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“Constitutional Self-Government” by Christopher L. Eisgruber Harvard University Press, Cambridge, Mass. 272 pages, $46 “Constitutional Self-Government” is one of the most important books about constitutional law to be written in recent years. Since before Alexander Bickel identified the “counter-majoritarian difficulty,” scholars have treated judicial review in general and the U.S. Supreme Court in particular as an anti-democratic institution and proposed differing approaches to reconcile judicial review with democracy. Some have argued that judicial review is justified only when it is “representation-reinforcing,” that is, when it removes impediments to full political participation. Others argue that the Court protects individual rights against democracy. Christopher Eisgruber starts from a different premise and reaches a radically different conclusion. Eisgruber’s argument may not solve the “counter-majoritarian difficulty,” but he challenges us to rethink our understandings of democracy, representation and the role of the judiciary in a democratic society. According to Eisgruber, democracy is not the same thing as majority rule. To qualify as democratic, a government must respond to the interests and opinions of all the people and not just more than half of the people. Eisgruber states that while public participation by all citizens might have been possible in a Greek city-state, it is not practical in a large and diverse nation. In such nations, a constitution plays a critical role, cementing the compromises forged to form a government and establishing the institutions through which the people govern themselves. A democratic government can take differing forms. In some political systems, such as that in Britain, the legislature is omnipotent and can modify political institutions and rights by a simple majority vote. In other political systems, such as that in the United States, power is divided and there are inflexible rules to amend the Constitution. Eisgruber provocatively claims that a system with inflexible amendment procedures and, hence, constraints on the exercise of power by a legislature, may be just as “democratic” as a system with no constraints on legislative power. Indeed, the former type of system will encourage people to think more carefully and deeply about institutional questions that matter the most because a constitutional decision once made is not easily reversed. Eisgruber argues that it is a mistake to view Congress as being perfectly democratic and therefore to view judicial review as anti-democratic. Even if Congress accurately represented the majority, its decisions would not respond to the interests of all the people and therefore be entitled to a “presumption of fairness.” But Eisgruber says that we cannot be confident that Congress accurately represents the desires and interests of the majority. Because they are one of many, members of the electorate either may not vote at all or may not vote with the same care as if they were serving on a jury or were a member of a small city-state. The result is that Congress may not accurately and fully represent the true interests of the people or satisfy all of the demands of democracy. Eisgruber’s argument that judicial review furthers democratic values hinges on a distinction that he claims the American people make between questions of interest and question of value. While Congress may be a sufficient decision-maker with respect to questions of interest, Eisgruber argues that the American people have an abiding commitment that moral issues should be resolved through good faith moral discussion by institutional actors who are well positioned to engage in that discussion. That is where the judiciary fits in. Life tenure permits judges to act on the basis of moral conviction free from the pull of interests that distort the judgment of other decision-makers and gives them an incentive to take personal responsibility for their actions. And, judges must give a public account of their reasoning. Finally, Eisgruber asserts that the judiciary can never be too far outside the mainstream because judges are nominated by an elected official and confirmed by elected officials on the basis of political views and political connections. All of this permits a robust view of judicial review. Eisgruber states that judges should engage in principled argument about moral and political issues to construct the American people’s best judgment about justice. For example, Eisgruber argues that the “sexual freedom” cases from Griswold v. Connecticut to Roe v. Wade to the dissent in Bowers v. Hardwick cannot be explained by the conventional methods of constitutional interpretation. But that does not mean that Griswold and Roe were incorrectly decided. Rather, Eisgruber argues that those decisions should be understood as holding that laws regulating sexual conduct frequently are motivated by a desire for social prestige or domination that is unjust. One can disagree with his argument, Eisgruber further states. What cannot be disputed is that democracy is enhanced when decisions are made, and justified, on moral grounds that appeal to an American conception of justice. While Eisgruber makes a powerful argument that courts, litigants and lawyers should be permitted to participate in the American discussion about justice, he is somewhat less convincing when he suggests that courts are uniquely well situated to make decisions on the basis of principles. It would be a mistake to excuse Congress and the Executive Branch from the responsibility to interpret the Constitution. In addition, Eisgruber needlessly downplays the importance of litigants in bringing claims of morality or justice to the courts. A system of dispute resolution that excluded claims to justice would be an anemic system of dispute resolution. Indeed, there is a grand history of such participatory democracy on both sides of the political spectrum including the litigation strategy of the NAACP Legal Defense Fund in the 1940s and 1950s. These are quibbles. What cannot be downplayed is that Eisgruber’s book makes an extremely valuable contribution to the ongoing dialogue about the role of judicial review and constitutional interpretation in a thriving democracy. Lewis J. Liman is a partner at Wilmer Cutler & Pickering.

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