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June 27, 2013 Articles

Book Reviews: What's New in Constitutional Studies?

Four reviews of books taking differing approaches to constitutional interpretation.

By Dennis Owens

Americans truly love and revere our Constitution. They also love to think about and write about it. Here are some interesting contributions to the dialogue about “our civic scripture.”

Hadley Arkes
Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law
Cambridge University Press

Hadley Arkes is the professor of American institutions and jurisprudence at Amherst College. This book reflects his mature reflections on a number of familiar cases that yield some new, even contrarian, views of constitutional law. He deals with Lochner, the Pentagon Papers case, and Near v. Minnesota with his clear prose and powerful logic. In these discussions, he considers prior restraints, legal reasoning, the natural law, Snapp v United States, ex post facto laws, the Eleventh Amendment, substantive due process, and Bob Jones University v. United States. Professor Arkes is not pleased with Robert Bork or Justice Scalia due to their reluctance to admit to moral reasoning in judicial decision making or to recognize the reality of the natural law. It was the late Ronald Dworkin who argued for a moral reading of the Constitution, but Arkes is unpersuaded by his particular view also.

For those familiar with Professor Arkes’s formidable body of work, this book will be seen as a culmination of his life-long efforts to seek the truth and defend it. His The Philosopher in the City (1981) was when “Immanuel Kant meets Mayor Daley.” His contention was that political realities are affected by moral judgment, not just political expediency or raw power. His arguments about necessary moral truths in First Things (1986) have had widespread influence and caused significant controversy. We were deeply impressed by his 1990 book Beyond The Constitution. In it, he argued that interpreting the Constitution properly requires an understanding of the moral principles that informed it. His insights into the Bill of Rights were brilliant. He examined modern jurisprudence in light of his themes in The Return of George Sutherland (1994), an invaluable treatment. These themes converged in Natural Rights and the Right to Choose (2002). In this penetrating study of all of the important cases on abortion, Professor Arkes argued against a right to choose to have an abortion in light of the necessary moral underpinning of our legal system. Utterly provocative (as always), brilliantly presented, it is an intellectual monument.

In his newest book, Arkes is at it again. The subject matter is deadly serious and important. The topics are familiar. But, Arkes’s treatment is fresh, subtle, concise, careful, edifying, and at times, startlingly funny. Such a beautiful style, such an elegant wit! The author’s profound scholarship is sharply focused, and his skill in handling this deep and extensive knowledge with great verve is remarkable. This book is imbued of insight, common sense, and clear-sighted wisdom. It is a genuine pleasure to read. Be prepared to see old cases and legal concepts in a new light; be prepared to have your thoughts powerfully provoked; be prepared to be amused. Here is a superb book on Constitutional jurisprudence that is charming, unsettling, and memorable.

David J. Bodenhamer
The Revolutionary Constitution
Oxford University Press

Professor Bodenhamer is professor of history at Indiana University-Purdue University, Indianapolis. The premise of his book is that the Constitution is a structure that has allowed each generation “to adjust the scales” continually. He explores this notion through seven topics ranging from federalism to property rights. For instance, the founders installed many provisions to protect property rights in response to abuses by the states under the Articles of Confederation. Professor Bodenhamer argues that these rights have been properly and necessary curtailed by zoning and by landmark designations “in response to the needs of a modern economy.”

He points out that the rights spelled out in the Bill of Rights may be ostensibly “self-evident,” but the founders were bitterly arguing the meaning of its terms within a few years of ratification. The American Revolution, the first modern revolution, helped produce our Constitution. And revolutions are moments when there is a shift to an uncertain future, one that is radically different from what was foreseen only a brief time earlier. Our Constitution is a device to deal with this dynamic.

Bodenhamer has crafted a constitutional history that demonstrates that the founders did not resolve the key issues but instead created a process by which each generation finds its own solutions.

This book is clearly written and very nicely paced. It is quite easy to read and very well informed as to legal history.

Jay Wexler
The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions
Beacon Press

Professor Wexler teaches law at Boston University. He has published humor pieces in Mental Floss; his first book was Holy Hullabaloos. This information is important to know when you approach this book. It is not a humor book. It is just very funny. Professor Wexler clerked for Justice Ruth B. Ginsburg and worked for the Clinton Justice Department. He seems to have nothing but derision for all political figures to his right, which would be most of them, and certainly all Republicans. For instance, when he notes that the Article IV clause says that “the United States shall guarantee to Every State in this Union a Republican Form of Government,” the professor comments that this “does not, thank goodness, have anything to do with the Republican Party.”

Even though this book caused us to laugh out loud several times, it has a serious purpose. We read various passages to friends (particularly our left-wing friends) and law clerks, all of whom found it to be funny. But, the author is highly knowledgeable about these clauses. These provisions are often ignored by, or even unknown to, most citizens.

The 10 clauses are incompatibility, weights and measures, recess appointments, original jurisdiction, natural-born citizen, the repeal of Prohibition, letters of marque, titles of nobility, bills of attainder, and the quartering of troops.

The author has a mastery of history of the clauses in question and brings forth much current scholarship on their meaning. We learned a lot, as well as laughed a lot. This is a fine performance regardless of your political views.

Michael S. Greve
The Upside-Down Constitution
Harvard University Press

Your attention, students. Let’s have a quick review of what we all know about constitutional law, shall we? The Constitution created a system that balanced state and national governments’ power. Then, the New Deal Court extended the power of the federal government into the regulation of purely intrastate commerce in the case of Wickard v. Filburn (1942). In that case, the Court held that federal regulators could stop a farmer from growing an acre of wheat even though the grain was to feed his own livestock and never left his farm. However, the Court in recent years has tried to rescue the dignity of the states and restore the Founders’ vision of balance. Correct, students?

Mr. Greve’s book says all of the above is wrong. He is a scholar at the American Enterprise Institute. He argues that “balance” is not the valid term. If it were, then the Founders’ concept of federalism would be vindicated when the states usurped a federal power to compensate somehow for a federal usurpation of the states’ power. Mr. Greve argues that the constitutional plan is one of “division” rather than a balance of power. The purpose of this division was not to protect the states or their dignity but to safeguard accountability and competition among the states. Of course, the Founders did not use those terms.

In Greve’s analysis, the federal government should exercise its limited powers directly on people, rather than through the states. As a result, when a government function is performed badly, that government can be held responsible. Otherwise, the federal government blames the states for fast-dragging (or whatever) and the states decry poor federal leadership or contradictory regulations (or whatever). Now, the federal government provides very large shares of the budget of every state and delegates duties (with many regulations) for those states—Welfare and Medicaid, for instance. Instead of a national government of limited enumerated power, but supreme in exercise, we have a federal government of unlimited regulatory power that must be exercised concurrently with states.

This review can only scratch the surface of Mr. Greeve’s major work. It is far-ranging, and astutely researched. It is illuminating and stimulating. Overall, this is a remarkable book that we must recommend highly to you.

Another report on constitutional studies will appear in the next issue.

Keywords: litigation, appellate practice, book review, Constitution

Dennis Owens practices appellate law in Kansas City, Missouri.

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