Taking the Constitution Seriously by Walter Berns (Simon & Schuster: $19.95; 225 pp.)

This is a book that, I am sure, Atty. Gen. Edwin Meese III would warmly recommend. After 185 pages of painstaking history in which we hardly move out of the late 18th Century and in which Prof. Walter Berns deals in exhaustive detail with the factual making of the U.S. Constitution, he suddenly jumps two centuries and comes out with what seems to be his main reason for writing the book in the first place: “The public good describes that area where the judges may not intrude, the area where what is done may be done only with the consent of the governed. Private rights describe that area where the public may not intrude, the area where what is done may be done without the consent of the governed.

“The situation is confused today because the judges, and more precisely, the Supreme Court justices, have taken upon themselves the authority to create rights, and with every right created they have narrowed the range of that public or political area.”

We are slap-bang in Meese territory, with an unabashed exposition of the “original intent” theory of interpreting the Constitution. In the bare 40 pages that remain to him, Berns slates Justice William J. Brennan Jr. as “the prince of revisionists,” describes Justice Harry A. Blackmun’s “most enduring legacy to the American people” as his majority opinion in Roe vs. Wade, the Supreme Court decision that legalized abortion (and of which clearly the good professor disapproves) and has a sideways slap at Justice Thurgood Marshall’s staunch opposition to the death penalty as being a “cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments” and therefore unconstitutional.

In particular, he takes Marshall to task for saying: “For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” That is the whole reason for having “nine wise men” sitting in their rocking chairs in that splendid courtroom in Washington: just so it should be done. You could perhaps argue that I am prejudiced because that is how we develop our most fundamental legal principles in England. We have no written constitution. We have to trust our judges to interpret our (jointly shared) ancient Common Law and, yes, parliamentary statutes as well in the spirit of a continuum of helping the old to shape the new.

Perhaps, in the end, it does boil down to a question of trust. Americans--even their most distinguished scholars such as Berns--do not seem to trust their senior judges to do what they consider right: at least when they do not agree with them. They want continually to hamstring them with slavish dependence on words that were coined two centuries ago and that Berns himself in the greater part of his text clearly shows to have been much as one might have expected it: often the result of political in-fighting and compromise. Legislative battles “on the Hill”--and I know the Constitution was not hammered out in Washington, which did not even exist then!--have not changed in essence over the years.

That is why, I would suggest, the great U.S. judges most known to an English lawyer are not the “original intent” thinkers but people such as Chief Justice John Marshall, Justice Oliver Wendell Holmes and Justice William O. Douglas. They were judges who had a vision of their creative role on the bench--and, unlike Berns, I do not find that word “creative” offensive.

What makes his viewpoint, and that of those who think like him, all the more bewildering is that he actually quotes Chief Justice Marshall himself saying, in an 1819 opinion, on Article 1, section 8 of the Constitution: “This provision is made in a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

It is putting the cart before the horse, reversing the natural order of things, to state, as does Berns, “The Framers . . . provided for a Supreme Court and charged it with the task, not of keeping the Constitution in tune with the times but, to the extent possible, of keeping the times in tune with the Constitution.” That is a formaldehyde view of the judicial process.

The British unwritten constitution, changed in many fundamental respects, altered and re-analyzed, has survived triumphant for nigh on a thousand years. And the reason is that it is found not in a piece of paper but in the hearts and minds of evolving generations of living men and women. King John signed Magna Charta at Runnymede in June, 1215. It was, in effect, a statute, but it has long since been repealed. It exists no longer on the modern British Statute Book. But its principles endure--because they are enforced by judges with whom we may disagree at times but with whom, on the whole, and as a body, we trust.