Words That Bind: Judicial Review and the Grounds of Modern Constitutional Theory.

• Author: Drennan, John A.

For some time now, discussions of judicial review and constitutional interpretation have been held hostage to partisan political debate. On the one hand, political conservatives urge judges to stick to the so-called "original intentions" of the Constitution's authors when making constitutional decisions. On the other hand, political liberals challenge judges to peer behind the words and to engage the "spirit of the Constitution." It would be difficult to overstate the stakes of the debate. Unfortunately, however, it often seems that no one knows what these phrases mean or what their concrete implications for constitutional interpretation are.

John Arthur's Words that Bind(1) takes a valuable step toward clarifying our understanding of judicial review. Arthur discusses judicial review as a topic in its own right, independent of result-driven politics, and asks what can be said for and against various prominent theories of constitutional interpretation. Consequently, Words that Bind is an excellent place to begin piecing together the abstract, complex issues involved in judicial review. The book will be especially useful for readers with an undergraduate-level background in modern analytic philosophy.

At 236 pages, Words that Bind is a relatively short work. Nevertheless, its scope is comprehensive. In successive chapters Arthur covers theories of original intent, proceduralism, the critical legal studies movement, Utilitarianism -- including a discussion of the law and economics school -- and contractualism. The book is well written and the philosophical concepts involved are clearly explained.

There is more to Words that Bind than can be covered in this review. Arthur's book is primarily a work of legal philosophy; thus, I confine myself to addressing the philosophical issues he raises. It should be noted, however, that Words that Bind contains much that would be of interest to the intellectual historian, and this review ignores the book's historical content.

Arthur makes short work of his first target -- constitutional originalism. Constitutional originalists make some version of the familiar claim that when a dispute arises about the meaning of a constitutional provision, it should be interpreted as the Framers originally intended it to be interpreted.(2) For example, if the Framers regarded thumb screws, but not executions, as cruel and unusual punishment, then the Eight Amendment should be read to prevent the states or Congress from imposing the former but not the latter form of punishment. Originalists tend to be moral skeptics who put great stock in majority rule. In particular, originalists seek to prevent judges from imposing their subjective preferences and values on the majority. Originalists also tend to see the Constitution as a kind of contract or covenant among the people; they believe the role of the judge is to enforce the terms of the contract on behalf of the people. Judges act consistently with the ideal of democratic governance when they stick closely to the Constitution's text, tie their decisions to history, and refrain from creating new rights. In other words, judges should decide disputes in accordance with the terms of the agreed-upon constitutional contract, not replace that contract with something they happen to think preferable.

Arthur catalogs originalism's well-known woes (pp. 7-43), and in so doing makes a convincing case against it. For instance, if the Constitution is a contract, in what sense can we be said to have consented to it? Certainly most of us have not expressly accepted its terms. If we somehow tacitly consent to the constitutional contract, what is the relationship between our tacit consent and original intent? Most of us are in no position to answer the historical question of what was in the minds of the Framers at the time of the Constitution's ratification.(3) Even historians cannot agree about such matters. How can we be said to have consented to the specifics of the Framers's original intentions, then, when most of us have at best a very...