America’s Constitution is a thoughtful, impressively detailed, reasonably concise, relatively accessible overview of the Constitution, its historical...moreAmerica’s Constitution is a thoughtful, impressively detailed, reasonably concise, relatively accessible overview of the Constitution, its historical context, and its applicability. Although Amar intended this book to go beyond “general classroom textbooks about the Constitution . . . pitched at an average ninth grader,” I sense it may be a bit dense for casual readers. But for anyone with strong interest and at least a basic foundation in constitutional law, history, or politics, America’s Constitution is a trove of fascinating information and insights.
For instance, did you know that, but for Article I, Section 2’s infamous three-fifths clause that awarded slave states additional congressional representation for their human property, John Adams would have won the election of 1800? Had the electoral college been apportioned on the basis of free population, Thomas Jefferson would have finished about four electoral votes behind Adams. Another fascinating consideration is that the United States actually got lucky with respect to the direction in which grew. The 1820 compromise of course divided the country into North and South at the Mason-Dixon Line, and we tend to conceive it inevitable that the U.S. would grow due west from the original colonies. Southern slavocrats, in fact, attempted to push the country’s growth south into Cuba and the slave-rich Caribbean. This scenario would have led to a much darker American history, as masses of new slaves would have – via the three-fifths clause – massively increased the South’s political clout in Congress. It seems doubtful that abolition could have come about had the U.S. curled south like a backwards comma instead of stretching west.
Amar weaves a couple of central themes through America’s Constitution. In his view, the Constitution is more democratic than some scholars, who emphasize distinctions between democracies and republics and argue for an American republic, give it credit for. Second, Amar sees a constitution that, through amendment and practice, has evolved into a more national, federal document than the one we started with.
Although Amar quite studiously avoids discussing constitutional developments’ implications on contemporary politics, I inferred through my reading that Amar’s underlying themes of democracy and nationalization would cut both ways in today’s political world.
First, a constitution infused at its creation with fairly radical democratic content, and which amendment has only increasingly democratized, seems to militate against some of the opaqueness with which modern politics is undertaken. Pork-barrel pet projects, stuffed surreptitiously into sprawling, voluminous, jargon-laced omnibus legislation, clearly contradict the spirit, if not the letter, of constitutional provisions that provided, for instance, for open courts accessible to “We the People.” Shady machinations among business leaders, between public and private sectors, and among politicians equally violate the Constitution’s spirit. In this way, it seems that libertarians’ modern complaints about large, unresponsive, even secretive government stand on solid constitutional ground.
But the Constitution’s increasingly national character cuts against some of today’s arguments from the right. The Founders unarguably crafted the document at the outset to carefully balance state power against federal, and they conscientiously guarded states’ prerogatives against federal encroachment. Rightist voices, frustrated with perceived government ineptitude and shrinking personal liberties, sometimes point to the Constitution’s original tilt toward the states to justify their position. But, to oversimplify, America’s antebellum era illuminated some of the grave violence states could do to the freedoms the Constitution restrained the federal government from infringing. The Reconstruction Amendments (XIII-XV) aimed to reign in wayward states by increasing federal authority. The Sixteenth Amendment enabled Congress to levy progressive income tax—in effect to redistribute wealth. Amendments extending (or securing) the vote for blacks, women, and youth democratized the process of selecting both state and federal officers; on the federal level, this helped “We the People” circumnavigate corrupt state regimes. Finally, even at its birth, the Constitution’s infamous Commerce Clause arguably provided Congress with broad power to address both economic and noneconomic issues “among the several States,” or, in other words, that spilled across state lines.
If, in fact, the Constitution originally granted Congress broad authority over interstate commerce, and subsequent amendments have nationalized the Constitution, empowering the central government to some extent at the expense of the states, then the more extreme calls for the emasculation of the federal government run contrary to the Constitution’s current spirit, as well as constitutional practice.
I’ve only touched a few issues that America’s Constitution treats. As Amar reminds readers in the postscript, constitutional history and analysis are forums for intense disagreement. Brilliant minds fail to agree on what the Constitution means and how it should apply. My main takeaway, I think, is that applying the Constitution to real-life issues is difficult. I tend to be wary of those who claim this or that presidential administration is acting illegally, contrary to the Constitution. Sure, President Bush may have stretched the document’s provisions. President Obama could arguably be doing the same thing. But any who excoriate modern executives on ambiguous constitutional bases must also levy the same criticism at Abe Lincoln, who suspended habeas corpus and (arguably) unconstitutionally acted before the duly elected Congress could convene in the early days of the Civil War. The upshot: it’s complicated. We should approach the Constitution’s meaning and proper application with humility and open minds.(less)
I love me a good biography. But I love me more a good biography that goes beyond narrating a life or capturing a period in history. "Scorpions" is par...moreI love me a good biography. But I love me more a good biography that goes beyond narrating a life or capturing a period in history. "Scorpions" is part biography, part political history, and part constitutional history. And I just felt like Feldman pushed all the right buttons.
Perhaps this book's strongest point is that it ably explains the state of current constitutional law by exploring its modern roots in the New Deal's birth and the explosion of civil rights and individual freedoms under the Warren Court. There is a fiction that law lives a lofty existence high above politics and human infighting. "The judge's job is to say what the law is," many say, as if what the law is is self-evident. In most cases it is, but in the most complex and contentious cases -- the ones with which the Supreme Court concerns itself -- it's not. Indeed, as Feldman postulates, the development of modern constitutional law in its various iterations came about through clashes of personalities among FDR's Court appointees, through political ambition, through trade-offs and compromises, through attempts to align Supreme Court jurisprudence with social mores.
Feldman suggests out that the story of modern constitutional law is intertwined with the stories of these four giants of the liberal movement instigated by FDR. The possibility that that bold suggestion is accurate is in itself reason enough to read the account. In this book, history once again explains much about the present. Originalism, pragmatism, judicial restraint, and judicial activism make a great deal more sense seen through Feldman's lens of biographical history than they do through convoluted legal casebooks and obscure academic arguments. Kudos to Feldman for making sense of it all, and for writing it up in such a readable and accessible fashion.(less)
Although Active Liberty ably makes the case that literalist methods of statutory and constitutional interpretation suffer from various shortcomings, i...moreAlthough Active Liberty ably makes the case that literalist methods of statutory and constitutional interpretation suffer from various shortcomings, it fails to convincingly articulate why justices should primarily emphasize the democratic nature of the Constitution in their decisions, potentially at the expense of other important considerations. Justice Breyer could have been more persuasive had he, first, explained why active liberty is a more important judicial polestar than, say, separation-of-powers concerns and, second, defined more precisely the content of the democratic ideals underlying the Constitution.
But before addressing these deficiencies in more detail, I note that Breyer correctly identified various flaws in literalist forms of interpretation. Literalists, in my view, tend to at least occasionally come across as smug and arrogant when touting the virtues of their preferred method of statutory and constitutional interpretation. They regularly portray those who place less emphasis on text or original intent as raving madmen intent on inventing creative new rights and thereby undermining the republic.
Breyer respectfully and rightly pointed out that jurists focusing on purposes of statutes and constitutional provisions, as well as the practical consequences of their decisions, sincerely and, I think, justifiably, believe that they are applying the statute or the Constitution as intended by the documents’ drafters. He further and rightly noted that literalist decisions sometimes yield absurd or unworkable results that arguably frustrate the function of the documents they purport to interpret. Moreover, literalists are often guilty of the same sins of which they accuse users of other modes of interpretation. In crafting the bright-line rules they tend to favor, they at least sometimes regard the consequences of those rules in terms of their workability and predictive function at least as much as the rules’ fidelity to the text or the drafters’ original intent. This represents a departure from the positive law, the literalist’s cornerstone. Finally, Breyer observed, literalist modes of interpretation cannot defend decision-making entirely from the individual values and opinions of judges, which subjectivity is generally anathema to literalists. In short, literalists can be and are subject to many of the very criticisms they level at non-literalists.
But Breyer’s criticisms of literalism did little to support his own preferred method of interpretation. Further, his case for why active liberty is a proper basis for judicial decision-making was pocked with seemingly illogical assertions. For example, his failure to articulate how judges should interpretively apply a concept as vague and broad as the “democratic character of the Constitution” bewildered me somewhat. Breyer did effectively recount how one important theme animating the Constitution was that the will of “We the People” should propel policy and law creation.
But countless other themes underlie that document’s formation as well, such as protecting minorities from the tyranny of the majority, safeguarding states from federal encroachment, building checks and balances into the document to keep any one branch of government from controlling the others, etc. What elevates active liberty so that its significance trumps these other important themes of the Constitution? There may very well be substantial reasons for which Breyer believes the democratic underpinnings of the Constitution deserve to be considered above other themes in the course of interpretation, but he does not tell us what they are. My view is that, depending on the case before the Court, a non-literalist justice other than Breyer may think it more proper to render a decision based on separation-of-powers considerations, or perhaps federalism concerns. In this light, literalism is preferable to Breyer’s approach because, unlike literalists who assert concrete reasons for relying on text or original intent, Breyer did not explain why justices should give active liberty more weight than other constitutional themes.
The other major problem with Breyer’s mode of interpretation based on considerations of democratic intent in the Constitution is that it fails to account for the legislative role in implementing the will of “We the People.” Breyer assumes that if the Court bases its decisions squarely on text or intent and does not carefully consider the potential consequences of its decisions, the judiciary could undercut the democratic foundation of the Constitution. But this misses two critical and related points. First, rooting judicial decisions in the text of statutes or the original intent of the Constitution actually supports the Constitution’s democratic foundations. Judges and justices, as unelected officials, do not represent the will of “We the People” and thus, as literalists, I think, rightly contend, are constitutionally barred from pronouncing or translating or articulating the people’s will. That is the legislature’s role. And that is the second point that Breyer misses: the legislature can and will correct statutes should the Court’s reading of the language lead to poor results. The judiciary need not and, I would argue, should not do so. Additionally, where “We the People” determine the Constitution to be deficient, the amendment process makes updating the document possible. Thus Breyer’s fears that a judiciary insufficiently focused on the consequences of its decisions will inadequately implement democracy ignore the role of the legislature and the amendment process in implementing the people’s will.
In sum, Breyer accurately portrays literalism’s shortcomings, but he does not make a compelling case that active liberty should be a foundational consideration in the Court’s decision-making process. Literalism may be imperfect, but it does not necessarily neglect the Constitution’s democratic impulses. And until Breyer more substantially articulates why these impulses merit more judicial attention than others that enliven the Constitution, active liberty seems to be a floating ideal insufficiently tethered to any express judicial method of interpretation. (less)
I truly want to get onboard with Justice Scalia’s brand of interpreting common law, statute, and the Constitution. It is attractive because it is true...moreI truly want to get onboard with Justice Scalia’s brand of interpreting common law, statute, and the Constitution. It is attractive because it is true to our contemporary understanding of the democratic structure and processes of our country: legislatures create laws, the executive branch executes those laws, and, when disputes arise, judges apply the laws to the facts and thus reaffirm the law while deciding the dispute. It is also attractive because of its consistency: a judge, Scalia maintains, deciphers the meaning of the text of the law according to the judge’s determination of what the text’s drafters meant to codify through the text. This is relatively neat and tidy; though this interpretive model cannot entirely block the willful judge from wielding her personal views and biases, it at least limits the space in which she can do it.
Sadly, however, I am not entirely convinced that Scalia’s methodology is correct, or even that his conception of the judicial role is entirely correct. First, I will evaluate Justice Scalia’s views on statutory interpretation, which is arguably the most important role that modern judges play given the volume of regulation they are called upon to interpret. I think I appropriately represent Scalia’s view when I say that his brand of textualism necessarily permits some flexibility to the manner in which the judge attributes meaning to the text. There is, nevertheless, a limit to that flexibility; beyond a point, text cannot bear semantic parsing because the meaning attributed to the text no longer passes the laugh test. Smith v. United States is such an example, and I believe I agree with Scalia’s incredulity at the meaning the case’s majority attached to the phrase “use a firearm.” Scalia believes that judges should pronounce upon the text the meaning it most realistically bears and, if that is contrary to the will of the legislature, leave it to the legislature to adjust the text.
However, this assumes that the Founders consciously created a system propounding neat lines between the roles of the legislature and the judiciary. Legislatures make laws and judges apply laws to concrete disputes. Professor Wood, however, convincingly speculates that the Founders’ understanding of the roles of legislatures and judges was not nearly so clear or so harmonious with our contemporary conceptions. Drafting clear, directive codes was more challenging, and legislatures less guided by republican ideals than the colonists anticipated. In this historical context, could the Founders have accepted that the judiciary, far from representing a sycophantic arm of the hated crown, could be a buffer between the people and the majoritarian legislatures? At least some evidence seems to suggest they did. The Founders embedded a judiciary in the Constitution despite the view in the preceding decades that judges merely constituted an element of the executive branch. Congress received power to establish lower courts, which it did. And, although some certainly scowled at Chief Justice Marshall’s jurisprudential jujitsu in Marbury v. Madison that secured for the judiciary the power to review acts of the legislature, the concept stuck less than 15 years after the birth of the Constitution.
I wonder, then, if Justice Scalia’s insistence that judges kowtow to Congress’s oh-so-carefully chosen statutory language is as historically necessary as he contends that it is. Although some statutes—typically those that make legal news—are ambiguous, most are not. Perhaps it is therefore somewhat inaccurate to intimate that judges in every jurisdiction are chomping at the bit to create law in spite of statutory language that, if read by its plain meaning, would not permit any result but one. I suspect that most cases of statutory interpretation present at least largely unambiguous text and that judges charged with interpreting it do so fairly faithfully to that text. I also suspect that, where statutory text is vague few judges flagrantly flout all the text’s reasonable textual interpretations to arrive at a completely implausible but personally pleasing outcome, or ignore the text’s statutory context to arrive at a similar result. Rather, I think most judges employ statutory interpretation tools similar to those Justice Scalia wields when confronted with an imprecisely worded statute. They try where possible to construct a reasonable interpretation based on the text. They attempt to reconcile the text’s meaning with the overall structure and content of the statute. They employ other canons of construction. Reasonable minds may and do differ on the meaning of text even after these methods have been applied. I do not think this is divergence of reasonable minds is occasion to castigate judges that look for textual meaning outside the original understanding of the text’s drafters; divining that original understanding seems to me a comparably imprecise exercise to many, but not all, others. Perhaps I am naïve and flat out wrong; if so I will sheepishly stand corrected.
I turn very briefly to Church of the Holy Trinity v. United States to make a final point in conclusion. Like Justice Scalia, I cannot help but find the Court’s outcome troubling at best and, at worst, ridiculous. Where judges willfully and admittedly step outside the clear boundary of reasonableness permitted by the text, it is cause for alarm. It alarms me just as it alarms Justice Scalia. My question, however, is whether that alarm is conditioned by a slightly skewed understanding of the role the Founders intended the judiciary to play. If Scalia and conservatives more generally are correct and judges making law is absolutely inconsistent with the system the Founders intended, then Holy Trinity is wrong. If, however, Professor Wood’s thinking is correct and the Founders conceived of the judiciary as a backstop to protect justice from legislative gaffes, I am not so sure Holy Trinity represents the wrong result or judicial process. (less)
The positive: I enjoyed Oren's effort to look at America's involvement with the Middle East through three distinct lenses: power, faith, and fantasy....moreThe positive: I enjoyed Oren's effort to look at America's involvement with the Middle East through three distinct lenses: power, faith, and fantasy. It was a fresh way for me to view facts with which I was already quite familiar. I kept the narrative from growing stale, as Oren consistently changed lenses.
The negative: Oren tried too hard to fit facts into the various lenses. Sometimes stuff just doesn't fit in your thesis and it felt like Oren shoved a bit to make things fit. Overall though, this was a pretty good read.(less)
"Voyager" was enjoyable enough. I think it would have worked better as a straight history of the Voyager program. As it was, I felt that the bouncing...more"Voyager" was enjoyable enough. I think it would have worked better as a straight history of the Voyager program. As it was, I felt that the bouncing back and forth from the narrative of the Voyagers' development and flight to explorers of the past was jarring and discombobulating. The links Pyne drew between the different ages of discovery felt labored and contrived. I just thought the book tried to do and be too much.(less)
Quinn’s biography offers unique insights into the character, attitudes, opinions, and quirks of President Clark, which insights paint a vivid picture...moreQuinn’s biography offers unique insights into the character, attitudes, opinions, and quirks of President Clark, which insights paint a vivid picture not only of Clark but of Church administration during his 28 year tenure as a member of the First Presidency. This portrait is both interesting and instructional, in terms of illuminating the modes of shifting opinions among Church leaders, intra-quorum politicking and bloc-formation, and in terms of offering a multi-faceted perspective of Clark’s humanity. Not only does Quinn familiarize us with Clark’s indomitable yet humble spirit and his fierce loyalty to God and His prophet on the earth, but we also learn of Clark’s mortal foibles, prejudices, and nagging weaknesses. In light of all of this, Clark is man worthy of the utmost respect and admiration. His allegiance to God trumped all of his worldly ambitions, and his were powerful and, at certain points, very much within reach. He mastered his pride perhaps more fully and grandly than any other prominent Church leader, as demonstrated when he magnanimously announced in general conference his own demotion from first to second counselor in the First Presidency after 18 years of service as first counselor. Publicly, he never flinched in a position which would have easily crushed lesser men.
In spite of Quinn’s skillfully humanistic portrayal of Clark, Quinn clearly inserted various unnecessary quotations, facts, and themes that added little to our picture of Clark; they in fact seemed bitter barbs intended to subtly cast doubt or at least an unfavorable light on the Church, its policies, and its leaders. Quinn claims in the book’s introduction that his only goal is to impartially present information and permit readers to draw their own conclusions. This may truly be Quinn’s motive, but certain themes – Clark’s racial attitudes or the Church’s wrestle with post-Manifesto polygamy, for instance – could have been presented just as effectively without a few of Clark’s or other leaders’ more egregious quotes. Alternatively, Clark could have been well represented without any mention of these issues at all. True, they provide additional angles from which to view him, but I doubt that they are essential to understanding his life and character.
Quinn claims that this biography is the original draft of what became his 1983 Church-sanctioned biographical volume on Clark’s years of Church service, from which draft the First Presidency removed various sections, quotes, and comments. It is no surprise to me that Church leaders felt it prudent to do so; much of what Quinn includes here in the name of academic and historical rigor is simply inappropriate in a biography aimed at members of the Mormon Church. Issues such as Clark’s flirtation with atheism, his sometimes fanatical opposition to Communism and war, his attitudes of race and segregation, and the overall human methods with which Church leaders undertake decision-making could easily rattle readers’ faith. Church leaders are perfectly within their rights and responsibilities to ensure that Church-sanctioned material buttresses, not undermines, faith. Quinn’s work is not intended to bolster faith, yet it could easily do so without compromising the academic scrupulousness he so cherishes.
An excellent study of Madison's political philosophy, it won't teach readers much about the fourth president's life. Like "American Sphinx," this book...moreAn excellent study of Madison's political philosophy, it won't teach readers much about the fourth president's life. Like "American Sphinx," this book is dense and unengaging.(less)
Toobin's work on the rise of the Rehnquist and Roberts Courts is somewhat disjointed in terms of a narrative flow, but his manner of peppering the inf...moreToobin's work on the rise of the Rehnquist and Roberts Courts is somewhat disjointed in terms of a narrative flow, but his manner of peppering the informative details with anecdotes illustrating the humanity of the justices is appealing. I learned the personalities of the justices, their perspectives on the major constitutional issues of the day, and had a good time doing it. My beef: despite the praise on the flaps of this book, this is not a "balanced" look at the court. It's fair, but not balanced. Toobin leans left, and that's pretty clear from the book. I don't have a problem with that, just call it what it is.(less)