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Book Review ~ Implementing the Constitution

NOVEMBER 01, 2002 by RICHARD H. FALLON JR.

Harvard University Press o 2001 o 137 pages o $37.50

Reviewed by George C. Leef

Everyone likes to claim that the Constitution supports his preferred ideas on the role of government. Libertarians, including this reviewer, argue that interventionist measures such as Social Security are not merely bad, immoral policy, but unconstitutional to boot. Statists, however, are prone to claim that the Constitution authorizes the full panoply of legislative, executive, judicial, and administrative actions that have to such a great extent politicized the nation and moved us toward socialism. Who is right?

Harvard law professor Richard Fallon is certainly in the camp that sees the Constitution as justifying our super-sized government. Although he believes in the need for federal programs to regulate the economy, redistribute income, and so on, Fallon has written a provocative book that, if nothing else, should cause those of us with a deep commitment to liberty to think more seriously about the Constitution.

A central dispute that the author seeks to resolve is the proper way for judges (especially Supreme Court justices) to decide cases. He sets forth two radically opposed views on that question before proceeding to explain his own ideas. The first view is "originalism," the belief that the correct decision in a constitutional dispute is the one that best fits the original intent of the Founders (or amendment drafters). The second is what Fallon labels the "forum of principle" view, which would have judges always decide cases in accordance with crucial philosophical principles. The first approach requires that judges mainly be good historians; the second that they be good philosophers.

Fallon rejects both approaches. Originalism, he argues, is impractical because of "the gap between the framers’ world and that which we inhabit." "No one," he continues, "contemplated Social Security, Medicare, or a nationally-funded welfare system." That is a standard statist argument-the world has changed in ways that require a far more expansive and powerful government than we needed back in the simpler days of the eighteenth century. But it’s a bad argument. Madison and his colleagues did contemplate redistributive policies, but understood that they’re inherently destructive and gave Congress no power to adopt them. That decision, based on a solid understanding of human nature, is just as sound today as it was in 1787.

Next, Fallon argues that if we had adhered to originalism, we wouldn’t have had Court-mandated improvements in our political life, such as the "one-man, one-vote" rule announced in 1962, which compelled states to create legislative districts with equal numbers of citizens. The Constitution is silent as to how states are to set up their legislatures, and to people enamored of political equality, this decision is seen as a tremendous advance that we wouldn’t have had under originalism. But is it much of an advance? I fail to see how our politics have become any better or our legislation any wiser because of it. We now have different kinds of gerrymandering and may have marginally shifted the influence of various interest groups, but legislatures in 2002 are no wiser than they were in 1962. Court-mandated "improvements" like that are nearly weightless compared to the massive, long-run harm done by such departures from originalism as reading the General Welfare clause to confer broad, new spending authority on Congress.

At the other end of the spectrum, Fallon goes easier on, but still rejects, the idea that the Court should forget historical meaning and just act as a "forum of principle." That position mainly appeals to devotees of big government who want the Supreme Court to embrace egalitarian ideals. Under it, "a principle counts as a constitutional principle if it would appear in the philosophically best explanation of the written Constitution and of surrounding practice and judicial precedent." Fallon agrees that the Court should serve as a "forum of principle," but not only as that, since it must often make accommodations to political reality. That may be true, but it seems to me that the greater problem with this approach is that it makes the Court a far more politicized institution than under originalism, as interest groups struggle to see that people with the philosophical outlook they prefer are nominated and confirmed. I’d cheer for the "forum of principle" approach if I believed that we’d have justices committed to principles such as "coercion should be minimized," but we are more apt to get justices enthralled with egalitarianism. No thanks.

Having disposed of the polar opposites, Fallon devotes several chapters to his ideas on how the Court should implement the Constitution. Among them is his concept that we have an unwritten constitution that authorizes many powers that are at best suspect under the written Constitution, such as presidential war-making authority. But, to borrow a phrase from Justice Antonin Scalia, this amounts to "constitutionalism by adverse possession," and the whole notion serves to justify far more governmental power than we’d have if the written Constitution were strictly followed.

While I find much to disagree with in Implementing the Constitution, it is nevertheless, a serious, thought-provoking book.

George Leef is the book review editor of Ideas on Liberty.

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November 2002

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