Lane V. Sunderland is not Robert Bork. However, with a tweak here and a tuck there, he could be -- at least in the larger part
of his jurisprudential profile. POPULAR GOVERNMENT AND THE SUPREME COURT is a coherent argument for the
philosophical and constitutional correctness of a form of original intent jurisprudence. In making his case, Sunderland takes on
"competing contemporary theories of the Constitution and of the role of the Court" (6). In critiquing the arguments of ten judicial
scholars, Sunderland fleshes out his conceptions of the role of the Court and the meaning of the Constitution from a perspective
framed by his understanding of the arguments of Hobbes, Locke, and Montesquieu, the logic of the Declaration of
Independence, the governmental structure and processes created by the Constitution, and the contentions of PUBLIUS.
Sunderland rejects not only the competing theories he examines, but also the streams of much of what we call constitutional
law. What one makes of his argument will depend on oneÆs interpretation of the sources he consults and ignores), their
relevance to interpreting and applying a 210 year old document in contexts its authors could not even dimly perceive, and the
relevance of an unapologetically traditionalist approach to the role of the Court and the way its Justices make and explain
decisions.
Sunderland organizes his book into two parts: "Theoretical Foundations of the Constitution" and "Contemporary Constitutional
Commentary." Each -- with substantial editing to remove redundancies -- could stand on its own. Together they provide an
argument that is more richly grounded than the standard originalist tomeÆs inclination to lean on simple majoritarian democratic
theory. Sunderland places his argument squarely in an evolving philosophy that predates and defines the meaning of the
Constitution. From this island of understanding, he takes his stand against the eroding currents eating away at its shores in the
second part of the book. The critique of the later section is largely is informed, intelligent, and telling. The island of meaning he
fashions from the sentiment of 17th and 18th Century philosophers and politicians is less sturdy. In noting this, I do not
disparage the usefulness of this volume; I simply place it in a context. Sunderland fashions a principled basis for strong critique
of recent on-bench and academic "constitutional" interpretation, application, and theory. However, his argumentational
assumptions are loosely moored. A principled theoretical critique is not THE principled theoretical critique. Sometimes
Sunderland, like many committed partisans, seems to loose sight of this.
SunderlandÆs treatment of the philosophical antecedents of the American Constitution is straightforward and leads doggedly to
the conclusion that nothing in them supports "a judicial power to lay down an absolute rule of government for all branches or to
create rights not reasonably drawn from the provisions or theory of the Constitution" (83). He argues that the Constitution was
the culmination of a relatively linear development of European political thought. From Hobbes, Locke, and Montesquieu its
authors learned and institutionalized doctrines of natural rights, consent, and separation of powers. This, obviously, is old news.
What Sunderland does, though, is craft a homogeneous corpus of liberal republican theory that the authors of the Declaration of
Independence and, the Constitution assimilated. This theory -- essentially that the structural arrangements of the American
government (including federalism, interestingly not an analytical element of any of the aforenoted thinkers) are the only
constitutional constraints on majoritarianism -- undergirds the critique of his chosen exponents of "contemporary constitutional
commentary."
Before turning to that critique, it helps to note what reading the philosophical and historical record in this way allows Sunderland
to do and what it leads him to ignore. As with all originalist arguments, SunderlandÆs analytical assumptions give him an
authoritative yardstick by which to measure all things constitutional and judicial. It is clear after reading the first part of the
book, for example, that the Court cannot legitimately "find" unenumerated rights in the Constitution. What is there is there, and
what is not can only be legitimately dealt with by legislators and the people acting in their sovereign capacity. The truth,
constitutionally speaking, is out there. The judicial task, if not mechanical, is at least confined by this truth. In this line of analysis,
Sunderland follows the paths trod by Bork and -- though his name does not appear in the text, and merits only one mention in
the bibliography -- Raoul Berger.
The points of critique that scholars and justices have aimed at originalist arguments apply to SunderlandÆs general approach.
How do you determine original intent? To which set/sets of "founders" do you turn -- those at the convention, those who voted
on the document, those in the state conventions who ratified it? What are the authoritative sources from which you glean this
meaning? What interpretive rules guide how you resolve textual ambiguities, and what legitimates those rules? What are you to
make of the political compromises -- for example, federal-state relations -- that were given a gloss of ambiguity to slide them
past opposed parties? Even more central to a critique of the originalist position, though, are two related questions: Did the
framers intend the Constitution to be read and applied, over time, as they understood it? Even if they did, to use JeffersonÆs
phrase, what rights do the dead have over the living?
Sunderland, by rooting his original understanding in the philosophical currents of the seventeenth and eighteenth centuries, also
invites critiques not usually leveled at other originalists. One of these concerns his interpretation of the philosophical trilogy of
Hobbes, Locke, and Montesquieu. It has been too many years since I seriously studied the arguments of the trilogy and those
who make careers out of studying them, but I recall no single, agreed-upon interpretation of their thought. Yet, Sunderland sees
a CLEAR Hobbesian argument, a CLEAR Lockean argument, and a CLEAR Montesquieuian argument, without addressing
the interpretational currents that swirl around each. Further, he mixes them into a stream of cumulative progress that flows
unerringly into the men in Philadelphia and the document they produced. This is tidy, but it is more an exercise in intellectual
history than a demonstration that the thought of these men comes into confluence in general, or that it did so for those who
debated, wrote, and ratified the Constitution.
Montesquieu seems something of an odd fit in the trilogy. Clearly his reflections on the separation of powers were relevant to
the framers and defenders of the Constitution (Sunderland treats THE FEDERALIST as the authoritative gloss on the founding
vision), but PUBLIUS explicitly rejects a lock-step association with other elements of his thought. The famous argument in
FEDERALIST TEN does this by implication ("extend the sphere..."), and HamiltonÆs FEDERALIST NINE explicitly turns the
BaronÆs argument on its head: space, the uniquely American geographic and political variable, is a good thing when constructing
a stable republic. Few notions could have been so alien to "the celebrated Montesquieu." MontesquieuÆs understand-ing of
separation of powers also owed much to the decidedly nonliberal British system and the classism underlying it. Of the notables
of the framing era, John Adams comes closest to this sort of "one, few, many" thinking, and he was in London, not Philadelphia,
in 1787. Thus drawing a straight line from Hobbes to Locke, Locke to Montesquieu, and Montesquieu to the Constitution, is
highly problematic.
One last point on the philosophical front. Sunderland contends that because the trilogy did not endorse a doctrine of "judicially
created rights," one is not to be found in the American Constitution. If that is so, what of judicial review, the cornerstone of
American judicial power? This doctrine has no place in the arguments of these thinkers, nor in a history-grounded originalism. It
was not strongly or clearly advocated or adopted at the Constitutional Convention. How can this authority be legitimate on
SunderlandÆs own terms? The answer he provides is less than satisfying.
To save judicial review from those who would use it as a tool to rewrite the Constitution, Sunderland adopts a "narrow" view of
Marbury v. Madison (1803). He limits its scope to either legislative efforts to alter the nature of judicial power granted by the
Constitution or, more plausibly, to the notion that "the judiciary should not enforce clear violations of these [the ConstitutionÆs]
prohibitions" (89). This takes the Court out of the business of "saying what the law is." Or does it? First, it is doubtful that
MarshallÆs design for Marbury was so limited. From the perspective of an ardent Federalist of that political day, a strong
doctrine of judicial review provided the only remaining non-Jeffersonian branch of the national government the power to wage
war against the feared decentralizing and "democratic" tendencies of the new political order. Although judicial review was not
used to strike a national act for another 54 years, Marshall used it to fight the Federalist battle in state-based cases such as
Fletcher v. Peck (1810) and Dartmouth College v. Woodward (1819). These decisions -- national in their ramifications --
depended on a clearly enunciated power of judicial review, and had nothing to do with protecting constitutionally granted
judicial power. Sunderland, though not directly acknowledging it, does imply that his more constrained view of Marbury does
not square with its tone: "Some of the language in Marbury is broad" (87). Not only is the language broad, but MarshallÆs
subsequent use of it -- as well as that of MarshallÆs successors -- was broad as well.
Judicial review poses Sunderland a further difficulty: nowhere in the arguments of the trilogy (or, another Sunderland favorite,
the Declaration of Independence), does one find an argument -- explicit or implicit -- for a judiciary with this kind of authority.
Of course, Hamilton makes this argument in FEDERALIST SEVENTY-EIGHT, but that paper is hardly sufficient to hold the
water SunderlandÆs thesis requires. It is not grounded in the arguments of the trilogy, and it contemplates judicial review to
protect against "serious oppression of the minor party in the community." The former suggests that there is little correspondence
between the thought of the trilogy (even if it is a coherent whole) and doctrine of judicial review; the latter, that its scope went
beyond narrowly protecting judicial authority. Hamilton did not envision judicial review to give justices a blank check to write
their notions of justice and rights into law: he cautions against allowing "an arbitrary discretion in the courts." He did write that
justices would be bound by the "law" and the "Constitution," but this does not mean that HamiltonÆs understanding of the latter
is that proffered by Sunderland. Precisely what the words of the Constitution and its amendments mean, and how we are to
interpret them, is something on which SunderlandÆs argument sheds little light. Yet, if the second of his two "narrow"
interpretations of Marbury is to hold, Justices have to determine what constitute "clear violations" of the Constitution. In this,
SunderlandÆs approach offers them little help.
Having set the pallet from which the artists of Philadelphia painted the Constitution -- the kind of government and judiciary they
established -- Sunderland turns in the second section of his book to the arguments of select "contemporary constitutional"
thinkers. He pairs ten more or less "modern commentators" (95), covers with broad brush their arguments, and critiques them
from the perspective developed in Part One. The couplets he creates -- Ronald Dworkin and Archibald Cox (Chapter 4),
Richard Epstein and Michael Perry (Chapter 5), John Hart Ely and Robert Bork (Chapter 6), Philip Kurland and Laurence
Tribe (Chapter 7), Marc Tushnet and Catharine MacKinnon (Chapter 8) -- are loosely linked by topic. For example, Chapter
8 discusses Tushnet and MacKinnonÆs "rejection" of the Constitution as a source of legal meaning, and their efforts to construct
-- albeit from different viewpoints -- alternative meanings or perspectives to advance their visions of justice. Their approaches
are, given SunderlandÆs assumptions, woefully inadequate (as well as wholly illegitimate), and his critique of them proceeds
clearly and logically along anticipated lines. Much the same is true of his treatment of Epstein and Perry. For Sunderland, it will
not do to take a preferred strand of the Constitution or political theory and weave it into a blanket of "constitutional" theory. It
may be theory, but it is not CONSTITUTIONAL.
SunderlandÆs treatment of the remaining scholars is analytically more lively, for none of them explicitly reject the traditional
assumptions of constitutional interpretation, the core of which is that the Constitution means something, is authoritative, and
governs judicial decision making. It is interesting to note, too, that the theorists treated here -- even within the confines of the
same chapter -- vary widely in the latitude they give justices in giving meaning to constitutional values: clearly Ely is no Bork,
and Tribe no Kurland. Within these couplets, SunderlandÆs basic concerns are, for the most part, predictable -- Cox, Tribe,
and Dworkin, for example, are played as exponents of and apologists for a politically liberal activist judiciary that finds
"constitutional" rights in the "emanations and penumbras," to use DouglasÆ wonderfully round phrase, of the Constitution and Bill
of Rights. An element of his concluding critique vfs Cox holds for other rights-advancing activists: "This activism contradicts the
theory that requires a balance between democratic rule and the auxiliary safeguards because it bypasses the necessary reliance
on majoritarian-imposed exceptions to the legislative power specified within the Constitution" (138). Ely, though he
circumscribes activism to protecting democratic procedure, falls into much the same analytical basket. In a system grounded in
majoritarianism with legislative supremacy, checked largely by the structural arrangements of its parts, judicial activism --
whatever the normative value of the goals it seeks to advance -- is illegitimate.
Most illuminating of SunderlandÆs central thesis are the fights he picks with Kurland and Bork. No crazed political lefties or
rights-based activists, these; hence, they are more interesting targets of his essentially conservative critique of liberal activism.
Kurland comes under fire because "although he asks for a restrained Court, he sets forth a view of the Constitution that invites
justices to insert their own values into it" (226). His theory fails because it buys the assumption of Chief Justice Hughes: "We
are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and our
prosperity under the Constitution." Sunderland finds faulty both sides of the conjunction. First, the Constitution IS what its
theoretical foundations make it: an expression of popular sovereignty vesting political power in institutions bound to the popular
will. Second, the liberty and prosperity it protects it protects by assignment of particular functions to particular branches. The
Congress and the state governments -- the most direct organs of the popular will -- are structured and structurally situated to
stand for the rights and good of the people. By not mooring his argument in the philosophical trilogy, Kurland cannot harness
the judicial activism against which he so ardently argues.
Bork is an even more interesting case. In reading the 176 pages that lead up to SunderlandÆs discussion of his approach to
constitutional interpretation, the most obvious point of divergence between their arguments seemed to be the focal point of their
originalism: for Sunderland, the trilogy; for Bork, the historical record of the founding and the text of the Constitution.
Sunderland points out that BorkÆs work -- supposedly so dependent on history -- is, in fact, history poor: "Bork acknowledges
the existence of rich historical sources that help illumine the original understanding, but he does not often rely on these materials
to support his doctrine" (177). However, this deficiency is not BorkÆs primary problem. By neglecting the political theory
animating the whole of the Constitution -- by focusing on the "Madisonian dilemma" and particular clauses of the document --
Bork is blind to the core of the regime established by the Constitution. "If Bork is out of the mainstream in some respects, he
certainly shares the mainstreamÆs rejection of reliance on the strictly republican character of the Constitution and that
mainstreamÆs adoption of judicial supremacy" (200). Thus, for all of BorkÆs virtues -- believing the Constitution "means
something" and is authoritative and binding, limiting the scope of judicial review, refusing to "find" and apply unenumerated rights
-- his argument fails because he assumes a sort of judicial supremacy that places the will of the Court above that of the people.
Sunderland reaches these conclusions while admitting, at the end of his treatment of Bork, that the latter supports "a judicial role
that is largely consistent with the strictly republican government the Constitution embodies" (202). BorkÆs approach, though
partially misgrounded and misguided, comes closest to the interpretive regime Sunderland believes embedded in the
Constitution.
So, where does this leave Sunderland? First, he is radically at odds with much of the Supreme CourtÆs handiwork in
interpreting the Constitution -- especially in the latter half of the twentieth century. However, his larger argument seems to be
with the scholars who have critiqued that handiwork. In this critique -- both that supportive of the activist "rights revolution" and
hostile to it -- Sunderland finds that scholars have embraced the mistaken role conception that made the revolution possible.
Even Kurland and Bork, and their more deferential jurisprudence, are taken to task for accepting the assumption of judicial
supremacy. Although he would prefer, if forced, their approach to constitutional interpretation to those of the others he
canvasses, their failure to take seriously his Hobbesian-Lockean-Montesquieuian fusion theory of the Constitution leaves their
approaches, at best, incomplete and, at worst, illegitimate.
Assuming that we accept SunderlandÆs constitutional theory and the critiques that spin off from it, what is the result? Clearly, the
Constitutional landscape would look much different than it does now (though, at least as it is presented here, his approach
sheds no light on adjudicating cases such as those involving the Brady Bill, the Religious Freedom Restoration Act, or the
Line-Item Veto decided by the Court in its most recent term). Abortion and right-to-die controversies would have no place in
the Court, nor would any argument springing from concepts of substantive due process. Further out from shore, though, the
interpretational waters grow murkier. By way of clarification, ponder these two questions. First, how is a
Sunderland-committed Justice to find meaning in the porous phrases that make up much of the Constitution and its
amendments? Clearly, one is not to pour private conceptions into them, but how is one to give them meaning in the crucible of
litigation? What of the application of the First Amendment to flag burning or the internet? Second, what is our Justice to do
when presented with cases that are clearly controlled by established, though -- from this perspective -- illegitimate precedents?
Berger, in his GOVERNMENT BY JUDICIARY (1977), concluded that BROWN, et al., should stand, but not be extended.
Bork, in THE TEMPTING OF AMERICA (1990), does somersaults with his own logic to rescue the decision in BROWN,
but would unceremoniously jettison the decisions that riled waters on the Republican right over the past 25-plus years (e.g.,
ENGEL v. VITALE, 1962; MIRANDA v. ARIZONA, 1966; ROE v. WADE, 1973; and TEXAS v. JOHNSON, 1989).
What would (or should) a Justice do? Sunderland does not even hint at an answer.
As all graduate students quickly learn, it is easy to poke holes in the arguments of others; it is quite another thing to construct
and apply a corrective. SunderlandÆs volume does the former in a provocative fashion. As the latter, the work is less satisfying.
That, though, may say more about the difficulty of the task at hand than the utility of this interesting book.
REFERENCES
Berger, Raoul. GOVERNMENT BY JUDICIARY. Cambridge: Harvard University Press (1977).
Bork, Robert H. THE TEMPTING OF AMERICA. New York: The Free Press (1990).
