Schweber, THE LANGUAGE OF LIBERAL CONSTITUTIONALISM

Mark Graber

Howard Schweber's, THE LANGUAGE OF LIBERAL CONSTITUTIONALISM is the latest really good book that has crossed my path. Professor Schweber's central argument is that constitutional commitments are best understood as commitments to speak a particular constitutional language than as commitments to specific policy outcomes. This strikes me as largely right and explains, for example, why constitutional framers could draft such language as "Congress shall make no law respecting an establishment of religion" knowing that no firm agreement existed on what constituted an establishment of religion. What mattered to the framers was that the constitution committed Americans to having conversations about what constituted an establishment of religion and that there was a good deal of merit in creating a commitment to the conversation, even if no particular results were guaranteed. More generally, the book combines a very learned discussion of the central role of language in liberal political theory (the discussion of Hobbes is particularly interesting) with a nice theoretical exegesis on how language both appropriately constrains and frees constitutional polities. As both Professor Levinson and Elkin (CONSTITUTING THE COMMERCIAL REPUBLIC) are likely to point out, Professor Schweber's approach highlights constitutional powers and rights at the expense of constitutional institutions (most of which are quite plainly detailed in the constitutional text). Still, as numerous constitutional theorists have pointed out, the structure of constitutional institutions demonstrates that the constitutional framers knew how to use specific language when the circumstances warranted such language. THE LANGUAGE OF LIBERAL CONSTITUTIONALISM is a wonderful mediation on the history, theory, and consequences of the language the framers did choose when writing our fundamental law.
Posted 11:28 AM by Mark Graber [link]