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Justice in Plainclothes: A Theory of American Constitutional Practice.

Justice in Plainclothes: A Theory of American Constitutional Practice Lawrence G. Sager Yale University Press www.yalebooks.com 272 pp., $40

I once heard a lecturer wax silly about a Chinese domestic relations code, noting that it was just one page in its entirety--a model of simplicity ripe for emulation. My unspoken retort: "Due process" is only two words.

Giving meaning to a statute is not easy, and giving meaning to a constitution is downright difficult. We entrust judges with the task, and how federal judges should perform it is currently the subject of bilious debate in Senate judicial approvals.

Lawrence Sager, a law professor at the University of Texas at Austin, offers guidance in Justice in Plainclothes. He begins his useful discussion of how judges do and should interpret our Constitution--he calls this our "constitutional practice," distinct from the Constitution itself--by posing this question: Should we view judges as agents of the framers, subject to their instructions and bound not to take independent action, or as partners of the framers, charged with exercising good judgment about how to advance the constitutional enterprise?

"Originalism" is the purest form of judge as agent. The originalist looks backward, "decoding the text and circumstances of the Constitution's authorship to reveal the meaning lodged there." A more relaxed form of originalism is "reluctant judgment," which recognizes that pure originalism will not always yield answers, with the regrettable but necessary consequence that fidelity to the framers' instructions requires some independent judgment.

"Justice-seeking," the purest form of judge as partner, is Sager's preferred mode of action. It acknowledges the need to apply "very general constitutional commitments to concrete cases, with the concomitant obligations of generating case-spanning doctrine and moral understandings which choose among competing accounts of the Constitution's lofty norms." Justice-seeking "welcomes and values the independent judgmental role of judges as reasonably well-suited" to seeking political justice--which, for Sager, is the purpose of our constitutional regime.

A weaker form of partnership is "democratarian" theory, which permits a judge broader discretion when the judge is acting to improve democracy.

The theory a judge ascribes to affects how real cases are decided. That capital punishment was not considered "cruel and unusual" when the Constitution was adopted is dispositive for the originalist. For the justice-seeker, this fact is one piece of evidence of what "cruel and unusual" might mean. The democratarian would consider whether the practice was cruel and unusual, but would weigh evidence only if it related to the democratic process: The fact that African-Americans face the death penalty disproportionately would be important not as a matter of justice, but because they have been ex eluded from the political processes that give rise to capital punishment.

If the justice-seeker is to be more than a Platonic guardian, boundaries must limit his or her discretion. Here Sager's analysis gets longer but thinner.

A justice-seeking judge is limited by a "principle of parsimony" in defining what issues constitutional adjudication might address. Practicality rules. The principle applies because "to be effective, a Constitution must make immediate and essentially nonnegotiable demands."

A justice-seeker is also limited by the mode of common law adjudication, which requires judges to apply broad statements to particular facts and reconcile their rulings with precedent.

Of critical importance, the justice-seeker need not enforce all elements of justice. The judge may refuse to enforce norms when prudence demands, as when he or site denies enforcement of a right to minimum economic well-being. Envisioning Speaker of the House Dennis Hastert (R-Ill.) being served with an injunction requiring immediate funding of a national income-security plan--and the constitutional ruckus that could follow--easily explains why even traditional jurisprudence accommodates this view.

Sager departs from the traditional view, however, by squarely rejecting one of the most powerful maxims of the common law: Where there is a wrong, there is a remedy. Not so in constitutional practice, says Sager. He argues that a requirement to provide a remedy has, in practice, led courts to rule that rights do not exist in cases where the real concern of courts has not been about recognizing rights, but about the political wisdom of judicial enforcement of rights. He suggests that courts in these situations purposefully "underenforce" rights.

A decision to underenforce says nothing negative about the existence of a right. The underenforcing judge is simply leaving room for--and perhaps even encouraging--other government actors to act. The author describes reigning federal equal protection doctrine, which recognizes only purposeful discrimination, as being derived from cases in which rights were denied when the underlying concern of the courts was the wisdom of judicial enforcement.

The Supreme Court, in recent decisions that some civil rights lawyers and scholars find particularly disconcerting, has drawn on these cases to limit the authority of Congress to act under [section] 5 of the Fourteenth Amendment to create remedies for disability and gender discrimination. Sager suggests that if the Court had viewed equal protection precedents as decisions acknowledging but underenforcing rights, rather than as decisions that rights do not exist, it would have welcomed the efforts of Congress to create politically viable remedies.

Sager's account is strengthened by being rooted in what courts do and have done, not simply in what might be and might have been. Yet his analysis would benefit from more attention to the corn mort law roots of American constitutional practice and to the state constitutions from which the federal Constitution--or at least its "liberty bearing" sections--was cribbed.

The common law itself was and is no less than a judicial search for justice, bounded by principles that endure, and the framers believed judges would use it to resolve constitutional claims. The author needs to reconcile his rejection of core common law substance--where there is a wrong, there is a remedy--with his endorsement of common law method.

Before the national Constitution was adopted, courts had used the common law method to invalidate parliamentary and state legislative enactments. Sager does not address what consequence the framer' endorsement of this judicial method, which employs strong judicial review, has for originalism.

Sager takes pains to establish that the Constitution has "moral failures"--he says that it "plainly does not address all of political justice." For example, it fails to recognize that "members of our political community are entitled to economic arrangements that offer them minimally decent material lives in exchange fur hard work on their own behalf."

State constitutions are not so silent. Those of North Carolina and New York speak directly to this issue. Numerous stale constitutions guarantee all citizens certain levels of public education, which the author recognizes as a component of the entitlement to decent "economic arrangements."

The federal courts have failed to recognize education as a fundamental right. Sager finds this justified by the underenforcement doctrine. It is difficult to see how underenforcement could justify nonenforcement of unambiguous commands in state constitutions, especially when judicial enforcement in several states has reaped rewards for holders of the rights.

Discussion of these state constitutional decisions would enrich Sager's narrative and enhance his contribution to understanding the full scope--federal and state--of American constitutional practice.

JOHN VAIL is senior counsel at the Center for Constitutional Litigation in Washington, D. C.
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Author:Vail, John
Publication:Trial
Article Type:Book Review
Date:Feb 1, 2005
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