Vol. 25 No. 6 (June 2015) pp. 84-88UNIVERSAL RIGHTS AND THE CONSTITUTION by Stephen A. Simon. Albany: State University of New York Press. 2014. 196pp. Hardcover $75.00. ISBN: 978-1-4384-5185-5. Paperback $24.95. ISBN: 978-1-4384-5186-2.
Reviewed by Jack Wade Nowlin, University of Mississippi School of Law. Email: jnowlin@olemiss.edu.
Stephen Simon, an associate professor of political science at the University of Richmond, is the author of a fascinating new book on the theory and practice of American constitutional interpretation: UNIVERSAL RIGHTS AND THE CONSTITUTION. This volume, one of the latest in the esteemed SUNY series in American Constitutionalism, concerns the crucial question of how to interpret the Constitution in cases where individual rights are at stake. Professor Simon’s work is original, eclectic, well argued, and thoroughly researched. His book will be of great interest to scholars and nicely repays a careful reading.
The foundation of Simon’s analysis is a distinction between two different kinds of constitutional argument: (p. i) “particular arguments” and (p. ii) “universal arguments.” Simon defines “particular arguments” as those grounded in the “nation’s particular legal and historical context” (p. 2). These arguments derive constitutional meaning from sources such as the constitutional text and original understanding. “Universal arguments,” by contrast, move beyond “particular arguments” to universal considerations of natural rights and justice, which Simon believes both underpin American constitutionalism and transcend its specific historical experience.
Simon’s distinction between particular and universal arguments provides an intriguing analytical lens, which generates a number of thought-provoking insights into the nature of constitutional interpretation. The book’s chief concerns relate to the important differences between these two kinds of constitutional arguments and the implications of those differences for the Supreme Court’s proper use of arguments in constitutional cases where rights are in issue. UNIVERSAL RIGHTS AND THE CONSTITUTION is a systematic analysis of these questions with a special emphasis on the important but limited role universal arguments should play in constitutional interpretation.
In Simon’s view, there is a philosophical tension between democracy and individual rights at the core of American constitutionalism, one which shapes the two basic forms of constitutional argument. This tension between democracy and individual rights is replicated in the conflict between particular and universal constitutional arguments. The primary appeal of particular arguments in constitutional law is found in the democratic legitimacy that judicial decisions derive from a grounding in legal sources such as constitutional text and original understanding. These legal sources, Simon contends, provide a procedural justification for adherence to the Court’s decisions even when one disagrees with them: Respect for the laws enacted by the people. The primary appeal of universal arguments, on the other hand, is their potential to advance substantive justice [*84] when the Constitution’s democratic foundations prove insufficient to properly protect individual rights. In a constitutional system premised on the existence of natural rights and still pervaded today by moral argument, judicial enforcement of rights grounded in universal considerations holds out a promise of a polity based on something more than the mere political power of majorities.
The modern Supreme Court, Simon argues, has not responded well to the inherent tension between democracy and individual rights expressed in particular and universal arguments. While the Court offers both kinds of constitutional argument in many of its decisions, the Court also combines the arguments in confusing ways that ultimately undermine the distinct value each form of constitutional argument can contribute to the American constitutional system.
For instance, Simon observes that it is common for the Court to cite both particular arguments and universal arguments in support of its decisions without making clear the precise relationship of the two kinds of arguments. Are the universal arguments an independent and alternative ground for the Court’s holding or are they merely an additional consideration to buttress a decision turning on “legalistic” particular arguments? This unanswered question leaves the observer unsure about the actual basis of the Court’s decision, and it further undermines the constitutional value of each kind of argument. Universal arguments may fail to reassure the community of the existence of an effective judicial check on majoritarian power if the Court is unclear that such arguments can provide an independent basis for its decision. (And, of course, particular arguments may also fail to promote democratic legitimacy for the Court’s rulings if it is unclear whether these arguments are the actual basis of decision.)
In light of this dissatisfaction with the Court’s often ambiguous and ineffective blending of constitutional arguments, Simon offers an alternative approach: “Dual-stage review” (p. 95). This new approach, Simon argues, maximizes clarity and works to preserve the distinct contributions of both particular and universal arguments to the health of the constitutional system. In Simon’s dual-stage review, particular and universal arguments occur at different stages of the interpretive process and are kept conceptually distinct. The legalistic particular arguments are used at the first stage, and moralistic universal arguments are used at the second stage—if at all. Importantly, Simon also views first-stage particular arguments as the “primary” form of argument and limits universal arguments to a second-stage supplement to be used only in the “rare” cases that justify it (p. 110).
During the first and primary stage of Simon’s “dual-stage review,” the Court engages exclusively with particular arguments—involving sources such as the constitutional text and original understanding—in order to maximize the democratic legitimacy of the Court’s decision in the constitutional system. If the particular-argument analysis supports a constitutional invalidation, the Court strikes down the law but does not “gild the lily” with additional arguments drawn from universal sources. [*85]
If the particular-argument analysis supports a constitutional upholding, the Court then moves on to the secondary and supplemental stage of “dual-stage review” and considers freestanding universal arguments grounded in natural or individual rights. This stage allows the Court to serve the cause of substantive justice in the constitutional system in a limited number of cases.
At this second stage, Simon argues, the Court should invalidate acts of government only in the “rare” cases in which it can be justified as a matter of natural right and political prudence. A universal-argument invalidation may be warranted in a case where a “contrary outcome would call into question our status” as a “free society” which “protects the most basic requirements of dignity” (p. 104). Prudentially, a universal argument invalidation is “more advisable if the decision would not be too far out of the American political mainstream and if implementation is realistic” (p. 104). At the second stage, the Court must also make quite clear in its opinion that the decision turns on a universal-argument foundation with express philosophical analysis explaining the Court’s reasoning. Simon, of course, recognizes that many readers may view his advocacy of second-stage “universal argument” review as a “radical” position (p. 102).
For Simon, the attractions of “dual-stage review” are its limited constitutional ambitions and its transparency to the legal community. Significantly, Simon argues that constitutional theories often try to do too much at once. “Scholars,” Simon writes, “largely agree that constitutional interpretation must be: consistent with democratic values; a meaningful check on political decision making; able to justify certain non-negotiable decisions, such as BROWN v. BOARD OF EDUCATION (1954); and sufficiently determinative to constrain judges” (p. 10). However, Simon contends, no constitutional theory can actually deliver on all of these competing demands at the same time, and all attempts to square the constitutional circle both necessarily fail and produce confusion in the process. Simon argues that “dual-stage review,” with its primary reliance of particular arguments which provide democratic legitimacy supplemented by an occasional recourse to universal arguments to protect natural rights, can strike an appropriate balance between the competing values of democracy and individual rights and do so with a beneficial clarity and candor.
Not surprisingly, Simon provides an extensive critique of the major schools of constitutional interpretation which approach questions of constitutional interpretation in competing ways. Advocates of “exclusive” particularism, those who reject the legitimacy of universal arguments in favor of more narrow legalistic approaches, are criticized for their failure to see the importance of judicial protection of natural rights in rare but crucial cases. On the other hand, in Simon’s view, advocates of morality-driven universalist approaches to constitutional questions often go too far in the other direction—failing to appreciate the importance of particular argument and democratic legitimacy. These universalists may support a too aggressive and too wide-ranging “aspirational” use of universal arguments and thereby damage the constitutional system. [*86]
Simon is, moreover, especially critical of what he calls “third-way” approaches to constitutional interpretation, which attempt to interweave particular arguments and universal arguments in a single interpretive approach—often purporting to confine universal arguments within the legal constraints established by particular arguments. These influential third-way approaches include Ronald Dworkin’s “moral reading” of the Constitution and Jack Balkin’s “living originalism” both of which place moral analysis within a framework established by positive law.
In Simon’s view, third-way approaches roughly parallel the Court’s own troubling jurisprudence and suffer from the same basic flaws: By attempting to combine distinct forms of constitutional argument, they promote confusion about the grounds of judicial decision and erode the core values served by constitutional argument. With third-way approaches, democratic values may be undercut by aggressive use of universal arguments, and individual rights may be endangered by the endorsement of threshold particular-argument limits on universalism.
Notably, Simon’s alternative approach—with the primacy it gives to “legalistic” particular arguments of text and original understanding and its limited escape valve of “moralistic” universal arguments reserved for “rare” cases—contains an interesting echo of the “faint-hearted originalism” once endorsed by Justice Antonin Scalia in the UNIVERSITY OF CINCINNATI LAW REVIEW. As many readers will recall, Justice Scalia’s faint-hearted originalist adheres to a narrow form of constitutional originalism in order to limit judicial discretion and preserve democratic legitimacy, but when the originalist outcome of any given case is too terrible to contemplate morally—such as upholding the constitutionality of flogging under the Eighth Amendment—the faint-hearted originalist may ultimately set aside originalism and rule in the interests of justice. Of course, Simon’s approach would require the Court to expressly ground such a “faint-hearted” decision in a moral analysis of the “cruelty” of flogging rather than obscure the basis of its decision with a distracting flurry of legal citations. (Simon, alas, does not discuss “faint-hearted originalism” in his book, and thus the reader is deprived of his no doubt very interesting views on the subject.)
Obviously, the questions Simon raises provide endless fodder for debate, and the author engages and carefully addresses many of the objections readers will think of as they move through the book: Do particular arguments really provide a meaningful measure of democratic legitimacy? Can universal arguments make sense without a commitment to traditional natural rights theory? Will the universal arguments embraced by judges in practice really advance the cause of individual rights? Are particular and universal arguments really distinct forms of constitutional argument in the “hard cases” that typically reach the Supreme Court or do particular arguments inevitably shade into universalist arguments in law’s open texture? Will giving primacy to particular arguments in constitutional interpretation in fact undermine individual rights? Will openly endorsing universal arguments in “rare” cases tempt judges to undermine democracy more broadly? Simon’s answers [*87] to such questions are routinely thoughtful and advanced with care, whatever one may ultimately think of them in a field marked by such diversity of thought.
Even a book packed with as much analysis as Simon’s will inevitably contain omissions. For instance, readers could have benefitted from a more systematic discussion of one of the Court’s most common approaches to constitutional questions: common-law doctrinal analysis drawing on lines of precedent and reflecting principles of stare decisis. This method of analysis would seem to be a form of particular argument, and one further removed from the legitimating popular support that Simon sees in originalism and grounded rather in “rule of law” virtues of consistency, stability, and predictability. Doctrinalism as a particular argument could also present a blurrier line between particular and universal arguments than originalism does as the Court uses what amounts to moral analysis to draw out and apply the underlying principles of its evolving bodies of case law in new decisions. More details of Simon’s thoughts here would have been very welcome.
Simon also has little to say about specific applications of his theory, even though many readers will want to see examples of the theory in action along with concrete case analysis. For instance, what are some of the “rare” cases in which Simon believes particular arguments do not in fact support a constitutional invalidation but universal arguments do? Simon also criticizes the Court’s opinions in cases such as ATKINS v. VIRGINIA (2002) and LAWRENCE v. TEXAS (2003), but he never states with any specificity what the Court should have done instead. One is left wondering what Simon thinks about these cases: How should the Court have ruled and what should its opinions have looked like? While the book’s arguments as a whole are suggestive, one still would like to have seen the author’s views made plain.
All things considered, Simon’s UNIVERSAL RIGHTS AND THE CONSTITUTION is an impressive book, one which makes an important contribution to scholarship and displays a wealth of careful research and analysis. It will be of major value to any scholar working in the field of constitutional theory.
REFERENCES
Scalia, Antonin. 1989. “Originalism: The Lesser Evil.” UNIVERSITY OF CINCINNATI LAW REVIEW 57:849.
CASE REFERENCES
ATKINS v. VIRGINIA, 536 U.S. 304 (2002).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
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© Copyright 2015 by the author, Jack Wade Nowlin.
