ISSN 1062-7421
Vol. 11 No. 10 (October 2001) pp. 460-462.

FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL GOVERNMENT by Jed Rubenfeld. New Haven, Conn.: Yale University Press, 2001. 266pp. Cloth $35.00. ISBN 0-300-08048-4.

Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University.

Jed Rubenfeld's book calls to mind the aggregate multimedia output of William F. Buckley. What the author of FREEDOM AND TIME and the founder of
NATIONAL REVIEW and FIRING LINE share is not political philosophy but extraordinary intelligence and erudition and the habit of displaying them. Chapter 1 of this book cites Milan Kundera, Guillaume Apollinaire, Sigmund Freud, Norman Mailer, and Bertrand Russell-and that's only in the first three pages. The admiring blurbs on the book's jacket indicate that this erudition has impressed some readers. However, it is likely to intimidate or annoy others. Worse, whatever the audience's reactions to the quotations and references, they draw attention to the author and away from the book.

Rubenfeld's thesis is not made any more accessible by sentences like, "Once cormorant time begins to devour inherited law, once a superstitious reverence for the power of what is dead and gone has been exploded, then the law laid down yesterday is in principle as non-obliging as the law laid down twenty or two hundred years ago" (p. 28). Idiosyncratic word choices, like "speech-modeled self-government" (p. 14) to mean "government by the present will or voice of the governed" (p. 74), or "popularity" to mean "the status or condition of being a people" (p. 145) erect yet another barrier to understanding. The reader who ignores these barriers will not discover the masterpiece that the blurbs promise. Rubenfeld's conclusions are familiar to students of constitutional interpretation, but the path he travels to arrive at these conclusions leads through unexplored intellectual territory to some valuable insights and new ways of thinking about constitutional jurisprudence.

Rubenfeld asserts that constitutional interpretation is corrupted by "the demand to live in the present" (p. 3) that pervades our culture. This societal imperative presumes that freedom requires a break between the present and the past. Rubenfeld finds this notion in such diverse authorities as Jefferson's belief in short-lived governments, Freud's admonition to get free of the past, and the organizing principles of postmodernism and contemporary economics. For Rubenfeld, this focus on the present subverts the very freedom it is supposed to protect. "Freedom can never be had in the here and now" (p. 7) because freedom is not a state of being; it is a process of becoming. "Time is necessary in a special way to the beginning of things human: of human being and hence of human freedom" (p. 7). It takes time to become a free people.

Now, this is all very elegant, but its meaning is obscure and its truth is posited rather than argued. However, the same is

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true of the premise of presentism that Rubenfeld rejects; perhaps he should be excused for the truths he holds to be self-evident. While the prevalence of "be here now" rhetoric in modern Western society is indisputable-and Rubenfeld plays fair, citing only his intellectual equals and superiors--constitutional law is one intellectual domain where presentism might not appear to dominate. The ongoing debate over "originalism" suggests that some contemporary jurists may share Rubenfeld's conviction that to be free in the present, we must learn from the past. But, he argues, originalists are Jeffersonians at heart; their emphasis on judicial self-restraint exposes them as, "champions of the right of present citizens to be governed by their own will" (p. 63).

Rubenfeld's counterproposal to speech-modeled interpretation, originalist or otherwise, is "a conception of self-government as living out, over time, commitments of one's own authorship" (p. 14.) Since "democratic self-government is something that itself exists, if it exists at all, only over time" (p. 11), it demands the kind of continual activity that was once called recurrence to first principles. A written constitution and its interpretations comprise "a democratic effort by a people to write down and live up to its own foundational commitments over time" (p. 43). Democracy "requires an inscriptive politics, through which a people struggles to
memorialize, interpret, and hold itself" (p. 163) to these commitments. Rubenfeld names this politics "constitutionalism as democracy" (Chapter 9.) Far from being antithetical, constitutionalism and democracy are inseparable. Far from being incompatible with democracy, constitutionalism "is required by democracy" (p. 168).

Up to this point, Rubenfeld's thesis is a complex, sophisticated variant on the arguments of Alexander Hamilton in FEDERALIST 78 and John Marshall in MARBURY v. MADISON (1803): the Constitution is superior paramount law because it expresses the will of the people. However, that argument does not get us from constitutionalism to judicial review. MARBURY rested that segment of its argument on the judges' role as appliers of law to cases. Rubenfeld's solution is to assert that constitutional interpretation by popular will, direct or indirect, would make the people judges in their own case. The difficulty with this argument is that judges are both part of the people and part of the government. In both capacities, they may become judges of their own cause-and the result may be decisions like BUSH v. GORE (2000).

Judicial review is so widely accepted by American constitutionalists that the question is all but closed. However, Rubenfeld is one of many defenders of the practice. For those who retain the nagging doubts encouraged by Gibson's dissent in EAKIN v. RAUB (1825)-shouldn't the people affirm their own foundational commitments? Rubenfeld's defense will probably not be any more reassuring than others, but it is different. Most proponents of judicial review accept the premise that judicial review is un-, anti-, or counter-democratic. That point conceded, proponents have at least two ways of dealing with it: by arguing that majority rule needs some limits, or by reverting to conventional definitions and insisting that the government is not a democracy at all, but a constitutional republic. Rubenfeld is, as far
as I know, alone in rejecting the premise of incompatibility and, thereby, the identification of democracy with majoritarianism. Whether this

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constitutionalism as democracy is a path-breaking intellectual construct or an insult to contemporary jurisprudential English is a matter for the reader to decide. This reviewer would prefer to keep the old meaning of "democracy." If the word can mean anything we choose it to mean, maybe, as we were told a decade ago, Kuwait really was a democracy.

From his concept of the Constitution as "a project in temporally extended, communitarian self-government," Rubenfeld derives an interpretive method that he calls "paradigm case interpretation" (p. 178). This mode of interpretation posits that the meaning of a constitutional guarantee is secured by one or more "paradigmatic instance[s] of its application" (p. 182). For protected rights, this must be something forbidden, not something allowed or unremarked upon. For the Fourteenth Amendment, the post-Civil War Black codes constitute such an instance; the amendment invalidated the codes. That is why BROWN v. BOARD OF EDUCATION was correctly decided; the school segregation it rejected was based on similar race-specific laws, and the existence of segregated schools when the amendment was ratified is immaterial.

A similar reasoning process leads Rubenfeld to a qualified defense of ROE v. WADE (1973). "An anti-totalitarian right of privacy" forbids the state to force a person "into a life-script of the state's choosing" (p. 226); forced childbearing compels a woman to become a mother; therefore, abortion may be forbidden "only at a point far enough along in pregnancy so that women have a reasonable time' to obtain one "if they so choose" (p. 252). This conclusion relies heavily on John Stuart Mill, whose theories the Fourteenth Amendment no more enacts than it does Herbert Spencer's. Rubenfeld will not convince the intellectual heirs of Oliver Wendell Holmes and Hugo Black. But he has added yet another creative constitutional defense of abortion rights to the scholarly literature.

So, paradigm case interpretation of rights claims requires us to examine the relevant text and ask what evils it was designed to prevent. This does not sound very different from Sotirois Barber's "constitutional aspirations" (1984, chapter 5) or Justice Brennan's discourse on interpretation in his concurrence in ABINGTON v. SCHEMPP (1963). Just as he found one more way to justify the abortion decisions, Rubenfeld has found yet another way to justify judicial activism. In neither area is his argument any less vulnerable to criticism than anyone else's, but his original conceptions of constitutionalism, democracy, and popular will make this a book worth reading.

REFERENCES:

Barber, Sotirios A. 1984. ON WHAT THE CONSTITUTION MEANS. Baltimore: Johns Hopkins University Press.

CASE REFERENCES:

ABINGTON SCHOOL DISTRICT v. SCHEMPP, 374 U.S. 203 (1963.).

BROWN v. BOARD OF EDUCATION I, 347 U.S. 483 (1954.)

EAKIN v. RAUB, 12 Sargeant & Rawle 330 (Pa. 1825).

BUSH v. GORE, 121 S. Ct. 525 (2000.)

MARBURY v. MADISON, 1 Cranch 137 (1803.)

ROE v. WADE, 413 U.S. 110 (1973.).

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Copyright 2001 by the author, Judith A. Baer.