Revolution by Judiciary: The Structure of American Constitutional Law.

• Author: Denning, Brannon P.
• Position: Book review

REVOLUTION BY JUDICIARY: THE STRUCTURE OF AMERICAN CONSTITUTIONAL LAW. By Jed Rubenfeld. (1) Cambridge, Harvard University Press. 2005. Pp. ix + 241. $39.95.

INTRODUCTION

Jed Rubenfeld's Revolution by Judiciary is an ambitious search for a way out of the reductionist debate between originalism and non-originalist interpretive theories that has dominated constitutional theory since at least the mid-twentieth century. Building on "commitmentarianism," a theory of constitutionalism introduced in his previous book Freedom and Time, (3) Rubenfeld argues that there is a structure to American constitutional law--a structure that, once understood, reveals more harmony than cacophony in much of constitutional doctrine.

This hidden structure can be accessed through what Rubenfeld calls the "paradigm-case" method of constitutional interpretation. Rubenfeld argues that all constitutional text is derived from historic paradigm cases. The text embodies constitutional "commitments" made by the Framers, which bind subsequent generations. Judges then derive Application Understandings from those paradigm cases, which reflect the irreducible minimum substantive content of the textual commitment (pp. 12-18). In other words, if the Constitution guarantees right R, then the Application Understanding of R reflects what R, at a minimum, prohibits the government from doing. Likewise, the Application Understanding of constitutional power P reflects what, at a minimum, the Constitution permits the branch exercising that power to do.

But Rubenfeld makes clear that his paradigm-case method is not repackaged originalism. There may be other contemporaneous understandings about what the text did or didn't permit or prohibit, but, he argues, these are mere "intentions" that do not rise to the level of a commitment, which may form and be sloughed off by courts as the years go on. These intentions he terms No-Application Understandings (pp. 99-103).

Rubenfeld makes both normative and descriptive claims for the paradigm-case method. Normatively, Rubenfeld argues that constitutional law should respect past commitments by grounding decisions in paradigm cases and their Application Understandings. At the same time, by seeking and preserving only the core commitments, the paradigm-case method, he argues, avoids the stultifying effects of originalist interpretive theories in which the intentions of the framers regarding constitutional text exhaust the content of those textual provisions (pp. 109-19). The mark of a true constitutional commitment, Rubenfeld argues, is that it is made without knowing quite what the commitment will ultimately entail. (4) (pp. 79-84).

Descriptively, he argues that the Court has instinctively hewed to these core commitments throughout its history and that his theory holds the key to resolving many so-called hard cases that plague American constitutional doctrine--everything from Brown v. Board of Education (5) to takings clause cases (pp. 20-47). Recent cases on issues like gay rights and affirmative action would be more defensible, and less controversial, he argues, were the Court to adopt explicitly the method he finds implicit in its enduring decisions (pp. 184-201). Further, because the Court has instinctively adopted it, Rubenfeld maintains that the paradigm-case method can be applied prospectively without upsetting settled doctrine (pp. 15-18).

If it is indeed possible to identify, interpret, and apply the paradigm cases and Application Understandings, then Rubenfeld's theory would be extremely appealing. Ultimately, however, I find the paradigm-case method flawed. In too many crucial places, Rubenfeld has left too many questions about his interpretive method unanswered.

Part II will summarize Rubenfeld's paradigm-case method. Part III outlines my objections to his interpretive method: First, he furnishes no criteria for correctly identifying and interpreting historic paradigm cases; second, the process for constructing Application Understandings from these paradigm cases is obscure, neither instructing how to choose among plausible, contending Application Understandings nor explaining the rule that precedent should play in their construction or application; finally, Rubenfeld offers little sense how the paradigm-case method operates to aid in the prospective resolution of constitutional cases. A brief conclusion follows in Part IV.

This review begins, however, with the distinction between "commitments" and "intentions" developed in Rubenfeld's earlier work. (6) Part I will summarize his theory of "commitmentarianism" and tie it to the paradigm-case method described in more detail in Part II.

1. COMMITMENTS VERSUS INTENTIONS

   Rubenfeld argues throughout the first part of Revolution by Judiciary that Application Understandings reflect specific constitutional commitments informed by paradigm historical cases and enshrined in the Constitution's text. He juxtaposes these paradigm cases and the resulting Application Understandings that arise from them against mere "intentions" reflected in No-Application Understandings, which, in contrast to the Application Understandings, judges are free to discard over time. The second third of his book, drawing on Freedom and Time, explains and defends this distinction, which Rubenfeld argues separates paradigm-case interpretive method from both originalism and non-originalist interpretations of the Constitution. The argument he offers is complex; what follows is, of necessity, only a brief summary of his defense, which, itself, is a summary of his earlier book. Nevertheless, I begin here, in media res, because understanding commitmentarianism is key to understanding the distinction between Application and No-Application Understandings. According to "commitmentarianism," a present-day political community is bound by commitments made in the past because self-governance is a temporally-extended process of making commitments and being bound by them after the committing generation has passed (pp. 96-98). The obligation to honor those commitments separates the paradigm case method from non-originalist modes of interpretation. But Rubenfeld's method is also different from originalism because it enforces only those special obligations that rise to the level of a constitutional commitment--the intentions of the framers count for nothing because they could not have foreseen what the commitments they made might ultimately entail.

   "Commitments," he writes, "create--or seem to create--obligation. Mere intentions do not" (p. 73). Thus, when one commits to another, or to oneself, that action, according to Rubenfeld, signifies a level of obligation that merely intending to do something does not. "To commit oneself is to engage in a special normative operation that goes beyond intending, through which one imposes obligations on oneself over time" (p. 99). Further, that obligation is recognized as valid and binding at some point in the future, even when the immediate preference is to do something else. (7)

   Our political commitments are reflected in our written Constitution. Creating commitments and obligations over time, Rubenfeld believes, is what constitutes real political freedom--undertaking the actions of self-government that owe duties to the past even as we constantly look to the future. "We live committed lives," he writes; one facet of the committed life is self-government, which "requires a practice of making and keeping commitments" (p. 89). Constitution-making is simply this idea of self-government writ large, with entire communities making and obeying commitments, even commitments made in the past. (8) For Rubenfeld, this free choice to commit, and then obey those commitments over time, constitutes true autonomy. (9) As he puts it later in the work:

   Understanding American constitutionalism, both descriptively and normatively, requires us to embrace a temporally extended picture of self-government. This idea of self-government over time in turn implies a central place for commitments. Rejecting the presentist conception of self-government means that democracy does not consist ideally of governance by present democratic will, but also, in fundamental part, of adhering to the nation's fundamental, self-given commitments over time. Only this commitment-based account of constitutional democracy explains the Constitution's continuing authority today. That is why commitmentarianism is the right lens through which to read the Constitution (p. 112). (10) The distinction between commitments and intentions operates in the realm of constitutional interpretation as well, for Rubenfeld invokes this dichotomy to justify his distinction between Application and No-Application Understandings. The latter "are never commitments" and thus may be freely ignored by judges interpreting constitutional provisions (p. 99). Application Understandings, on the other hand, represent the concrete fact situations that gave rise to the obligations reflected in the Constitution in the first place; thus, they should command the respect of judges, who should honor those commitments despite strong majoritarian sentiment to disregard them (p. 99).

   To understand precisely how this works, consider Rubenfeld's example of the Fourteenth Amendment. The consensus, while by no means universal, (11) is that the Framers of the Fourteenth Amendment did not understand that Amendment to require the immediate desegregation of public schools. (12) There is, however, nothing in the Fourteenth Amendment that speaks to the question of public school segregation; rather, the language of that Amendment both guarantees "privileges or immunities" against state interference and enjoins states to extend "equal protection of the laws" to all persons within their jurisdiction. (13) For Rubenfeld, the latter guarantees are the commitment; the former understanding that segregation would not be affected-however important to the ratification...