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.
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...