Contemporary constitutional debate often pits two competing schools of thought against one another. The belief that, independent
of practical political consideration, judicial policy making should flow from constitutional directives, on the one hand; the belief that,
within the context of adjudication, courts can be sensitive to their role in the political community, on the other. Enter Michael Perry,
who argues that this choice -- the choice between law and politics -- is a false dichotomy. In his book, THE CONSTITUTION IN
THE COURTS, Professor Perry tries to disentangle the debate by arguing that judicial and political philosophy are by no means
linked. To that end, he offers a spirited defense of originalism, and the result is an engaging, important book.
The engine driving Perry's analysis is the assumption that one can systematically liberate a particular interpretive mode, namely,
originalism, from political ideology. This is not easily accomplished, given that the tenor of the debate over originalism is invariably
blended with conservative policy outcomes. The problem, according to Perry, is that originalism is generally confused with judicial
minimalism, that is, the assumption that judges must not only resist making decisions based upon their own policy preferences but
must also presume that challenged legislation, if rational, is constitutional. Proponents of judicial minimalism, he argues, may in fact
be originalists, but originalism does not presuppose the minimalist conception. Emblematic of that concern, he consistently holds out
the positions of Robert Bork, as articulated in his book THE TEMPTING OF AMERICA (1990), as evidence of this general
misunderstanding of the originalist doctrine.
Throughout the first half of the book, Perry largely devotes his attention to fairly abstract and complex notions of interpretive
method. Of particular importance is his defense of originalism, which he offers in Chapter 3, asserting that "the Supreme Court
may enforce as constitutional only directives represented by the text of the Constitution" (p. 31), and that the Court's obligation is
to invalidate those actions that are inconsistent with those directives. Importantly, "[w]hat is authoritative, for originalism, is the
directive the ratifiers understood a constitutional provision to communicate, the directive they meant to issue. That the ratifiers may
not have believed that this or that practice (law, etc.) with which they were familiar violated a constitutional directive they were
issuing -- even that they believed that the practice did not violate the directive -- is not determinative" (p. 43). Thus, the basic
thrust of the argument, at least as I understand it, is that constitutional adjudication, while it must involve bringing the mandates of
the ratifiers to bear, in no way assumes a modest judicial role in the resolution of such conflicts. This general proposition and its
intricacies are teased out
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here, largely divorced from context.
In the second half of the text, however, he invokes doctrine and applies his analysis to a range of issues, all of which are tethered
to the Fourteenth Amendment. Originalism, it turns out, permits a fairly extensive reach for the Fourteenth Amendment. Indeed, in
his careful review of the privileges and immunities, equal protection, and due process clauses, he offers a smart defense -- again,
on originalist grounds -- of affirmative action, abortion, and prohibiting discrimination based on gender and sexual orientation. He
concludes that "the modern Court's Fourteenth Amendment work product has been, in the main, much more originalist than
imperialist" (p. 191).
One might argue, though, that the question is not whether these decisions are consistent with originalism but whether the Court, in
making these decisions, has invoked the kind of rationale that Perry advocates. That the Court's decisions can be accounted for as
originalist after the fact does not mean that they are illustrative of such an approach. This point, I would think, might be particularly
crucial to someone like Bork, whose concern is so often focused on the authority for constitutional decisions (see, e.g., Bork 1990,
216-217).
To his credit, Perry is appropriately cautious -- in fact, often overly cautious -- about his assertions throughout the analysis.
Moreover, he seems consistently mindful of the reality that equally reasonable and faithful disciples of his brand of originalism may
well come to different conclusions. There is, in his view, substantial leeway in specifying the indeterminacies of the Constitution.
Having early in the book offered an evaluation of the power of judicial review, Perry, in his final chapter, proposes some
prescriptive advice on the question of how to better ensure that the exercise of judicial review is responsive to popular sovereignty.
First, capitalizing on the debate currently swirling around legislative term limits, he argues that it would be beneficial to impose
similar term limits on the justices of the Supreme Court. The primary benefit is that it ensures more constant and contemporaneous
political control over the direction of the Court's policy making. Whatever the theoretical appeal of eliminating life tenure for
members of the Court, from a practical standpoint, the proposal is probably unnecessary. However fashionable advocacy for term
limits may be, the steady rate of congressional turnover seriously debilitates the case for term limits (see, e.g., Hibbing 1991), and
this applies with even greater force to the Court; even with life tenure, the justices tend not stay on the bench much longer than
Perry prescribes (some ten to twelve years). Historically, the median length of service for the justices is fifteen years and four
months. More importantly, the same figure for the ten most recently appointed justices -- excluding, of course, the justices
currently on the Court -- is sixteen years and eleven months (see Epstein et al. 1994, 300-302).
Second, he counsels a more radical change, suggesting that the United States emulate a version of the Canadian model,
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whereby Congress could override the Court on various matters of constitutional -- not merely statutory -- interpretation. To be
sure, the idea that the Supreme Court might not be the final arbiter of the Constitution's meaning is foreign to our political culture.
The proposal, he maintains, has the virtue of simply assuring that, while the Court is an important voice, it is not the last word on
constitutional questions. Why the existing democratic process of formal constitutional amendment is insufficient for Perry's needs,
however, is not clear. Still, such a proposal -- leaving aside its predetermined doom -- is a serious and thoughtful one and thus
worth sincere discussion.
Stylistically, the book does, from time to time, leave something to be desired. Indeed, in some passages Professor Perry presents
his argument in nearly impenetrable prose. At one point in his discussion of equal protection, for instance, he notes, "That there is
room for reasonable disagreement about the precise shape or contours of the bases section 1 [of the Fourteenth Amendment] was
meant to prohibit does not mean that it is plausible to believe that the folks who gave us the Fourteenth Amendment meant section
1 to forbid the singling out of any group for worse treatment on certain prohibited bases except for the singling out of nonwhites or
whites for worse treatment, which was meant to be prohibited whether or not the singling out was on any prohibited basis" (p.
157). Cryptography, I must confess, is not among my limited intellectual abilities; nor, I suspect, is it likely to be found in abundant
supply among more able readers. Quite apart from that, the book also contains an alarming number of typographical errors, not the
least of which is almost an entire page of footnotes (p. 262) which, so far as I can tell, reference nothing in the body of the text.
I have no doubt that this book will enjoy a justifiably wide readership. Whether or not one is persuaded by Perry's analysis, the
argument which the book offers certainly demonstrates the need for us to reevaluate our thinking about what it means to bring an
original understanding to the Constitution. THE CONSTITUTION IN THE COURTS is a sober and stimulating invitation to
consider originalism in much broader and more complex terms.
REFERENCES: Robert H. Bork. 1990. THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW.
New York: The Free Press.
Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker. 1993. THE SUPREME COURT COMPENDIUM:
DATA, DECISIONS, AND DEVELOPMENTS. Washington: CQ Press.
John R. Hibbing. 1993. "Careerism in Congress: For Better of for Worse?" In Lawrence C. Dodd and Bruce I. Oppenheimer.
CONGRESS RECONSIDERED. Washington: CQ Press.
