Vol. 6, No. 3 (March, 1966) pp. 45-47
THE CONSTITUTION AS POLITICAL STRUCTURE by Martin H. Redish. New
York: Oxford University Press, 1995, 229 pp.
Reviewed by Lettie McSpadden (Wenner), Department of Political
Science, Northern Illinois University
In this concise, closely reasoned, well written book, Professor
Redish argues that the Supreme Court misguidedly abandoned its
pre-New Deal focus on federalism and separation of powers issues
in constitutional law. This became especially evident during the
Warren Court years when an overemphasis was given to civil
liberties. He argues that the framers intended that the Supreme
Court stand as referee between states and central government and
between executive and Congress, and that recent courts have
illegitimately abandoned this role. In the first chapter, Redish
locates his approach somewhere between the strict interpretivists
who believe the Constitution can only be construed in light of
the experience of the men who wrote it, and the pragmatists who
want to see the needs of society influence Constitutional
interpretation. Calling himself a pragmatic formalist he calls
for greater attention to two major concerns: the relative
authority of the central government and state governments, and
the relationship between Congress and the executive branch of
government.
The second chapter is about federalism and the need for the
Supreme Court to define Congressional authority to prevent the
central government from regulating purely intrastate commerce on
the theory it influences interstate commerce. He applauds Justice
O'Connor's opinion in NEW YORK V. UNITED STATES insofar as it
"appears to signal the Court's re-entry into the area of
constitutional federalism" (p. 23). But he deplores the fact
it simply overturned Congress's authority to tell states what
legislation they must pass, because in so doing she implied that
Congress can still apply federal law to states regardless of
topic and can preempt state law. Redish wants the Supreme Court
to attribute more power to the states, although he does not tell
us what he wants them to do. His reason is the familiar one: that
the tenth amendment has been reduced to a truism since the 1930s
when the high court stopped restricting Congressional authority
over states. He deplores the expansion of the interstate commerce
clause, which when combined with John Marshall's necessary and
proper clause interpretation, allows the federal government to do
anything useful to achieve its legitimate ends. He challenges the
arguments of such constitutional scholars as Jesse Choper who
advocate a greater role for the federal government. Redish would
prefer to replace the rational basis test for federal laws with a
more stringent one that would invalidate such laws as the
Consumer Credit Protection Act which regulates what he perceives
as purely intrastate behavior. Rather than allowing Congress to
define its own limits, the Supreme Court should insist that
Congress prove to courts that the activities it regulates have
interstate impact.
In the third chapter Professor Redish turns from deploring what
the federal government can do to regretting what the Supreme
Court prevents the states from doing. He attacks the dormant
commerce clause interpretation which allows the federal courts
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to overturn state laws not on the grounds that Congress has
preempted the states, but on the theory that it might do so, and
since it has not, states have to refrain from imposing their own
laws. Redish uses the tried and true democratic argument about an
unelected federal judiciary having no right to tell states what
their elected representatives may not do, based on no explicit
constitutional provision. Since the 1930s, he argues, the Supreme
Court has not questioned precedents establishing the dormant
commerce clause, willy nilly striking down state regulation of
such items as non-uniform truck mud flaps and length of trains.
The constitution does not give Supreme Court authority to decide
what parts of commerce are exclusively the federal government's.
Congress is the best judge of what states can and cannot do to
regulate commerce, not courts, which have no built in sympathy
for states, as Congress has. There are for Redish three
categories of state authority: 1) where action by the states is
prohibited by the constitution; 2) where state action is
authorized by Congress; and 3) where state action is preempted or
overridden by Congress.
There is one class of law that might give Professor Redish pause
in his plea for all-encompassing state power: laws that
discriminate against out-of-staters. The privileges and
immunities clause stops states from discriminating against
foreigners without need of a dormant commerce clause. The fact
that corporations have not been defined as citizens for
privileges and immunities purposes gives Redish pause, but he
quickly resolves this dilemma by suggesting that since they have
been declared "persons" under the 14th amendment, why
not make them citizens as well? This solution may answer the
unasked question throughout the book: what does the author wish
to accomplish by giving states more authority? The author would
deny any result oriented goal, but greater freedom for
corporations to determine their own destiny through favorable
state legislation would appear to be a possible motivation.
Like Locke, Montesquieu, and the framers, Professor Redish, in
the fourth chapter, argues that separation of powers is
absolutely necessary to prevent tyranny. Pragmatic formalism
insists that governing powers must be carefully divided to
prevent accretion of power, not just stop its use when one branch
of government becomes tyrannical. The author attacks those
theorists who argue for the federal government to be able to act
quicker and more comprehensively. He labels a parliamentary
system with same party controlling both legislature and executive
as inoperable in the United States because of our heterogeneous
population. Redish cautions liberals that if the President were
to become too powerful, it might be a Ronald Reagan. He abhors
the concept of "inherent" powers of the Presidency and
agrees the Gramm-Rudman Hollings Act was partly unconstitutional
because it assigned an executive task to a legislative officer.
The Congress's attempt to appoint an independent prosecutor for
investigating wrong doing in the executive branch is also
unconstitutional because this is an executive function, although
this argument is aimed at neither the Watergate nor Whitewater
prosecutors.
Chapter five attacks the delegation of powers from Congress to
the executive. Pragmatic formalism views both the Court's
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abandonment of the non-delegation doctrine and its refusal to
legitimate the legislative veto as actions that have made the
United States less democratic. Professor Redish applauds the
early pre-1937 court that struck down numerous New Deal laws on
the principle of overly broad delegation of legislative power to
the executive. Again the author trots out the traditional
democratic theory argument against having unelected bureaucrats
make policy decisions that only Congressional representatives are
constitutionally empowered to make. Redish argues that presidents
are not accountable to the public for their officers' decisions
because voters do not make their choices based on who is
Secretary of the Interior. (However, he does not acknowledge the
ousting of such office holders as James Watt, Ann Gorsuch Burford
or even Mike Espy because of their notoriety and bad press). Yet
the Redish argument for a non-delegatable law is one that fails
to give the voter a reason for supporting or voting against a
Congressional representative who votes for the law.
The concluding chapter candidly states that a reader might decide
that the author of this book "adopts a general approach to
constitutional interpretation consistent with the views of
scholars of the political right" (p.163). I would certainly
agree with that statement. But Professor Redish maintains the
usual disclaimer that his only interest in constitutional theory
is purely for the sake of interpretational purity and the
democratic process, not because he is interested in any
particular political outcomes. It is apparent, however, that if
his views were adopted, the consequences would be the adoption of
many conservative policies.
Copyright 1996