Expounding the Constitution: Essays in Constitutional Theory.

• Author: Webber, Gregoire C.N.
• Position: Book review

EXPOUNDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY. Grant Huscroft, ed. (1) New York, Cambridge University Press. 2008. Pp. ix + 319. $85.00.

INTRODUCTION

In the first pages of Law and Disagreement, Jeremy Waldron reminds the reader that much of legal and political-philosophical scholarship is monological: the scholar presents a theory "in exactly the same spirit" as all the others; that is, by "excluding" their principles from his "conceptions of a well-ordered society", just as they exclude "[his] principles from [theirs]". (3) If the scholar engages with the competing theories of others, it is primarily "to prepare a defence of his own view against possible objections"; beyond this delimited interaction, scholars merely present "for the audience, for the public" different theories from which to select. (4) They do not, as it were, seek to advance scholarship through discussion and debate-that is, with a dialogical orientation. (5)

This view confronts the vocation scholars like to view themselves as engaged in: not a centered-on-self activity of demarking one's scholarship from all the others, but a selfless grappling of ideas with all the others. Indeed, this vocation plays itself out prior to the printed word of scholarship, with scholars presenting work in various venues and fora, seeking each other's advice on how best to ameliorate an argument, or whether it is worth making at all. (6) Of course, the dialogical orientation of scholarship occasionally does extend proudly to the printed word, as some of the great academic debates like the H.L.A. Hart and Lon L. Fuller debate on law and morality illustrate forcefully. (7) Moreover, journal symposia devoted to a scholar's work, or even single publication also exhibit the potential of a dialogical orientation to scholarship. And one would be remiss for not mentioning how students (and authors) of judicial opinions benefit from the dialogical disposition that sometimes animate majority and dissenting judgments, where judges seek to answer claims made in the other opinion. (8) Yet, despite the strength of contributions of dialogical scholarship, it remains in large measure the exception and a monological orientation the norm.

Grant Huscroft's edited collection of essays stands as a testament to how a dialogical orientation contributes to scholarship, and to each scholar's thinking, both with respect to the printed word and to that which precedes it. The essays in Expounding the Constitution: Essays in Constitutional Theory followed a colloquium where, as David Dyzenhaus explains at the beginning of his essay, the colloquium organizer (and subsequent collection editor) "prohibited formal presentation of papers, thus ensuring that the two days were entirely devoted to discussion" (p. 138, n. *). The result is a collection distinguished by the extent to which the individual essays engage with each other, as well as with the work of the contributors' previous scholarship. The collection reflects, for the most part, a concerted effort on their part to speak to each other, and not only past each other to the audience. This feature is not, of course, altogether uncommon for a collection of essays growing out of a conference or colloquium, but the degree to which the essays in this collection do so explicitly and thematically is doubtless grounded in the academic approach at the gathering together of these American, Australian, British, Canadian, and New Zealand scholars.

Huscroft divides the essays into three themes: "I: Morality and the Enterprise of Interpretation"; "II: Judicial Review, Legitimacy, and Justification"; and "III: Written and Unwritten Constitutional Principles," though this grouping should not suggest that the essays and their authors do not engage beyond these permeable boundaries. I will begin with a review of the essays in the thematic ordering proposed by Huscroft; I hope to do so in a manner that avoids duplicating the excellent survol provided in Huscroft's introductory chapter. And so as to avoid any "implied possible invidious distinction" between the essays by omitting reference to some, (9) a word or two will be said on each one of them, even if not all engage quite so enthusiastically in the dialogical orientation that is a feature of the collection. This initial review will proceed, for the most part, in a monological orientation, for each essay contributes something to scholarship, something "for the public, for the audience" that is important to share (I). I will then, in an effort to accentuate the debates between the essays, explore the conversations carried out between the authors, both explicitly and thematically, with the aim to illustrate the dialogical orientation that permeates the collection (II). It is hoped that the review in the first half will allow the reader to see where the essays speak to each other, and how they might have done so more.

1. ESSAYS FOR THE PUBLIC, FOR THE AUDIENCE

   Part I begins with a challenging essay by Steven D. Smith, in which he asks: What does constitutional interpretation interpret? Smith's essay is appropriately positioned first: it extols a mode of scholarship, an invitation to engage with the different paradigms at play in constitutional theory, and to grapple with them. The answer to the seemingly obvious question raised proves elusive, even for Smith, who does not attempt an answer. Rather, Smith's approach is to examine and analyse the practice of constitutional interpretation. Although there is, for all to see, an "actual, practical activity" of constitutional interpretation (pp. 22-23), the role played by the expression "the constitution" in this activity and the many theoretical models that seek to guide it is rather like that of a placeholder. For some, what is being interpreted is the "enactors' intentions" or the "words of the document in historical context" or the "principles within the constitution." These approaches all differ, but all share the fact that they command "no consensus" (p. 26)--they are all "reform proposals" for how constitutional interpretation should be done (p. 27), not accounts of what is being done. (10) So while students of constitutional interpretation all consider their activity to be one of interpreting "the constitution," "some people use the phrase to refer to one sort of object while others use it to refer to another sort of object" (p. 34). In this way, "the constitution" is in truth a "facilitative modern equivocation" that allows us "to suppress that uncertainty and dissensus in order to carry on" that enterprise we call constitutional interpretation (p. 36). Perhaps the placeholder the constitution is helpful as a "myth" that "unite[s] us as a people" (p. 36), but whatever the virtue of proceeding this way, Smith's exercise is devoted, not to justifying the existing practice, but rather to assisting us in understanding "what on earth is going on" (p. 37).

   Jeremy Waldron--whose scholarship, and especially his recent "Core of the Case Against Judicial Review," (11) is examined by several essays--explores the differences between legislative and judicial reasoning. Waldron has previously argued that judicial reasoning can be "artificial and distorted" and burdened with the "laborious discussion of precedent", with the result that "good faith disagreement about rights get[s] pushed to the margins." (12) In this essay, Waldron argues that judicial reasoning should not aspire to be more--in fact, that it is appropriately constrained by the discussion of precedent and other sources of law. While reasons for judgment tend to resemble "the careful, measured, deliberative, and analytic way that moral philosophers think moral reasoners should reason" (p. 39), they do not exhibit all the virtues of moral reasoning, and appropriately so. For judges operate as "government officials, in the context of political institutions"--"[t[hey are not deciding what to do as individuals; they are making decisions for and about a whole society" (p. 44). The task of the judge, after all, is to perform justice according to law, and not to perform justice irrespective of law. (13) The task is not akin to autonomous individual moral-reasoning; reasoning morally in the name of society requires something else of the judge. In large measure, it "means discovering the results of other people's moral reasoning" (p. 49, emphasis in original), such as the moral reasoning of the constitution's framers or of legislators or of earlier judges, and relying on that moral reasoning. In this way, Waldron relies on a thesis expounded by John Finnis that legal reasoning, with its familiar sources of reasoning--"statutes and statute-based rules, common law rules, and customs"--"is (at least in large part) technical reasoning [and] not moral reasoning." (14) As we will see, this characterisation is challenged by several of the essays.

   By contrast, legislative reasoning for Waldron is a way of reasoning in the name of society about important moral issues without being bound to "keep[] faith with the existing commitments of the society" (p. 59)--that is, it is reasoning "as though for the first time," "undistracted" (p. 60). Of...