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A. J. Sutter
- Publié sur Amazon.com
This book is different from many others on the US Constitution: its thesis is that although the US Constitution is regarded as the paradigmatic written constitution, it's far more of an unwritten one, like Britain's, than we may realize. By the end of the book, it's hard to disagree. Rather than marching through specific provisions of the written Constitution in sequence, the author (MT) more often "cuts to the chase" and describes the practical political realities underlying the main Constitutional topics, namely, the three branches, federalism, human rights and amendment. For example, political parties aren't mentioned anywhere in the Constitution, and yet, as MT points out, they dominate how the legislative, executive and judicial branches function and how they interact with each other. The written Constitution simply provides a kind of framework within which the parties operate.
MT's discussion of human rights also might surprise (or frustrate) some readers. Rather than discussing specific rights enumerated in the Bill of Rights, he gives instead a detailed historical survey of the notion of "rights" in US politics and jurisprudence. For example, during the Progressive era (early 20th Century), "rights" were regarded mainly as things the rich and powerful used to suppress working people and the poor -- "civil rights" were things like freedom of contract and the right to own property. Labor activists and others who'd be called "liberals" in the US today preferred to speak of "balancing interests," and looked to Congress rather than the courts for help. That changed during the New Deal, when a famous footnote in a Supreme Court opinion (dicta, though MT doesn't use that term) laid out a strategy for extending civil rights (in the modern sense) to African-Americans and other racial minorities. MT also talks about the role of different groups of lawyers -- such as those working for the ACLU, NAACP and, later, conservative public-interest foundations -- in expanding "rights" discourse. Since my own interest is tilted more toward democratic institutions than human rights jurisprudence, I'd initially expected just to skim this chapter, but once I began it I was hooked into a close read.
The chapter on updating the Constitution was also quite good. As many readers will already know, more updating comes from interpretation than from formal amendment. MT provides a survey of the many interpretative techniques the Supreme Court uses (almost all of which were used by the first Chief Justice in the 1819 case of McCulloch v Maryland). A bonus is a very matter-of-fact exposure of the fallacies of "originalism," the interpretive style favored by the Court's current conservative majority. And MT also makes the easily-overlooked point that the political branches do a great deal of updating themselves, expanding their power "with the courts letting them get away with it in the face of the written Constitution" (@242).
MT's approach is consistent with the subtitle of this book and of all others in the same series from Hart Publishing: "A contextual analysis." The point of the series is to emphasize the constitution in practice, not the one on paper. Common to all books in the series is that the actual text of the constitution being discussed is NOT included. I'm a US lawyer, so the lack of a systematic section-by-section exposition of the Constitution didn't faze me, but some readers might at least want to look at a book like Richard Beeman's "Penguin Guide to the United States Constitution" before attempting this one.
I expect, though, that the Hart series will have many readers from outside the US, and in this regard MT's treatment isn't as user-friendly as it could be. E.g., most readers who aren't from English-speaking countries (actually, anyone who didn't read Orwell's "1984" in school) won't know that Winston Smith is a fictional character (@211-212), or catch the irony of MT's reference to "enhanced interrogation" in this context (@id.). "Lynch law" (@226) is another example of reference that may go over many readers' heads. Even many Americans who aren't of a certain age won't know who Samuel Gompers is (@195). References like these might be glossed with a terse footnote, at least. The editing could also be tightened up. Occasionally a case is referred to familiarly (e.g., "the Lopez case" @179) when previously the name appeared only in a footnote, and the shortened name can't be found easily in the index of cases (you'd need to know to look under 'U', for US v. Lopez). And even I was confused by the references to substantive due process. At p. 213, MT talks about this topic as if he's discussed it before, but actually up till then it was only mentioned in a footnote (@26); and even later it only gets a few more words, @251. The index won't help you here -- it doesn't mention substantive due process at all, and short-changes some other topics, too. I hope that all of these glitches, and others like them, could be fixed in a second edition. At that time, too, I hope MT will include at least a couple of paragraphs on the subject of pre-emption, which I was surprised to find was absent from the chapter on federalism.
The writing style is clear and jargon-free by the standards of US legal scholarship, though also somewhat dry. A few more gentle touches like the ironic Orwell-Bush reference and the passing mention of "sex, drugs and rock-and-roll" (@214) might be welcome sustenance for readers of the next edition. Nonetheless, the present one is well worth reading -- particularly if you already know something about the general shape of America's written Constitution, and want to look at it from a new angle.