Overview

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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9780195093759

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Goldstein brilliantly expounds the Supreme Court's failure to discharge a major obligation--making the law of the Constitution understandable--and points the way to a cure. This book deserves a wide audience in addition to the nine persons in need of his message. --Judge Robert Bork A powerful call for clarity and candor in the writing of judicial opinions....His message is far-reaching. --Alan Dershowitz, The Boston Herald Very few books offer as high a return on as small an investment of time....Well worth reading. --ABA Journal This is a thoughtfully and beautifully written book about language and the law. It concerns the clarity or lack of clarity of the opinions of the Supreme Court of the United States....Goldstein is wise and bold in his diagnosis and in his prescription. His solution is what mathematicians call 'elegant.' --Appellate Practice Journal The Intelligible Constitution...is persuasive, fascinating, and excellent! --Roy M. Mersky, University of Texas at Austin Goldstein brilliantly expounds the Supreme Court's failure to discharge a major obligation--making the law of the Constitution understandable--and points the way to a cure. This book deserves a wide audience in addition to the nine persons in need of his message. --Judge Robert Bork A powerful call for clarity and candor in the writing of judicial opinions....His message is far-reaching. --Alan Dershowitz, The Boston Herald Very few books offer as high a return on as small an investment of time....Well worth reading. --ABA Journal This is a thoughtfully and beautifully written book about language and the law. It concerns the clarity or lack of clarity of the opinions of the Supreme Court of the United States....Goldstein is wise and bold in his diagnosis and in his prescription. His solution is what mathematicians call 'elegant.' --Appellate Practice Journal The Intelligible Constitution...is persuasive, fascinating, and excellent! --Roy M. Mersky, University of Texas at Austin You brightened [a] weekend for me. I allowed myself the pleasure of reading The Intelligible Constitution....I can earnestly hope that the Nine can and will be persuaded to adopt your idea of a final-phase conference....It would be wonderful if they coud be brought to face the job and face each other in doing it as you recommend. All of us should be touting this splendid idea. --Marvin E. Frankel, Former Federal Judge In The Intelligible Constitution, one of our great teachers teaches greatly once again. I only pray hope the intended audience pays attention. --John Hart Ely, Stanford University While constitutional scholars debate the esoterica of interpretive theory, Professor Goldstein has addressed the heart of the matter--that the Constitution belongs not to a legal elite, but to all of us. The Intelligible Constitution is a wonderful book, by one of our greatest law teachers. --H. Jefferson Powell, Duke University A bold and brave appeal to restore the Constitution to the people. Professor Goldstein calls on the Supreme Court for comprehensibility, clarity, candor, and integrity in its opinions--and shows how these qualities have been lacking. By insisting that the Court must not merely decide but must also explain and communicate, Goldstein would enable the people to exercise their sovereign role once more. --Charles A. Reich, Yale Law School

`I responded most favourably to the fresh air one breathes while reading the manuscript...In addition to constitutional law scholars, I think that it would appeal to those law schools who study jurisprudence, and also those whose interests are in law and humanities more generally. Outside of law schools, political scientists are a possible audience, but I think that those who study 'communications' or 'rhetoric' would be even more interested. Last of all, I think this book might well be read by that mythical beast, the common reader.' Robert Nagel, University of Colorado

Author Information

Joseph Goldstein is Sterling Professor of Law at Yale University Law School, and is the author and coauthor of a number of books on the law, including The Government of a British Trade Union, Beyond the Best Interests of the Child, and Criminal Law, Theory, and Process.

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