LIBERTY, NOT FREEDOM:

Another thoughtful section is devoted to Justice Robert H. Jackson, whose opinions, Tartakovsky maintains, offered "two enduring lessons": first, "that no right is absolute and so we must always discriminate between justified and unjustified exercises of a 'right,'" and second, "that there is in fact no such thing as 'liberty,' but only liberties, ever jostling against one another." In Jackson, Tartakovsky finds a representative of pragmatism and "good sense," one who brought humility and humanity to the task of judging the law. The preeminent example of such a justice in our time is, of course, Antonin Scalia. Justice Scalia's "mission," as Tartakovsky sees it, "was to alert Americans that their Supreme Court, with 'almost Czarist arrogance,' is slowly usurping their democratic powers." Indeed, with his much-touted philosophy of constitutional originalism, Justice Scalia consistently opposed the expansion of judicial power, just as he opposed legislative and executive overreach.

Tartakovsky's analysis is, at many points, highly perceptive, and one will be richly rewarded in reading this intelligent and well-written book. Among the many suggestive ideas in Lives of the Constitution is Tartakovsky's conception of the evolving sense of our founding documents as the product of shifting popular opinion percolating up to legislators and justices. By its very nature, Tartakovsky's approach challenges the idea that America has succeeded in an exceptional manner due to the strength of a stable consensus ideology, and that such an ideology is encoded in the Declaration and Constitution in a manner designed to regulate popular opinion and not to be easily altered by it. Traditionalists might wish for more emphasis on those elements of the Constitution that have restrained, or were intended to restrain, rapid change in the idea of America.

Another provocative argument in this book is the repeated assertion that liberties granted to some inherently diminish the liberties of others. The author's discussion of free speech is a case in point. Certainly, the defense of pornography as "free speech," while granting rights to some, by its very nature detracts from the freedom of others who wish to live in communities free of pornographic "art," but this oft-cited example presents a false dichotomy: free speech, in its true sense, involves the far weightier matters of what does the Constitution, and our society, think free speech is for. No one's liberty is diminished when authentic free speech and other fundamental liberties are freely practiced. The only entity that is truly "harmed" is a government that demands endless concessions on the part of its people, including judges who develop constitutional theories at odds not only with the text but the settled practices and expectations around the text. Justice Scalia understood the fundamental and unqualifiable nature of human liberty. As Tartakovsky rightly points out, Scalia's appeal to "'the constraint of the text'" and "'the constraint of historical practice'" was meant to curtail what he saw as a dangerous assault on liberty by unelected courts and bureaucracies. Thoughtful persons know that the same liberties are granted to all in our democracy, and they are so because they are grounded in fundamental truths of human nature.

Tweet   @brothersjudd