In this short but provocative book, the authors argue that Americans' interest over the last century in expanding democratic responsiveness to the popular will has resulted in a diminution of representative institutions. Only the latter can refine and enlarge public opinion and provide the safeguards that are the essence of constitutionalism. The triumph of democracy is not inevitable. We are in danger of forgetting, the authors suggest, “its intrinsic and characteristic deficiencies, which must be counteracted if it is to function properly” (p. 7). In the first four chapters, Roger Barrus and his coauthors concentrate on American statesmen whose writings and actions played crucial roles in shaping the current context.

For James Madison, the Constitution's moral purpose of instituting freedom rendered it more than an apparatus for public decision making. The book's authors emphasize Madison's recognition of the usefulness of enlisting passions and prejudices in support of weaker reason. By Abraham Lincoln's time, they suggest, the passions were arrayed against reason. The Gettysburg Address calls for a new birth, not a rebirth, of freedom: “And equality, instead of being a self-evident truth, was a proposition—a theorem that had to be proved by the action of the American people” (p. 45). But by redefining equality as a moral principle that makes moral demands, rather than as a self-evident reality or axiom, Lincoln introduced the ideal of equal justice as a transcendent goal, and therefore, to the authors, the possibility of big government.

Woodrow Wilson's agenda, the authors explain, was grounded on his commitment to an organic rather than a literary Constitution, one that is discovered, not constructed. He advocated political growth that would allow a unified public policy to be based on the opinions and needs of the people, a development that in his view would be “not deconstitutionalizing but constitution-fulfilling” (p. 64). The Great Depression inspired Franklin Roosevelt to change people's expectations of government. When he added freedom from want and freedom from fear to the traditional freedoms of speech and religion, these new freedoms “were to be defined by the ever-changing desires of the people for well-being” (p. 74).

In their discussion of current institutions and policies, the authors first argue that progressive political thought and accompanying changes in political expectations have enormously increased Congress's legislative authority. While these developments have fulfilled Wilson's preference for majoritarian control, the loser has been the ideal of limited government. Candidates' messages are “no longer filtered through the principles of party”; instead, candidates rely on public opinion, which rewards what is popular rather than what is wise. Presidents rule “informally” (p. 108) or in a deconstitutionalizing mode, as in the authors' example of Bill Clinton's bypassing Congress to add land to national parks by executive order, and, I might add, as in George W. Bush's using executive orders to implement his faith-based initiative in Cabinet departments when Congress would not pass the legislation he backed.

Barrus et al. begin consideration of the judiciary with Benjamin Cardozo's message that judges should be sensitive to the welfare of society. This has been interpreted, in New Deal style, to mandate not simply the pursuit of happiness but the attainment of happiness by all. In their view, the Supreme Court's responses to reapportionment and to sexual harassment and bullying cases ignore practical politics; its responses to reproductive freedom, expressive activity, and religion cases all demonstrate “a willingness to shrink what the government may do in the name of preserving or protecting an ‘American way of life’” (p. 119). Although they find it “hard to quarrel” with Brown (p. 122), too often the Supreme Court “defines the common good in terms of the accumulation of satisfied individual and group claims” (p. 117), as the judicial process converts citizens who must engage in lobbying and coalitional politics into subjects who need merely file petitions. The authors conclude with two brief chapters on foreign policy and on the inception of the National Performance Review in 1993. Overall, “[s]elf-government is not possible without the ability to understand the threat of dangers such as seeking immediate gratification of preferences at the expense of the long-term interests of society” (p. 146).

The authors of The Deconstitutionalization of America, then, would seem to favor what Federal Appeals Court Judge Douglas Ginsburg has called the Constitution in Exile. As described by Jeffrey Rosen (“Supreme Mistake: How the Election Affects the Court,” New Republic 231 [November 8, 2004]: 18–23), the expansive interpretation of Congress's power to regulate interstate commerce that began with the New Deal has until recently been too deferential to the regulatory state. A revival of the Constitution in Exile would reemphasize federalism and resurrect constitutional limitations on the regulatory state. Barrus et al. make a provocative case for a constitutional interpretation that limits even majoritarian governmental power.

I wonder, however, whether a newly ascendant Constitution in Exile, or something like it, would truly serve their purpose. First, as Madison explains at length in Federalist #10, it is not simply national majorities but also—and especially—local majorities that may seek immediate gratification and threaten liberty. If government is overly responsive to popular opinion, altering the locus of decision making may simply render government responsive to a different popular opinion.

Second, if devolving more authority to local majorities may help to preserve an American way of life whose weakening the authors deplore, who has the authority to decide what this way of life comprises in substance? Are greater reproductive and expressive freedom and greater protection for minority religious viewpoints truly in conflict with the American way of life? Michael Walzer has argued that the nature of political society is not fixed at one moment in time, but instead emerges as the product of ongoing negotiation, which over time represents “the gradual shaping of a common … political life” (“Response to Kukathas,” in Ian Shapiro and Will Kymlicka, eds., Ethnicity and Group Rights: Nomos XXXIX, 1997, p. 108). In my view, continuing discussion and debate about what is constitutive of the American way of life is central to our common purpose. Therefore, I agree with the authors that the common good cannot be defined simply by an accumulation of satisfied individual and group claims. Making claims, however, may be a legitimate vehicle for entering into productive debate.

Finally, I would like to suggest that citizens are politically engaged not only when they lobby and form coalitions to influence the making of public policy, but also when they indirectly through the courts engage in debate about what constitutes the American way of life. Sanford Levinson, for example, suggests that supporting the Constitution “commits me not to closure but only to a process of becoming and to taking responsibility for constructing the vision towards which I strive, joined, I hope, with others. It is therefore less a series of propositional utterances than a commitment to taking political conversation seriously” (Constitutional Faith, 1988, p. 193). I share the authors' desire that public policy not be grounded simply on the desire for immediate gratification. They have mounted a persuasive defense of one way of avoiding this outcome. Although I may disagree that rolling back the regulatory state is the proper way to accomplish it, taking political conversation seriously is a commitment on which I am sure that we all agree.