Constitutional Morality and the Rise of Quasi-law
By Bruce P. Frohnen and George W. Carey
Cambridge, Mass.: Harvard University Press, 2016.
Pp. v, 293. $45 hardcover.
This collaboration between Bruce Frohnen and the late George Carey is one of the best, if not the best, constitutional law books of the past decade. The writing is clear, erudite, and concise, but what truly distinguishes this book is its breadth, encompassing not just a particular area of law or mode of interpretation but also the rule of law and its status in twenty-first-century America.
Frohnen and Carey explore this thorny, abstract, and contentious subject without being unduly theoretical, abstruse, or tendentious in the process. That is not to say Constitutional Morality is an easy book; to the contrary, it is heavy and ponderous, full of rich and thick passages about the common law and American constitutionalism. Nor is this to say it is a nonideological work; the book has an unmistakably conservative disposition in linking the rise of the administrative state with the demise of the rule of law. Nevertheless, the authors write so lucidly that nonacademics can digest its heavy subject matter without much difficulty. And the authors reject the platforms of both political parties, so there is plenty of analysis for liberals and conservatives alike to find agreeable (and disagreeable). Indeed, the conservative authors condemn President George W. Bush's use of executive power more than they criticize the actions of any other postwar president (see, e.g., pp. 211-16).
The book succeeds mightily in diagnosing the nation's constitutional ills, largely due to the authors' willingness to defy partisanship. But perhaps as a result of this defiance, the book fails just as mightily in political prognosis in that it does not sufficiently engage the political and social realities of twenty-first-century America.
First, the diagnosis. Recalling Carey's collaboration with Wilmoore Kendall, Basic Symbols of the American Political Tradition (Washington, D.C.: Catholic University of America Press, 1970), Frohnen and Carey view "constitutional morality," in contrast to the constitutional text itself, as the bedrock of our legal and political order. They define "constitutional morality" as "the felt duty of government officials ... to abide by the restrictions and imperatives imposed on them by a constitution" (p. 10). And they define the rule of law as "governance according to settled...