Vol. 5 No. 4 (April, 1995) pp. 130-132

PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING THE FOURTEENTH AMENDMENT by Robin West. Durham, N.C.: Duke University Press, 1994. 359pp.

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

PROGRESSIVE CONSTITUTIONALISM is not a book. This statement is not a criticism, because Robin West acknowledges that what she has is not a linear, logically developed thesis but a collection of essays revolving around and emanating from a theme. Each of the book's ten chapters previously appeared in a law journal and is published here without revision. This book's value lies in its making Robin West's work in constitutional theory easily available to the interdisciplinary audience which is familiar with her provocative and original contributions to feminist jurisprudence. The book's failures arise from West's apparent ignorance of the differences between the respective ground rules of constitutional theory and feminist theory. Provocative, her constitutional theory is; original, it is not.

West sets herself three tasks: to present a "progressive" interpretation of the Fourteenth Amendment in opposition to the now dominant "conservative" interpretation (p. 1), to demonstrate that this progressive interpretation is truer "to the history of the amendment" and "to its language, logic, and spirit" (p. 3) than is either the conservative interpretation or the "liberal legalism" which this conservatism replaced (pp. 211-12); and to argue that "a progressive understanding of the Fourteenth Amendment is far more likely to be realized through legislative action than through judicial intervention" (p. 6.) By "progressive constitutionalism," she means a constitutional paradigm which "view[s] the power and normative authority of some social groups over others as the fruits of illegitimate private hierarchy and regard the Constitution as one important mechanism for challenging those entrenched private orders" (pp. 212-13). Unlike conservative constitutionalists, who tend "to see in a particular social and private institution a source of communitarian wisdom and legitimate normative authority," progressive constitutionalists tend "to see the product of social private hierarchy, and the patterns of domination, subordination, and oppression that inevitably attend such inequalities of power" (p. 213).

Readers familiar with West's feminist scholarship will have no difficulty recognizing PROGRESSIVE CONSTITUTIONALISM as the work of the same author. While only Chapter 2, "Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment," has an explicitly feminist topic, the entire book evinces a feminist perspective. West's analysis of the oppressive function of hierarchical institutions emphasizes marital asymmetry, women's double responsibilities for work and family life, and the other institutions and customs that make women's lives particularly dangerous and burdensome. In fact, she can be faulted for stressing intimate institutions to the neglect of corporate ones. Her commitment to a constitutional paradigm which recognizes the powers of

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extragovernmental institutions follows logically from the perspective of those who are most oppressed by these institutions, and whose voices have been excluded from constitutional interpretation. Her insistence on bringing these voices in, and her boldness in challenging the received interpretation(s), are welcome. Thus, she accomplishes her first task. It is on the second and third that she falls short.

I take these two arguments in reverse order because West's defense of legislative supremacy can be dealt with more briefly. She insists that judicial interpretation, even the "liberal" variety, is inherently conservative. She examines the usually contrasted approaches of Antonin Scalia and William Brennan to show that each inevitably depends on past authority (Chapter 5.) It is hard to dispute her conclusion, particularly for those of us who were drawn to public law in our youth by our enthusiasm for the Warren Court and painfully discovered its historical atypicality. But West's view of the legislative branch makes me suspect that she has similarly mistaken the temporary for the permanent. Her plea to "assume a virtuous rather than a mean-spirited Congress" (p. 298) was presumably written before the 1994 elections; it has as hollow a ring now as does Hugo Black's view of the judicial branch as a haven of refuge for the powerless. The importance West attaches to the female and minority presence in Congress ignores the historically documented ability of elites to get people to act like them who do not look like them. A successful progressive constitutionalism must ask why the conservatives become powerful while the progressives remain ineffectual. West's assertion that her progressive interpretation is superior to other readings of the Fourteenth Amendment sent me to the book's citations -- not only because this is part of a reviewer's job, but also because I wrote a book with "Fourteenth Amendment" in the subtitle and "Equality before the law -- United States" as a Library of Congress subject heading. My own name, therefore, was among those I expected to find. (Like Abou ben Adhem's, and for the same reason, it usually leads all the rest.) Not only did I publish through a university press whose reputation is comparable to Duke's, but the subject of West's first chapter -- "an abolitionist interpretation of the Fourteenth Amendment" -- is a subject to which I devoted considerable attention. Any halfway competent bibliographic search should have turned up my book. Its omission, therefore, disconcerted me.

Further recourse to the references reassured me that I should not take this omission personally. Michael Curtis's book, published by Duke, is similarly ignored. So are books by Earl Maltz, William Nelson, and Raoul Berger, all law professors (as Curtis and I are not), and the last two published by Harvard, perhaps the least neglectable of American university presses. All five books examined the history and text of the Fourteenth Amendment in books published in the last twenty years; the last three implicitly or explicitly contradict West's categorical assertion that "the uncontested meaning" of the amendment was "to abolish not only slavery per se, but the dual sovereignty that facilitates it" (p. 25.) West's neglect of the scholarly literature on the amendment is

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accompanied by an even more serious neglect: an absence of references to the primary sources, even the debates in the Thirty-ninth Congress. Her theory literally does not know what it is talking about.

The omissions do not stop here. West's analogy between family oppression and slavery ignores Andrew Koppelman's similar argument with respect to abortion rights. West's last chapter promises an "aspirational constitution" without mentioning Sotirios Barber's work. It is, of course, gratifying to find evidence that another scholar has independently arrived at interpretations similar to one's own. But the fact that Koppelman, Barber, and I got there first means that West's ideas, however incisive and intriguing, are not original. Her work in constitutional law is not sufficiently grounded to qualify as anything other than guess.

Herein lies the crucial difference between constitutional law and feminist jurisprudence. The latter boldly goes where no one has gone before; its organizing premise is that an important perspective is missing from conventional scholarship. But the Constitution in general, and the Fourteenth Amendment in particular, have commanded scholarly attention for a long time. No scholar who has a theory of constitutional history, meaning, logic, and spirit is free to ignore the work of others. These others include political scientists, who build on and acknowledge the work done in the law schools and in other disciplines. We do this not only because collegiality demands it, but also because the search for truth depends on it. Political scientists must serve notice on the law professors that they are no longer free to ignore our contributions to the study of public law.

REFERENCES

Baer, Judith A. EQUALITY UNDER THE CONSTITUTION: RECLAIMING THE FOURTEENTH AMENDMENT. Ithaca, N.Y.: Cornell University Press, 1983.

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

Berger, Raoul. GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT. Cambridge, Mass.: Harvard University Press, 1977.

Curtis, Michael Kent. NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS. Durham, N.C.: Duke University Press, 1986.

Koppelman, Andrew. "Forced Labor: A Thirteenth Amendment Defense of Abortion," NORTHWESTERN UNIVERSITY LAW REVIEW, 84 (Winter 1990): 480-535.

Maltz, Earl M. CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869. Lawrence, Kans.: University Press of Kansas, 1990.

Nelson, William E. THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE. Cambridge, Mass.: Harvard University Press, 1988.