reasons to distrust their government that we have to distrust ours (p. 87).

Perhaps those who constituted the American nation, as well as succeeding generations of American libertarians, have attended too little to the first horn of James Madison’s famous Federalist #51 dilemma—"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself" (emphasis added). Conceivably, the vaunted inefficiency of American constitutional government is "stupidly" dysfunctional.

For teachers seeking a good example of critical thinking—as distinguished from merely contrarian posturing—to share with students, Michael Seidman both models and advocates "corrective" (p. 90) thinking in his contribution, "Criminal Procedure as the Servant of Politics" (chap. 18). For Seidman, constitutional protections of the rights of criminal defendants are "stupid" because "a constitutional provision that does no more than make us more satisfied with outcomes that already satisfy us is not accomplishing anything worthwhile" (p. 90). When discussing the "preferred freedoms doctrine," I suggest that, AGUENDO, students entertain the notion that, since 1937, a troubling "double-double standard" has existed with regard to constitutional protections deemed essential to the "scheme of ordered liberty" (Palko v. Connecticut, 302 U.S. 319). Not only is "[t]he day gone when [the] Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions . . ." (Williamson v. Lee Optical Company, 384 U.S. 483 (1955), American fears fanned by political opportunism effectively have trumped constitutional protection of the rights of criminal defendants. (With regard to the second post-1937 double standard, I suggest to students that, believing that individuals who engage in criminal behavior forfeit their constitutional rights, significant segments of the American public seem to embrace the contradictory opinion that constitutional protections of criminal defendants ought to apply only to law-abiding citizens.) Seidman’s argument adds bite to this second part of my "double-double standard" analysis:

[T]oday, the Fourth, Fifth, and Sixth Amendments function mostly to make us satisfied with a state of affairs that should trouble us deeply. . . . In the United States today, over one million people are imprisoned, the largest number in our history and the second largest in the world (in terms of percentage of population) (pp. 90, 92).

I can employ Seidman’s piece to stimulate further conversation about constitutional priorities, symbolic politics, and standards for assessing Supreme Court decisions.

Moving from "stupidity" to tragedy, Jack Balkin fashions a thought-provoking argument in his essay, "The Meaning of Constitutional Tragedy" (chap. 24). He understands We the People as the flawed—hence tragic—hero in an ongoing drama of our own making. Slavery is the centerpiece of our national drama:

We see slavery differently than the generation of 1850 saw it. Because slavery is a constitutional evil of the past, we can afford to be suitably shocked and horrified that our predecessors let it continue as long as they did. We can look with scorn upon slavery’s apologists and with condescension upon the progressives willing to compromise with them. But is our position so different from theirs? The possibility of profound constitutional evil leads us, like them, to ever new strategies for allaying cognitive dissonance: we imagine that no evil existing today can be as bad as we now understand slavery to be (p. 127).

Balkin’s perspective on constitutional tragedy, and his introduction of hubris into the discussion, will enrich discussions not only in my constitutional law courses, but also in my gender politics course, and in my Gender and Race in American Political Thought course.

For me, this book’s ultimate value derives from its undergraduate pedagogical uses. The Constitution portrayed here is no reified set of divinely-inspired provisions, nor a "Machine that would go of Itself." (Kammen.) Rather, Eskridge and Levinson’s Constitution is a fallible human product; a product, moreover, with a lot of play in the joints (cf. Holmes in Missouri, Kansas, & Texas Railway Company v. May, 194 U.S. 267 (1904)). All of the essays contained in Constitutional Stupidities, Constitutional Tragedies demystify the Constitution, thereby rendering it open to scrutiny. At their most provocative, many of the essays therein provide rich raw material for classroom investigations.

REFERENCES

KAMMEN, MICHAEL A MACHINE THAT WOULD GO OF ITSELF: THE CONSTITUTION IN AMERICAN CULTURE. New York, NY: Knopf, 1986.

THE FEDERALIST PAPERS. Intro. Clinton Rossiter. (1961). New York, NY: New American Library.

"WHERE HAVE ALL THE FLOWERS GONE: THE SONGS OF PETE SEEGER." (1998). Appleseed Recordings, 1024.

 

"WHAT’S THAT I HEAR: THE SONGS OF PHIL OCHS." (1998). Sliced Bread Records, CD-SB71176.)

 

CASES

MISSOURI, KANSAS, & TEXAS RAILWAY COMPANY v. MAY, 194 U.S. 267 (1904

PALKO v. CONNECTICUT, 302 U.S. 319 (1937).

WILLIAMSON v. LEE OPTICAL COMPANY, 384 U.S. 483 (1955)


Copyright 1995