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.
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