Book Review: Taking People Seriously

Abstract

The Intelligible Constitution by Joseph Goldstein. Oxford University Press. 1992.

The subtitle of Professor Goldstein's timely and important book is "The Supreme Court's Obligation to Maintain the Constitution as Something We the People Can Understand." Essentially, Professor Goldstein contends that the Court must explain its constitutional decisions in a manner that is comprehensible to the public because continuing public consent is the true source of the Court's legitimacy and authority. Professor Goldstein analyzes several relatively recent and significant Supreme Court opinions to illustrate how the Court has frequently neglected this responsibility. He concludes by offering a short set of canons of opinion writing which, if heeded, would improve the Court's performance. Influenced by Professor Robert Nagel's trenchant analysis of the Court's increasing inability to explain its decisions in a comprehensible manner, and my having previously addressed the issue by contrasting the Court's famous flag salute opinion with one of its more recent flag burning cases, I must admit great sympathy toward Professor Goldstein's thesis. Like Professor Goldstein, I believe that the Court is obliged to make a serious effort to ensure popular understanding of, and at least the possibility of consent to, its decisions and decision making process. Further, I agree with Professor Goldstein that improving the clarity of the Court's opinions should generally not affect case outcomes. However, in certain instances in which I am skeptical about his application of his canons to specific cases, I wonder whether his criticisms of the opinions are not more related to disagreement with the Court's substantive principles than with its rhetoric.

Keywords: book review, Supreme Court, Joseph Goldstein, Robert Nagel, Constitution