Vol. 9 No. 11 (November 1999) pp. 489-492.
BRENNAN AND DEMOCRACY by Frank I. Michelman. Princeton, NJ: Princeton University Press, 1999. 148 pp. Cloth: $24.95
Reviewed by Bradley C. Canon, Department of Political Science, University of Kentucky.
Harvard law professor Frank Michelman clerked for Justice William Brennan during the 1961 Term and has ever since admired him both personally and jurisprudentially. In BRENNAN AND DEMOCRACY, Michelman extracts or infers some of the late justice's constitutional philosophy from his opi nions and sets it in the broader arena of more academic debate about constitutional theory. The book has just two chapters. They come from two law journal articles (Michelman 1991; Michelman 1998), both published versions of Michelman's contributions to two symposiums on Brennan's significance to constitutional law. The chapters are not really sequential or particularly related; the author tells us that each can be read independently. Michelman has revised them so that they are readable to a more general audience. Even so, there were times when I found it hard to follow his discussion.
Chapter 1 focuses on the paradox of justifying judicial review in a democracy. The discussion is set at a high level of abstraction with Michelman only occasionally touching on how Brennan's jurisprudence relates to this paradox. Rather, Michelman bases his discussion on the work of two theorists who are seemingly poles apart in their approaches. One is Ronald Dworkin. Dworkin's concept of democracy is based upon a "moral reading" of a nation's basic charter, a "pre-inscription into the basic laws of a country of whatever constraints on subsequent political action are required to secure and maintain those democracy-constituting relations of equality, independence, freedom and security" (p. 33). Thus the Constitution must be interpreted in light of unyielding moral foundational principles centered on individual rights and dignity. The "laws of lawmaking" (Michelman's term for basic charters) that protect individual rights thus must be beyond popular control, at least as exercised through ordinary electoral politics and subsequent legislation.
The second theorist is Robert Post. In contrast to Dworkin, Post eschews foundational principles and argues for "responsive democracy . . . a political system built upon an uncompromising commitment to radically free public discourse" (pp. 35-36). In other words, the political system, including its "laws of law making" is constantly being reforged and retested. The only unyielding requirement is that everybody be able to participate in and receive others' contributions from the ongoing public discourse.
Where does Justice Brennan fit between these seemingly polar approaches? Michelman's answer is: at both poles. To the author, Brennan personifies this paradox. Here was a judge who believed deeply in broad and informed participation in the development of public policies but who also epitomized judicial activism in voting to
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strike down many popular laws that he believed violated the moral worth of each person, such as death penalty statutes.
Although Brennan seldom wrote in abstract theoretical language, his position is perhaps most succinctly summarized in his famous response to former Attorney General Ed Meese's attack on the Supreme Court for striking down popular laws that Meese believed the Framers would have approved: "Faith in democracy is one thing, but blind faith is another," he said (p. 6). For the late justice, it was democracy AND distrust, to cite the title of John Hart Ely's (1980) famous book on solving the paradox which, oddly, Michelman ignores.
Chapter 2 is called "Brennan's Democratic Liberalism" and it argues that (surprise!) Justice Brennan was a committed constitutional liberal. Michelman relies on William Galston (1991: 53) to define constitutional liberalism: a ... doctrine of private individual and institutional rights, a judiciary dedicated to the enforcement of those rights, a system of representation designed to mute the excesses of popular passions, a constitutional framework that impedes the hasty translation of publicimpulses into sweeping changes of fundamental law, and, above all, a private sphere diverse and capacious enough to mount a stern defense against public encroachment.
Unfortunately, this hardly distinguishes liberalism from conservatism. Indeed, if this quote were offered anonymously in the 1930s, we would almost certainly attribute it to a conservative opponent of the New Deal. Perhaps principled (as opposed to political) constitutional liberalism cannot really be distinguished from its conservative counterpart. At any rate, Michelman's initial depiction of Brennan's place in the broad ideological panorama of constitutional interpretation is far too imprecise to be useful.
Moving on to some components of liberalism, Michelman more valuably posits Brennan as a constitutional romantic in the sense that Steven Shriffrin (1990) advances the concept. Michelman. Describes a liberal romantic as a person who sees a more prosperous and just world ahead, so democracy "becomes not just a procedural but a substantive ideal" (p. 71). Indeed, Brennan was open about this. In his response to Meese he claimed that, "the Constitution embodies the aspiration to social justice, brotherhood and human dignity" (p. 1) and argued that the role of constitutional interpretation is to make America become "as a shining city upon a hill" (p. 16). We achieve this by empowering the disempowered and reconnecting the alienated, so a constitutional romantic such as Brennan has "solicitude for agitators and disturbers [and a] corresponding coolness toward the bureaucratic yearning for order and control" (p. 72) along with a sympathy for moral passion and moral reasoning. This is the Brennan we know-- the champion of the outsider in such opinions (usually dissenting ones) as NAACP v. BUTTON (1963), TEXAS v. JOHNSON (1989), WALKER v. CITY OF BIRMINGHAM (1967), GREER v. SPOCK (1976), and FCC v. PACIFICA FOUNDATION (1978).
Likewise, Michelman rejects claims that Brennan was a communitarian. Except for the justice's approval of the
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constitutionality of affirmative action (e.g., METRO BROADCASTING v. FCC, 1990), there is little basis for such claims. Brennan, Michelman argues, "is decidedly individualist and yet decidedly non 'atomist'" (p. 91). This is seen in his frequent rejection of tradition as a basis of constitutional law, e.g., ELROD v. BURNS (1976), his concurrence in RICHMOND NEWSPAPERS v. VIRGINIA (1980), and dissenting in MICHAEL H. v. GERALD D. (1989).
For Justice Brennan, Michelman asserts, individuals were the bottom line. Of course, individuals are enmeshed in communities and cultural lives. Governance is necessary, but it must be sensitive to the perspectives and values of all. To this end, the good state devotes some of its power to establishing and maintaining social structures of "fair and open cultural and visionary contention" (p. 134). Although this does not logically require partial government by judiciary, in our system judges better than anyone else can insure us the space necessary to achieve change through participation by all.
BRENNAN AND DEMOCRACY is a useful book, but not an outstanding one. As noted, it is sometimes hard to follow and works from an inadequate definition of constitutional liberalism. More problematic, it deposits the general reader into the complex crosscurrents of constitutional theory without a sea chart. Michelman never contrasts Brennan's philosophy to those of the other justices on the Court or even gives us background about the main currents in constitutional interpretation. He does not inform the larger audience he targets, so BRENNAN AND DEMOCRACY's utility is largely limited to those who can navigate the seas of constitutional theory. But such people are not an insignificant group and Professor Michelman has given them a sensitive and penetrating analysis of Brennan's contribution to the practice of American constitutional theory.
REFERENCES:
Brennan. William J. 1985. "The Constitution of the United States: Contemporary Ratification." Speech delivered at Georgetown University, on file with the editor.
Ely, John Hart. 1980. DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (Cambridge: Harvard University Press.
Galston, William A. 1991. LIBERAL PURPOSES. Cambridge: Cambridge University Press.
Michelman, Frank I. 1991. "Super Liberal." VIRGINIA LAW REVIEW, 77: 1261-1332.
Michelman, Frank I. 1998. "Brennan and Democracy." CALIFORNIA LAW REVIEW 86: 399-427.
Shiffrin, Steven. 1990. THE FIRST AMENDMENT, DEMOCRACY AND ROMANCE. Cambridge: Harvard University Press.
CASE REFERENCES:
ELROD v. BURNS, 472 U.S. 347 (1976).
FCC v. PACIFICA FOUNDATION, 428 U.S. 726 (1978).
GREER v. SPOCK, 424 U.S. 828 (1976).
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METRO BROADCASTING CO. v. FCC, 497 U.S. 547 (1990).
MICHAEL H. v. GERALD D., 491 U.S. 110 (1989).
NAACP v. BUTTON, 371 U.S. 417 (1963).
RICHMOND NEWSPAPERS INC. v. VIRGINIA, 448 U.S. 555 (1980).
TEXAS v. JOHNSON, 491 U.S. 397 (1989).
WALKER v. CITY OF BIRMINGHAM, 388 U.S. 307 (1967).