Implementing the Constitution.

• Author: Bix, Brian H.
• Position: Book Review

IMPLEMENTING THE CONSTITUTION. By Richard H. Fallon, Jr. (1) Harvard University Press. 2001. Pp. 186. $35.00.

The first question many legal academics may ask upon seeing Implementing the Constitution is, "do we really need another constitutional law book?" At the same time, the fact that the book is by Richard Fallon will offer some reassurance, as he is one of our most thoughtful commentators on constitutional issues. This confidence is shown again to be well-placed; the book is a useful corrective to the too-strident and too-unworldly discussions that frequently dominate discussions of the Constitution.

In this book, Fallon is the voice of Reason: the advocate of common sense and practicality, against both originalism and the type of "high principle" advocated by Ronald Dworkin. (3) To the originalists, he shows how their position, if taken seriously and at face value, would be unworkable, or at least highly unattractive--and that few advocates of originalism are actually that dogmatic. (4) (pp. 13-25) A purist on originalism matters would have to reject precedent, even rather entrenched precedent, that was contrary to the original meaning of the text, and it is hard to find any theorist who advocates that. (5) However, "if nonoriginalist precedent is 'law,' appropriately enforced by the Supreme Court and even binding on it, then central premises of originalism simply cannot be true." (p. 17) If originalism is not the grounds for all judgments of constitutional meaning, then one has implicitly admitted that there are principles other than original intention (or original understanding/meaning) involved in the proper implementation of the Constitution, and the question remains of what those other principles are and how we determine when they apply. All self-labeled "originalists" pick and choose, they simply neglect to inform us of the principles they are using for their selection.

To a high principle view, Fallon insists on the importance of the judges' role as practical lawyers, trying to find workable solutions to institutional, structural, and political difficulties. (pp. 26-36) It cannot be the Supreme Court's (6) role (simply) to determine the content of general moral principles like "equality" or "due process," for it is also the Court's function to implement the Constitution. Implementation inevitably involves certain compromises and accommodations. (pp. 4-6) Fallon emphasizes what everyone knows, but few much talk about (at least in academic commentaries): that doing constitutional law (in contrast to debating it in ivory towers or on talk shows) is largely about what is, over the long run, both workable and acceptable. (7)

What is more, these accommodations are not just the "practical" side of high principle (what Fallon sometimes calls "practical...