Wednesday, May 15, 2013
Most ConLawProfs would agree that First Amendment doctrine suffers from incoherence, but fewer may agree that institutionalism is the solution, and even those who do favor institutionalism may differ on their selection of the institutions deserving deference.
But for anyone teaching or writing in the First Amendment, Horwitz's book deserves a place on a serious summer reading list. My longer review appears in Law and Politics Book Review.
Monday, May 6, 2013
The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal is the centerpiece of the new book, The Price of Justice: A True Story of Greed and Corruption by Laurence Leamer. Recall that the Court in Caperton ruled that due process required judicial recusal of a West Virginia Supreme Court of Appeals judge, Justice Brent Benjamin, in a case involving Massey Coal because of the contributions by Massey Coal to Justice Benjamin's campaign.
The starred review from Publisher's Weekly describes the book as
the riveting and compulsively readable tale of the epic battle between Don Blankenship, the man who essentially ran the West Virginia coal industry through his company Massey Energy, and two seemingly ordinary attorneys: Bruce Stanley and David Fawcett. The centerpiece of the story is a West Virginia mine owner whom Blankenship purposefully bankrupted, and on whose behalf Stanley and Fawcett won (in 2002) a $50 million dollar verdict that is still unpaid. In hopes of having the ruling overturned by the West Virginia Supreme Court, Blankenship sought to “buy” a seat on the court by contributing over $3 million to the successful campaign of a conservative judicial candidate. However, the U.S. Supreme Court eventually found that Blankenship’s contributions were too much to allow the new West Virginia justice to hear the case. Leamer has produced a Shakespearean tale of greed, corporate irresponsibility, and personal hubris on the one hand, and idealism, commitment to justice, and personal sacrifice on the other. Blankenship is a villain for all time, and Stanley and Fawcett are lawyers who bring honor to their profession.
A good addition to that summer reading list for anyone interested in constitutional law and anyone who might like a reminder that lawyers can, indeed, be heroic.
Thursday, April 18, 2013
Integral to the same-sex marriage cases of Perry and Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas. Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause.
Professor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review. Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights. Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.
Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the life of one of the two men most central to it?" Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.
Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay.
April 18, 2013 in Books, Due Process (Substantive), Equal Protection, Gender, History, Race, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 17, 2013
What do our visual images of justice tell us? Judith Resnik with her co-author Dennis E. Curtis, provide ample, exciting and complex answers to that question in their marvelous book, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms, published in 2011.
Resnik's 2013 essay, Equality’s Frontiers: Courts Opening and Closing, adapted from remarks at an event celebrating Justice Ginsburg’s gender-equality jurisprudence and drawing on the book, is a brief but evocative look at how justice and equality are - - - and were - - - portrayed. Two images Resnik includes and analyzes from WPA murals in courthouses are particularly salient.
First, there is an image of Justice as Protector and Avenger in a South Carolina courtroom.
Second, there is an image in a Idaho courthouse:
Should this be removed as offensive? Or displayed as an accurate part of the history of justice and equality? Resnik shares the decisions of state officials, ultimately made in consultation with Native tribes.
Resnik contends that such images, including these from courthouses in South Carolina and Idaho,
make a first point—that courts were one of equality’s frontiers. The conflicts about what could or could not be shown on courthouse walls mirrored conflicts about what rights people had in court.
A terrific read - - - and look - - - as well as a reminder of the richness of the Representing Justice book.
Tuesday, April 9, 2013
Justice Tom C. Clark and his son, Ramsey Clark, are the focus of Alexander Wohl's new book, Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy.
The senior Clark, appointed by Harry Truman, resigned from the Court at age 67 because Lyndon Johnson appointed the junior Clark as Attorney General. While we understand the conflict, the scenario causes most contemporary readers to pause. Indeed, it is difficult to imagine a current sitting Justice making such a sacrifice for his child's career. Especially since the father and son seemed to have very different politics.
Wohl uses the men's careers to illuminate not merely the personal dyamics, but the constitutional and political changes. Consider this:
As a young government lawyer, Tom Clark was a key figure in enforcing the relocation of Japanese Americans, and as Attorney General he was vilified by civil liberties advocates for the Cold War policies he implemented, even as he promoted a progressive strategy on civil rights. Ramsey began his career to the ideological left of his father, was intimately involved in enforcement of civil rights laws during the turbulent 1960s, as Attorney General fought to expand protections of individual rights, and as a private attorney represented clients on the farthest reaches of the individual rights–government power spectrum.
This new book promises to be an engaging read.
Monday, March 25, 2013
The critique of marriage as a legal institution may seem a bit churlish as the same-sex marriage cases go to the United States Supreme Court this week. It may seem as if there is universal agreement that marriage is "good" and the only question is whether governments can exclude same-sex couples from this "good."
Yet there is certainly a different way to conceptualize the issue. In Not the Marrying Kind, U.K. Law Professor Nicola Barker engages the issues from several perspectives. Importantly, her discussions do not portray the lesbian or larger LGBT communities as monolithically desiring marriage, but rather as critically engaged in questions of formal equality. She is scrupulous about presenting the complexities of opinions, theories, and strategies across several continents. Barker's book is a treat even readers who have been following these developments for years or are suffering from same-sex marriage fatigue.
I review Barker's book, as well as several other books on same-sex and opposite-sex marriage in an essay "Is Marriage Good for Women?" in this month's Women's Review of Books.
Barker's book is the best of the lot and essential reading for anyone seriously engaged in thinking about same-sex marriage.
Wednesday, March 6, 2013
The United States edition of Rory Carroll's Comandante: Hugo Chavez's Venezuela will be released March 7 and it makes timely reading as Americans struggle to understand the legacy of Chavez including Venezuelan constitutional law. (Interestingly, the South African edition is subtitled "Inside the Revolutionary Court of Hugo Chavez.")
Carroll is a reporter for The Guardian and the reviews of the British edition stress the fine reporting and indicate this is a book worth reading. For example, in Literary Review: "Rory Carroll has written a well-considered and painfully fair epitaph for the Chávez regime" and in The Independent: "Rory Carroll is well positioned to provide a verdict. In good reporter fashion, he diligently tracks down his sources, turning up a colourful cast of red-shirted Chavista loyalists, bitter political opponents, and the everyday Venezuelans in between."
Tuesday, March 5, 2013
O'Connor is promoting her new book, Out of Order: Stories from the History of the Supreme Court, reviewed in the NYT yesterday.
Update: more O'Connor here.
Wednesday, February 27, 2013
As the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others. But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.
Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully." Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins." Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results. These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions. Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.
While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.
[image of William Faulkner via]
February 27, 2013 in Books, Congressional Authority, Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, February 25, 2013
Peter Dimock's just published book, George Anderson: Notes for a Love Song in Imperial Time, is a novelistic intervention in contemporary anguish about the legality of torture.
In a starred review, Publishers Weekly explains,
The novel takes the form of a letter from Theo Fales, editor and memoir ghostwriter for former CIA operatives, to David Kallen, a government official who directed Special Forces trainers to torture him before signing a document that led to the legalization of torture by the George W. Bush administration. Fales attempts to teach Kallen a method he devised as a, "means by which every person rids the self of its inordinate attachment to empire and creates reciprocity."
It's a brief but challenging book, interweaving music and literature to interrogate the roles of lawyers and journalists regarding the use of torture. It is worth a read by anyone exploring how the constitutionality of "enhanced interrogation" should be decided.
Tuesday, February 19, 2013
The First Amendment's relationship to what we call "academic freedom" can be fraught (here's one recent example), but in her compelling new book, Priests of Our Democracy Marjorie Heins provides doctrinal, historical, and political links between our understandings. Subtitled The Supreme Court, Academic Freedom, and the Anti-Communist Purges, the book takes as it centerpiece Keyishian v. Board of Regents (1967), a case that is oft-cited and just as often omitted from casebooks.
For ConLawProfs not teaching Keyishian - - - and this book will make you wonder why you are not - - - Heins' book illuminates important First Amendment doctrine and politics. Her history develops the parties, the lawyers, and the institutions involved in Keyishian with fascinating detail and readable prose. Her discussion of the larger anti-Communist "purges" is sharp and solid; it leads to considerations of the post 9/11 landscape.
And for ConLawProfs writing in the area, Heins' volume is an absolutely essential read.
Friday, February 15, 2013
Sean Wilson (pictured) provides a compelling view of constitutional interpretation in his new book, The Flexible Constitution. His work is often Dworkian in tone, although Wilson distinguishes himself from Dworkin's interest in moral reasoning. Instead, Wilson writes that constitutional law problems are what "Wittgenstein described as aesthetical judgments - i.e. judgments that a connosseur would make" and Wilson stresses culture much more than morality. (p. 83).
Worth a special read is the book's Appendix, "The Philosophical Investigation," which provides a Wittigensteinian interrogation of the meaning of "the original meaning of the Constitution." This would be a terrific exercise for a Constitutional Interpretation or Jurisprudence seminar.
Thursday, January 24, 2013
It's easy to see how writing and publishing a memoir centering on one's former spouse, especially if the theme is how "Satan (through my ex) set out to destroy my life," might lead to a defamation action in state court by the former spouse. But as the Iowa Supreme Court demonstrated in its recent opinion in Bierman v. Weier, the entwinement of the First Amendment, the state constitution, and the tort issues are far from simple to resolve.
The opinion has an excellent discussion of First Amendment Supreme Court precedent on defamation and an interesting application of last term's decision in United States v. Alvarez, the "Stolen Valor case." The defendants argued that Alvarez should be construed to invalidate libel per se presumptions because it recognized a First Amendment right to make "factually false statements." As the court stated, however, the problem with this argument "is that both opinions making up the Alvarez majority specifically highlighted defamation as a traditional area where the law was constitutional because it did not punish statements merely because of their falsity." The Iowa Supreme Court also disregarded the applicability of Citizens United to arguments invalidating libel per se as a matter of state law.
This was not merely a matter of state common law, however, for the Iowa state constitution specifically addresses the issue of libel in Article I, section 7:
Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous was true, and was published with good motives and for justifiable ends, the party shall be acquitted.
The Iowa Supreme Court emphasized that the language supported the continuance of libel per se, especially given the text that made persons "responsible for the abuse of that right."
The continued constitutionality of libel per se left open the legal status of Author Solutions, Inc. (ASI), the self-publishing venture named as a defendant for its role in producing Scott Weier's book. The status of ASI as a media or nonmedia defendant was important under the state libel law that uses a "Gertz [v. Robert Welch] -inspired framework, which distinguishes media and nonmedia defendants and reserves libel per se for private plaintiffs and nonmedia defendants." In assessing whether ASI was a media defendant, the Iowa Supreme Court found that it was, interestingly citing New York Times v. Sullivan in support of this rationale:
"It is true that Scott [Weier] paid ASI to publish his book, rather than the other way around. But this fact alone does not change the analysis. Both our precedents and the United States Supreme Court’s have accorded the same protection to media defendants when they publish advertisements as when they publish content they have paid for."
Given the heightened standard of libel per se, the majority found that there was no malice on the part of ASI and reversed the lower court's denial of ASI's motion for summary judgment. Scott Weier was less successful: the Iowa Supreme Court affirmed the district court and the plaintiffs' claims of libel, false light, and intentional emotional distress will be proceeding to trial, barring a settlement.
Monday, January 14, 2013
Sonia Sotomayor's memoir, My Beloved World, is now out in the world.
Writing about the book in WaPo, Dahlia Lithwick states "It is nearly impossible to read “My Beloved World” without comparing it with the only other deeply personal autobiography by a sitting Supreme Court justice, Clarence Thomas’s 2007 memoir, “My Grandfather’s Son.” Lithwick's comparison demonstrates a wide gap between the two Justices' self-presentations.
Discussing the book for NPR, Court correspondent Nina Totenberg echoed the Thomas' comparison, saying:
Justice Clarence Thomas was the last member of the court to write a book that topped the list of national book sales, but while his vividly written autobiography sizzles with rage and resentment, Sotomayor's hums with hope and exhilaration.
And in the Boston Globe review, Jax Wexler also makes reference to Clarence Thomas:
Readers seeking insight into Sotomayor’s judicial philosophy or her positions on hot-button issues will be largely, though not entirely, disappointed. With the constitutionality of racial preferences on the court’s docket again this term, it is refreshing to hear the views of a justice who benefitted from affirmative action and who is not Clarence Thomas. In her memoir, Sotomayor eloquently defends preferences for creating “the conditions whereby students from disadvantaged backgrounds could be brought to the starting line of a race many were unaware was even being run.”
Yet these first reviews - - - and surely more will follow - - - also stress the literary quality of Sotomayor's prose as much as its empathetic message and remarkable content.
This looks like it will be an excellent read.
Friday, January 11, 2013
Ron Collins' new book, Nuanced Absolutism: Floyd Abrams and the First Amendment centers lawyering in the development of doctrine and theoretical perspectives of constitutional law.
Collins argues that "nuanced absolutism" has become a tenet of First Amendment doctrine that has taken on new life in the decisional law of the Roberts Court, and has been notably argued by Floyd Abrams in a series of cases.
For anyone interested in the First Amendment, this is a must read.
Wednesday, January 2, 2013
We are used to speaking about the Constitution as a "binding document" and a less used to thinking about it as bondage. Thus, ConLawProf Louis Michael Seidman's op-ed in the NYT entitled "Let's Give Up on the Constitution" has been causing a bit of a stir, especially among ConLaw students and some profs.
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
Yet this seems to be more of a critique of originalism than constitutionalism. And interestingly, Seidman appeals to originalism to support his ultimate argument:
Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience.
Seidman's new book, Constitutional Disobedience, will presumably expand these ideas further. But for today, the op-ed is an interesting read.
Tuesday, December 18, 2012
"Beat Generation" afficionados and American Literature majors know William S. Burroughs' Naked Lunch; ConLawProfs may recall the First Amendment implications including the eventual decree by Massachusetts' highest court that the book was not obscene, Attorney General v. A Book Named “Naked Lunch,” 218 N.E.2d 571 (Mass. 1965).
Many also know the broad outlines of William Burrough's life, including his drug addiction and his fatal shooting of his wife. For those less well-acquainted, Ted Morgan's biography, Literary Outlaw: The Life and Times of William S. Burroughs is an interesting read. Morgan discusses the various versions of Burroughs' killing of his wife in Mexico by shooting her in the head. The usual version (and Burroughs' own) features a small social gathering, drinking alcohol, and Burroughs' suggestion that his wife put a glass on her head and he shoot it off "William Tell" style. He missed and she was dead. He eventually fled back to the United States and was convicted in Mexico in absentia. Morgan quotes Burroughs as haunted by the killing and "often" saying his life was an "evil river" and that he was possessed by an "evil spirit."
Given his biography, Burroughs makes a rather odd spokesperson for Second Amendment rights. Yet, as both Dan Filler over at Faculty Lounge and Brian Leiter quoting Jason Walta note, a December 14 op-ed in USA Today in favor of expansive Second Amendment rights begins with a quote from William S. Burroughs: " "After a shooting spree," author William Burroughs once said, "they always want to take the guns away from the people who didn't do it." "
Tuesday, November 27, 2012
It's something that is, perhaps increasingly, difficult to ignore: the political affiliations of federal judges.
Adam Liptak's article in the NYT yesterday takes on the subject with a focus on the recent Michigan affirmative action decision from the en banc Sixth Circuit. Liptak provides the breakdown: "Every one of the eight judges in the majority was nominated by a Democratic president. Every one of the seven judges in dissent was nominated by a Republican president." This, he argues, is consistent with a forthcoming book, The Behavoir of Federal Judges, an empirical study authored by Lee Epstein, William Landes, and Richard Posner.
Liptak thus rejects - - - at least implicitly - - - the practice of SCOTUSBlog's preeminent reporter and commentator Lyle Dennison whose "note to readers" in his discussion of the Michigan affirmative action case explained; that he would not include "references to the political party affiliation of the Presidents who named the judges to the bench" because "the use of such references invites the reader to draw such a conclusion about partisan influence, without proof." Denniston, however, did include a caveat: he would provide that information" when "it is clearly demonstrated that the political source of a judge’s selection had a direct bearing upon how that judge voted — admittedly, a very difficult thing to prove."
Whether it is a question of causation, correlation, or coincidence is an issue often raised by law students in ConLaw classes, and one that ConLawProfs struggle to answer from various perspectives.
For Liptak, however, there is predictive certainty. Referencing the affirmative action case of Fisher v. University of Texas argued in October, he writes:
The justices’ votes in the Texas case are as yet unknown. But here is a good bet: every vote to strike down the program will come from a justice appointed by a Republican president, and every vote to uphold it will come from a justice appointed by a Democratic one.
Saturday, November 24, 2012
Judge J. Harvie Wilkinson III (4th Cir.) argues in Cosmic Constitutional Theory: Why Americans Are Losing Their Inaliable Right to Self-Governance that the proliferation of constitutional theories in recent decades is undermining judicial restraint, handing judges the keys to our democracy, and ultimately leading to the loss of self-governance. Judge Wilkinson's point is this: comprehensive constitutional theories (of constitutional interpretation, of judging) empower judges, even when they're designed not to, and thus undermine a necessary feature of our government, judicial restraint. Judicial empowerment comes at a cost to the democratic branches, and thus to self-governance itself.
Cosmic Constitutional Theory, part of Oxford's Inaliable Rights Series, surveys the "grand and unifying" constitutional theories--living constitutionalism, originalism, political process theory, textualism, minimalism, cost-benefit pragmatism, active liberty, and moralism--and argues that they have empowered judges at the expense of the democratic branches. Judge Wilkinson explains:
No one has stepped back and asked exactly where these theoretical proliferations of all persuasions are taking us. The answer to that question will become clear: the theories are taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive.
Indeed, the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results. In short, cosmic constitutional theory has done real damage to the rule of law, the role of courts in our society, and the ideals of restraint that the greatest judges in our country once embraced. But the worse damage of all has been to democracy itself, which theory has emboldened judges to displace.
And at another point:
Indeed, I fear that democratic liberty will more and more become the victim of cosmic theory's triumphal rise. The grand quest of the theorists has left restraint by the wayside and placed the inalienable right of Americans to self-governance at unprecedented risk. The increasing willingness of leading thinkers in the law to claim that their theory of the Constitution provides the answers has made citizens all the more willing to look to the courts to resolve the great social controversies of our time. In turn, the courts' eagerness to resolve such debates has cast them in a decidedly political light, making judicial selections and confirmation battles all the more disputatious.
But Judge Wilkinson only weakly argues for judicial restraint, almost taking the point for granted. And it's hard to see where he draws the line between a properly restrained court and an inappropriately activist one. Consider this passage, distinguishing between "major activist decisions" and certain contemporary cases:
Major activist decisions of the Warren Court . . . have rightly stood the test of time, and that success doubtless strengthens the belief of today's interventionists that tomorrow may smile on their bolder efforts too.
They are wrong. Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born. One can debate the precise reach of eminent domain or regulatory takings or the value of same-sex marriage or the utility of firearms regulation without believing that our Constitution is bereft of meaning if one's own beliefs are not embodied there.
Judge Wilkinson's solution is not a new theory. He declines to advance one. Instead, he argues for a kind of judicial restraint and deference to the political branches that he says is best represented by the work of Justices Holmes, Brandeis, Frankfurter, Harlan, and Powell. According to Judge Wilkinson, "Their examples show that one can be a great justice without expounding a grand theory."
Tuesday, November 20, 2012
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.
Adam 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.