Book Review

Engaging and provocative, Keeping the Faith is a book that deserves a wide audience among those interested in constitutional history. The heart of this study is the civic religion thesis that Semonche uses to evaluate the U.S. Supreme Court's work, but it should be said at the outset that there is more here than a novel thesis. Semonche is able to summarize Court history compellingly and efficiently. The history of the Court—albeit told so many times previously—comes alive again in the hands of this skilled synthesizer.	1
Although theological terms are used repeatedly to describe the Court's work, it should be emphasized that the author is not referring to traditional religion. The civic religion he has in mind is much closer to what many would refer to as traditional civics, which includes the importance of individual rights, the protection of diversity in a multicultural country, the primacy of the Constitution, and the special place of the Supreme Court as the interpreter of that Constitution. The protection of individual rights is found to be the special province of the Court throughout. For example, as early as Marbury v. Madison, even though relief was denied, Chief Justice John Marshall confidently asserted Marbury's rights. The justices are repeatedly characterized as priests and the trust given them is sacred.	2
Protecting individual rights is the core of the civic religion. More, however, than the mere text of the Constitution must be interpreted. Semonche argues that originalists—those who emphasize the original constitutional text—close off discussion. He is accordingly critical of progovernment naturalization cases. His civic religion is not text bound. There is an aspirational aspect to the civic religion.	3
In the civic religion, the trinity is the Constitution, the law, and the Supreme Court. Even James C. McReynolds spoke for liberty in his defense of German language instruction and the right to send children to private religious schools. Although Semonche is not particularly focused on the personalities of the justices, the liberty the incorrigible McReynolds was mostly interested in, with the exception of those two remarkable cases, was the liberty of businessmen to do what they wanted without government interference. His behavior in those two cases, in which he did defend noneconomic individual liberties, is quite atypical.	4
Felix Frankfurter does not fare well in this account of Court history. His emphasis on federalism is not included as a legitimate part of the civic religion. Hugo Black's ongoing insistence on a literal reading of the individual rights he found in the Bill of Rights is clearly favored.	5
In the contemporary period, William J. Brennan is seen as the ablest exponent of the civic religion. His views on, for example, reapportionment are approved because they are most consistent with the consent of the people, another tenet of the civic religion. And again, Frankfurter is on this issue a heretic (a word the author mostly avoids).	6
The tenets of the civic religion tend to expand, topic by topic, particularly when the author reaches recent cases involving the Warren Court. They include the need to unify a diverse people and the proposition that claims of conscience must be treated equally.	7
Viewed simply as constitutional history, Keeping the Faith is very good. Whether the civic religion thesis, which is emphasized throughout the book, adds or detracts from the effort will be for the reader to judge. Semonche feels his theoretical organization is more persuasive than the two alternatives he considers, which are that the Court be viewed as an umpire of the federal system or that the Court be seen as an arbiter of social and individual interests. And Robert Bork's contrary view—that a moral vision is irrelevant to the work of the Court—is discarded as a position that thoroughly alienated the American public when he was rejected for a justiceship in 1987.	8
Not everyone will be pleased with describing the Court in religious terms. It was the Old Curmudgeon, Harold Ickes, who ridiculed the 1930s Court when he observed that all that was left was "to declare that the Supreme Court is immaculately conceived; that it is infallible; that it is the spiritual descendant of Moses and that the number Nine is three times three, and three stands for the Trinity" (198). Moreover, the terms of the civic religion are none too certain. What precisely is meant by an "aspirational" view of the Constitution? Even though Hugo Black is identified as a defender of the civic religion in much of the book, there is no doubt he, too, like Frankfurter for aspiring too little, would prove wanting before an expanding civic religion. Also, any justice who was inclined to believe institutions other than the Court should decide issues is likely to be viewed as acting inconsistently with the civic religion. In short, the thesis may argue too much. A Final concern with the thesis is that it makes it difficult to criticize the Court. Even Story's defense of the Fugitive Slave Act (although John McLean's concurrence is clearly identified as a better view) is understood as consistent with the priestly role of interpreting the Constitution. Utilizing the emotion-laden language of religion makes critical institutional analysis unnecessarily complicated.	9
Nonetheless, whatever concerns one might have about the thesis, there is no doubt that this is an intriguing book. Were it merely a chronology, with the author's views offered without the ballast of religious imagery, it would still be of special interest. Semonche is able to condense a good deal in a few paragraphs, his grasp of the full range of the Court's history is exemplary, and he has developed a distinctive thesis that will catch the attention of both scholars and general readers of serious nonfiction.	10
David N. Atkinson University of Missouri-Kansas City

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