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“Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations” by Daniel A. Farber and Suzanna Sherry University of Chicago Press, Chicago 224 pages, $25 In deciding whether the death penalty is cruel and unusual punishment, or whether affirmative action is a denial of equal protection, does it help for judges to use a grand theory of constitutional interpretation? Daniel Farber and Suzanna Sherry sensibly think not, and, in this terse, effective book, point out persuasively the dangers of “insistence that all constitutional interpretation be shoehorned into a single grand scheme.” As they note, the common law developed quite well case by case, without the help of any overarching theoretical principle. The authors, who teach at the University of California, Berkeley’s Boalt Hall School of Law and Vanderbilt University Law School in Nashville, Tenn., respectively, plainly believe with Justice Oliver Wendell Holmes that a page of history is worth a volume of logic and share his pragmatic, flexible view of the Constitution. Karl Marx and Sigmund Freud stand out as dramatic examples of thinkers possessed by one inclusive idea, and our profession is hardly immune from this desire for one all-encompassing key to certainty. As an inviting target, the authors in “Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations” take aim at originalism, the idea voiced by Robert Bork and Justice Antonin Scalia that the “open sesame” to the Constitution lies exclusively in the views of its framers. Surrender to this embrace enables us to view constitutional interpretation as a s�ance: intone the right incantation and the framers will rap, signifying exactly what they thought about pornography, flag-burning and the like. Bork and company see this as the antidote to judges imposing their own subjective values. But as the authors note, even the framers’ original views, where they exist at all, are often in dispute. Whose intent is to be the talisman, the Constitution’s authors, those who ratified it in the state legislatures, the writers of the “Federalist Papers”? Many important provisions — notably the Ninth Amendment, cryptically noting that the “enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people” — have scant legislative history to shed light on their original intent. Besides, as the authors note, the infamous Dred Scott decision, ruling both that Congress could not limit slavery in the Missouri Compromise and that a freed slave was not even a “person” who could bring suit, relied on originalism, as did Plessy v. Ferguson, which attempted to rationalize the separate but equal doctrine. Indeed, as the authors point out, Bork himself had to flinch from originalism in order to support Brown v. Board of Education’s overturning of Plessy. If Bork takes his originalism straight, Justice Scalia’s version is somewhat more “nuanced,” as perhaps a sitting justice’s must be. But, as the authors indicate, his argument in Printz v. United States (1997) that Congress may not constitutionally require state officials to check on gun purchasers’ criminal records relies on rebutting much proof of original intent cited by the dissent, and eliciting hardly any of his own. Scalia insists that judges follow “immutable” rules and claims to abhor judicial discretion, but in R.A.V. v. City of St. Paul (1992), overturning a law penalizing hate speech because it was limited to epithets based on race, religion or gender, he slashed away at decades of precedent and painted with the broadest of brushes. (The law was plainly overbroad, as Justice Byron White’s concurring opinion found, but Scalia shrugged off that approach.) The authors’ next two targets, Richard Epstein and Akhil Amar, are easier ones. Epstein’s id�e fixe is that virtually all government regulation of business and industry amounts to an unconstitutional taking of property, a view the courts have fortunately not embraced. Epstein, the very model of a modern Chicago Law School conservative, also regards congressional power under the Commerce Clause as essentially limited to regulating actual interstate transportation, an approach that would derail nearly all federal health, employment, environmental and civil rights laws. Amar, who teaches at Yale Law School, believes courts can construe constitutional provisions by equating their words with identical words in other clauses. For instance, speech in the First Amendment, he feels, is limited to the speech covered in the Speech and Debate Clause, so commercial speech and campaign expenditures are in his view not protected speech at all. Amar also contends that only those parts of the Bill of Rights that protect a “private right … of individual citizens” apply to the states through the 14th Amendment, which excludes the Establishment Clause, which Amar sees as only protecting “the public at large.” Somewhat less convincingly, the authors then focus on Yale’s Bruce Ackerman and NYU’s Ronald Dworkin. Ackerman is charged with equating the New Deal’s legislation with a de facto constitutional amendment, and related offenses, which do not seem to rise to an all-embracing theory of constitutional interpretation. Dworkin, an ally of the authors in criticizing originalism, nonetheless is indicted for arguing the Constitution to be a “moral” document. This approach may lead him into controversial areas, like invalidating the laws against assisted suicide, but it hardly amounts to the kind of overarching theory the authors sensibly condemn. The authors end with a salvo against the broad, deductive theorizing the earlier chapters depict. As they point out, this insistence on orthodoxy “escalates the rhetorical stakes” but doesn’t help judges decide real cases when equities, and legal principles, clash. The judges our history ranks highest, from John Marshall through Learned Hand, Holmes, Louis Brandeis and Charles Evans Hughes, were pragmatists, construing the Constitution as best they could as lawyers without reliance on some vast eternal plan. This book furnishes a useful wake-up call to those who feel a theory can construe the Constitution better than a judge with a sense of history, precedent and humanity. Philip Weinberg teaches constitutional law at St. John’s Law School. He also is editor-in-chief of “The Supreme Court” (Macmillan).

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