Three Important New Books on Constitutional Law

In this post, I briefly review three important new books on constitutional law that are likely to interest many of our readers. Here goes:

I. John McGinnis and Michael Rappaport, Originalism and the Good Constitution.

This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they claim it is the only feasible way to interpret legal texts, McGinnis and Rappaport argue that originalism is superior to living constitutionalism because it produces better consequences, in the form of legal rules that benefit more people over time. They contend that the original meaning is likely to have beneficial consequences because it was enacted by supermajority decision-making processes. On average, constitutional rules supported by supermajorities are likely to be better than those produced by judges using various living constitution methodologies of interpretation or those produced by normal political majorities.

A great strength of the book is that McGinnis and Rappaport do not shy away from difficult issues that some other originalists downplay or ignore. These include the reality that most blacks and virtually all women were excluded from the political processes that produced the original meaning of the most important parts of the Constitution, the claim that Brown v. Board of Education is incompatible with originalism, and the problem of how to deal with decades of accumulated nonoriginalist precedents. To each of these dilemmas, the authors provide insightful answers. For example, they point out that Brown would probably not even have been necessary had the federal government effectively enforced the original meaning of the 14th and 15th amendments between the 1880s and 1950s. Even if integrated public schooling was not in and of itself required by the original meaning, the protection of black voting rights and a wide range of civil rights clearly was. Had those rights been effectively protected, African-Americans would have been in a much stronger position in the political system of the South, and could likely have prevented the worst excesses of Jim Crow from arising in the first place. While McGinnis and Rappaport also claim that Brown is in fact compatible with originalism, they emphasize that the situation the Court was responding to in 1954 was in large part the result of the Court’s and the rest of the federal government’s failure to enforce the original meaning in earlier decades.

I don’t agree with all of the arguments in this book. For example, I think the authors are too dismissive of the need for “constitutional construction” to augment interpretation. I also believe that their consequentialist defense of originalism relies on a largely utilitarian assessment of what counts as good consequences (modified, perhaps, by respect for certain kinds of natural rights). Adherents of moral theories that greatly diverge from utilitarianism (e.g. – virtue ethics, Kantianism, or various religious ethical systems) would find some of their arguments unpersuasive. That said, this is the best book on originalism in a long time, and anyone interested in the subject should read it.

II. Randall Kennedy, For Discrimination: Race, Affirmative Action and the Law.

Kennedy is one of the nation’s leading scholars on constitutional issues involving racial discrimination, and this book is a strong defense of affirmative action on both constitutional and policy grounds. The book does a good job of breaking down the different arguments for and against affirmative action, including the differences between the compensatory justice and diversity rationales for affirmative action in education. Kennedy also effectively takes conservative judges to task for their failure to consider the issue of whether striking down affirmative action programs is compatible with their commitment to originalism. The book is additionally noteworthy for its almost complete lack of rhetorical excesses and its careful, fair consideration of a wide range of arguments. Both are unusual in the literature on this highly emotional issue.

Two problems prevent the book from being even better. First, Kennedy states that he does not in fact support all affirmative action programs, but only “sensibly designed” ones. For example, he opposes programs where minority students are admitted with academic qualifications so low relative to others at the same institution that they cannot effectively handle the work. But he does not make much effort to consider whether currently existing affirmative action programs really are “sensibly designed” and whether the officials who run these programs have adequate incentives to make them so. This omission contrasts with Kennedy’s powerful earlier work on racial profiling in law enforcement; there, Kennedy recognized that carefully limited racial profiling might potentially help lower crime, but argued (correctly, in my view) that the practice should be banned anyway because real-world law enforcement agencies are unlikely to limit its use so tightly. Kennedy is one of the few commentators to recognize the many parallels between the affirmative action and racial profiling debates. But he doesn’t take that recognition far enough.

Second, Kennedy does not sufficiently consider the question of which groups should qualify for affirmative action and why. Although he recognizes that Hispanics are now the largest group eligible for many affirmative action programs, and that many of the black beneficiaries of the policy are recent immigrants from Africa and the Caribbean, he does not explain whether and why these groups should be eligible for affirmative action preferences. This is an important omission because most American Hispanics are immigrants or descendants of immigrants who arrived since the 1960s, and therefore have not suffered the sort of massive state-sponsored discrimination that African-Americans experienced under slavery and Jim Crow. The same is also true of recent black immigrants. Thus, the compensatory justice rationale for giving these groups affirmative action preferences is comparatively weak. Since Kennedy (correctly, in my opinion) stresses compensatory justice over diversity in his defense of affirmative action, the question of which groups it applies to is an important issue for his overall argument. Despite these and a few other reservations, this book is a must-read for anyone who wants to keep up with the ongoing debate over affirmative action.

III. Clark Neily, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government

In this book, Institute for Justice lawyer Clark Neily argues, that far from being overly “activist,” the courts have not done enough to protect a variety of constitutional rights. He points out that federal courts have invalidated less than 1% of all the federal laws enacted over the last several decades, even though this was an era when the size and scope of government expanded substantially and Congress adopted many questionable laws.

Perhaps the strongest part of the book is Neily’s discussion of the inconsistency between the way courts deal with cases involving what they consider to be important constitutional rights (e.g. – those protected by the First Amendment), and the way they deal with property rights and economic liberties cases. In the latter category of cases, courts routinely claim that they are unable to determine what the true purposes of the government’s policy are, or whether the law in question helps promote those objectives in any meaningful way. But in the former category of cases, judges routinely do the very things that they said they cannot do in the latter.

In some respects, the book is not as strong as it could be. The main problem is that Neily does not sufficiently confront the reasons why many people (especially on the left) believe that property rights and economic liberties deserve less protection than other constitutional rights: that these rights are simply less valuable for most people, that protecting them would benefit the rich at the expense of the poor, and that modern society cannot function effectively unless government has broad power to regulate economic transactions. I believe all of these arguments have serious flaws. But advocates of strong judicial protection for economic rights must confront them directly.

In addition, Neily is not as clear as he should be about what kind of judicial philosophy he advocates, whether it be originalism, living constitution theory, or some combination of the two. I don’t believe we should embrace one such theory to the complete exclusion of all others. But if we are going to mix and match, it’s important to be clear about the relevant tradeoffs and why they should come out one way rather than another. Finally, while Neily is very persuasive in showing that courts have imposed only modest constraints on the federal government since the New Deal era, he sometimes overlooks the much more extensive limitations they have imposed on state and local governments (I survey those here).

Some of the analytical limitations of this book may be unavoidable, because Neily is clearly aiming at a popular audience rather than a specialist one. And he does succeed well in outlining a case for stronger judicial engagement in a clear and accessible style. The book manages to be extremely engaging in its advocacy of judicial engagement! If you’re a nonexpert looking for a good statement of the reasons why the judiciary needs to more to protect individual rights and enforce limits on government power, this book is a great place to start.

UPDATE: Adam Liptak of the New York Times has an interesting article discussing Neily’s book and other recent contributions to the debate over judicial “activism” here.

UPDATE #2: I originally said that McGinnis and Rappaport “implicitly” rely on a utilitarian framework for assessing consequences. In fact, however, they spell this out explicitly in the book (pp. 23-24). I have corrected the text above to reflect this.