Our Elusive Constitution: Silences, Paradoxes, Priorities

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Overview

Through a distinctive blending of political and legal analysis, this book draws attention to urgent questions in constitutional thought that have received inadequate attention from courts and scholars. Daniel N. Hoffman argues that we can avoid the pitfalls of much legal and political-science scholarship if we attend carefully to certain problems posed by constitutional silences, paradoxes, and priorities. "Silences" are issues of current concern on which the Constitution has little or nothing explicit to say, such as the role and influence of administrative bureaucracy, political parties, and multinational corporations. "Paradoxes" are anomalies within modern constitutional doctrine that reflect the built-in tensions between liberal and republican ideas, as well as the historical impact of forces such as nationalism and capitalism. And "Priorities" refers to the need for a more principled account of how to balance or choose between different constitutional values.

Among the topics Hoffman explores are the relationship between law and politics, the relationship between the citizen and the state, the jurisprudence of personal rights, and the need for expanded political and economic rights to restore balance to the constitutional system.

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Editorial Reviews

Don Crowley
Daniel HoffmanÆs book is a thought provoking inquiry into the meaning of the Constitution in modern American politics. Hoffman begins from the premise that while much of American constitutional theory today is irrelevant "to the ongoing political life of our society," (p.1) a discourse "that participants can find meaningful, principled. and fruitful" (p.7) is essential to the well being of our constitutional polity. Hoffman argues that for a constitution to work it must express a consensus on fundamental principles. His faith is that a fresh inquiry into what he terms the ConstitutionÆs "silences, paradoxes, and (largely implicit) priorities" can help to promote such a consensus. Such a lofty goal certainly presents a daunting task in our cynical age. While HoffmanÆs undertaking undoubtedly falls far short of creating the consensus on fundamental principles he finds necessary, those who have grappled with the ambiguities of constitutional interpretation will find much to admire in HoffmanÆs efforts. HoffmanÆs work skillfully blends contemporary political theory with a broad understanding of the Supreme CourtÆs constitutional decisions. HoffmanÆs inquiry is complex and certainly not written for an undergraduate audience. Indeed the book assumes a fairly sophisticated understanding of constitutional decision making and American politics. The book is organized into three parts. Part I generally explores the law-politics dichotomy in judicial decision making, Part II focuses on the tensions between the liberal principles of individualism and what Hoffman terms the expansionary logic of nationalism, while Part III seeks to develop a theory of personhood and suggests what such a theory demands in the way of individual rights. Granted that such an organizational structure is not typical of most explorations of constitutional interpretation, Hoffman nevertheless manages to touch on many concerns important to constitutional scholars. The first two chapters center on the Court's use of the political questions doctrine and the extent to which the Constitution can be seen as offering coherent principles of fair representation. Here Hoffman argues persuasively that the Court has never articulated a consistent basis for the political questions doctrine and that the doctrine is not necessary to protect the Court against charges that judicial review is undemocratic. The fact that the Constitution doesnÆt provide clear answers to fundamental questions is not grounds for the Court to stay out of the dispute. For Hoffman, constitutionalism, at the very least, demands a commitment to stable procedures and agreed upon ways of proceeding. For this reason Hoffman rejects arguments that suggest the Court should stay out of representation questions on the grounds that "the Constitution contains no coherent, justiciable standard of fairness in representation." (p.66). Leaving such debates to be decided by ordinary political processes on the grounds that they are more democratic is naive "since ordinary politics itself is often far from democratic." (p.76). Although Hoffman may be right that if the Court opts out of dealing with representation questions it tends to bias the result towards those who already possess political power, such an argument provides no answer to how the Court is supposed to resolve such disputes. On this question Hoffman is as elusive as the Constitution. In the middle section of the book Hoffman seeks to analyze "the institutional implications of nationalism and imperialism" with particular emphasis on the expansion of Presidential power and what this means for the rule of law and civil liberties. Hoffman does a convincing job of debunking the "myth of Presidential Prerogative" and its inconsistency with the constitutional principles of separation of powers and limited government. However, this isn't his real goal here. More generally Hoffman wants to explore to what extent the Constitution provides a useful guide in determining what activities governmental entities may pursue in the public interest. He asserts that for the Constitution to be meaningful to the nation's political life it must "express some vision of the public interest and the governmental responsibilities that flow therefrom." (p.129). Hoffman then embarks on an interesting discussion of the frequently ignored question of what constitutes a "compelling government interest." However, Hoffman unsurprising conclusion is that the Constitution canÆt really provide much meaningful direction about what we as a polity should do. As in the discussion over representation, Hoffman clearly believes that the Court shouldnÆt abandon the field to ordinary politics in determining such issues. Still, Hoffman isnÆt particularly enlightening in clarifying when and in what ways the Court should intervene. In the final section of the book Hoffman turns his scrutiny to individual rights: how we should decide which ones are fundamental and what rights should exist that arenÆt yet recognized. For Hoffman, a principled approach to rights should flow from a clear concept of personhood. He claims that from a personhood perspective, our constitutionalism possesses a viable system of fundamental rights insofar as it can protect the conditions for the flourishing of individual persons against competing claims that may enjoy majority support.à (p. 190). Fundamental rights flow not only from the text but from what it means to be a person. If it is essential to human dignity a rights claim is clearly fundamental. In this way Hoffman is able to argue for an approach to rights that isnÆt simply a list of what government cannot do to us. Rather government has a positive obligation to provide for "minimal subsistence needs, education, and effective access to the economic and political processes that make for self-respect, social integration, and representation in the public sphere." (p. 231). While this reviewer doesnÆt have any objection to HoffmanÆs list of rights that we need, it isnÆt hard to imagine some readers who would. Is HoffmanÆs account likely to persuade those who start with very different background assumptions about the prerequisites for meaningful participation in American life? Probably not. The prevailing tension in HoffmanÆs work lies in his belief that a fairly high degree of societal consensus on fundamental principles is necessary if the constitution is to play an essential role in American political life, coupled with his observation that "our political culture, along with the ConstitutionÆs silences and paradoxes make it difficult for us to agree upon the rudiments of a positive national agenda." (p. 232). How is this consensus supposed to come about? HoffmanÆs claim is that attention to constitutional discourse can help keep us aware of our "deepest commitments as a people." (p.234) Ultimately this boils down to an existential faith that we are better off proceeding as if such arguments matter. HoffmanÆs final position is strikingly similar to Seidman and TushnetÆs in REMNANTS OF BELIEF (1996) where they assert that adherents of "skeptical commitment" are "obligated to construct meaning even when we know that it does not exist--to proceed as if constitutional rhetoric were meaningful, even when we know that it is not." (Seidman & Tushnet: 200). This skeptical commitment may be essential if we are to continue to do what we do. Whether such discourse helps to develop and nourish societal consensus is a different question entirely. REFERENCES Louis M. Seidman and Mark V. Tushnet. 1996. REMNANTS OF BELIEF: CONTEMPORARY CONSTITUTIONAL ISSUES. New York: Oxford University Press.
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Product Details

  • ISBN-13: 9780791435021
  • Publisher: State University of New York Press
  • Publication date: 10/28/1997
  • Series: SUNY series in American Constitutionalism Series
  • Edition description: New Edition
  • Pages: 297
  • Product dimensions: 5.95 (w) x 8.99 (h) x 0.69 (d)

Table of Contents

Preface

Introduction

Part I. Law and Politics—What, Where, and How?

1. The Myth of the Political Question

2. Representation and Constitutional Politics

Part II. The Many (Against Nationalism)

3. Peoplehood and Nationalism

4. The Myth of Presidential Prerogative

5. Compelling Governmental Interests

Part III. The One (Against Positivism)

6. Personhood and Rights

7. What Makes a Right Fundamental

8. Rights We Need Today

Afterword

Notes

Bibliography

Index

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