Not Infallible


Review of An Introduction To The Constitution, by Michael Stokes Paulsen and Luke Paulsen

Basic Books, 2015

Michael Paulsen is one of this country’s most eloquent, provocative, and exasperating legal scholars. Possessed of an acerbic wit, a satirist’s pen, and a scholar’s deep knowledge, his body of work is impressive and important. His new book is more of the same. Written with his son Luke, Paulsen presents a well-written, accessible, and reasonably comprehensive (for a book of this size) account of the Constitution and how it has been interpreted by not just the Supreme Court, but a number of Presidents as well (Congress gets rather short shrift). For non-lawyers, or lawyers who have not thought about constitutional law since their school years, the book provides an entertaining introduction to the history of our foundational document, and the most important controversies the document has inspired.

For most of the book, Paulsen gives the reader a foundational tour through the majestic phrases of the Constitution (“due process,” “equal protection,” “establishment of religion,” etc.,); the Court’s struggles to give them meaning; and the push backs by numerous Presidents including Jefferson, Jackson, and Lincoln. The book asks the right questions (is the judiciary supreme, do we and should we have an unwritten Constitution, and what tools should constitutional interpreters use to flesh out those vague phrases). When the book presents the facts, the questions, and the Court’s answers, it succeeds on every level.

But, and it is a reasonably big but, the constitutional novice for whom the book was written best beware of a strong undercurrent that threatens the integrity of the project. Paulsen’s priors, which he tries hard to bury, affect his story in the most dangerous of ways. Nowhere in the book does he reveal that for more than two decades he has writtenover and over about the dangers of judicial supremacy, the needfor a strong and independent executive, and the “unbearable wrongness” of Roe v. Wade. Try as he might, these priors affect his narratives in ways that will often not be apparent to most readers. The book would have been more successful had he admitted to those long-held views and then defended them against rival positions.

This Review discusses how Paulsen treats two of those three issues (judicial supremacy and Roe) and how his priors distort his constitutional tale. The moral, I think, for authors if not countries, is that it is better to show your weapons to the enemy and have a fair fight than hide them away and pretend to be neutral when you are actually fighting a war.

1.    Judicial Supremacy

A constant question throughout “An Introduction to the Constitution,” is whether the Supreme Court has the final say over what the Constitution means. At every opportunity, however, Paulsen reminds the reader that all governmental actors are required to consider whether their actions are consistent with the United States Constitution, and that it is the Constitution itself, not judicial interpretations of the document, that are supreme. For example, when summarizing Hamilton’s Federalist No. 78, which among things describes the Court as the “least dangerous branch,” but also says the courts cannot give effect to laws inconsistent with the Constitution, Paulsen says “Hamilton’s argument was simply logical…. judicial review did not mean that the judiciary was supreme over the other branches; it meant that the Constitution was supreme over all of them. They would each serve as checks on one another, and they would all equally be bound by the Constitution-including the courts.” (p.71)

Paulsen spends considerable time praising Lincoln for standing up to the infamous Dred Scott decision (holding that persons of African descent couldn’t be citizens and that Congress could not prohibit slavery in the territories) and for ignoring Justice Taney’s habeas corpus order during the Civil War to free a political prisoner. Paulsen suggests that, today, everyone knows Dred Scott was wrong so at “the very least, it should give pause that, on the judicial supremacist view…Dred Scott was properly the law of the land; [and] that Lincoln was wrong to resist it.” (p.166)

Paulsen praises Jefferson’s and Jackson’s similar views about the President’s independent obligation to decide for himself the constitutionality of his own actions and seems to accept wholeheartedly Lincoln’s argument that “the Supreme Court’s legally wrong, morally harmful decisions did not bind the Congress and the President in their independent exercise of their own constitutional powers.” (p.164)

This rejection of judicial supremacy, Paulsen concedes, is a minority view today. He doesn’t hide from the reader the Court’s statement in Cooper v Aaron that the Court “is supreme in the exposition of the Constitution.” But he quickly adds that this statement was “rhetorical overreaching” because the Court “is no more the one, single authoritative interpreter of the Constitution than the other branches of government or the states.” (p.257) Of course if Paulsen is right, why was the Governor of Arkansas wrong in Cooper to resist the Court’s decision in Brown which he felt was incorrect and didn’t technically bind his state which wasn’t a party to the case? Paulsen does not ask, much less provide an answer, to that difficult question.

And so it goes throughout the book. Paulsen has elsewhere defended his anti-judicial supremacy views (a position this author agrees with), but nowhere in this book does he present opposing arguments or address tough questions like, if other political actors can just ignore Court decisions, are such decisions truly binding? Could Texas just say no to the Court’s recent same-sex marriage decision on the grounds that its governor reads the 14th Amendment differently? Are we just one decision away from a constitutional crisis where the Court’s interpretations would be deemed advisory not coercive? These are all truly difficult questions but, other than recognizing there is another side to the argument, one accepted by the Court itself, Paulsen never presents the case for judicial supremacy. A lay reader (who is the specific target for this book, according to the authors) may well receive the impression that the Court has lawlessly grabbed the power to be the final interpreter of the Constitution for no good reason and in direct contravention of the document itself. The issue, however, is far more textured and complicated than Paulsen suggests and should have been presented in a more balanced manner.

II. Roe v Wade

Among legal academics, Paulsen is perhaps this country’s most adamant and vocal critic of Roe v. Wade. He has savagely critiqued the opinion on both legal and moral grounds. His legal distaste centers on his general antagonism towards rights not specifically mentioned in the Constitution (a subject covered somewhat in his new book), while his moral convictions seemed based on his view that the fetus is a human being deserving of protection. Paulsen has gone as far in his other writingsto make statements such as: “After nearly four decades, Roe’s human death toll stands at nearly sixty million human lives, a total exceeding the Nazi Holocaust, Stalin’s purges, Pol Pot’s killing fields, and the Rwandan genocide combined.” He has said that, because of Roe, the Supreme Court is a “lawless, rogue institution capable of the most monstrous of injustices in the name of law. The Court has, with its abortion decisions, surely forfeited its legal and moral legitimacy ….” He has even gone so far as to say that Roe “should be resisted by all citizens, with all the resources at their disposal, and perhaps even with resources not (yet) at their disposal. Anything less is holocaust denial.”

None of that theorizing (which this author finds monstrous) is present in an “Introduction to the Constitution.” Instead, Paulsen slowly but surely, and a bit below the surface, begins his anti-Roe arguments by first taking sides in the debate over unenumerated rights or the unwritten Constitution. He argues early in the book that the United States is based “on the authority of a written document, not on an unwritten tradition, and certainly not on whatever government officials happen to decide at any given point in time.” (p.25)

But, of course, many distinguished scholars have argued just the opposite (Akhil Amarand Laurence Tribecome to mind). They argue that, at least as a descriptive, if not a normative matter, the Supreme Court and the people have both accepted that there are fundamental rules we are governed by that are either not written down at all or at best gleaned indirectly from the Constitution. Again, I am on Paulsen’s side of this debate, but there is little balance in this book on the question.

After arguing how important the “written” Constitution is to our system of government, Paulsen takes direct aim at “substantive due process,” and the Lochner era where the Court struck down hundreds of laws regulating the economy and the relationships between and among unions, employees, and employers. Paulsen believes these decisions “wreaked havoc on democratic government” and represented “judicial activism at its worst.” (p.217)

This section of the book feels a bit dated mostly because Paulsen ignores new scholarship, such as Professor Bernstein’s excellent bookon Lochner, when trying to bury the “beast” (p.214) of substantive due process. The reader comes away wondering how any reasonable person could have thought such decisions to be legitimate when, in fact, a cottage industry of scholars is emerging who argue that “judicial engagement” or Lochner by another name, is an appropriate method of constitutional interpretation.

But, not surprisingly, Paulsen saves his most dogmatic critique for Roe v. Wade even though he claims to “set forth as dispassionate an analysis as possible…” (p.272) He begins the Chapter with the charge that Roe “was the most extreme example of judicial activism in the twentieth century.” (p.270) He then mischaracterizes the holding by stating that the decision protected “a right of pregnant women to kill their unborn children-and protected that right against nearly any form of government restriction: the abortion right was made effectively absolute, as a matter of constitutional law.” (pp.270-71) These charges are simply false. Roe allowed the state to prohibit abortions after viability for any and all reasons. So why does Paulsen allege that the right is “absolute?” Paulsen supports the claim by stating that, even after viability, abortions must be allowed where the life or health of the mother is at stake. But that exception hardly makes the right “absolute,” and Paulsen’s claim to the contrary (which is inconsistent with current medical practice) exposes his blind spot when it comes to the case.

Throughout the rest of the Chapter, Paulsen makes bold and questionable claims. He alleges that “Roe is rivaled only by Dred Scott as the most consequential decision in history,” and that the decision led to “abortion on demand.” (pp.272, 273) The latter claim is simply wrong (abortion is, as noted, mostly restricted after viability) and the former is contestable. Roe is certainly important but so are Brown, Citizens United, and, of course, Bush v. Gore, which altered this country’s history dramatically.

Paulsen asks whether, as some scholars have argued, Roe can be defended under the Equal Protection Clause in order to secure “women’s equality with men.” (275) He rejects that argument because laws regulating abortion “do not regulate on the basis of sex…Rather, abortion laws are directed at specific conduct engaged in by both men and women-the act of obtaining or performing an abortion.” (275) Certainly men and women both perform abortions but only women actually have them so this statement is puzzling (and a bit demeaning) to say the least. He also argues that the equal protection argument leads to the “perverse” result of allowing “sex-selection abortion.” (275) But that some women might choose to have an abortion based on the sex of the child (I have never met such a person) tells us little about the relationship between abortion and equality.

Paulsen’s constant comparisons of Roe and Dred Scott in the book (and elsewhere all over his writings) are heavy handed.  I have great sympathy for Paulsen’s dislike of substantive due process, and thus agree with him that both Dred Scott and Roe were wrongly decided. But, the analogy also depends in part on Paulsen’s equating  the rights of fetuses with those of African-American in the 19th century that is unpersuasive and unnecessary to his legal argument. Given the importance of the issue of abortion to the development of constitutional law and practice in this country, Paulsen should have presented a much more balanced discussion of the question.  It is hard not to think that, given that the intended audience of the book is the lay reader, Paulsen had more than providing an “Introduction” to the abortion issue in mind when writing about Roe.

“An Introduction to the Constitution” is, like all of Paulsen’s writing, entertaining and informative. Anyone interested in constitutional law will find much to like in the retelling of our constitutional story. But the reader best beware because between the lines of the narrative are a set of unmentioned strongly-held opinions and values that, like a good adversarial brief, make certain conclusions feel inevitable when they are, in fact, highly contestable.

ERIC SEGALL is Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law.