A Republic of Statutes: The New American Constitution.

• Author: Jacobs, Leslie Gielow
• Position: Book review

A REPUBLIC OF STATUTES: THE NEW AMERICAN CONSTITUTION. William N. Eskridge, Jr. (1) and John Ferejohn. (2) New Haven: Yale University Press. 2010. Pp. viii + 582. $85.00 (Cloth).

According to the "romantic" tale of constitutional change (pp. 4, 34), our written Constitution created oh, so many years ago, establishes our most important and fundamental rights. Although we all agreed (by proxy) to these commitments originally, the majorities that inhabit the unruly political processes have a nasty tendency to go astray, and implement oppressive practices. In this case, it is up to the Justices, who reside up on high, to gallop in to save the day, interpreting real life meaning into the written words and casting aside injustices. But the Camelot of the Warren Court is no more. The Justices are acting more like anointed monarchs than white knights, refusing to engraft expanded rights for the disempowered onto the Constitution's bare bones text, or worse--and increasingly frequently of late--reaching out under cover of its broadly worded provisions to invalidate specific and significant judgments about distribution of private rights and use of public power reached, refined and embraced by democratic majorities across temporal and geographic boundaries and in spite of apparent ideological divides. Much of the legal academy has been wringing its collective hands for years now. Things have reached such a state that big thinkers such as Dean Larry Kramer and Professor Mark Tushnet have predicted the loss of "We the People" popular sovereignty, and called for stripping constitutional review power from the Court, respectively. In their new book, A Republic of Statutes, William N. Eskridge, Jr. and John Ferejohn add to this lively conversation of how constitutional change does and should occur. Although they characterize their theory of constitutionalism as "radical" (p. 26), in actuality they counsel a less dramatic response to the pesky problem of activist review by unelected judges: Don't pay so much attention, and maybe they'll stop acting out.

I

Eskridge and Ferejohn present a "nontraditional framework for thinking about American constitutionalism" (p. 1). In the traditional framework, the Constitution is great, judges are good, and the actors in the political process are the shifty and unprincipled bad guys, who must constantly be monitored lest they misbehave. By contrast, the Eskridge/Ferejohn framework puts the democratic process and the political actors who operate within it front-and-center in their explanation of how the really important rights and liberties that impact and improve the lives of real people today get made. While traditionalists avert their gaze from interest groups, politicians, administrative bureaucrats and the haphazard, cobbled-together products that they tend to create, the book's authors stare with undisguised relish. For Eskridge and Ferejohn, the hurly burly, nitty gritty, back-and-forth of day-to-day politics is something to celebrate. In the authors' small-"c" constitutionalism, the products of the political process--statutes, regulations, treaties--are the key texts; legislators, executive officials and legislators, the government actors with the primary power to establish what the words mean; and judges, the ones who must be watched most carefully lest they fail to recognize the fundamentality and legitimacy of the norms that We the People make, as we act alone, or in combinations, through our elected representatives, and in a host of other messy but meaningful kinds of ways.

The authors present the specifics of their theory in the first part of the book through a string of trilogies, which multiply and repeat with the insistency of a Power Point slide show. Democratic constitutionalism requires (1) "popular choice of political leaders," (2) a "normative hierarchy embodying substantive rights," and (3) "institutions and procedures for enforcing the hierarchy and at least some of the rights" (p. 2). Our written Constitution, augmented by the Bill of Rights, accomplished these things. But the words are vague, and the dramatically difficult Article V amendment process means that the primary vehicle for constitutional change cannot be deliberation and decision by We the People, through our many and diverse elected representatives. Instead, constitutional updating must be accomplished through interpretation and pronouncement by unelected judges.

Three problems plague our judge-enforced big-"C" Constitution. First, the Justices are not institutionally situated to duplicate the legitimacy of the impractical constitutional amendment process, the accuracy or wisdom of the judgment reached, or effective enforcement of the result. Second, the norms of the Constitution, as interpreted by the Court, do not apply directly to private action. Because of their limited application, judge-interpreted constitutional rights cannot change the behaviors that most harm the disadvantaged or penetrate deeply into popular culture to change hearts and minds. Third, the Constitution's scant text does not obviously impose duties on governments to create and guarantee the conditions that allow all of the nation's citizens, whatever their particular characteristics or circumstances, to live productive and fulfilling lives (pp. 4-5).

These three "huge limitations" of big-"C" Constitutionalism have channeled the American people toward the small-"c" constitutionalism of defining and refining rights and liberties through legislative and administrative actions. In the "republic of statutes" that the authors describe...