by Morgan Marietta. New York, NY: Routledge, 2013. 217pp. Cloth, $120. ISBN: 978-0415843799. Paper $19.95. ISBN 978-0415843812.Reviewed by Stephen A. Simon, Department of Political Science, and Program in Philosophy, Politics, Economics, and Law, University of Richmond. Ssimon [at] richmond.edu
pp.90-92
In one sense, A CITIZEN’S GUIDE TO THE CONSTITUTION AND THE SUPREME COURT, by Morgan Marietta, is exactly what the title suggests: an introductory text that assumes readers have little to no specialized knowledge on the book’s central subjects. Marietta, however, has rendered certain fundamental decisions about the book’s direction that make it especially valuable in a specific way that is suggested by the subtitle: “Constitutional Conflict in American Politics.” Hearing the title alone, one might imagine a relatively dry text that walks the reader in a ploddingly dutiful manner through the Constitution’s history and provisions, followed by sections on judicial procedure and major Court decisions. While there may well be a place for such a text, this reader was happy to find that this book was not that book.
A CITIZEN’S GUIDE treats the Constitution as a frame for debate, not as a list of rules. Studying the Constitution, then, is not a matter of learning established principles, but of understanding crucial axes of disagreement. The recognition of constitutional discourse as inherently conflictual fits hand in glove with the book’s focus on methods of interpretation. It emphasizes that debates over interpretive methods are crucial to constitutional study regardless of the particular doctrinal area one is considering. Since constitutionality and justice are not coextensive, entering constitutional debates necessarily entails taking positions on interpretive questions that transcend the merits of specific cases. Indeed, Marietta aims the book at preparing readers for forming their own views on these interpretive questions so that they can join constitutional debates in an informed manner.
The recognition of constitutional law as conflictual to the core is reflected in the book’s basic architecture. Marietta identifies nine “points of conflict” about interpretation, concerning such matters as federalism, the legitimacy of judicial review, and the question of whether the founding document is essentially religious or secular in character. Part I consists of nine chapters, each devoted to one point of conflict. Part II is constructed around the presentation of four competing schools of interpretation: originalism, textualism, common law constitutionalism, and living constitutionalism. After individual chapters on each of the four schools of interpretation, Part II includes a chapter entitled “Comparing Schools of Interpretation,” which provides guidance on working from one’s views on the points of conflict to understandings of the clashes between the schools. This [*91] discussion introduces six additional issues on which the schools take varying positions, including what they consider the most and least important part of the Constitution. The chapter is followed by one applying the ideas examined to ROE V. WADE and another applying them to a range of contemporary cases.
The book’s most distinctive contribution is the manner in which it connects the nine points of conflict with the four competing schools of interpretation. Marietta invites readers to consider their views on each of the nine points as a precursor to identifying the school of interpretation that they consider most appropriate. This approach is useful because it breaks down the clash between competing schools into more fundamental axes of disagreement. It also allows the reader to see why certain ideas tend to cluster together, although they need not do so. The discussion observes that the interpretive schools do not differ only on their positions on each of the nine points, but also on which of the points they consider most pivotal. Thus, the defining positions of textualism, for example, are: (1) that the Constitution itself is a complete source of interpretive guidance; (2) that precedents in themselves are of relatively little importance to interpretation; and (3) that interpretation should focus on the text’s plain meaning rather than searching for transcendent principles. By contrast, the defining positions of living constitutionalism are: (1) that judicial review, including the power of courts to recognize social change, should be viewed as legitimate and expansive; (2) that interpretation requires consultation of various sources outside the constitutional text; and (3) that sound interpretation necessarily entails consideration of general principles embedded in the document as a whole.
A CITIZEN’S GUIDE is adept in its use of Supreme Court cases to show how views on abstract questions have a concrete impact in specific disputes. The text keeps the ultimate focus on the underlying interpretive debates. That is, there is no examination of constitutional doctrine for its own sake; discussion of cases is always in service of the broader points that they help to illuminate. Similarly, the discussion references specific Justices to illustrate schools of interpretation but does not engage in extensive overviews of the High Court’s members.
In spots, Marietta finds ways to animate the discussion by connecting interpretive debates with broader philosophical ideas, such as, for example, the American pragmatist tradition and John Stuart Mill’s harm principle. While the material is generally introductory in nature, he punctuates the discussion with his own observations or elaborations on familiar concepts. For instance, in discussing the debate over whether the Constitution should be read as a series of discrete provisions or as imbued with transcendent principles, Marietta suggests broad standards of what the transcendent understanding must look like to be plausible. I also enjoyed the occasions in which the book used examples from the world of literature to illustrate points and to show how constitutional interpretation is related with other kinds of interpretive discourse.
One of the book’s significant strengths is that it is user-friendly. The writing style [*92] is concise and engaging. Marietta has a knack for pithy descriptions that capture the essence of questions or disagreements. In summing the discussion in the chapter on the relative importance of precedent, for example, Marietta writes: “The heart of the division could be described as concentrating on the history of the Court versus the history of the Constitution.” (p.84) In recapping the clash among the four schools of interpretation, he writes: “We have four distinct ways of reading the Constitution: it means what it says; it means what the Supreme Court has said it says; it means what the Founders thought it says; or it means what we have come to believe it says.” (p.128) The text pauses to provide brief explanations of references with which the reader may be unfamiliar, includes parentheticals to help with pronouncing terms like “certiorari,” and provides a number of tables and figures as visual aids to appreciating how various ideas fit together.
The book’s focus on interpretive debates makes it a candidate as a supplemental text in a course on the courts or constitutional law. The brevity (171 pages) makes use of the entire book feasible, while the organization makes the use of discrete chapters a worthwhile possibility. In just twelve pages, for example, the chapter on judicial review manages to examine the context and influence of MARBURY V. MADISON, how the debate over judicial review relates to the most fundamental questions in American constitutionalism, and what is at stake in the debate for contemporary controversies. One reason the book lends itself to the classroom is that it is effective in capturing the tensions that lie at the heart of constitutional disagreements, with competing positions described in a fair-minded manner. Each school of interpretation is presented as having significant advantages and disadvantages.
Precisely because of constitutional law’s deeply conflictual nature, it is not possible even to describe the core disagreements in a way that is likely to command unanimous assent from other observers. There are a couple of specific ways in which Marietta has categorized the various points of conflict, for example, that differ from how I might have done so. Ultimately, though, I think these relatively minor quibbles are beside the point. Even the ways in which a particular reader might disagree with this or that particular characterization could itself be the basis of an interesting discussion. The book is not designed to represent the last word on anything, but, rather, to set the table for lively and informed debate.
Copyright 2014 by the Author, Stephen A. Simon
