Synopses & Reviews
In
Webster v. Reproductive Health Services, a critical abortion rights case, a bitterly divided Supreme Court produced no less than six different opinions. Writing for the plurality, Chief Justice Rehnquist attacked the trimester framework established in
Roe v. Wade because it was "not found in the text of the Constitution or in any place else one would expect to find a constitutional principle." This approach, writes legal authority Joseph Goldstein, confuses constitutional
principles (in this case, the right to privacy) with the
means to protect them (here, the trimester system). As a result, the Court left the public bewildered about the constitutional scope of a woman's right to reproductive choice--failing in its duty to speak clearly to the American public about the Constitution.
In The Intelligible Constitution, Goldstein makes a compelling argument that, in a democracy based upon informed consent, the Supreme Court has an obligation to communicate clearly and candidly to We the People when it interprets the Constitution. After a fascinating discussion of the language of the Constitution and Supreme Court opinions (including the analysis of Webster), he presents a series of opinion studies in important cases, focusing not on ideology but on the Justices' clarity of thought and expression. Using the two Brown v. Board of Education cases, Cooper v. Aaron, Regents of the University of California v. Bakke, and others as his examples, Goldstein demonstrates the pitfalls to which the Court has succumbed in the past: Writing deliberately ambiguous decisions to win the votes of colleagues, challenging each others' opinions in private but not in public, and not speaking honestly when the writer knows a concurring Justice misunderstands the opinion which he or she is supporting. Even some landmark decisions, he writes, have featured seriously flawed opinions--preventing We the People from understanding why the Justices reasoned as they did, and why they disagreed with each other. He goes on to suggest five "canons of comprehensibility" for Supreme Court opinions, to ensure that the Justices explain themselves clearly, honestly, and unambiguously, so that all the various opinions in each case would constitute a comprehensible message about their accord and discord in interpreting the Constitution.
Both a fascinating look at how the Court shapes its opinions and a clarion call to action, this book provides an important addition to our understanding of how to maintain the Constitution as a living document, by and for the People, in its third century.
Review
"Goldstein brilliantly expounds the Supreme Court's failure to discharge a major obligation--making the law of the Constitution understandable--and points the way to a cure. This book deserves a wide audience in addition to the nine persons in need of his message."--Judge Robert Bork
"A powerful call for clarity and candor in the writing of judicial opinions....His message is far-reaching."--Alan Dershowitz, The Boston Herald
"Very few books offer as high a return on as small an investment of time....Well worth reading."--ABA Journal
"This is a thoughtfully and beautifully written book about language and the law. It concerns the clarity or lack of clarity of the opinions of the Supreme Court of the United States....Goldstein is wise and bold in his diagnosis and in his prescription. His solution is what mathematicians call 'elegant.'"--Appellate Practice Journal
"The Intelligible Constitution...is persuasive, fascinating, and excellent!"--Roy M. Mersky, University of Texas at Austin
Synopsis
Both a fascinating look at how the Court shapes its opinions and a clarion call to action, this book contributes to our understanding of how to maintain the Constitution as a living document, by and by for the people, in its third century.
About the Author
Joseph Goldstein is Sterling Professor of Law at Yale University Law School, and is the author and coauthor of a number of books on the law, including
The Government of a British Trade Union,
Beyond the Best Interests of the Child, and
Criminal Law, Theory, and Process.