Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations (Late Medieval and Early Renaissance Music in Facsimile) 1st Edition, Kindle Edition
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In 'Desperately Seeking Certainty', Daniel A. Farber and Suzanna Sherry examine six Constitutional scholars (including U.S. Supreme Court Justice Antonin Scalia), who believe they have found the answer to the last question, and thus the first two questions, as well. The six scholars all have theories of how the U.S. constitution is to be interpreted. Those include from Antonin Scalia and Robert Bork's Originalism - the belief that the US constitution has a specific meaning that can be recovered based on the historical record. Textual Analysis - the claim that the meaning of the constitution can be derived from its language. Bruce Ackerman holds that the constitution has been conceptually amended three times in US History (during Foundation, Reconstruction, and the New Deal), and that the role of the court is to preserve these changes, and particularly the heritage of the New Deal. Ronald Dworkin, philosopher as much as lawyer, holds that the Judge's role is to interpret the constitution based on the principles of liberal democracy.
Farber and Sherry hold that these theories are all misguided, because they elevate something that is important and useful to a supreme position. Originalism, Textual Analysis and individual rights all have their role when Courts interprets constitutional law, but they are not exclusive. In an ongoing joke, Farber and Sherry compare the theorist to people on a steady diet of latkes only - so much of it just isn't good for you.
Farber and Sherry hold that the practice of the Supreme Court is not as problematic as we may think it is; Just because one aspect of the American System is not democratic, it doesn't mean the whole isn't. The Supreme Court is hardly the only unelected body in the US - The Federal Reserve is equally unsupervised, and the Senate is disproportionaly representative.
Farber and Shelly hold that the theories are unworkable as a guide for judging, and they stand against 200 years of Supreme Court tradition. Furthermore, there is no indication that any of these theories enjoy, now or in the past, the support of the majority of the "We, the People of United States".
"Desperately Seeking Certainty" in an interesting and insightful, although sometimes fairly technical, book. It is a call for pragmatic jurisprudence and stressed the role of the judges "The Judges [should] be open minded, receptive to opposing views and capable of balanced judgment... these traits of character, not adherence to a grand theory, mark the difference between a principled judge and a willful one" (p. 156). We can find no refuge in grand theories of constitutional law, the authors tell us - the law, like life, is too complicated for that
Before I get to that though, a quick exposition. The book is set up to debunk the idea of constitutional grand theory. Along these lines, six scholars are selected, a mix of both the left and right: Robert Bork, Antonin Scalia, Richard Epstein, Bruce Ackerman, Akhil Amar, and Ronald Dworkin. Each scholar gets a chapter espousing his particular philosophy, no sooner presented as subjected to critiques. Little of this is original to the authors: rather they borrow from many others in developing their criticisms. And it is in this that the book is most interesting: it serves as an informative and easily read primer for modern constitutional law. You will (at least I did) find certain critiques more persuasive than others, largely because of your political beliefs.
But attempts to move beyond the descriptive leave the authors incoherent. They say they eschew grand theory in favor of pragmatism, apparently never recognizing that pragmatism is simply another grand theory. What a "grand theory" is is sadly never specified: my interpretation was that a grand theory is one that purports to give answers in most cases. If I am right, it's difficult to see why a grand theory could ever be undesirable, since the only alternative is a theory that gives no answers in some or all cases, which is simple arbitrariness. To say, as the authors do, simply act pragmatically, tells us nothing, unless pragmatism gives us an answer as to what the right decision is, and if pragmatism does that, it is simply another grand theory.
My own opinion is pragmatism is a hoax. To say use pragmatism tells us nothing until we have a theory of what pragmatism entails, and once we have that, we are back in the realm of grand theory. The advantage of saying "Use pragmatism" is that what pragmatism is has not been articulated, and thus can't be falsified. At least, it has not been articulated to any sufficient caliber in this book.
A more down to earth critique would focus on the shifting positions the authors use when attacking theories. They will, for instance, attack originalism on non-originalist grounds, and then when someone espouses a non-originalist theory, they will attack him on originalist grounds. Something seems unfair here.
In short, as a book advancing or dethroning a theory, the book is a failure, though an interesting one. As a description of modern constitutional theory, it's delightful and if one wants to quickly learn about the topic, I'd recommend it.
The authors' bias is obvious -- they believe that any solution which would unravel the welfare state, or reduce the size and regulatory power of the federal government, is automatically absurd. Thus they quickly dismiss as impractical the only solution -- Originalism -- that would return the court to being a true judicial body rather than a "super-legislature".