Vol. 11 No. 3 (April 2001) pp. 141-144.

CONSTITUTIONAL INTERPRETATION: ILLUSION AND REALITY
by Jeffrey M. Shaman. Westport, Conn.: Greenwood Press, 2001. 266 pp. Cloth $69.95. ISBN 0-313-31473-X.

Reviewed by David S. Mann, Professor of Political Science, College of Charleston.

When one's bookshelves are overflowing with works on constitutional interpretation--and one knows that there are many times those numbers available--why would yet another be attractive? To belabor the obvious, if the author has something relatively new to say, if it is instructive, if it is innovative, and if the method is sound, then the book has some value. Shaman's book succeeds in some respects. Depending on the professors' own views, law school constitutional law professors will find a unique point of view which will assist in either supporting or whipping Shaman. Undergraduate professors, which I am, may find something new to transmit in the much more basic upper division undergraduate constitutional law course.

That most of Shaman's arguments have been seen before is best explained by the fact that five of the seven chapters are revisions of law review articles. So the glue that binds the chapters together is not very strong; sometimes it felt like the book was a reader rather than a tome. The author's subtitle, taken from one of the chapters, suggests the dominant theme. Throughout its history, the U. S. Supreme Court often decides cases much as a magician entertains, through illusion rather than reality.

Entitled "Constitutional Creativity," Chapter One's first published version was in 1982. This chapter is an easy read and, quite frankly, there isn't anything really new here. Shaman is up front about his ideological position on constitutional interpretation. He argues against original intent, and therefore is strongly critical of the views of Rehnquist, Scalia, Bork, and the late professor Berger. Just because the Court may go beyond original intent (one of the arguments is the ever familiar 'how do we know what the framers intended?') in interpreting the Constitution, that doesn't mean the Court is engaging in "illegal excursions.... [T]he Supreme Court has always been creative; otherwise, it would be unable to fulfill its constitutional responsibility of providing meaning for the Constitution" (p. 26).

"Formalism v. Realism" comes next; a first published version appeared in 1994. This chapter takes a familiar path as well. Shaman asserts that justices put cases into categories and make decisions based on where they put the cases. This, he says, provides an illusion in much the same way as legal formalism was an illusion and was replaced by legal realism. "The entitlement standard, the right-privilege dichotomy, and the direct-indirect test of interstate commerce are legal constructs of a highly formal character. [T]hey make no sense and have no reason" (p. 43). He argues that balancing, as a method of decision-making, solves the "deficiency" (his term at p. 44). As a method of interpreting the Constitution, balancing is better than precedent, original intent, and history. It is the return to formal

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categories, seen in some recent Court decisions, that "provide an illusion of certainty" (p. 58), but "is no more certain than balancing, and perhaps less so" (p. 58).

Shaman's Chapter Three, "The Levels of Scrutiny," I found most attractive. Apparently not a new argument, since an earlier version was published in 1984, nonetheless it was new to me. What the Court has done is establish through time three familiar tiers of scrutiny for judicial review, yadda yadda, and figures out which cases it will look at with strict scrutiny and so forth. Following along the same lines as the first two chapters, Shaman argues that this is a dead end road. Shaman believes the categories of strict scrutiny, intermediate scrutiny, and rational basis are now quite confusing and the whole system "threatens to collapse of its own complexity" (p. 74). In reading this chapter I was reminded of Edward Levi's description of legal reasoning (1949). Courts create doctrine, and then in subsequent cases simply decide whether the cases are "in" or "out," until the categories become confused and a new doctrine emerges. In essence, though he to my
recollection doesn't cite Levi, Shaman is making the same point. In courses at the undergraduate level, we discuss the levels of scrutiny for suspect classes of persons, and sometimes lively debates ensue on why one class of persons is considered to be in the strict scrutiny category and other classes are not. The next time I teach the course I want to introduce Shaman's argument. We ought to reconsider the entire tiers of scrutiny scheme because it is rigid, inhibits analysis, and is internally inconsistent. Shaman argues instead that like Justice Brennan's opinion in PLYLER v. DOE (1972), "the Court need not be bound by the artificial constraints that plague the multi-tier system and that have forced the Court on numerous occasions to manipulate constitutional principles" (p. 111). How ironic it would be for Shaman that the tiers would collapse as he wishes, but the author would be Justice Scalia. Maybe this is one of those times where we ought to be careful about what we wish for.

An earlier version of the brief Chapter Four was published in 1983. Shaman here follows up on the previous chapters by suggesting that the Court manipulates constitutional facts in much the same way as it ascertains original intent and uses formalism to place cases in categories of scrutiny. The Court obscures its own function by asserting that it is not making law. The Court disguises, invoking "the divine ordinance, the natural order, the fundamental laws of government, the lessons of history, the norms of civilization, the concept of ordered liberty, and the sense of justice" (p. 137). The Court again builds a "facade" (p. 137) that it is finding the law rather than creating it.

The "Puzzle of Legislative Intent," Chapter Five, is not based on previously published materials. Once again, the arguments are familiar: how can legislative motive be determined, how does the Court address allegedly illegal motives, and, indeed, why should motive matter at all? Shaman asserts that the religion clauses, the speech clause, legislation which discriminates, and instances where legislation harms, are all topics where the Court regularly reviews legislative motive, even while claiming that legislative motive is irrelevant. Just as legislative motive should not be ignored, in the instance of the Court reviewing popular referenda, neither should the Court ignore the public's motive.

The speech clause is the focus of Chapter Six, which Shaman called in 1995 and now "The Theory of Low-Value

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Speech." Here we have a topic where the Court's case history is packed with a lot of what my late professor Charles Sheldon called "good stuff." It would be difficult to argue that the Court treats all speech cases alike. As with George Orwell's Animal Farm, all speech is important to the Court, but some speech is more important. Shaman's discussion is organized around some of the fun--but at the same time very serious--topics of low-value speech: fighting words, obscenity, child
pornography, sexually explicit expression, profanity, libel, commercial speech, pornography, hate speech, and loathsome speech. There is a discussion
redux of levels of scrutiny in this chapter. For a theoretical focus, Shaman discusses the work of Meiklejohn (1948) and Karst (1975), who he prefers to Schauer (1981) and Sunstein (1986). In the end, Shaman quotes Harry Kalven's warning that by creating levels of speech protection, the Court's decisions may have "unhappy repercussions on the protection of free speech generally" (p. 214, citing Kalven 1960 :17). Not addressed in this chapter is BUCKLEY v.
VALEO (1976), which seems to lurk in the shadows of current events--how does campaign finance qua speech receive more protection than it deserves? This
chapter had an awe-inspiring 335 footnotes.

The last chapter, "The Vicissitudes of the Fourteenth Amendment," is not based on previously published material and by its length cannot do anything but skim the surface. The essence of this chapter is that there are fundamental rights, but there will be no new fundamental rights--at least with the current Court. The Court decides based on its view of history what is a fundamental right. Shaman sees some potential in SAENZ v. ROE (1999), where the Court seemed--at least for that case--to resuscitate the privileges and immunities clause. That clause could serve to protect more individual rights, in his view.

There is no concluding chapter; there is no summary other than in the individual chapters. There is no bibliography per se; there is an index of cases, authors, and topics. The footnotes are at the end of each chapter and total 1484 for the volume. Some discussions seem to be cut off.

There are two other constructive comments I would make. First, the writing is uneven, perhaps because so much of the work was based on previously
published material. Sometimes the book seemed to be written for the law school professor; at other times, the writing seemed more basic and instructive. Shaman could have decided on an audience first, and adjusted the writing accordingly. Second, I would like to have seen Shaman continue his model of illusion and reality to other important topics of constitutional law such as federalism and the scope of national government power. Those issue spaces, though not nearly as glamorous as speech and the 14th Amendment, always have dominated American political life. Overall, though, would it be illusory to initiate a set of categories for LAW AND POLITICS BOOK REVIEW by writing that this book, taken as a whole, has serious academic value?

REFERENCES:

Kalven, Harry. 1960. "The Metaphysics of the Law of Obscenity," SUPREME COURT REVIEW, 1960: 1.

Karst, Kenneth L. 1975. "Equality as a Central Principle in the First Amendment," 43 UNIVERSITY OF CHICAGO LAW REVIEW 43: 20.

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Levi, Edward. 1949. AN INTRODUCTION TO LEGAL REASONING. Chicago: University of Chicago Press.

Meiklejohn, Alexander. 1948. FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT. New York: Harper.

Schauer, Frederick. 1981. "Categories and the First Amendment: A Play in Three Acts," VANDERBILT LAW REVIEW 34: 265.

Sunstein, Cass R. 1986. "Pornography and the First Amendment," DUKE LAW JOURNAL 1986: 589.


CASE REFERENCES:

BUCKLEY v. VALEO, 424 U. S. 1 (1976).

PLYLER v. DOE, 457 U. S. 202 (1972).

SAENZ v. ROE, 526 U. S. 489 (1999).



Copyright 2001 by the author, David S. Mann.