Implementing the Constitution
by Richard H. Fallon, Jr.
Harvard University Press * 2001 * 137 pages * $37.50
Reviewed by George C. Leef
Everyone likes to claim that the Constitution supports his preferred ideas on the role of government. Libertarians, including this reviewer, argue that interventionist measures such as Social Security are not merely bad, immoral policy, but unconstitutional to boot. Statists, however, are prone to claim that the Constitution authorizes the full panoply of legislative, executive, judicial, and administrative actions that have to such a great extent politicized the nation and moved us toward socialism. Who is right?
Harvard law professor Richard Fallon is certainly in the camp that sees the Constitution as justifying our super-sized government. Although he believes in the need for federal programs to regulate the economy, redistribute income, and so on, Fallon has written a provocative book that, if nothing else, should cause those of us with a deep commitment to liberty to think more seriously about the Constitution.
A central dispute that the author seeks to resolve is the proper way for judges (especially Supreme Court justices) to decide cases. He sets forth two radically opposed views on that question before proceeding to explain his own ideas. The first view is "originalism," the belief that the correct decision in a constitutional dispute is the one that best fits the original intent of the Founders (or amendment drafters). The second is what Fallon labels the "forum of principle" view, which would have judges always decide cases in accordance with crucial philosophical principles. The first approach requires that judges mainly be good historians; the second that they be good philosophers.
Fallon rejects both approaches. Originalism, he argues, is impractical because of "the gap between the framers' world and that which we inhabit." "No one," he continues, "contemplated Social Security, Medicare, or a nationally-funded welfare system." That is a standard statist argument-the world has changed in ways that require a far more expansive and powerful government than we needed back in the simpler days of the eighteenth century. But it's a bad argument. Madison and his colleagues did contemplate redistributive policies, but understood that they're inherently destructive and gave Congress no power to adopt them. That decision, based on a solid understanding of human nature, is just as sound today as it was in 1787.
Next, Fallon argues that if we had adhered to originalism, we wouldn't have had Court-mandated improvements in our political life, such as the "one-man, onevote" rule announced in 1962, which compelled states to create legislative districts with equal numbers of citizens. …