Tuesday, November 20, 2012

Freedman's Naked Constitution

It's refreshing to pick up a book that explores a topic like constitutional originalism with vim and vigor and a plain-spoken, jargon-less approach that appeals to--indeed invites--readers who are outside the technical academic debates.  We ought to have more like this.  If we did, we might have more meaningful public discussions about the virtues and vices of originalism, living constitutionalism, constitutional fidelity, or any other method of constitutional interpretation or construction--and why they matter.

The downside, of course, is that plain-spoken-ness can sometimes come at a cost to nuance, balance, completeness, and even honesty.  This may be especially true when discussing constitutional interpretation and construction, an area so rife with nuance and indeterminacies.  The danger (and perhaps an opportunity, for advocates of any particular approach) is in over-simplifying.

Naked constitutionAdam Freedman's The Naked Constitution sets a standard for plain-spokenness and accessibility in the area of constitutional originalism.  It's an extraordinarily well written--indeed, fun-to-read--page-turner that romps through the Constitution and the courts' treatment of it and delivers a plain-spoken argument for Freedman's brand of original-meaning originalism.  (Just to be clear: Freedman argues that original meaning supports a narrow, strict reading of the text.)

But while Freedman's gift for clear, entertaining writing has all the potential to bring a serious constitutional debate to a broader public, it also trades on nuance, balance, and completeness in the text, history, and precedent.  And because of the book's (unnecessary) partisanship, it's likely only to reinforce the ideas of Freedman's supporters, to alienate his detractors, and to divide readers.  I don't think it'll do much persuading or advancing-of-the-originalism-debate on either side.

And that's OK.  This book seems designed first as a political argument, only next as a constitutional one.  It's red meat for conservatives, and it'll surely rile progressives.  If you're looking for a lively, readable volume that will fuel your constitutional politics (whatever they are) this is for you.  And the book's sheer breadth ensures that you're likely to learn something about constitutional originalism (or anti-living-constitutionalism), even if the book doesn't always tell the whole story.

Freedman takes aim at the usual suspects--a Congress bent on legislating ultra vires, a unitary executive constrained by independent agencies, unenumerated fundamental rights, a wall of separation between church and state, lack of priority to the rights of gun owners and property owners, an Eighth Amendment run amok, and a vacant Tenth Amendment.  According to Freedman, these all share this common denominator: an activist judiciary that is unfaithful to the original meaning of the text.  

But these usual suspects all share another common denominator: they're the bread-and-butter bogeymen of the new-style political conservatives.  Freedman would say as much.  Indeed, a good part of his book is devoted to showing that "liberals"--everyone from the ACLU, to the Ninth Circuit, to President Obama--support these constitutional over-reaches.  That's too bad.  It's distracting and divisive.  And it's unnecessary.

The book's partisanship is unnecessary because there's an apolitical case to be made for original-meaning originalism (and against an unfettered living constitutionalism)--one that can use the same lively and accessible approach that Freedman uses here.  But that case also has to be fair and balanced; it has to look at the complete original meaning, to acknowledge originalism's shortcomings, and to lodge originalist critiques of living constitutionalists honestly.  

Freedman's book sometimes moves in this direction.  It's especially strong when it identifies apparent absurdities in the doctrine, for example when it takes on the Court's gloss on the religion clauses: "In the contradictory world of the First Amendment, it is ridiculously easy to 'establish' a religion, but it's almost impossible to burden 'free exercise.'"  That's overstated, but it raises a point.

But the book also too often sets up straws, picks at low-hanging fruit, and neglects the full original-meaning picture.  As an example of the last, consider the book's treatment of federalism and the Tenth Amendment: the book neglects the bulk of the textual and original-meaning evidence supporting a robust federal government (over the states); and it turns the scant evidence of original meaning that it considers on its head.  (See, for example, the discussion of the omission of the word "expressly" from the Tenth Amendment, on pages 290 to 291, arguing that the omission reinforces a limited federal government, and that CJ Marshall recognized this in McCulloch.)  It also devalues the original meaning of the federalism amendments--thirteen through seventeen, and others.

In short, The Naked Constitution is more a political argument than a constitutional one--and consciously so.  It's a terrifically fun read, but one that is likely only to solidfy positions, not to propel the public debate about originalism.  

Freedman also created a companion podcast that's worth checking out.

SDS

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