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How Supreme Court Reads the Constitution

Benchmarks: Great Constitutional Controversies in the Supreme Court

Edited by Terry Eastland

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Ethics and Public Policy Center

Wm. B. Eerdmans Publishing Co.

181 pp., $17.99

The United States Supreme Court ended its 1994-95 term in June with a typical flurry of important decisions on such hot-button issues as affirmative action, racial gerrymandering, drug testing, and the separation of church and state. Most people learned of these decisions through the news media, which means they read or heard the outcome and vote of each case, a concise assessment of its significance, and perhaps a few snippets from the majority and dissenting opinions.

Unfortunately, this what-and-who level of reporting about the work of the nation's highest court reflects and contributes to a profound lack of public awareness about how and why this vital but secretive institution arrives at decisions that dramatically affect American life. The nation needs a larger body of literature that explains the "inside baseball" of constitutional jurisprudence to non-legal specialists.

Given its generic title and reader-friendly foreword by former Attorney-General Griffin Bell, one approaches "Benchmarks: Great Constitutional Controversies in the Supreme Court," with the hope that this collection of essays will be one of those needed crossover books that elucidate constitutional esoterica for the laity. Such is not the case, however. Editor Terry Eastland, legal scholar at the Ethics and Public Policy Center in Washington, has produced a fascinating volume, but one by constitutional-law specialists largely for their peers.

The book grew out of a conference sponsored by Eastland's center, which explains its quilt-like pastiche of essays loosely connected by a few themes. The primary motif has to do with the intellectual devices that Supreme Court justices have dreamed up over 200 years - but primarily since the Civil War - to interpret and apply the elegantly spare language of the Constitution.

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By probing a handful of major cases in the court's history, seven scholars examine the ways the justices have, with varying degrees of craftsmanship, intellectual rigor, and, one must say, disingenuousness, read meaning into words on aging parchment to resolve contemporary issues.

Among the issues raised are: What are "due process," "equal protection of the laws," or the "privileges and immunities of citizens"? How have the 14th Amendment's restrictions on the states come to apply to the federal government through the doctrine of "incorporation"? Should the justices be tethered snugly to the text of the Constitution, or may they, in their efforts to interpret that text, range afield into history and even "natural law"?

Many of these questions intersect in the quest for a constitutional right to "privacy," the purported right at the heart of the abortion controversy. So, a number of essays deal directly with or allude to that dispute. As he makes clear in his introduction, Eastland unabashedly hails from the conservative camp of legal theorists, and the majority of essayists share his outlook. But he knows that there are (at least) two sides to these complex issues, and he has included a passionate defense of a woman's right to choose and other "privacy" rights by Professor Strossen, the president of the liberal American Civil Liberties Union.

This book would be rather tough sledding for people without some familiarity with constitutional interpretation and the specific issues raised in the essays. Yet for readers willing to stretch their mental sinews, the book offers rewards. The writers are never less than interesting, and some are invigoratingly provocative. The issues they tackle are central to understanding the role of the judiciary, and especially the Supreme Court, in the American system of liberty under law.

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