sojourner
05-27-2010, 04:35 PM
LL set me off on a Stanley Fish jag today and I ran across this review/critic of The Living Constitution by David A. Strauss.
It’s Supreme Court nomination time again, which means that it will soon be nomination hearing time, which means that Elena Kagan will soon be asked how she believes the Constitution should be interpreted. But just in time comes a new book — “The Living Constitution,” by David A. Strauss — that tells us not to bother about that question because, odd though it might seem, the Constitution does not play a central role in constitutional interpretation.
In the majority of instances, Strauss argues, “the text of the Constitution will play, at most, a ceremonial role.” Even “when a case involves the Constitution, the text routinely gets no attention,” for “on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy.”
Although rhetorically we have a constitutional legal system — one constrained by a command given in the past and embodied in a sacred text — in fact, Strauss contends, we have a common-law legal system “built not on an authoritative, foundational . . . text,” but out of “precedents and traditions that accumulate over time” and serve as a constraint on “transient public opinion.”
To some extent, Strauss is right. Day to day the courts view (and configure) the facts and issues of a case in the light of previously established “landmark” decisions; the words of the Constitution are often not invoked. At least descriptively, the history of constitutional interpretation would seem to proceed as Strauss says it does, by a process of “evolutionary accretion” and not by an act of fidelity to an original intention, that is, to an intelligent design.
But the fact that in many cases the Constitution is not explicitly the reference point and motor of deliberation doesn’t mean that deliberation is not being guided by it at a remove. And that is exactly what is going on in the area of law Strauss cites in support of his thesis — the First Amendment. “The American law of freedom of expression,” he declares, “does not emerge from the text of the U.S. Constitution or from the original understandings.” His example is the appearance in an opinion by Justice Oliver Wendell Holmes Jr. of the phrase “clear and present danger.”
Although these words are not in the Constitution, they have been, says Strauss, “far more important in the development of the law than have the actual words of the First Amendment.” It was, explains Strauss, the “clear and present danger doctrine” and “not the adoption of the First Amendment” that initiated a series of cases that led in time to “the distinction between advocacy of ideas and advocacy of action,” a distinction also not “derived . . . from the text . . . of the First Amendment.”
This is simply wrong. Like everything else in the sequence Strauss rehearses, the distinction between advocacy of ideas and advocacy of action is the product of an effort to figure out what it means to not make a law “abridging the freedom of speech.” Abridging freedom of speech is a notion in need of explication. When exactly does it happen? What exactly is speech in the context of the amendment’s prohibition?
It can’t be that constitutional protection is granted to any verbal production whatsoever, for some words — like those that directly incite riot or perform treason — are not speech within the meaning of the amendment. How do we know that? As Strauss repeatedly observes, the First Amendment’s text doesn’t tell us. We have to figure it out and we do so by asking what it is that they had in mind when they singled out speech for protection. What did they fear? What did they hope for? The standard answers to those questions are, they feared the censoring and criminalizing of dissident speech, and they hoped for free and open discussion of matters of public concern.
The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”
I am at a loss to know what “adhere” is supposed to mean here. According to the dictionaries, “adhere” means “to stick fast to” or “to be devoted to” or “to follow closely.” But you don’t do any of these things by “disregarding” the intentions that inform and give shape to the text you claim to “honor”; you don’t follow closely what you are in the act of abandoning. Instead, you engage in a fiction of devotion designed to reassure the public that everything is on the (interpretive) up and up: “The Court could take advantage of the fact that everyone thinks the words of the Constitution should count for something.” Here “something” means “anything,” as long as it hooks up with what everyone thinks; and the advantage the Court is counseled to seize is an advantage gained by pandering. If this is what the “living Constitution” is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.
Complete article here (http://opinionator.blogs.nytimes.com/2010/05/10/why-bother-with-the-constitution/#more-48853)
I wasn’t sure where to put this. Maybe I should have started a book review thread. I doubt that many people will be interested in it.
It’s Supreme Court nomination time again, which means that it will soon be nomination hearing time, which means that Elena Kagan will soon be asked how she believes the Constitution should be interpreted. But just in time comes a new book — “The Living Constitution,” by David A. Strauss — that tells us not to bother about that question because, odd though it might seem, the Constitution does not play a central role in constitutional interpretation.
In the majority of instances, Strauss argues, “the text of the Constitution will play, at most, a ceremonial role.” Even “when a case involves the Constitution, the text routinely gets no attention,” for “on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy.”
Although rhetorically we have a constitutional legal system — one constrained by a command given in the past and embodied in a sacred text — in fact, Strauss contends, we have a common-law legal system “built not on an authoritative, foundational . . . text,” but out of “precedents and traditions that accumulate over time” and serve as a constraint on “transient public opinion.”
To some extent, Strauss is right. Day to day the courts view (and configure) the facts and issues of a case in the light of previously established “landmark” decisions; the words of the Constitution are often not invoked. At least descriptively, the history of constitutional interpretation would seem to proceed as Strauss says it does, by a process of “evolutionary accretion” and not by an act of fidelity to an original intention, that is, to an intelligent design.
But the fact that in many cases the Constitution is not explicitly the reference point and motor of deliberation doesn’t mean that deliberation is not being guided by it at a remove. And that is exactly what is going on in the area of law Strauss cites in support of his thesis — the First Amendment. “The American law of freedom of expression,” he declares, “does not emerge from the text of the U.S. Constitution or from the original understandings.” His example is the appearance in an opinion by Justice Oliver Wendell Holmes Jr. of the phrase “clear and present danger.”
Although these words are not in the Constitution, they have been, says Strauss, “far more important in the development of the law than have the actual words of the First Amendment.” It was, explains Strauss, the “clear and present danger doctrine” and “not the adoption of the First Amendment” that initiated a series of cases that led in time to “the distinction between advocacy of ideas and advocacy of action,” a distinction also not “derived . . . from the text . . . of the First Amendment.”
This is simply wrong. Like everything else in the sequence Strauss rehearses, the distinction between advocacy of ideas and advocacy of action is the product of an effort to figure out what it means to not make a law “abridging the freedom of speech.” Abridging freedom of speech is a notion in need of explication. When exactly does it happen? What exactly is speech in the context of the amendment’s prohibition?
It can’t be that constitutional protection is granted to any verbal production whatsoever, for some words — like those that directly incite riot or perform treason — are not speech within the meaning of the amendment. How do we know that? As Strauss repeatedly observes, the First Amendment’s text doesn’t tell us. We have to figure it out and we do so by asking what it is that they had in mind when they singled out speech for protection. What did they fear? What did they hope for? The standard answers to those questions are, they feared the censoring and criminalizing of dissident speech, and they hoped for free and open discussion of matters of public concern.
The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”
I am at a loss to know what “adhere” is supposed to mean here. According to the dictionaries, “adhere” means “to stick fast to” or “to be devoted to” or “to follow closely.” But you don’t do any of these things by “disregarding” the intentions that inform and give shape to the text you claim to “honor”; you don’t follow closely what you are in the act of abandoning. Instead, you engage in a fiction of devotion designed to reassure the public that everything is on the (interpretive) up and up: “The Court could take advantage of the fact that everyone thinks the words of the Constitution should count for something.” Here “something” means “anything,” as long as it hooks up with what everyone thinks; and the advantage the Court is counseled to seize is an advantage gained by pandering. If this is what the “living Constitution” is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.
Complete article here (http://opinionator.blogs.nytimes.com/2010/05/10/why-bother-with-the-constitution/#more-48853)
I wasn’t sure where to put this. Maybe I should have started a book review thread. I doubt that many people will be interested in it.