White's review of the conventional New Deal narrative, and of the power it continues to exert over the imagination of academic students of the United States Constitution, is masterly. The conventional narrative is revealed as starkly "realist," dismissing the significance of evolving legal doctrine and jurisprudential concepts and seeing judges as "dependent variables" driven by the necessitating political forces of the day. In this sense, the established narrative fits comfortably with the crudely behavioralist assumptions of post-war American social science; it ascribes change in constitutional law to factors external to the judiciary—to political pressure, principally in the form of the presidential election of 1936 and the Court Packing Plan. In fact, the great shift in our constitutional understandings was not sudden but gradual, and it had little to do with immediate political pressures and everything to do with fundamental change in the realm of ideas—ideas about the nature of law and the judicial role in applying it.
By contrast, revisionist accounts (typified by Barry Cushman's 1998 Rethinking the New Deal) are "internalist," stressing precisely the extent to which change in American constitutional law resulted from changing ideas among America's legal elites, a process that began early in the 20th century. Revisionists argue that the orthodox New Dealers are insufficiently attentive to early 20th-century case law and jurisprudential currents of change. In fact, White insists that the orthodox have mischaracterized and misrepresented American constitutional history in the three decades preceding the New Deal precisely in order to preserve the myth of the "Constitutional Revolution" as a moment of sudden and defining change. Furthermore, revisionists such as White resist a constitutional theology in which the core elements of New Deal constitutionalism—its disdain for property rights, for federalism, for separation of powers, and its embrace of social improvement through agencies of an expanded national government—are to be accepted as permanent, ordinal aspects of the American constitutional order.
White concludes his critical review of the conventional wisdom with a treatment of three prominent scholars who, he argues, seek to vindicate the centrality of the New Deal to 20th-century American constitutionalism while acknowledging and even seeking to incorporate (and thereby neutralize) some elements of the revisionist critique. He examines the work of Cass Sunstein, Bruce Ackerman, and Laura Kalman, finding Kalman the most credible of the three, but concluding that their project fails for essentially the same reason that the more naïve New Deal orthodoxy fails, because it is historically insensitive, and uncritically accepting of the rightness and permanence of core New Deal constitutional doctrines.
Then, in a series of chapters treating executive power in foreign relations, the emergence of "agency government," the growth of administrative law, and free speech jurisprudence, White advances his own highly intelligent and historically nuanced version of the revisionist argument. For him, the transformation of our constitutional law started well before the Constitutional Revolution. New Deal constitutionalism is an example of the working out by the Supreme Court of the modern paradigm of constitutional interpretation which had been gaining ground for decades before 1937. He describes the change as one from "guardian review," to "bifurcated review." This involved a shift in the way judges regarded the job of constitutional interpretation. Guardian review, the traditional approach reflected in John Marshall's opinion in Marbury v. Madison, "presupposed that the essentialist principles of the Constitution reinforced preordained barriers between public power and private rights and between [the nation] and the states, and that judges would function as interpretive policers of these boundaries…." By "essentialist," White means the idea that there are durable, comprehensible legal principles embodied in the Constitution that judges can apply, such as boundaries between state and national power, between the branches of the central government, and between the individual and the demands of the government of the day. The rise of Progressivism, and the emergence of its associated "living constitution" persuasion early in the last century, began to undercut the "essentialism" in constitutional thought that was the intellectual foundation of guardian review, just as higher intellectual fashions of the time (think of the rise of Pragmatism) were undercutting the idea of conceptual foundations generally. In "living constitution" jurisprudence "there was no meaningful separation of the authority of constitutional principles from the authority of those holding the power to say what these principles meant in cases before the Supreme Court...."
For White, this simply marks the arrival in legal thought of intellectual modernity, and the hallmark of this modernity or "modernism" is historicism—the view that all human thought is essentially contextual and contingent, that there are no preexisting principles or boundaries to observe. On this view, the best the judge can do is to try to figure out what makes sense in the historical context in which he must act. Late 18th and 19th century Americans, White notes, assumed the existence of "distinctive conceptions on the course of ideas and institutions over time and across space" (that old, bad, "essentialism"). This tradition was "premodern" and "prehistoricist"; it made guardian review a coherent enterprise, but once intellectual modernity sweeps notions of durable principles from the table and replaces them with the new view that there is no distinction between the interpreter and the text being interpreted, guardian review must sink like a stone. Here White is both describing what happened and, at least by implication, affirming its inevitability; the notion of essential principles of law simply could not survive the arrival of "modernism." It was this slow change in the intellectual underpinnings of legal thought that liberated judges from the tyranny of conventional legal materials—texts, history, and precedent. It was not the New Deal.
Why does White call the newly ascendant regime one of "bifurcated review"? Because once it is accepted that judges are simply problem solvers, essentially no different from legislators, the question becomes how to overcome the famous "counter-majoritarian difficulty." Why should judges be able to invoke the Constitution at all against legislators and elected executives if they are in fact creating the policies themselves unguided by any binding constitutional principles? The answer is that the judges should only do so when their intervention will advance or enhance "democracy." Thus in cases involving economic and social regulations the judges will properly defer to legislative choices because this enhances democracy—as in the Court's abdication, in U.S. v. Darby (1941) and Wickard v. Filburn (1942), of its traditional role of enforcing commerce clause limitations on the powers of Congress. This is the permissive, deferential lens in the new bifocals; the other, activist lens, comes into play when cases involving civil liberties and political participation come before the Court. Here, on the theory of the famous "Footnote Four" in the Carolene Products case, the Court will strictly scrutinize the choice made by a legislative or executive policy maker. But this activism is not justified by any appeal to pre-historicist notions of "essentials" or preexisting constitutional boundaries. It is justified because giving individuals more rights enhances democracy. For the judges to intervene and substitute their policy judgments for those of elected policymakers would frustrate democracy in the economic and social context, but where civil rights and liberties are concerned, judicial policymaking may advance democracy by frustrating the tyranny of the majority. Once again, White is both describing and, it appears, endorsing.
White's approach elegantly accounts for the disaster that overtook American constitutional law in the 20th century. He's got it in considerably better focus than anyone else. His emphasis on long-term currents of intellectual change rather than on the crude externalism and behavioralism of a "switch in time that saved nine," is surely right. And White is unflinching in spelling out the implications of the modern, historicist orthodoxy for the doctrinal substance of New Deal constitutionalism, i.e., that it can make no more claim to permanence than what preceded it: "...post-New Deal essentialism in constitutional jurisprudence is still essentialism." There can be no such privileging of any concept or principle; the concern for modern judges must be for what advances "democracy" in particular contexts.
In the end, however, I am left with a quibble and a question. The quibble has to do with White's choice of the term "modernism" to describe the intellectual disposition that drove change in American constitutional law. What he is accurately describing is what most of us would call postmodernism. The embrace of historicism and the denial of a distinction between text and interpreter are dead giveaways. Of course, neither the Progressives of the first decades of the last century, nor the legal realists of the '20s and '30s, had the term "postmodern," but White makes abundantly clear this is what they were up to. Progressive Republican (and future Chief Justice of the United States) Charles Evans Hughes famously quipped that "we live under a constitution, but the Constitution is what the judges say it is"—giving us a textbook example of the early impact of "pomo" on American constitutional thought.
My question is more serious, and it is one that White rather demurely avoids. Is an essentially postmodern style of constitutional interpretation, which rejects the idea of durable legal principles, compatible with the institution of judicial review based on a written constitution? Even more fundamentally, is an intellectual process that obliterates the distinction between principles and those "holding the power to say what these principles mean," a recognizably legal form of decision-making at all? Put another way, if texts are denied independent, binding meaning (whether they be constitutions, statutes, or contracts) and "interpreters" are seen as just folks attempting to respond by their best lights to the exigencies of particular situations, where does their authority to deploy the coercive power of government against the rest of us come from?
Surely it is not enough to answer that under the regime of "bifurcated review" courts conduct themselves in democracy-enhancing ways, and that this justifies their power. There are different views in our society of what is democracy-enhancing and what isn't; such issues are typically contested. If the question is whether banning certain "issue advertisements" in advance of an election is democracy-advancing or democracy-retarding, this is one on which Americans are deeply divided and it is hard to see how the judges, should they attempt to resolve this on the basis of what democracy "really" requires, have any particular claim to authority. Indeed, if they're just specialized legislators in robes, it is difficult to see why they should not be firmly reined in whenever they oppose the majority of the day on any issue—heavens! the dreaded business of "court curbing." And was it really inevitable that an intellectual disposition, postmodernism, which in the early years of a new century is increasingly perceived as wrong-headed and even comic, would have so devastating an effect on the American legal mind? (Deconstructionist English departments are now laughing-stocks, and it is hard to believe many people take Stanley Fish seriously anymore).
All this, however, may be to criticize White for writing his book rather than mine. He might well reply that the question of legitimacy in constitutional law is a hotly debated one today and can be left to others. His chosen task was to describe how we got to where we are, and to dispel the powerful, simplistic New Deal myth that obscures our actual constitutional history. Fair enough. But by doing such a good job in tracing how we got where we are he has rendered the legitimacy issue even more clamant.