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Irreverent, provocative, and engaging, Desperately Seeking Certainty attacks the current legal vogue for grand unified theories of constitutional interpretation. On both the Right and the Left, prominent legal scholars are attempting to build all of constitutional law from a single foundational idea. Dan Farber and Suzanna Sherry find that in the end no single, all-encompassing theory can successfully guide judges or provide definitive or even sensible answers to every constitutional question. Their book brilliantly reveals how problematic foundationalism is and shows how the pragmatic, multifaceted common law methods already used by the Court provide a far better means of reaching sound decisions and controlling judicial discretion than do any of the grand theories.
An apparently normal, middle-aged woman goes to a psychiatrist. The psychiatrist asks her why she is there.
"My family sent me," she replies. "They think I'm crazy."
"Why do they think you're crazy?" the psychiatrist asks.
"Because I like potato latkes."
"That's not crazy," says the doctor. "Why, I like latkes myself."
"That's wonderful! You should come to my house sometime.
I have closets full of them."This book is about six prominent constitutional scholars who have (figuratively, of course) closets full of latkes. Each has taken an interesting and useful idea only to become fixated on it. They have tried to build an entire constitutional structure from the ground up using very limited materials. One, for example, looks primarily to the views of the generation that wrote and ratified the Constitution, another only to its text.
1. The Constitution is a written document, drafted in 1787 and ratified in 1789, with important amendments soon thereafter adding the Bill of Rights, and other important amendments added in the wake of the Civil War (as well as at other times).
2. The Supreme Court is in charge of enforcing the Constitution. Its job is to follow the law, not to bow to public opinion or to implement the personal values of the justices. In general, interpretation should begin with the meaning the words conveyed to those who wrote and ratified the various parts of it ("the framers" or "the founding generation").
3. The Constitution can only be changed through the formal, cumbersome process of amendment, specified in Article V.
4. The Supreme Court's rulings are law, and must be followed by other judges and government officials as well as by ordinary citizens.
5. Under the Constitution, the federal government has the power to legislate on a broad range of subjects, including health and the environment, workplace conditions and discrimination, drugs, and organized crime.
6. It is unconstitutional for either the federal or state governments to engage in racial segregation or to deliberately discriminate against women or racial or ethnic minorities.
7. The Constitution envisions states not merely as regional offices of the federal government but as possessing their own separate sovereignty. However, both states and the federal government must respect freedom of speech, refrain from unconstitutional searches, respect the right to remain silent, and so forth.
8. It would violate the Constitution--or so most people assume--for the government to assign spouses to people or to dictate their family size, to require them to get abortions, to deprive them of custody of their children arbitrarily, or to force them to submit to sterilization.These eight propositions are, we think, little more than common sense, and most people would find no hesitation in affirming all of them. The problem, as legal sophisticates have long realized, is that they are in tension with one another. That is, if given their full scope they would contradict each other. For instance, adherence to original intent is hard to square with rejection of racial segregation, since the same Congress that proposed the Fourteenth Amendment (barring discrimination) also maintained segregated schools in the District of Columbia. This puts the second proposition in tension with the sixth. Protecting family choices--the decision whom to marry or how many children to have--is not mentioned anywhere in the written Constitution, and thus the first three principles conflict with the eighth. And the rules of constitutional law have changed significantly over time without recourse to any formal amendment. Indeed, without such changes, most of the current understanding of government power (such as the federal gov-ernment's power to protect the environment) would be questionable.
Excerpted from Desperately Seeking Certainty: the Misguided Quest for Constitutional Foundations by Suzanna Sherry Copyright © 2002 by Suzanna Sherry. Excerpted by permission.
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1. Of Law and Latkes
2. In the Beginning: Robert Bork and Other Originalists
3. The Formalist Crusade of Antonin Scalia
4. Richard Epstein and the Incredible Shrinking Government
5. Akhil Amar and the People's Court
6. Bruce Ackerman's Magic Amendment Machine
7. Ronald Dworkin and the City on the Hill
8. Dethroning Grand Theory
Posted August 1, 2002
This is a delightful book. It has a chatty, breezy, easy-to-read style (I am reminded of the style of a good review in the New York Times Book Review). It is interesting, educational, persuasively argued, and thought-provoking. After reading this book, I felt like I had learned some interesting things about some interesting people, and I wanted to know more. At times, it can be clever or funny, but not in a way that is strained or that trivializes the subject. If only more writing about legal theory were this good!Was this review helpful? Yes NoThank you for your feedback. Report this reviewThank you, this review has been flagged.