REVIEWSrnConstitutionalrnDisorderrnby George W. CareyrnRecapturing the Constitution: Race,rnReligion, and Abortion Reconsideredrnby Stephen B. PresserrnWashington, D.C.: Regnery Publishing;rn398 pp., $24.95rnThe Supreme Court, as StephenrnPresser laments, has wandered farrnoff course; increasingly its Justices haverntaken to reading their own preferencesrnand prejudices into the Constitution,rnthereby abandoning their solemn obligationrnto act as its guardians by interpretingrnits provisions in accordance with the basicrnvalues and intentions of the Framers.rnWhat is more, he points out, not onlyrnhas the Court assumed powers it wasrnnever intended to have, its decisions onrncrucial constitutional issues have embracedrnvalues and principles clearly antitheticalrnto those of the Founders. In sorndoing, he argues, the Court has contributedrnits share to our cultural degeneration.rnIn sum, he is convinced that “ThernSupreme Court has lost its way, and it isrntime for the people to recapture thernConstitution.”rnPresser, a professor of law at NorthwesternrnUniversity, proceeds logically inrndeveloping his case. To show that thernCourt has gone astray, he endeavors tornreconstruct the metaphysical foundationsrnof the Framers’ thought. He thenrnproceeds, by way of demonstrating whatrnwent wrong, to explain the origins andrnmeaning of substantive due process andrnselective incorporation, before going onrnto critique the Court’s decisions in thernareas of racial integration, reapportionment,rncriminal procedures, the establishmentrnand exercise of religion, and abortion.rnAfter this groundwork, he showsrnTo order these books, (24hrs, 365 days)rnplease call (800) 962-6651 (Ext. 5200)rnhow the Court’s decisions regardingrn”race, religion, and abortion” can bern”corrected,” that is, rendered compatiblernwith the original meaning of the Constitution.rnThe final chapter he devotesrnto specifying the more fundamentalrnchanges, such as amendments, that arernneeded to “recapture” the Constitution.rnCrucial steps in Presser’s approach andrnanalysis point to the enormous difficultiesrnconfronting those who are intent onrnshowing that the modern Court is, inrnfact, operating contrary to the intentionsrnof the Founders. We also come to seernthat devising an effective means to controlrnthe Court by confining it to the performancernof its legitimate functions, i.e.,rnthose intended by the Founding Fathers,rnis no easy matter.rnBy way of illustrating these difficulties,rnwe can best begin with Presser’srnapproach to determining “originalrnintentions” marked out in the first twornchapters. The title of Chapter One,rn”Clarence Thomas, the Constitution,rnReligion, Property, and the Rule of Law,”rnis an indication that he is heading intornmuddy waters. And this turns out to bernthe case when he hails the appointmentrnof Clarence Thomas to the Court on therngrounds that Thomas’s approach to constitutionalrninterpretation, as evidencedrnprincipally in his speeches prior to hisrnnomination, acknowledged the centralrnrole of the “natural law” in our constitutionalrntradition. Yet, as most contemporaryrnstudents of American politicalrntheory know well, Thomas was only reiteratingrna view of the American traditionrnand its abiding values first articulatedrnand championed by Professor Harry Jaffa.rnAs Jaffa would have it, the Constitutionrnmust be interpreted through thernprism of the Declaration of Independence;rna position which he recognizes isrnat odds with “originalism” as understood,rnsay, by Robert Bork. (So much isrnevident from the sharp exchanges betweenrnthe two, the most recent beingrnover Bork’s review of Jaffa’s recent work.rnOriginal intent and the Framers of thernConstitution.)rnIt is significant that Thomas abandonedrnhis “natural law” approach shortlyrnafter his nomination, largely because, wernmay surmise, its proper articulation callsrnfor refinements, clarifications, and distinctionsrnthat could not be made, orrnwould lend themselves to distortions,rngiven the partisan nature of the confirmationrnprocess. In any event, if the naturalrnlaw is to be brought into the realm ofrnconstitutional interpretation by way ofrn”original understanding,” theoreticalrnprecision is essential because an influentialrnand articulate element of the liberalrncommunity also looks upon the naturalrnlaw, and specifically the Declaration andrnits catalog of natural rights, as justificationrnfor judicial activism. For this reason,rnto employ Presser’s approach successfullyrnentails carefully distinguishing betweenrnversions of natural law, and then convincinglyrnshowing which version prevailedrnduring the founding period.rnThere must also be, given the characterrnof Presser’s approach, an inquiry into thernintended role of the judiciary withrnrespect to the natural law of whateverrndescription, e.g., whether perhaps thernnatural law itself indicates that the judiciary,rnas opposed to, say, the legislature,rnis better equipped to “discover” andrnimplement its principles.rnPresser’s handling of these and likernconcerns leaves a good deal to be desired.rnHe relies heavily on Justice SamuelrnChase, one of the more controversial figuresrnduring the early years of the republic,rnin sketching the outlines of the naturalrnlaw. He does not probe deeply intornthe literature of the founding era, neverrnexploring, for instance, the extensive andrnhighly pertinent primary materials in thernHyneman/Lutz volumes, American PoliticalrnWritings during the Founding Era,rn1760-1805 or the important findings ofrnM.E. Bradford. Perhaps his use, andrnnonuse, of The Federalist best illustraternthe tenuous character of his analysis. Herncontends, for instance, that the Framers’rnnotion of a republic, as opposed to theirrnunderstanding of democracy, embodiedrn”supraconstitutional principles” of thernnatural law, a distinction that he uses tornadvantage at various places in his discourse.rnPresser’s contention, however, isrncontradicted by Publius’s definition ofrnrepublic found in Federalist 39, a definitionrnthat is totally devoid of any “supraconstitutionalrnprinciples.” At the samerntime, he seeks to bolster his view ofrn”original understanding” by reading toornmuch into The Federalist. On this score.rn30/CHRONICLESrnrnrn