Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations.

• Author: Smith, Steven D.
• Position: Book Review

DESPERATELY SEEKING CERTAINTY: THE MISGUIDED QUEST FOR CONSTITUTIONAL FOUNDATIONS. By Daniel A. Farber (1) and Suzanna Sherry. (2) University of Chicago Press. 2002. Pp. 208. $25.00

It is a common complaint that constitutional argumentation (or what is sometimes euphemistically called "reasoned judgment" (4)), whether issuing from judges or law professors, has become pervasively unpersuasive, unedifying, often downright unseemly (5) So, how do we come to find ourselves in this unhappy predicament? And is our plight truly desperate, or are the critics just overwrought nay-sayers?

In Desperately Seeking Certainty, two eminent constitutional scholars (well known to long-time readers of this journal) offer a sweeping but fairly simple--and ultimately upbeat--diagnosis: the deficiencies of modern constitutional discourse are largely the result of "foundationalism," or of a misconceived quest for "grand theory." Though broadly critical of many of the leading constitutional thinkers of our time, this diagnosis is also at its core an optimistic one, because it suggests that what we basically need to do is ... well, just relax. Taking a self-consciously therapeutic approach (the book begins and ends with a psychiatrist joke), Dan Farber and Suzanna Sherry suggest that we need to let go of our yearning for an elegant theory of the Constitution, or for a secure method of interpreting it, and instead return to the eclectic, tried-and-true tactics that lawyers and judges have been using for centuries. More specifically, we need to content ourselves with "legal pragmatism," or with the methods of the "common law" (approaches that the authors treat, surprisingly, as approximately equivalent).

The book's presentation of this cheerfully critical diagnosis is perceptive, good-natured, steadfastly (and even ostentatiously) commonsensical, sometimes entertaining, often insightful. Which is not to say, alas, that the diagnosis is right--or that the pragmatist therapy is what we need now.

ROUNDING UP THE USUAL SUSPECTS

Farber and Sherry started out, as they explain, to write a book criticizing some leading conservative constitutional theorists, but their project soon expanded to include major purveyors of "grand theory," both liberal and conservative. Sandwiched in between brief introductory and much longer concluding chapters, the book devotes a chapter each to the ideas of six constitutional theorists who are already widely admired and despised: Robert Bork, Antonin Scalia, Richard Epstein, Akhil Amar, Bruce Ackerman, and Ronald Dworkin. While praising these thinkers for their brilliance and imagination, Farber and Sherry find all of their positions seriously deficient.

Whether or not one agrees with this negative judgment, the book's treatment of these prominent thinkers is illuminating. To be sure, the presentations vary in depth and seriousness. The authors evidently view Bork as a lightweight and hence decline to offer any very serious presentation of his views, limiting themselves instead to rehearsing the standard criticisms. (While insisting on "originalism," Bork does not appreciate the difficulty of ascertaining original meaning. Bork is "too often sloppy, superficial, and sometimes inaccurate" in his own history, and he "repeatedly ignores or distorts history to reach his own conclusions." (p. 17) And so forth.) Other theorists receive more sustained and respectful treatment. Sometimes the authors at tribute greater subtlety to a theorist than critics typically do. Scalia, for example, comes across not so much as a dogmatic true believer in rules and "original understanding" as a nuanced and tacitly skeptical pragmatist who understands both the deficiencies of the doctrines he propounds and the inevitability of the doctrines he opposes (such as the "living Constitution"). Scalia nonetheless contends ferociously for his views--he pretends, with occasional lapses into candor, to be a dogmatic supporter--because he thinks "it is better for judges to adhere to certain myths despite their fictional nature, while maintaining a wise silence about the truth." (p. 38) Whether this portrayal is accurate is hard to tell: but at least it is interesting.

Beyond the individual appraisals, the book's format generates revealing and sometimes intriguing comparisons of the different theorists. For example, the authors point out that Epstein and Ackerman, though seemingly constitutional opposites, "actually have a good deal in common." (p. 74) Both scholars are obsessed with the New Deal, and both agree in viewing constitutional developments of that period as "a decisive break from the original constitutional understanding." (p. 74) Starting from this shared judgment, however, Epstein repudiates the New Deal while Ackerman struggles to constitutionalize it (mainly through his famous theory of the unwritten "Activist State" amendment that no one knew about until Ackerman discovered it a few years ago). (6) Indeed, in his dedication to the New Deal Ackerman reveals himself as a peculiar sort of conservative (the authors are too polite to say reactionary): "His appeal is ultimately conservative: we must retain the legacy of the New Deal--as interpreted and implemented by the Warren Court--not because it is right or because we agree with it, but because the depression generation told us to." (p. 100)

So if the New Deal is taken as a reference point, Ackerman and Epstein are alike (and also opposite), and are unlike the other theorists who do not fixate so fully on that episode in our history. But from a different vantage point--that is, respect for "populism" or majoritarianism--the affinities shift. Now Ackerman finds himself lumped in with Bork, Scalia, and Amar: all privilege majoritarian democracy over individual rights. (p. 143) Indeed, the authors suggest that in this respect Amar can be seen as a sort of extreme version of Bork. (p. 74) Conversely, "Epstein and Dworkin--an odd couple if there ever was one"--are paired because they "give primacy to individual rights." (p. 143)

Beyond these provocative comparisons, however, Farber and Sherry argue that all of the theorists share a common--and fatal--feature: all are ostensibly committed to what the authors call "grand theory," or "foundationalism," (7) and this commitment is their undoing. The overarching critical theme of the book is that the foundationalist project is "both fundamentally misguided and doomed to failure." (p. 140) Our constitutional history and system are simply too wildly messy--too beautifully, incongruously complicated--to be captured in any elegant theory. So the effort to perform this impossible task, whether by conservative or liberal theorists, predictably results in analytical contortions, distortions of the evidence, and embarrassing departures from old-fashioned common sense--which is just what we see, almost everywhere, in contemporary constitutional discourse.

It is an appealing, presumptively plausible depiction--so plausible, in fact, that one might wonder how so many bright scholars could have overlooked the obvious, and how so many other scholars and students and lawyers could have been sucked into such a patently misguided quest. How to account for the apparently irresistible attraction of "grand theory" over the past generation or so? Farber and Sherry are sensitive to this question, and they offer an answer--more than one answer, in fact.

THE WILL TO THEORIZE

The title already suggests one recurring and primarily psychological theme: the theorists and their followers have been driven by an overweening desire for certainty--about what courts should do, or about the meaning of the Constitution. Thus, "[g]rand theorists ... yearn for certitude, for something more definite than the rather fuzzy process of reasoning by analogy and developing principles piecemeal." (p. 153) Or their theories reflect "a bitter longing for a world of stable values and...