A few years ago, in the pages of this review, Herbert Jacob both lauded and criticized the editors of the OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES upon the publication of that reference work. The review acknowledged the comprehensiveness of the entries and their overall quality, but Jacob reproached the editors for their nearly complete abjuration of political science research on the Supreme Court and, more broadly, judicial politics. Wrote Jacob, "Although many political scientists contributed to [the volume], readers will have difficulty ascertaining the discipline's contribution to our understanding of the Court. Is it really as small as this volume suggests?".
Well, it appears that Herbert Jacobs’ lamentation was perhaps heard -- at least by one lawyer. Stephen M. Griffin, a law professor at Tulane University, has written an excellent introduction to American constitutional theory that not only provides an overview of the legal academy’s major contributions to constitutional theory, but also incorporates significant findings of political science and historical research on both American political development and judicial behavior. Although the first of Griffin’s aims is carried off with more success than the second, the book as a whole is a significant, even agenda-setting, work of constitutional theory.
Griffin has two primary goals for this book. First, he ambitiously (and commendably) strives to introduce readers to the field of constitutional theory, an academic discipline that Griffin maintains has emerged only over the past forty years, as academic lawyers have tried to reconcile the judicial activism of the Warren Era with the political lessons of the New Deal constitutional battles. As a general introduction to the field, Griffin’s book is aimed at both students and scholars, but primarily the latter. Second, AMERICAN CONSTITUTIONALISM aims to broaden the agenda of constitutional theory by explicitly incorporating empirical and institutional studies of courts and judicial decision-making into normative accounts of what American constitutionalism means. The result is an oddly ambitious primer that seeks, on the one hand, to provide an introductory overview of a field and, at the same time, to expand the boundaries of that field.
The book’s six chapters develop six separate themes in constitutional theory: Defining American constitutionalism, the relationships between the Constitution and political institutions, judicial review and American democracy, problems in constitutional adjudication, theories of constitutional interpretation, and the relevance of constitutional crises to the political traumas of the 1990s.
As an overview of the field of constitutional theory, AMERICAN CONSTITUTIONALISM does an admirable job of sorting out the threads of analysis and the arguments of various writers -- particularly in chapter five, where Griffin moves through various schools of constitutional thought with unusual deftness. The book is by no means an undergraduate text (although talented upper-division students with previous exposure to either constitutional law or judicial politics could profit by reading it); instead, it provides readers who have an understanding of constitutional history and case law with a sophisticated and nuanced account of constitutional scholarship since, roughly, the New Deal. It would probably be put to best use in a graduate course in constitutional theory or judicial politics. At times, Griffin goes perhaps too far down some constitutional back alleyways in his efforts to parse out the differences among various schools and thinkers, but on the whole the work achieves its expressed goal as an overview of the field with economy and precision.
The second aim of the work -- to expand our understandings what constitutionalism is, how constitutional change occurs and who fosters it -- is clearly where Griffin makes his original contribution to the field. By defining constitutionalism as "an interpenetration of law and politics" (at 18), Griffin endeavors to show how the rush of history and political development has forced change on the Constitution, and how, in turn, constitutionalism -- despite the best efforts of lawyers and judges -- cannot be cabined into a strictly legal doctrine, immune from the crass forces of democratic governance.
The subtitle of the book -- "From Theory to Politics" -- perhaps best captures Griffin’s orientation. He wants us to view constitutional change as the result not merely of shifting Supreme Court doctrine, but instead as the product of changed politics (and economics) that place new stresses on actors in the constitutional order, who then respond by creating newly legitimate constitutional practices. This approach to the nature of American constitutionalism (and, indirectly, constitutional theory) implicitly expands the range of both possible interpreters and interpretations beyond Supreme Court justices and academic lawyers.
Griffin’s bete noire in this story is what he calls the "legalized Constitution." The legalized Constitution emerged in the founding era, according to Griffin, because the generation of 1787 viewed the relationship between Constitution and statute as analogous to the relationship between law and politics. This understanding rendered the Constitutional legally enforceable, but it also denied that "significant differences existed between the Constitution and ordinary law" (at 17). The practical upshot of this denial meant that "the judiciary, the branch with the greatest legal experience, had the special responsibility of interpreting the Constitution" (at 17).
But this constriction of constitutional meanings into a wholly legalized sphere has come at a profound cost. In our day, that cost is manifest by an unnecessarily narrow view of what constitutionalism is. While most constitutional scholars still work within the tradition of the "legalized Constitution," Griffin points out that the PRACTICE of constitutionalism in the twentieth century has moved far beyond that. Indeed, he writes that "American constitutionalism has moved from the theory that the entire Constitution could remain separate from politics to a situation where the meaning of most of the Constitution is determined through ordinary politics" (at 45). As a result, over the course of the 20th century, the Supreme Court has become increasingly marginal to the production of Constitutional change: "The course of constitutional change during the New Deal and other important periods of change in the twentieth century flowed through the President and Congress, not the Supreme Court and the legalized Constitution" (at 45).
By opening up the practice of constitutionalism to other, non-legal actors, Griffin recognizes that presidents, legislators, states and even political parties have helped to write and rewrite what the American constitution means. This opening provides Griffin with a justification to explore the findings of political scientists and historians who have examined, in empirical terms, both the development of the American state and the legal behavior of judges and non-judges alike. All of this amounts to a significant broadening of intellectual horizons for lawyers who study constitutional theory because it aims to link up normative understandings of the relationship between the American Constitution with empirical accounts of how the American state has changed over the course of 200 years. Griffin recognizes that most of the significant changes in the very structure of the American state -- the birth and growth of political parties, the rise of the administrative state, the emergence of the Cold War security apparatus, to name a few developments -- have been neither acknowledged by the textual constitution, nor initiated by Supreme Court justices. But he argues that these changes, nonetheless, now form an integral core of our constitutional theory and practice. To Griffin’s mind, this demonstrates the dynamic nature of extra-legal constitutionalism, and his ability to argue this point is a major strength of this work.
The book, however, is not without faults. Griffin has chosen to interweave his original contributions to constitutional theory with his summaries and analyses of other authors’ views. Although this helps him to map out fruitful areas for future investigation, it also muddies the book a bit. His own subtle argument is, I think, somewhat misserved by his effort to also survey the major contributors to the field. This is particularly true because most of the authors that Griffin summarizes and critiques work largely within the tradition of the legalized Constitution. The result is that his own novel contributions are counter-weighted by his in-depth treatment of disputes within the legal academy. At times, Griffin finds himself explaining distinctions among schools of thought that are a long ways from his own distinctive and powerful claims. In short, I wanted to read more Griffin and less of Bork, Ackerman, Ely and others.
A more fundamental criticism emerges when we think about what is left for constitutionalism and constitutional theory in the wake of Griffin’s book. If non-legal actors are engaged in creative and purposive constitutional reforms through ordinary politics (and outside the boundaries of Article V), how do know if those innovations are legitimate? By what indicator, or set of indicators, can we determine whether the polity has confirmed those innovations? This is the problem Bruce Ackerman has wrestled with in WE THE PEOPLE, but Griffin does not provide us with any markers of his own to map out this terrain. If there are no meaningful signs of a popular acceptance of these innovations, then there is very little room left for constitutional theory. Constitutionalism must be premised, at bottom, on some form of democratic consent, but it is unclear what shape that consent takes in Griffin’s story of constitutional change. Indeed, without democratic consent, the very notion of constitutionalism becomes somewhat tenuous, and a political situation emerges in which power -- the capacity to "get away with it" -- dominates law.
For example: Truman surely launched a far broader expansion of presidential powers through NSC-68 than he could have won if the Court had allowed his seizure of the steel industries. The growth of the national security state over the course of the Cold War may have been a constitutional innovation, as Griffin argues. But by what mechanisms did it attain constitutional LEGITIMACY? That level of explanation is lacking in Griffin’s book. And that level of explanation is necessary if we are to tackle the questions of constitutional crisis that Griffin turns to in his final chapter.
Despite this missing element, AMERICAN CONSTITUTIONALISM is a compelling work, one that admirably integrates disparate fields of inquiry and produces an energetic view of constitutional theory. It makes a significant contribution to constitutional theory and could set the agenda for a wide array of explorations into the normative and empirical dimensions of constitutional politics.
