Vol. 8 No. 6 (June 1998) pp. 270-271.

THE CONSTITUTION AND THE PRIDE OF REASON, by Steven D. Smith. New York: Oxford University Press, 1998. 203 pp. Hardback $39.95. ISBN: 0-19-5117476.

Reviewed by Robert B. Thigpen, Professor of Political Science, University of New Orleans.

Although he realizes that many believe constitutional interpretation, whether by judges or commentators, is "just politics," Steven D. Smith, the Byron R. White Professor of Constitutional Law at the University of Colorado, hopes to "make sense" of how this interpretation "hangs together." To Smith, the framers were men of the Enlightenment who thought that political affairs could be controlled through human design. This design, expressed in the Constitution, would correspond to the natural order, making human affairs the expression and embodiment of reason rather than of force and fortuity, which had characterized previous governments. The framers thus united the classical conceptions of nature and the Great Chain of Being philosophy with modern Cartesian rationalism. While the former strand emphasized that political thinking and constitutional formulations could correspond to a providential plan, the latter stressed that reason was the antithesis of tradition and authority. Human reason would set forth in a written document a governmental structure that would channel ordinary human nature and politics, thus protecting human autonomy while promoting public order, rights, and justice.

Smith insists that the framers were wrong in their predictive judgment that the enumeration of the national government's powers would hedge national power against the states and protect individual rights. Today, "the actively enforceable constitutional limits on national powers are few and frail," based "more on loose tradition, policy, and convenience than on binding constitutional restrictions" (52). In consequence, almost the entire burden of checking government has fallen on the judicial elaboration of individual rights rather than on interpretation of the enumerated powers, even though Smith shows that Congress adopted the Bill of Rights with very little attention or debate. This means that although the originally conceived Constitution was designed to provide the practical conclusions of reason, not an ongoing discourse of reason, we have had to translate constitutional meanings about human rights.

Smith contrasts the incremental interpretation of common law reasoning with the more philosophical approach exemplified by writers like Bruce Ackerman, Ronald Dworkin, and Robin West. Smith concentrates on the latter approach because he thinks the "big cases" cannot be explained without considering the principles underlying formulations of constitutional rights or their meaning when applied in concrete cases. The problem with this approach, Smith argues, is that it follows the emphasis in modern philosophy on evaluating existing practices and interpretations through the exploration of shared values. This conventionalist view, which Smith calls "regulatory reason," attempts to set forth the principles that we may not realize are implicit in our beliefs; these scholars try to show what we believe "deep down" and then argue that our superficial beliefs are inconsistent with our more fundamental commitments.

As an example, Smith discusses Dworkin's argument that anti-abortionists cannot logically say at the same time that abortion is murder and also that there should be a right to abortion under limited circumstances like rape or incest. The argument presumes that since their position is illogical, anti-abortionists do not really believe it. Smith insists that there is nothing in logic or psychology that prevents people from holding inconsistent beliefs and also nothing in Dworkin's argument that shows the pro-life position is false in any objective sense. However, Dworkin's assumption that people want at least to appear to be consistent seems well grounded. If Dworkin's argument were seriously considered, at least some persons might conclude either that aborting a fetus is not identical to killing a born person or, which may be more probable (though not to Dworkin's liking), that there should be no exceptions for rape or incest.

Most fundamentally, Smith thinks that the regulatory conventionalist approach to constitutional reason cannot show in its own terms that there is something morally wrong with the inconsistencies it finds in actual beliefs. He recognizes that the demise of the concept of nature as a structure with normative dimensions has made discourse about the moral principles in constitutional language problematic. Yet, he also seems to demand that constitutional interpretation be grounded in some sort of foundationalism, a conception of some beginning point of absolute certainty from which to judge beliefs. However, even if we think such a vantage point is not attainable, there are still better and worse reasons for constitutional interpretations. Perhaps the goal of reason is not to achieve the one absolute truth about constitutional provisions but rather interpretations that are more or less strongly grounded in arguments and evidence. Constitutional interpretation need not abandon reason because it rejects foundationalism.

Smith himself has little quarrel with the demand of "regulatory reason" that government must give reasons for policies. Yet, he thinks regulatory reason ultimately leads to sophistry and to ad hominem attacks, which bring the degeneration of constitutional discourse. Such discourse, he thinks, really deals more with rationalization than with reasons and cannot sustain the claim that judges should have the power of judicial review over decisions the people make through democratic politics. In the end, Smith believes that much interpretation and judicial decision making is simply an expression of pride, the portrayal of human interests as reason. The philosopher he finally turns to in explaining this tendency to pride is Reinhold Niebuhr. We must remember, however, that while Smith is correct in emphasizing Niebuhr's view that it is futile to think that reason can completely grasp and control reality, Niebuhr did not deny the possibilities of human reason. He thought that excessive claims for reason constitute idolatry, the desire to rise to the level of God; at the same time, the abandonment of all hope in reason constitutes the rejection of the human condition, a sinking to the level of beasts.

Despite questions raised by Smith's argument, he ultimately succeeds in his goal. He provides a stimulating assessment of the problems faced by contemporary approaches to the determination of constitutional meanings, particularly in relation to the overall role of reason. His analysis should be useful to constitutional scholars, to persons in other academic fields and to members of the general public who are concerned about constitutional interpretation.

___________________________________________________________________________________________________________________________