Book Review
The American Constitutional
Order: History, Cases, and Philosophy, Douglas Kmiec and Stephen
Presser (Cincinnati: Anderson Publishing Co.), 1998.
By Robert Jeffrey
This constitutional law
textbook is a noble attempt to combine political philosophy and the study
of American constitutional law. Professors
Kmiec and Presser understand constitutionalism in the broadest possible
sense. The book’s greatest virtue is to show how the very idea of
law depends on the existence of the natural law, and how the American
Constitution and its correct interpretation depends upon the natural law
as it was understood by the philosophers, theologians, and jurists of the
western tradition. It thus
presents the questions of constitutional law in large part as questions of
judicial statesmanship, or judicial superintendence of the rule of law as
a whole, and raises serious questions about the adequacy of judicial
statesmanship on the part of the most noted defenders, as well as the most
noted critics, of the original intention school of constitutional
jurisprudence. It does so,
however, without the dogmatism of the Claremont School, and without undue
reliance upon the text of the Declaration of Independence.
The book begins with an
extended and useful narrative (a story told in large part with primary
source readings) of the philosophical and natural law basis of the
American political order. Particularly noteworthy is the solid connection established
between Cicero’s account of the natural law and the beginnings of
English common law jurisprudence after Henry II.
The mind and reason of the wise man under God is connected to the
thought of Bracton, for example, and to the notion of “the law of the
land” or “common law” as developed by the independent jurists. According to Bracton, jurisprudence is “the knowledge of
things divine and human, the science of the just and unjust.”
The common law pattern of legal thinking proceeded from the law of
God to the law of nature to the law of the land.
The early English courts were virtually “secular” religious
orders, with a claimed authority to limit and supervise the political
authority of the crown. Thus,
from the beginning, the jurisprudential meaning of the rule of law was to
limit the jurisdiction of the political sovereign as well as to regulate
the relation between natural and positive law.
With Henry VIII’s suppression
of Catholicism in England a horizon beyond the positive power of the
sovereign is quickly lost, and the great constitutional struggles of 17th
Century England come to be fought merely over whether King or Parliament
shall be absolutely sovereign. It
is thus in America that the natural law tradition is resurrected, in the
political theory of the American Revolution, but also in the very
structure of the new American government as instituted in the Constitution
of 1787.
Blackstone, for example, had
denied that there was any recourse when Parliament would “positively
enact” an unreasonable or unjust law.
As Locke would say, one could only appeal to heaven, or to the
people. But the American
Constitution created an independent Supreme Court, not an executive
“King’s Prerogative Court” nor a parliamentary court, a court whose
reach extended “not with a view to infractions of the Constitution
only,” but also to “the injury of private rights of particular classes
of citizens, by unjust and partial laws.” (Federalist 78).
The book proceeds through the
great areas of constitutional controversy with logic and coherence.
Establishment and Free Exercise law, for example, follow
immediately upon the discussion of natural law and the founding. Man’s openness to the divine is a precondition for the
natural law, and the divine is a source of the natural law. The juridical foundation of the American regime is shown to
be incoherent without an anthropology and political philosophy that is
theologic. Thus the modern
Court’s Everson Doctrine, that reads the establishment clause to
prohibit government from preferring religion to non-religion, thereby
prohibits American governments (state and federal) from declaring their
own foundational principles and from advancing their ultimate political
purposes—for example to promote human happiness and human liberty
properly understood. The book
also adds to the student’s understanding of the context of Everson by
clearly uncovering one root of its secular doctrine in the longstanding
anti-Catholicism of American elites.
In its fine presentation of
commerce clause jurisprudence, the book invites the student to read the
riveting Rehnquist Court commerce clause cases, in particular Lopez
and Morrison, which present a virtual seminar on commerce and the
American Regime, using the Federalist, the Marshall Court cases and
Wickard as benchmarks. The
result is to place in utter clarity the great question of contemporary
commerce clause disputation, which is whether America is first a political
regime in which the constitutional partitions of power and protections of
citizen liberty are paramount, or whether it is a mere interdependent
marketplace where political principles like federalism and separation of
powers fall and fade before the administrative state nexus of consumer,
producer, scientist, and regulator.
The natural law themes of the
book come to a culmination at the end with a discussion that builds from
equal protection cases such as United States v. Virginia, the most
significant recent civil rights gender case, into the area of unenumerated
personal liberty law, or what Kmiec and Presser call cases of “imperfect
knowledge.” In a courageous
but eminently fair presentation, the book makes clear the turn in
extra-Constitutional jurisprudence from cases like Reynolds, Yoder,
Meyer, Pierce, and Loving, where family relations or the family
as an association not completely subsumable to the political community was
given judicial protection, to the line of cases beginning with Griswold
and Eisenstadt, where the right to have sexual intercourse was made
absolute, and individual bodily sexual autonomy was given constitutional
protection in place of the goods of family, community, and the moral
obligation to protect innocent human life.
One is led to ask the question: Is this the rule of law or the rule
of the absence of law?
To what does one appeal if one
appeals beyond the positive constitutional law?
Recall that the pattern throughout the history of late classical
antiquity and Anglo-American civilization was law of God to law of nature
to law of the land. This
hierarchical authority, mediated through the mind and reason of the
prudent man as informed by philosophy and theology, was tempered
horizontally by the emerging legal tradition, or what came later to be
called common law. Yet the
shapers of the new extra-constitutional personal liberty law positively
reject appeal to God and to nature, and in fact associate theology and the
natural law tradition with prejudice and cruelty. Nor are they any more respectful of the antiquity or the
longevity of legal precedent in moral matters. (For a good example, see
Blackmun’s dissent in Bowers.)
The appeal of the new
prospectors of extra-constitutional law is thus not to higher law but to
anti-law. Man is not
understood as being in a world the true meaning of which is expressed
morally through law. Rather,
man is a “being”, a mere body in motion really, who finds happiness
and freedom only when “unencumbered” from law.
This is the reason that constitutional law as text means so little
to the liberal faction. Positive law bears no relation to law of any
ultimate significance. It
merely stands as artifact for the minimal instrumental ground for
regulating the interrelated web of human desiring.
This is also the reason why commerce clause reasoning comes so
natural to the same liberal faction.
It is not just that it makes possible the centralized
administrative state, but that its understanding of humans as consumers
fits better with its anthropology. We
are sexual consumers rather than citizens, fathers, mothers, governors,
and teachers.
As one reads the cases wherein
the new anti-law becomes triumphant, one observes also the futility of the
dissenters when they recite historical precedent or decry judicial
adventurism. Nor does the iron-clad constitutional logic of democratic
decision-making as opposed to judicial tyranny suffice to persuade most of
my students of the illegitimacy of the Court’s law-making (or unmaking,
as the case may be). And this
is the case, even after strong doses of Federalist 78.
Nor, I might add, is the personal charm of Justice Scalia or the
self-evident constitutional seriousness of the Chief Justice—both of
whom my best students find themselves admiring despite themselves—enough
to dissuade. Why?
Silently, Kmiec and Presser
suggest a reason beyond the sociological Zeitgeist.
On the face of it, the Brennans and the Blackmuns ground their
opinions on what is just, based on liberty and equality, and not simply on
the positive law. Justice
Scalia, on the other hand, for example, though his passion betrays him,
refuses to ground his opinions on justice simply, and stubbornly treads a
via negativa. “I have no authority over this.
I am a judge, not a philosopher.”
But the book has taught us that judges are philosophers by the
nature of the case, and hence that judicial superintendence of a good
regime requires recurrence to the fundamental principles of right. In the end, historical and narrow constitutional arguments
are not enough.
Justices like Scalia and
Rehnquist also need not worry that engaging in natural law and common law
reasoning would invite greater disrespect for the Constitution or for
rigor of constitutional reasoning. As
I have indicated above, and as the book teaches, respect for law in itself
must precede respect for the Constitution as law, just as the rigor of
philosophical reasoning preceded the rigor of the western legal tradition.
The fact is that the argument for nihilistic freedom is being made
from the high bench, while the argument for law and for the natural law is
not. Justice Scalia ought to
reflect that this sin of omission is not just an error of principle, but a
high rhetorical failure as well.
In my graduate student days, we
used to joke that constitutional law textbooks and constitutional law
classes in most law schools paid no attention to the Constitution.
The Kmiec and Presser text not only remedies that, but, as I have
said, goes far beyond to ground the Constitution in the thought of the
true West. It is a treasure. Not only are the cases well selected and edited, but the
authors provide pithy and luminous guidance through the thickets of case
law with pertinent notes and explanations.
Although written for law school students, the book is very usable
for undergraduate constitutional law classes.
The book is still only available in its first edition, although
supplements are available for important cases recently decided.
The authors and publisher should be encouraged to prepare a second
edition and to keep the book in print.
29 June 2002