Book Reviews

His latest book, The Supreme Court's Con stitution, is in the tradition of Richard Epstein and Stephen Macedo-and Thomas Jefferson, for that matter. The theme of the book is that the Supreme Court has strayed from the original intent of the Founding Fathers, and over the last 200 years has systematically usurped legislative power. Congress is supposed to make Federal laws, yet that function increasingly has been taken over by the Supreme Court. Various Supreme Court justices, over the past 200 years, have found political rig~ts ~hat are not explicitly protected in the ConstItutIon, and have denied economic rights that the Con stitution is supposed to defend. Over the years, the Court has ranked political liberties above economic liberties, without recognizing that political and economic liberties are two sides of the same coin-individual liberty. The Court has consistently failed to look at the founders' original intent, and instead rendered decisions based on sociological theory, an approach that weakens the rule of law: . . . The Court would find it most difficult if not impossible to prove that a majority of the persons responsible for framing the relevant sections of the Constitution provided auOTHER BOOKS 415 thority for major rulings the Court has im posed. A great many in the society have been affected both favorably and unfavorably; rights and powers have been created for some and denied or withdrawn from others, depending on the composition of a majority of the Court at a particular time. Such prac tices erode the rule of law, at the root of con stitutional government.

The book is not easy reading, not because Siegan's style is unclear, but because of the na ture of the subject. It is difficult to write about complex constitutional theory in terms t~at a nonprofessional can understand. But Slegan does a good job of stating his case without wa tering down the content of what he is saying. The hook is scholarly and nonpolemical. In fact, in some cases it is difficult to determine what Siegan' s position is because of the histor ical approach he takes. One chapter was partly taken from one of his law review articles. Each of the eight substantive chapters contains be tween 30 and 160 footnotes. Readers who want to delve deeper into one of Siegan's topics can use these footnotes to advantage. The index is also quite good for those who want to find quickly what he has to say on a particular sub ject. Of the many constitutional topics that could be analyzed, Siegan chooses eight as represen tative of how the Court has strayed from the Founding Fathers' original intent: federalism, implied powers, and the necessary and proper clause; paper money and legal tender; eco nomic and property rights; classification on the basis of race; the establishment of religion clause; gender; abortion and sexual privacy; and the first amendment and libel. In each case, he establishes the founders' original intent, and shows how each area has evolved over the last two centuries. In many cases, original intent has been ignored by the Court. A number of times, the Court's view on a particular topic has reversed 180 degrees as the Court's mem bership changed, ~ development which is dis turbing to those who think society should be guided by the rule of law and not the rule of men.

The chapter on federalism, implied powers, and the necessary and proper clause discusses 416 THE FREEMAN. OCTOBER 1988 what went on at the Constitutional Convention and the effect Hamilton and Madison had on the final wording of the Constitution. Some early court decisions also are discussed, most notably the constitutionality of establishing a national banle The chapter on paper money and legal tender outlines the founders' position on paper money (they were against it) and how a series of decisions expanded the federalgov ernment's authority to issue paper currency in wh41teverquantities it saw fit. The result is that the federal government can cause the very in flation the founding fathers sought to avoid. Siegan says that the Court has rel~gated eco nomic liberty to a position of low priority over the last four decades, but I would posit that economic li1?ertieswere accorded second place status much earlier than that. Any cut-off date, of course, is arbitrary. The Court now pre sumes that a law restricting economic liberty is constitutional, and it is the aggrieved Party's burden to overcome that presumption. Siegan r~views som~ of the more prominent cases in the area of econoIllic regulation.

The Civil Rights Acts have been interpreted over the years to mean something very different froIll what the drafters intended. The equal pro tection clause of the 14th Amendment has been twisted and turned in so many directions that it now means whatever any five Supreme Court justices say it means. A wall has been con structed by the Court separating church from State, although there is no evidence to suggest that the founders intended any such wall to be erected. The Court has become legislator in gender cases, especially since 1971. Abortion cases were decided on the basis of the indi vidual justices' personal views, and legal theo ries were found to support those views rather than to form them. Since 1964, the Court has tended to decide libel and First Amendment cases on a sociological basis rather than at tempting to determine the intent of the framers. Siegan shows a consistent pattern in eight constitutional areas which makes it easy for the reader to see that failure to consider original in tent has resulted in a weakening of the Consti tution and the rule of law: . . . Justice demands the rule of law and not of individuals. By comparision, those who refuse to be bound "by the hand of the past"

confront the troublesome question of how much discretion courts should have in de parting from the document's original meaning. Because no absolute answer to this question exists, omitting the restraint of strict construction accords immense authority to five of nine people who, at anyone time, happen to occupy the highest judicial seats of power. They would then have unlimited power to define contemporary values and concerns, an exercise that is highly subjec tive. 0 (Professor McGee holds a law degree and teaches accounting at Seton Hall University.) BOOKS FROM FEE, 1988--89 A copy of our latest catalogue was sent to everyone on our mailing list with the September issue of Notes from FEE. Extra copies of the catalogue are available on request. We continue to stock a wide variety of books, ranging from the easily understood works of Bastiat to the complex writings of Hayek and Mises. If you are just starting to study the freedom philosophy, you may find the Introductory Book Sets of special interest (see pages 6 and 7). If we can assist you with additional recommendations, please write to us. (If you're curious about which books sell best, turn to the inside back cover of the catalogue for a list of last y~ar'5 favorites.) THEFREE IDEAS ON LIBERTY 420 The Pilgrims in Holland Robert A. Peterson Preparing for self-government in the New World.