Freedom and Time: A Theory of Constitutional Self-Goverment.

• Author: Chemerinsky, Erwin

FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT. By Jeb Rubenfeld. New Haven: Yale University Press. 2001. Pp. 255. $35.

Jeb Rubenfeld's book is nothing if not ambitious. (1) In just 250 pages, Rubenfeld seeks to: justify the authority of the Constitution, establish the legitimacy of judicial review, resolve the counter-majoritarian difficulty, offer a method of constitutional interpretation and judicial review, uphold the constitutionality of affirmative action, and explain the legitimacy of judicial protection of privacy, including abortion rights. Scattered throughout the book, he offers philosophical insights as to the meaning of life, discussing a central issue for all of us: dealing with time. Rubenfeld's book is elegant, relying on history, (2) continental philosophy, (3) game theory, (4) and even Supreme Court cases, to support his theory.

As a reader, I very much want for Rubenfeld to succeed. I agree with almost all of his conclusions. (5) No doubt, it would be wonderful to have a theory that resolves the counter-majoritarian difficulty, justifies nonoriginalist judicial review, and supports affirmative action and abortion rights. If Rubenfeld succeeded, progressive law professors could forever retire from engaging in constitutional theory, except to refine, apply, and defend his approach.

And if this is not enough, Rubenfeld claims to accomplish this by rejecting all of the constitutional theories that have been previously developed. The book jacket quotes Bruce Ackerman as stating, "This brilliant book heralds a new era in constitutional thought."

Unfortunately, if Rubenfeld's claims seem too good to be true, it is because they are. On careful examination, many key steps in Rubenfeld's argument have serious problems. Some aspects of Rubenfeld's analysis are simply rephrasings of familiar arguments in constitutional theory. Others, such as his "paradigm case" theory of judicial review, are so inadequately developed as to be of little help in understanding how courts should decide cases.

Rubenfeld's book is similar to efforts by Albert Einstein and other famous physicists to develop a "unified" theory accounting for all physical forces. Even Einstein failed at this effort and most physicists seem skeptical that a "unified field" theory ever can be developed. Likewise, reading Rubenfeld's book heightens my skepticism that there ever can be a grand theory of constitutional law of the sort he seeks.

Part I of this Review summarizes Rubenfeld's thesis and his arguments. Part II considers the key steps in Rubenfeld's argument and the problems with it. Finally, Part III concludes by offering final thoughts about the role of constitutional theory.

1. RUBENFELD'S THESIS

   At the risk of oversimplifying, I see six major steps in Rubenfeld's analysis.

   (1) The traditional approach to constitutional law is "speech oriented," meaning defining democracy as having government follow the voices of the current majority of society. Rubenfeld argues that society is obsessed with living in the present. He says that "[t]he proliferation of the imperative to live in the present ... can be seen in a wide variety of modern practices, institutions, styles, and literatures" (p. 26). He says that in the realm of government this means that democracy is understood as the imperative for government to follow the will of the current majority of society. This is what he means by "speech oriented." Rubenfeld writes that "a ... predominant conception of self-government ... call[ed] speech-modeled of which the organizing term is government by the present will or voice of the governed" (p. 74). He says that "[t]he idea that the earth belongs to the living would have us govern ourselves by our own present will" (p. 143). In other words, Rubenfeld finds the definition of democracy as majority rule as derived from a focus on the current majority and the need to follow its voice.

   (2) A "speech-oriented" approach to constitutional law creates the counter-majoritarian difficulty. Four decades ago, Alexander Bickel wrote of judicial review being a deviant institution in American society. (6) Bickel wrote of the counter-majoritarian difficulty: constitutional judicial review involves unelected judges striking down the choices by popularly elected legislatures. (7) If democracy is defined as majority rule--or as Rubenfeld puts it, if government is thought of in "speech" terms--judicial review is inherently at odds with democracy.

   Countless books and articles have been written about this, including many that offer their own solutions to reconciling judicial review with democracy. Originalists, for example, argue that their theory is best because it limits the situations in which courts usurp the popular will to only those situations where the Constitution's text and intent are clear. (8) Perhaps most famously, John Hart Ely's book Democracy and Distrust begins on page one by defining democracy as majority rule and then purports to reconcile judicial review with it by having courts focus on perfecting the processes of government. (9)

   Rubenfeld argues that every model of judicial review is fatally flawed because it is founded on a speech-oriented approach. Rubenfeld reviews major approaches--social contract analysis, originalism, proceduralism, consent theory, and liberalism--and shows how none succeeds in solving the counter-majoritarian difficulty. He says that the "antimony built into the very logic of the speech-modeled ideal of self-government makes that ideal presuppose what it cannot accept: the presence of texts, enacted in the past, governing the polity on fundamental matters of justice today and in the future" (p. 75).

   (3) The Constitution instead should be seen as a written commitment over time. Rubenfeld sees his alternative view of the Constitution as being about enduring commitments, and he derives this from the fact that the document is written. He writes:

   Self-government cannot be an exercise merely of freedom of speech and all that freedom of speech entails (political dialogue, formation of the `public will,' responsiveness of the representatives to the `voice of the people.') Self-government requires an inscriptive politics, a politics that exercises the freedom to write, a politics oriented around the production and enforcement of a democratic text laying down principles and institutions for generations to come. (p. 86) He says that the Constitution is a "conception of self-government as living out, over time, commitments of one's own authorship" (p. 14). Later he explains this by stating: "[T]he defining thesis of self-government on the model of writing [is] the self that governs itself over time is governed by commitments of its own making, apart from or even contrary to its will at any given moment" (p. 92).

   In other words, there are three basic elements to Rubenfeld's conception of the Constitution: it is a commitment; it is expressed in writing; and it is meant to last over time. He discusses, in detail, types of commitments that people make. He explains the importance of a written, as opposed to a speech-based approach to government. Unlike a speech-founded orientation, which is committed to following the will of the present majority, a written Constitution is not so oriented. Most importantly, he says that understanding the Constitution requires that it be seen as extending over time and thus transcending the present-oriented approach to government that he earlier criticizes. Indeed, a central focus of his book concerns time and how focusing on it changes our understanding of the Constitution.

   (4) Viewing the Constitution as written warrants its existence, justifies judicial review, and solves the counter-majoritarian difficulty. The obvious objection to Rubenfeld's argument is that those who are now alive did not ratify the Constitution. Why should they be seen as having made the commitment that he describes? This is particularly important because Rubenfeld criticizes those who have described the Constitution as an effort of society to tie its hands so that short-term impulses do not cause a compromise of long-term values. (10) Some, such as Jon Elster, have used the story of Ulysses and the Sirens, where Ulysses had his hands tied to the mast to prevent him from indulging in the desire to follow the Siren song, as a metaphor for the Constitution. (11) Rubenfeld, though, says that the problem with this view is that those now alive did not choose to tie themselves to this mast; it was a choice made by past generations and what right do they have to tie future ones? (pp. 93-94). Moreover, Rubenfeld argues that the analogy to Ulysses does not provide a normative reason why the commitment should be honored (pp. 116-17).

   But why doesn't Rubenfeld's conception of commitment and a written constitution run afoul of the same problems? He says that it is because there is such a thing as the American "people" that exists over time (p. 131). Of course, the individuals change, as they die and new persons move in and are born. But Rubenfeld says that even a single person changes; he writes that "we are composed of many...