- Garrett Epps
- Oxford University Press
- 304 pp.
- Reviewed by David M. Skover
- September 18, 2013
A constitutional camerado inspires us to read our founding document.
Constitutional interpretation has long been a site of contestation. And the contest continues without any sign of ending.
“Originalists” — those who search for the original understanding of the Constitution’s text — battle among themselves. They have splintered into camps that honor the original intent of the framers (e.g., Robert Bork and Raoul Berger), or that highlight the importance of the original public meaning (e.g., Randy Barnett and Keith Whittington), or even that propose a more liberal “living originalist” understanding (e.g., Jack Balkin).
Of course, all originalists also war against “non-originalists” — those who espouse alternative methods of constitutional interpretation. These figures emphasize everything from the primacy of unwritten “natural rights” (e.g., Thomas Grey) to the judicial development of constitutional “common law” (e.g., David Strauss) to conformity with moral philosophical tenets (e.g., Ronald Dworkin).
What unifies all of these scholars, however, is that their theories of interpretation seek to decipher a definitive meaning of the Constitution’s text, especially for its grandest and most ambiguous clauses (e.g., “due process of law,” “the equal protection of the laws,” “the freedom of speech”).
Into the fray now leaps another constitutionalist, but this one with very different objectives and refreshing new — and, perhaps, surprising — methodologies. In American Epic: Reading the U.S. Constitution, Garrett Epps, Professor of Law at the University of Baltimore Law School, renders a reading of the complete Constitution (“even,” as he puts it, “the ‘boring’ parts”). More precisely, he invites us to “read it together,” as he offers to be our “camerado, a companion on the open road” of the Constitution’s text. In this sojourn, Epps has distinct and unconventional purposes. “I don’t want to explain the Constitution to you,” he stresses. “I do not want to tell you what it means.” Rather, he asks us — all of us who “worship the Constitution so deeply that [we] find its actual text a distraction” — to become, as the Russian writer Vladimir Nabokov put it, “Good Readers” who carefully and creatively construe a text, “armed with a dictionary, some imagination, a good memory, and some artistic sense.”
Not only is Epps a constitutional scholar and teacher, but he is also ajournalist, a novelist, a literary critic and a published poet “with an overwhelming fascination and concern for words in themselves.” These diverse vocations influence Epps’ fashion of reading the Constitution. He uses and asks us to employ four modes of reading — scriptural (similar to literal biblical exegesis), legal (akin to statutory construction), lyric (as in the study of lyric poetry) and epic (resembling literary analysis of epic narratives).
It is no coincidence that Epps titles his book American Epic, since it is that style of reading that pervades his innovative enterprise of constitutional interpretation. Walt Whitman, Epps tells us, considered his epic poem, “Leaves of Grass,” to be “a companion work to the Constitution.” Referencing “I Hear America Singing,” Epps waxes: “Whitman’s poems often consciously depict the process of ‘singing’ America — putting our nation into words. What better metaphor for constitution-making could there be?”
Delivering on his promises, Epps moves purposefully and fluidly among his four modes of reading as he proceeds article by article and clause by clause through the Constitution’s text, from the Preamble to the 27th Amendment. It is impossible in this brief review to depict that long journey except by way of a few telling examples. An appreciation of the entire constitutional expedition requires, of course, a full reading of American Epic.
What does Epps make, then, of the Preamble, particularly the first three nominative words, “We the People,” and the active verbs “do ordain and establish”? Here the author is at his epic narrative best. The invocation of “the People” resonates, in his mind, with the invocation of the Goddess in Homer’s Odyssey or Virgil’s Aeneid, paraphrased as “Tell me, Muse, how it all began.” Thus Epps observes: “In epic poetry, the poet speaks the Goddess’s words; in constitution-making, the drafters speak to us in our own voice.” And to what end? Not simply to set up a government, but to “ordain” and “establish” a governing text — terms pregnant with religious significance (e.g., the ordination of ministers; the establishment of churches). “We can read these words,” Epps concludes, “as creating a national religion, one at which we still worship.”
Lyric poetic analysis dominates his readingof the Second Amendment, a provision that Epps considers to be “as delicate and suggestive as a poem by Emily Dickinson.” Applying “a Dickinsonian eye” to the text, Epps urges us to “become involved as much in what is not said as in what is.” First, he organizes the text into a four-line strophe: “A well regulated Militia, / being necessary to the security of a free State, / the right of the people to keep and bear Arms, / shall not be infringed.” Then he introduces a “duel of meanings” for each line, “closely akin to the studied ambiguity of poetry.” Because Epps does not intend to tell us what the text means, his reading is more suggestive than settled, more discursive than definitive. In the end, he concedes that lyric poetry will yield to more lawyerly talk in the Supreme Court’s precincts, as the justices breathe new life into the amendment: “It is thus in the interests of everyone concerned with the role of firearms in society to contribute more than images and myths to a reasoned resolution of this question.”
Above all, Garrett Epps is a law professor— and a fine one at that. His reading of the 11th Amendment displays his lawyerly skills, those associated most strongly with his legal (or statutory interpretive) mode of analysis.What may drive this choice, in no small part, is Epps’ characterization of the provision as “mostly the preserve of lawyers.” It is here that judges, practitioners and students of the law who peruse American Epic will find themselves in their comfort zones. Epps analyzes the amendment’s injunction — “the judicial power … shall not be construed” — by resorting to the lawyer’s typical toolbox. He examines the history of Chisholm v. Georgia (the Supreme Court ruling that catalyzed the amendment’s passage); he analyzes different dictionary definitions of “construe”; he compares terminology relevant to the grant or withdrawal of judicial power (e.g., Article 3’s use of “extend” vs. the 11th Amendment’s use of “construe”). All of this reveals the thorny thicket in which judges and lawyers find themselves when they must interpret the amendment’s safeguards for state sovereign immunity. Different readings, of course, have different effects. And those effects have everything to do with the operation of separation of powers, federalism and individual rights enforcement — the very structural principles on which the Constitution rests. No small matter for constitutionalists.
All considered, if you want an explication of the Constitution’s textual meaning, or an examination of its doctrinal analysis, or an exploration of its underlying normative theory, then American Epic is not for you. If, however, you want a constitutional camerado to “wander through the Constitution” with you, to stimulate you with intriguing modes of reading, and to provoke sometimes remarkable and sometimes whimsical thoughts, you could not find a better companion than Garrett Epps.
David Skover is the Fredric C. Tausend Professor of Constitutional Law at Seattle University School of Law. He is the co-author (with Ronald Collins) of two books released in 2013 — Mania: The Story of the Outraged and Outrageous Lives that Launched a Cultural Revolution and On Dissent: Its Meaning in America.