WORDS THAT BIND surveys five theories of judicial interpretation, explicates the philosophical roots of modern legal theory, and in the process argues for a logically rigorous approach to the problem of judicial review. Arthur, a philosopher by training and vocation, explores the normative arguments underlying theories of original intent, critical legal studies, utilitarianism and what he terms "democratic proceduralism" and "democratic contractualism." Each substantive chapter considers one of these theories, identifies the philosophical principles underlying the theory, and critiques the theory’s logical coherence, focusing on how each theory justifies or limits judicial protection of constitutional rights.
This is an admirable project and Arthur does an excellent job working through the fine points of the material he surveys. However, the book is flawed in both its structure and its selection of subject matter. While the separate chapters share a common purpose, they read as self-contained essays with little attempt at synthesis or a broader view. And the five theories which Arthur examines are a mixed lot, whose selection is not justified in the text itself. Original intent jurisprudence must, of course, have a place in any review of constitutional theory, and "democratic proceduralism," which argues that judicial review is most appropriate when it supports democratic principles, is certainly worthy of inclusion. Both are primarily concerned with the countermajoritarian role of the judiciary in a constitutional democracy, and with the proper normative framework for when judges should act to protect rights. And, Arthur’s preferred theory, "democratic contractualism," which states that constitutional interpretation should follow such values as equality and human dignity, has enough similarities with other progressive theories of constitutional interpretation to be worthy of consideration. Less clear is why, with a title like WORDS THAT BIND, there is no consideration of literalist approaches to the Constitution, such as that endorsed by Justice Hugo Black. Ronald Dworkin makes a short appearance in Arthur’s critique of democratic proceduralism, but theories based on the practice of judicial interpretation are not considered for their capacity to justify judicial review.
The volume is also overinclusive in a way that obscures its central project. Its surveys of the Critical Legal Studies movement and utilitarianism are more concerned with legal theory broadly defined than constitutionalism specifically, and are less attentive to the problems inherent in the judicial role within a constitutional democracy. These two chapters are also the weakest because Arthur treats both CLS and utilitarianism as if they were theories of constitutional interpretation. This is problematic in the case of CLS, which has its greatest strength in the critical subversion of claims of judicial neutrality. And, it is problematic in the case of utilitarianism, which is a moral theory largely disconnected from constitutionalist arguments over the judicial role.
After a short introduction laying out the plan and argument of the book, the first chapter examines the original intent model of constitutional interpretation, using the approaches of Chief Justice Rehnquist and Robert Bork as representative. Arthur first outlines the basic theory of judicial review and the critique of judicial review as countermajoritarian, and reviews how original intent jurisprudence relies on social contract theory for its argument that Constitution is best interpreted according to the understanding of its authors and those who actually consented to it through the ratification process. Arthur’s own critique of original intent focuses on the problems of using social contract theory to justify a constitutional regime to which most modern Americans have actually consented and asks if such consent today even could be voluntary or possible. And he amply demonstrates that understanding the framers’ intentions is not easy.
Having dismissed original intent, Arthur considers "democratic proceduralism," the theory that judicial review is properly exercised when it corrects for such deficiencies in the democratic process as inadequate electoral representation, the deprivation of minority rights, or the suppression of political dissent. Arthur argues that proceduralism is faulty because democracy as a value is not self-legitimizing, but still requires that judges exercise moral judgement in determining what constitutes a democratic form of representation and whether discrimination against minorities is the result of prejudice. Arthur’s critique of the proceduralist claims that judicial review in selected cases only contributes to greater democracy and is not countermajoritarian, showing how a wide array of other choices need to be made is one of the highlights of the book.
In the third chapter, Arthur describes Critical Legal Studies largely in terms of its critique of "indeterminacy" in legal interpretation, the idea (descended from Legal Realism) that judges make choices based on their political and social views and that the law does not dictate any particular result. Arthur acknowledges that CLS is not "competing on the same plane with originalism and proceduralism" in possessing a normative theory justifying the use of judicial review, but criticizes it because it is "subjectivist" in its theory of rights. The fallacy of subjectivism, according to Arthur, is "that it is possible for political and moral argument to constrain judges" and that therefore "judges are not ‘free’ to choose whatever interpretive method or specific interpretation they wish," a claim that is clearly stronger than what is meant by the CLS concept of indeterminacy. Arthur’s critique of CLS fails to convince because he asks the theory to do something that it does not claim to do, and because it cannot support a statement it does not make. Indeed, it can be argued against Arthur that the concept of discourse, often invoked in CLS, provides exactly the sense of a restricted sphere in which judges can justify choices they do make, while not determining the content or result of those choices.
The fourth chapter, examining utilitarianism and the Law and Economics movement, is also unconvincing. While Law and Economics is clearly one way in which utilitarianism has been operationalized in legal theory, it serves as an afterthought to Arthur’s able discussion of utilitarianism. Arthur is clearly at home in the more traditionally philosophical discussion of utilitarianism and develops a sophisticated argument for the desirability of "rule utilitarianism" in judging, whereby the benefits of particular rule over a large number of cases is more important than its value in a single case. This too ultimately fails in Arthur’s eyes because utilitarianism does not adequately account for "[m]oral claims like dignity [which] are important to constitutional interpretation."
Unfortunately, Arthur’s treatment of utilitarianism fails to justify his transition from utilitarianism as a moral theory to utilitarianism as a theory of judicial review in a representative democracy. This is evident in his choice of an example of utilitarian judging. Rather than critiquing Law and Economics treatments of takings or anti-discrimination laws, Arthur uses Judge Learned Hand’s formulation of the "clear and present danger" test in DENNIS V. UNITED STATES (1950) as "whether the gravity of the ‘evil,’ discounted by its improbability justifies such invasion of free speech as is necessary to avoid it" as his primary example. [The book misquotes Hand as discounting "the gravity of the ‘evil’" by its "probability."] Arthur takes Hand’s "utilitarian judge" through calculations involving both the advantages of allowing Dennis and company’s speech (transformed into a benefit instead of a right) and the harm caused by the speech. My own reading of DENNIS is that, while Hand attempts to calculate the harm that could result from the speech, he does not attempt to ascertain the worth of the speech, which is simply presented as a right. While one may find such calculations in the areas of obscenity or libel, and while judges often balance one interest or right against another (ROE V. WADE (1973) is only the most obvious example), that hardly makes them utilitarians in their understanding of the origins and nature of rights.
Arthur’s preferred theory, "democratic contractualism," is both his most provocative contribution and the most vexing. Democratic contractualism, a version of John Rawls’ theory of justice, holds that the proper polity is that which all persons would choose if they deliberated in an impartial manner without concern to race, gender and other "morally arbitrary" qualities. Arthur ties this conception to the U.S. Constitution in two ways. The first involves quotations from James Madison regarding the ideal of a social compact where individuals enter as free, equal and independent beings, which Arthur equates with Rawls’ ahistorical and bloodless individuals. The second involves quotations from Justice Brennan characterizing human dignity as a constitutional right. Arthur makes a strong argument for Rawls’ solution because it combines the best aspects of social contract, democratic theory, and utilitarianism, replacing our flawed framers and prejudiced judges with perfect philosophers. However, this solution should appeal most to those who, to quote Marx, "descend from heaven to earth." Political scientists in particular may find its application more problematic than the theories which Arthur rejects as philosophically inconsistent.
No brief review can do justice to the complex and sophisticated arguments Arthur explores in each chapter and that is why, despite its problems, WORDS THAT BIND is ultimately worth reading. Even the chapters on CLS and utilitarianism provide new insights into the assumptions of constitutional theory, if simply for how Arthur subjects each theory to rigorous critique. Unfortunately, the strength of Arthur’s critique sometimes gets in the way of his larger project of constructing a more satisfactory theory of judicial review.
References
DENNIS V. UNITED STATES, 183 F.2d 201 (2nd Cir. 1950).
ROE V. WADE, 410 U.S. 113 (1973).
