Dr. Greg Weiner’s newest book is a welcome intervention into the literature on constitutional interpretation. In it, he argues for taking seriously the role of community—especially as a political body deliberating about and deciding how to pursue the community’s common good—and from that perspective critiques an important body of scholarship known as “judicial engagement.”
The Political Constitution has three main components. First, it lays out the case for the political constitution and ties that political constitution to its framing and ratification. Second, chapter 4 critiques judicial engagement. Third, chapter 5 concludes with concrete cases that exemplify the differences between the political constitution and judicial engagement. It is a complex book that makes many moves.
Weiner’s core goal is to provide an argument for the “political constitution”: a conception of constitutional law and interpretation in which the “architecture of the Constitution” facilitates political institutions’ exercise of primary authority to identify and act on the Constitution’s meaning; he argues that this conception of politics is healthy for the polity and its members (pp. 2-4). Weiner’s conception of politics is classical and Aristotelian, which he couples with a Burkean conception of rationality-as-tradition (p. 3.). For Weiner, the political community is most healthy when its members view themselves as sharing fundamental ends and civilly debating how to achieve those ends as a community. This community includes today’s members, as well as those in the past and the future (p. 8).
The Political Constitution’s conception of political authority—the politics of obligation—is both intergenerational and community-wide (p. 11). Political authority emanates from the political community’s choices that bind not just those members of the community who were alive when the decision was made but also members of the community into the future (p. 17). This intergenerational conception of community is tied to an intergenerational conception of reason, understood in Burkean terms as the “storehouse of wisdom accumulated over time” by the community (p. 42).
Weiner believes that the political constitution is more normatively attractive than the “antipolitical constitution” of judicial engagement because it creates the environment in which the political community’s members can flourish as political beings (p. 20). Politics is “noble,” and members of political communities participate in that nobility and are better for it (pp. 36–38). The Political Constitution claims that the political constitution will lead to more human flourishing than judicial engagement (pp. 33–36), and it provides a variety of arguments for that claim. For instance, Weiner argues that the political constitution benefits from the “wisdom of crowds” (p. 37).
The Political Constitution argues that the US Constitution is an act of the US community that, though “rooted in the natural law,” is an “act of positive law” (p. 10). Therefore, acts by government officials must be authorized by and consistent with the Constitution’s fundamental positive law, and federal judges have only the authority to “reconcil[e]” nonfundamental positive law with the Constitution (p. 10).
Weiner argues that the political constitution better fits the framers’ and ratifiers’ conception of politics and judicial review (with an emphasis on James Madison’s thought; pp. 3, 63–95). For example, he persuasively argues that his limited conception of judicial review fits Federalist 78 (p. 10). The Political Constitution makes a number of nuanced arguments including, for instance, that judicial review was primarily a mechanism to stop government tyranny of majorities, not to protect minorities from majorities (pp. 67–70).
Weiner then employs this political constitution in the critical portion of The Political Constitution to criticize judicial engagement. Weiner’s criticisms, although robust, are presented in a reasoned and reasonable manner. The Political Constitution provides an accurate description of judicial engagement (pp. 11–12.) Judges, on this view, should employ a “presumption of liberty” that requires the government to justify its rights-restrictions as reasonable and necessary (p. 12). According to Weiner, judicial engagement suffers from three related primary flaws: it is individualistic, present-focused, and authorizes judicial invalidation based on untethered individual reason.
The most fundamental criticism of judicial engagement in The Political Constitution is that it mischaracterizes the nature of the political community. Scholars of judicial engagement conceive of the political community as an accidental grouping of present-day individuals (pp. 9, 10, 100). On this view, the political community of which they are a part has no independent status, and past community decisions do not possess authority because of their status as decisions by the political community (pp. 11, 100). Weiner argues that, on the contrary, the political community is the fundamental mechanism by which members of the community work together in order to live together (pp. 13–14). It “has existential status and a good of its own that is not merely an aggregation of personal preferences” (p. 100). Judicial engagement’s prioritizing of courts and legal reasoning over elected officials and politics unhealthily narrows the scope of the political constitution and of political communities (pp. 24–25).
One of Weiner’s most interesting moves is what he calls the “paradox of engagement” (pp. 23–26). The proponents of judicial engagement argue that robust judicial review is necessitated by the likelihood that elected officials will abuse their power. Yet, judges who follow the theory of judicial engagement will exercise tremendous power to evaluate a challenged law’s reasonableness of both means and ends. “Advocates of judicial engagement do not trust people with power… [b]ut the foundations of their theory are laid on a breathtaking faith in judges’ ability to reason correctly” (p. 25).
The potentially most powerful aspect of The Political Constitution is its attempt to tie together strands of political philosophy, virtue ethics, law, and US history. The synthesis fits well together and provides a comprehensive alternative conception of the Constitution. It ties originalism to the nature of the political community, which, via politics, created and continues to implement the Constitution through the use of reason-as-tradition and is valuable because it facilitates the flourishing of the community’s members. Judicial review protects the political community’s political and constitutional commitments.
A key theme running through The Political Constitution is that a fundamental question in constitutional interpretation concerns who has authority to interpret the Constitution. Weiner argues that primary authority for the Constitution and constitutional interpretation is located in the political community and not the judiciary. Weiner argues that this both fits its framing and ratification, advances the goods of the political constitution, and avoids the harms of judicial engagement.
Weiner’s position in debates over constitutional interpretation is nuanced. In the debate between natural law and legal positivism, The Political Constitution picks—both. Positive law is the political community’s attempt to identify means to work together toward the common good, as required by the natural law. The political community uses the community’s embodied reason to interpret and apply the Constitution.
Weiner relies on a robust conception of the political community to justify the community’s and the Constitution’s authority. For instance, he argues that the political community “exists ontologically as something that transcends individuals” (p. 17). Weiner argues that because “we are born in political communities and exist in political communities … we incur obligations to those in the past who built and defended these institutions and those in the future” (pp. 30, 33). This follows from humans’ political nature (pp. 29–30).
These are vigorous claims that cut against the grain of most scholarship and form the basis of Weiner’s critique of judicial engagement, and so therefore they should receive correspondingly robust support and elucidation. However, there are many points of potential reasonable disagreement with this line of argument for which further explanation and defense could be valuable. For instance, granting that humans are political animals who need to live in political communities that deliberate for the common good, additional argumentation would help explain why “we are obligated to our Constitution because it is ours, because our ancestors formulated it” (p. 33). Couldn’t it be the case that the adopters of the Constitution are not one’s ancestors in a meaningful sense? Or, why isn’t it the case that one’s membership in the political community is so thin, or maybe even a source of harm, such that the community’s past commitments are not one’s own?
Moreover, many of The Political Constitution’s arguments could have benefited from situating themselves in the existing literature and finding support from it. For instance, Weiner repeatedly invokes the community’s common good (p. 100.) But there is a long-standing debate over the nature of the political community and the common good, and knowing where in these debates Weiner situates his conception would have further elucidated his arguments.
Weiner also argues against presentism and conceiving of obligation as a question of the present (pp. 46, 48). However, from a natural law perspective, the current citizens of a political community are entitled to and, as rational beings, should be presented with sound reasons that support the community’s legal system. If not, then what basis do these practically reasonable citizens have to support that system? Weiner might argue that tradition and custom are repositories of reason developed over years (pp. 46–47), and that may be true—but the key point is that citizens are entitled to evaluate those reasons now. Weiner might also argue that the community’s good is intergenerational (p. 49), and that may be true—but current citizens should evaluate those reasons in the present.
Weiner sets for himself the task of justifying originalism (p. 6), but originalism does not make appearances in the book where one might expect. For instance, Weiner’s account of the Slaughter-House Cases (pp. 152–58) does not describe or fit his claim within the existing debates over those cases and the Privileges or Immunities Clause; Kurt Lash’s scholarship may have assisted Weiner because it limits that Clause’s meaning to enumerated rights.
Chapter 3, Madison’s Judges, has important implications for the original meaning of Article III, and the evidence presented there weighs in favor of the limited judicial review for which The Political Constitution argues. Nevertheless, the argument might have benefited from additional attention to the original meaning of “judicial power” and evidence of that meaning, including the following: the historical background of judicial power, a larger sample of the debates over the scope of judicial power during the framing and ratification, immediate post ratification practice, and then-contemporary interpretive rules.
Notwithstanding these critiques, The Political Constitution provides a valuable, complex, interwoven argument for limited judicial review based on politics as the primary forum for constitutional meaning and interpretation, as well as a corresponding critique of judicial engagement. It is an important contribution to the ongoing debates about how to interpret the US Constitution.
