The Most Wonderful Work: Our Constitution Interpreted

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Editorial Reviews

D. Grier Stephenson, Jr
"The Constitution is one of the great achievements of political philosophy; and it may be the only political achievement of philosophy in our society" (475). Thomas E. Baker draws on this assessment by legal philosopher Donald H. Regan to open the fifth chapter of "THE MOST WONDERFUL WORK...": OUR CONSTITUTION INTERPRETED. As most readers will recognize, the title derives from the stunning appraisal of the United States Constitution that William Gladstone offered in 1878, between the first and second of what would be four terms of service as British prime minister. As all readers will discover, the book consists mainly of opinions from Supreme Court decisions, each selected for the purpose of "educat[ing] the enquiring reader about constitutional values and principles..." (xiii). And the number of selected decisions exactly equals the number of essays comprising THE FEDERALIST. One is hardly surprised, then, to read that the book is designed to "harken back to a previous era of our constitutional life" (xi). Because Baker accepts both Regan's assessment and Gladstone's appraisal, the Constitution -- which Baker labels "truly ... an object of wonder" -- is worthy of study by all citizens, not just those who are academicians, lawyers, and judges, or others who hold or aspire to public office. "There are no high priests or secret rituals in our democratic republic," the author writes. Yet study of the Constitution is not merely desirable but necessary. "Ultimately, it is every citizen's responsibility to understand and to preserve our constitutional form of government" (viii). This is language of a (small-r) republican who believes that much more than a scattering of civic virtue is essential to the continued health of the political system. "THE MOST WONDERFUL WORK..." is therefore a means to an end: "rational discourse" or "a political dialogue engaged in by "'We the People'" who comprise, in Woodrow Wilson's words, "a veritable community." Emphasis on such discourse or dialogue is needed because "[t]oday's popular constitutional rhetoric ... often is sterile, even mindless, by comparison to that of the Framers." In contrast to the formative period of American history when "constitutional law ... was understood to be the duty and privilege of every citizen," the subject has become the peculiar province of "an elitist enterprise" practiced by "Supreme Court Justices and lawyers and constitutional law professors" (ix). What they write is often "inaccessible and unintelligible to the average citizen." Members of the professorate, in particular, write and speak only to one another, abdicating "the field of popular constitutional commentary to journalists." Too little of the attention that newspapers and television devote to constitutional law is "thoughtful and balanced," and "[t]oo little is didactic" (x). The author does not say, but might have added that the space and time allocated to constitutional questions in the news media rank far behind warehouse fires, police shoot-outs, and scandals of the rich and famous. When the Constitution is news, Baker argues that commentators and columnists do little to instruct citizens in how to think about constitutional issues, being more concerned with telling them what to think. What passes for constitutional discourse is reduced to sound bites, slogans, headlines, and 15-second summaries. And the picture may even be gloomier: most Americans seem to be blissfully unaware of, or uninterested in, constitutional matters, except in the case of an occasional high profile, gosh-this-really-affects-me, issue. It is this state of affairs that the author wants to change. Of course it is impossible to recreate accurately or even to imagine accurately the intellectual climate of the founding era. Most probably the publicists on both the federalist and antifederalist sides in the debate over ratification of the Constitution were more immediately concerned with telling citizens what to think about the proposed plan of government than in instructing them how to think about it. For the most part they were political activists not dwellers of ivory towers. Still, the political discourse of that time seems considerably more sophisticated when one places it alongside today's. Surely more than one instructor in an introductory American government course has encountered the incredulity of undergraduates, after informing the class that the handful of FEDERALIST essays listed on syllabus are part of a long series that first appeared in New York newspapers 210 years ago for consumption by a general (and non-college educated) audience. They are amazed to learn that newspapers would print such things. It is not merely that writing styles and vocabulary have changed over two centuries. The contrast with the usual content of newspapers and television today is stark. Whatever the failings of professors, journalists, and the public, Baker generally gives high marks to the justices of the United States Supreme Court. They "consistently have done more of the needed civic education in the pages of the UNITED STATES REPORTS, and have done it far better than either the press or the professorate" (xiii). Indeed Baker might have said that with the vast possibilities of the Internet at hand, their opportunity for civic education today surpasses anything the nation hitherto has witnessed. Any home or school connected to an Internet service provider has access, at no additional charge, to the resources of a reasonably complete law library. The country and the Court have come a long way since the early justices were said to use their grand jury charges on circuit to teach local citizens about the Constitution. So, although Baker calls on "both the Justices and the people ... [to] rededicate themselves to" the "lost tradition" of the founding period (xi), the burdens of that rededicating would seem to fall largely on professors, publicists, journalists, and the general public. The Court is already doing its work well, apparently, although Baker would doubtless agree that the justices should remain fixed on civic education as one of the primary purposes to be served by any judicial opinion. This belief in the civic value of what the Supreme Court does explains the author's editorial decision to include only Supreme Court opinions in his quest to elucidate "those important and fundamental principles on which our constitutional republic is based, the shared values of our polity" (xiii). The result is salutary: a variegated display of the Constitution and American government as perceived by the Supreme Court. The price of that editorial decision is obvious: the exclusion of other, perhaps equally useful, sources. One thinks immediately of selections from the FEDERALIST itself, antifederalist writings such as Robert Yates's "Letters of Brutus," telling examples of judging self-judged as in Pennsylvania jurist John Bannister Gibson's critique of MARBURY v. MADISON (1803) in EAKIN v. RAUB (1825), and in presidential disputes with the bench regarding the finality of judicial decisions on constitutional questions. Baker's collection is not intended to yield a constitutional law casebook. True, there are opinions that touch on almost every major topic in a constitutional law course, and barely a handful of Baker's cases would look out of place in a casebook published in the 1990s. Still, the author makes no claim that his is the book to consult for the Court's current position on such topics as the fine points of establishment clause jurisprudence, the outlines of presidential immunity doctrine, or the elements of a constitutionally acceptable warrantless search of an automobile. Moreover, there are staples of constitutional law casebooks that are noticeably absent from "THE MOST WONDERFUL WORK..." -- GIBBONS v. OGDEN (1824), COHENS v. VIRGINIA (1821), DARTMOUTH COLLEGE v. WOODWARD (1819), CHARLES RIVER BRIDGE v. WARREN BRIDGE (1837), MUNN v. ILLINOIS (1877), and WICKARD v. FILBURN (1942), to name but six. The principal criterion for selection seems to have been not the historical or contemporary significance of a particular decision but the relative value of its opinion(s) as a teaching device alongside other worthy candidates competing for a place among the symbolic 85. Neither is the volume a textbook in the usual sense: the rigors of rededication presumably eschew spoonfeeding. Readers will have to dig out most of the truths to be had on their own. The author's preface (or introduction) and the five short essays that precede each of the five chapters total only 58 of the volume's 676 pages of text. Nonetheless, even readers already entirely familiar with all the cases may delight in the insights that the author shares in those contributions. The cases come from all periods of the Court's history, beginning with CHISHOLM v. GEORGIA (1793) and concluding with ROMER v. EVANS (1996), but the emphasis is clearly on the modern bench. Altogether, forty-seven were decided after 1953, that is, during the Warren, Burger, and Rehnquist years, while only a total of six are drawn from the Jay-Rutledge-Ellsworth, Marshall, and Taney periods. Perhaps the more recent courts are more heavily featured not because the writing is better -- it probably is not -- but because the range of topics explored is so much broader. From the 85 cases "THE MOST WONDERFUL WORK..." reprints carefully edited excerpts from 111 opinions: 108 individually signed opinions (majority, dissenting, and concurring) plus one per curiam opinion, the joint O'Connor-Kennedy-Souter opinion from PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (1992), and the opinion of the Court from COOPER v. AARON (1958) signed by all nine justices. For each excerpt Baker has eliminated all citations, ellipses, italics, and footnotes, and in places has even slightly altered the wording to facilitate the average reader's access to the substance of the opinion. For example, in his opinion for the Court in the PRIZE CASES (1863), Justice Robert Cooper Grier wrote, "'A civil war,' says Vattel...." In Baker's book, the same passage begins, "'A civil war,' says commentator Emmerich de Vattel...." Grier's next paragraph continues the quoted passage from Vattel: "'This being the case, it is very evident...'" (1863, 667). In Baker, the same passage becomes: "'This being the case,' Vattel continues, 'it is very evident....'" Later, Baker renders Grier's reference to two specific acts of Congress from 1795 and 1807 (1863, 668) as "longstanding Acts of Congress" (296). When Grier refers to "the well known principle of law..." (1863, 671) in Latin without translation, Baker (perhaps remembering both the general unfamiliarity with the language and the frustration that classroom Latin seems never quite seems to yield the same meaning as legal Latin) retains the Latin phrase but promptly (and thankfully) inserts a translation (298). The 108 signed individual opinions bear the names of 43 justices. By this reviewer's count, William J. Brennan and Hugo L. Black are tied for first place with nine each; Antonin Scalia is in second place with six, while Robert H. Jackson, Potter Stewart, and William Rehnquist follow with five each. Warren Burger, Harry Blackmun, Anthony Kennedy, and Oliver Wendell Holmes, Jr., are each represented with four. Among the 57 justices appointed in the eighteenth and nineteenth centuries, Baker's book contains opinions by twelve. Among the appointees from that period whose opinions were excluded are Justices Joseph Story, Benjamin Curtis, Samuel Miller, William Johnson, James Wayne, David Brewer, and Stephen Field. Among the 51 justices appointed to date in the twentieth century, the book contains opinions by 31. Among the 20 not making the cut are Fred Vinson, Benjamin Cardozo, Wiley Rutledge, Tom Clark, John Clarke, Stanley Reed, Harold Burton, Willis Van Devanter, Ruth Ginzburg, and Stephen Breyer. Amid this bean counting lurks a question, at least for justices of the past 40 or so years: who does most of the opinion writing anyway, the justice who gets the credit in the UNITED STATES REPORTS or one or more law clerks? Baker claims that "some of the opinions written by some of the Justices truly speak to the ages" (x), but does not identify the ones that qualify for so majestic a ranking. If the timeless ones are among the more recent and if authorship rests more with the clerks than with the justices, then the latter must keep a busy editorial hand in the product that carries their names. If not, then contemporary legal education is broader, more visionary, and more oriented toward inculcation of wisdom with respect to public affairs than is sometimes supposed. Even with the array of opinions, readers of this review may wonder what specific contribution "THE MOST WONDERFUL WORK..." makes. Baker's hope is that the volume will be read and consulted by interested citizens who want to know more about the Constitution. These are the people, one supposes, who come across the volume on a shelf at their favorite bookstore. For those who teach American constitutional law, politics, and history, "THE MOST WONDERFUL WORK..." may also prove to be a valuable resource. It could be easily adapted to a seminar for first-year students on American constitutionalism or to a similar course designed as a foundational element of the general education component of an undergraduate curriculum. In both situations "THE MOST WONDERFUL WORK..." would probably realize better results than the traditional casebook. One can also imagine the volume serving as the major reading for a non-credit seminar for adults, such as those sponsored by an active humanities council in the states that are blessed to have them. Professor Baker has compiled a volume that is rich with civic potential. It now requires only a little imagination and application to move that potential closer to fruition. REFERENCE PRIZE CASES. 1863. 67 U.S. (2 Black) 635.
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Product Details

  • ISBN-13: 9780314203397
  • Publisher: West Group
  • Publication date: 4/15/1997
  • Edition description: New Edition
  • Pages: 706

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