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Saying What the Law Is: The Constitution in the Supreme Court by Charles Fried (Harvard University Press, 319 pages, $30)

Is professor Charles Fried’s new book a dangerous volley from the constitutional right? Some law professors and legal activists are sure to see it that way. In truth, though, Saying What the Law Is: The Constitution in the Supreme Court offers moderation in almost every sense. Fried dispassionately discusses recent controversies in constitutional law while also spelling out a theory about how the Supreme Court should go about its work. By giving paramount importance to modest and principled judicial decision making, Fried’s theory simply continues a distinguished tradition of searching for a principled approach to constitutional law.

Fried is best known as Ronald Reagan’s second solicitor general, but he is also the author of a long list of scholarly works, including books on ethics, torts, and contracts. He often makes sense of his subjects by drawing on traditional legal and philosophical ideas. For example, his Contract as Promise updates and defends the traditional notion that contract law exists to enforce the wishes of contracting parties. Foreshadowing Saying What the Law Is, Fried’s defense of contract law depends on a controversial belief about written legal commands: that someone reading a contract — a judge, for instance — usually can tell what contracting parties are trying to say.

Like his earlier works, Saying What the Law Is refines and defends a generally traditional view of its subject. Fried’s main point is that constitutional law must consist of identifiable “doctrine.” By doctrine, he means “rules and principles” that, taken together, have definite meaning and prevent judges from deciding cases however they wish. Doctrine is Fried’s test for what counts as constitutional law: He contends that identifiable doctrine “is necessary if constitutional law is to be law.”

Applying this “doctrine” test, Saying What the Law Is surveys the most active constitutional battlegrounds. Fried first takes up the structure of the federal government, discussing federalism and separation of powers. Then he turns to topics that even nonlawyers argue about: free speech, religion, property rights, liberty, and equality. Each chapter includes a primer on constitutional text and history, plus the relevant Supreme Court precedent, extending from the ratification of the Constitution to recent controversial decisions. Fried sticks scrupulously to his main theme, organizing each discussion around whether the subject contains “doctrines” that are “sufficiently definite to provide guidance, regularity, and confidence that the Court is doing lawyers’ work” rather than that of politicians or cultural critics. Again and again, Fried’s discussions show the importance he assigns to clear doctrine, and also to the sound judicial reasoning that makes doctrine possible.

Because of this focus on the details of legal reasoning, Fried’s paragraphs are Swiss watches of analysis, measuring precisely the nature, force, and limits of the arguments he examines. For example, he describes how doctrine guides decision making in free-speech cases because it “organizes the conflict into [categorical] types,” “resolves the balance within each type,” and then specifies that “certain types take precedence over” others. This precedence can be absolute, Fried explains, or it can be “softened” to “presumptive precedence” that can be overcome by certain other interests. “Finally,” he concludes, any unaccounted-for considerations fall into a “residual category” of “limited domain” that “requires ad hoc balancing.” Through this controlled sequence, doctrine both “structures” legal decisions and forces judges to explain exactly what they are doing.

Fried repeatedly insists on clarifying the grounds on which a decision rests: the Constitution’s words or history, the Supreme Court’s words, sheer logic, professional intuition, and so on. He equally insists on analyzing the “forms of argument,” or how these different grounds interact. Does one element trump another? Are the elements “weighed” against each other? Are they tossed in the hopper without any guidance at all? Does an argument, examined closely, employ plain words, analogy, metaphor? Fried repeatedly asks these questions, meticulously working his legal scalpel, teasing out the threads of each argument, and testing their strength.

This emphasis on careful, candid legal reasoning makes Saying What the Law Is an argument for the continuing relevance of a venerable legal tradition. That tradition should not be confused with strong originalism, which Fried dismisses as “fantasy.” Fried’s tradition places proper judicial reasoning at the center of constitutional law on the simple ground that the ability to use legal reasoning is what entitles judges to power in the first place.

Fried hints at this tradition when he refers to Herbert Wechsler as “my model.” What Fried does not explain is that Wechsler was a constitutional scholar at Columbia during the middle decades of the 20th century. He was a leading light of the “process school,” so named because it taught that the process by which a case is decided matters at least as much as the case’s outcome. Members of this school were absolutely preoccupied with judicial reasoning, and Wechsler himself famously emphasized that constitutional cases should be decided according to “neutral principles.” This search was particularly urgent in the heyday of the Warren Court, whose work was hard to defend in terms of legal reasoning or neutral principles.

This was precisely when Fried attended Columbia Law School, graduating in 1960. As Fried notes, he then clerked for the second Justice Harlan, another advocate of integrity in constitutional decision-making. Fried writes that Justice Harlan “too believed that reason ruled in the house of the law.” Fried also discusses Felix Frankfurter on the importance of deciding cases for sound reasons; Frankfurter was the godfather of the entire “process” family line.

This pedigree is impressive. But it also is controversial, at least to those professors and court-watchers sure to scoff at what they consider an obsession with doctrine and reasoning. After all, as night follows day, talk about doctrine and reasoning inevitably leads to talk about the dreaded judicial restraint — not incidentally, a well-known passion of Frankfurter’s.

Fried acknowledges that his views place him on one side of a modern constitutional “divide.” He brushes off simplistic characterizations of that divide as “vulgar,” and describes his constitutional adversaries as working to “institute via the Constitution and under the supervision of the federal courts something that would look more like a redistributionist social democracy.” He cites Justice William Brennan Jr. as the leading example of this desire. He also recasts the point in more lawyer-like language by paraphrasing Justice Stephen Breyer’s view that “current constitutional doctrine is too rigid for the practical ends that [Justice Breyer] believes the law was meant to serve.”

As this phrasing suggests, some defenders of the “practical ends” view insist that they respect doctrine — just like Fried — and that any disagreements about doctrine’s importance are only a matter of degree. To this argument the Fried camp would respond that the difference between the North Pole and the Equator also is a matter of degree, but ultimately the two are half a world apart. So too are the opposing sides of the constitutional divide.

Another way to explain the bitter disputes about constitutional law, as well as the trench warfare over judicial selection, is that forces on opposite sides of the divide are simply playing different constitutional games. Fried’s view is that constitutional “law” deserves the name only if judges who pronounce it play by the rules, but this is far too restrictive for his adversaries. To them, the main point of the constitutional game is that judges arrive at the “right” decisions. Certainly the “practical ends” view is more appealing to journalists and professors than the eat-your-spinach process tradition, with its boring insistence that judges do their legal homework.

Fried is aware of the problem the “practical ends” approach creates for his effort to describe the law. The problem is that his emphasis on doctrine works only if all judges give equal deference to it, yet it is undeniable that judges vary widely on that point. Fried tries to defend his portrait of constitutional law by insisting that in reality judges do respect doctrine often enough for it to have some bite, and thus to make his description of constitutional law reasonably accurate. This is a persuasive response, as far as it goes. But it does not go far enough, because it does not account for indisputable judicial resistance to doctrine even in areas where it is quite clear. Saying What the Law Is acknowledges this problem, for example in the development of the law of privacy. It seems to me that it is easier to make the case that existing doctrine controls future decisions when the subject is contract law — Fried’s Contract as Promise — than when it is constitutional law.

But this is merely a loose end in an important book. Saying What the Law Is is important not only for the renewed case it makes for the process tradition, but for its accessibility to the educated layperson. That reader ordinarily encounters constitutional law only in mass media outlets, where alternatives to Justice Brennan’s Constitution are invisible — they get no shake at all, much less a fair one. Now, the general reader can see that a serious alternative does exist, and that it is both intellectually powerful and morally attractive. Indeed, that reader may be surprised to learn, Fried believes that his constitutional vision lays claim to a higher morality because of its commitment to our constitutional bargain and the rule of law.

Andrew J. Morris is a partner at the D.C. office of Mayer, Brown, Rowe & Maw.

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