The Locke Luminary Vol. I, No. 2 (Winter 1998) Part 4
Edited by Amanda J. Owens, Director of Legal Studies, and Dr. Charles K. Rowley, General Director
God & Man in the Law: The Foundations of Anglo-American Constitutionalism.
Robert Lowry Clinton, Lawrence: University Press of Kansas, 1997. xiv + 298 pages. $35.00
A Book Review, by Amanda J. Owens, Director of Legal Studies
A distinctive characteristic of the United States legal system is its ultimate reliance on a single written document, the Constitution. In these modern times, the interpretation of the Constitution's terms is the cornerstone of the legal system. In this book, Robert Clinton criticizes the activist approach that the courts recently have adopted in interpreting the Constitution. Drawing upon the works of ancient and classical philosophers and political theorists, Clinton proposes a return to the traditional, English common law method of interpretation.
The overall thrust of the book is that constitutional decision-making is derived from and is subordinate to the overall legal order. The overall legal order is comprised of common law precedent. The common law is based on long-standing traditions that have slowly matured through history. These traditions are a product of social, moral and legal thinking, which have been adopted and preserved through time to become part of the natural law. At present the Constitution is not correctly interpreted, and ultimately will fail to deliver on the promises of the Founding Fathers, if judgments are made without reference to the underlying framework of the common law.
Clinton's arguments are based on an impressive variety of texts. His scholarship is excellent, making this book interesting reading for those with a good background in political science, philosophy or legal history. For those with a more specialized realm of expertise, the book provides an education in a wider range of disciplines. Although all of the chapters are extremely interesting reading, it is difficult to tie several sections of Part Five, discussing gnosticism and theism, to the central theme.
The comments on the training of American lawyers at the time of the drafting of the Constitution are particularly interesting. At that time, the lawyers were trained and influenced by English legal practices. The Blackstone Commentaries were the prevalent legal text upon which the lawyers relied. These volumes summarized the English common law, which is the product of countless judgments, absorbing essential continuities in a reality known only historically. The Framers of the Constitution, many of them lawyers, doubtless drew upon this text when they were drafting the Articles, but they were also subject to much wider influences. Madison, for example, studied all systems of polity, ancient and current, evaluating their strengths and weaknesses in order to design a strong yet flexible Constitution.
Clinton convincingly argues that the founding era justices believed in a law based on a state of nature, and blended nature, custom and reason together to formulate the common law. The common law was believed to be a fountain of rights that needed to be constrained rather than a check on individual rights. Given this approach, the present day textualist approach to Constitutional interpretation appears is inappropriate. However, it is impossible for twentieth century judges to decide cases using the same intellectual framework as those of the eighteenth century. The justices do not sit behind a Rawlsian veil of ignorance when they decide their cases. They are a product of different legal training, they were raised and they live in a different social, economic and political system.
The early classical common lawyers in England followed a naturalistic form of jurisprudence that was based on the idea of a common human nature. Later, in the seventeenth century, the contractarian philosophers viewed the law of nature as the law of the jungle. Clinton believes that the law of nature consists of practical reason applied to human experience. The law should be focused with a wide lens, incorporating custom, morality, religion and legal precedent. The practical application of this dewy vision would be hard to achieve. The breadth of materials available to the justices when making a decision would make the Supreme Court even more unpredictable and slower than it is already. The case-load, less than one hundred cases a year, would shrink still further. Justices would be even more selective when granting certiorari, so that their decisions would have an even stronger policy-making influence.
There is no doubt that Clinton is correct when he admonishes judicial creativity since the 1950's. This development must be curbed. The Chicago school's response to this problem is to analyze the legal system from the inter-disciplinary approach of law and economics. Clinton is extremely hostile to this development, and Richard Epstein in particular is admonished for defining the Constitution as a document written merely for the protection of property rights. Clinton argues that natural law and constitutional law can never be reduced to a bundle of substantive rules protecting one principle. In fact, the Founders wanted to promote stability and consolidate the advance of democracy rather than design a Constitution to safeguard the interests of the wealthy. The aim was to protect the rights of an individual rather than those of a group of property owners.
Clinton's points are well taken, but at the same time the Chicago approach has a valuable role to play in judicial decision-making. The success of the United States free market system, as global players such as The European Community and Japan are mired in recession, is because of an economic and legal system in which property rights are protected. Indeed, in the seventeenth and eighteenth centuries England's mercantile economy flourished because property rights and contracts were protected by the common law.
Clinton reminds us of the words of the political philosopher John Locke "The end of the law is not to abolish or restrain, but to preserve and enlarge freedom." Clinton says that freedom is made possible and enlarged by identifying, adopting and conserving the conditions that underpin it. It is essential to consider all legal sources when making a judicial decision. Without taking these steps, true liberty cannot be achieved. In closing, he argues that natural law is the background against which constitutions must be measured. A judge's real task is to call the people to reclaim the traditions of a real and concrete past. Certainly these lofty ambitions are worth striving for.
This well-written, well-researched book is of interest to scholars with a background in law, political science or philosophy.
Robert Lowry Clinton is associate professor and director of graduate studies in the department of political science at Southern Illinois University and the author of Marbury v. Madison and Judicial Review.
AMANDA J. OWENS, Director of Legal Studies, The Locke Institute, 4084 University Drive, Suite 103, Fairfax, VA 22030 USA
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