WHITEWASHED: AMERICA’S INVISIBLE MIDDLE EASTERN MINORITY

by John Tehranian. New York: New York University Press, 2008. 256pp. Cloth. $35.00. ISBN: 9780814783061.

Reviewed by Steven Tauber, Department of Government & International Affairs, University of South Florida. Email: stauber [at] cas.usf.edu.

pp.414-416

Middle Easterners living in the United States face a glaring contradiction concerning their racial status. On the one hand they have experienced the same kinds of discrimination that other racial and ethnic minority groups (e.g., African Americans, Latinos, Asian Americans, and American Indians) have experienced. Middle Eastern Americans have been subjected to employment discrimination, race-based harassment, and racial profiling, especially since the attacks of September 11, 2001. In fact, whereas civil rights has improved for Blacks, Latinos, Asian Americans, and American Indians, the civil rights situation for Middle Easterners has deteriorated. Despite this discrimination, Middle Easterners are not officially regarded as a racial and ethnic minority group. The American government formally treats them as white for the purposes of the census and does not include them in affirmative action programs.

Despite this glaring contradiction in the treatment of Middle Easterners, most public policy makers, legal scholars, historians, and social scientists have ignored Middle Easterners in their analyses of minority group law and/or politics. Fortunately, John Tehranian’s WHITEWASHED: AMERICA’S INVISIBLE MIDDLE EASTERN MINORITY addresses this gaping hole in the extant literature, and he provides an important contribution to the dynamic study of the legal and political status of racial and ethnic minorities in the United States.

Tehranian bases his analysis of the racial status of Middle Easterners on three theoretical frameworks. Tehranian employs Said’s Orientalism approach, which critiques Western scholars for viewing Middle Easterners through the lens of their Western culture – a form of scholarly imperialism. He also frames his analysis through the social construction of race literature, which emphasizes how the law, culture, and the media have constructed race in general and the status of Middle Easterners in particular. Finally, Tehranian uses critical race theory, but unlike previous critical race scholarship that focused on Blacks, Latinos, Asian Americans, or American Indians, he critically examines the treatment of Middle Easterners.

The first part of the book traces legal and political history of the construction of race in United States. Chapter One explains how the concept of race is socially, not biologically, determined. Moreover, Tehranian’s analysis of nineteenth century immigration cases demonstrates that the law has contributed heavily to the social construction of race in general. Despite the common view that racial categories are based on physical features, such as [*415] skin color, Tehranian shows that they are based on how well legal actors believe a group can assimilate into American society. He refers to this standard as “performing whiteness;” that is, how much does a group act as if it is white in terms of language, economic achievement, and cultural assimilation. Chapter Two analyzes the history of immigration law concerning Middle Easterners in particular, and it demonstrates that they have been traditionally regarded as white. Chapter Three expands this focus by explaining that throughout much of American history Middle Easterners acted white and assimilated into the dominant culture and economy; however, in recent years, especially after September 11, 2001, Americans have perceived Middle Easterners as alien and in some cases dangerous. Out of fear of facing discrimination and profiling, many Middle Easterners have hidden their cultural and religious identities to act more “white.” Chapter Four blames the media, especially the entertainment industry, for perpetuating the stereotype that Middle Easterners are violent, intolerant, and misogynistic.

The second part of the book focuses more on the contemporary legal status of Middle Easterners. Chapter Five examines how Middle Easterners have lost civil rights and civil liberties in recent years. Tehranian analyzes case law and relates specific examples of discrimination, harassment, and racial profiling. Finally, Chapter Six proposes reforms to alleviate the problems that Tehranian identifies. This chapter emphasizes having the American government treat Middle Easterners as a protected racial and ethnic minority, especially for the purposes of empirically assessing discrimination against them. Tehranian also argues for a greater Middle Eastern presence in academics, and he prods scholars to include Middle Easterners’ racial status as part of their inquiry and debate.

WHITEWASHED makes a major contribution to the study of race and American law. In general, critical race theory scholarship has brought a lively debate to the fields of law, history, and political science. Even those who reject its fundamental tenets must recognize that critical race theory has shaped key controversies over the past two decades. WHITEWASHED undoubtedly adds to that significant debate. However, Tehranian’s work goes even further because it changes the landscape of the critical race theory field, which has been confined mainly to African Americans, Latinos, Asian Americans, and American Indians. By forcing critical race theorists to examine Middle Easterners, who have previously been neglected, Tehranian has succeeded in expanding the scope of a dynamic discipline.

WHITEWASHED is also successful because Tehranian does an excellent job presenting his argument. His analysis of the case law is exhaustive, thoughtful, and well-cited. Not only will legal scholars, historians, and political scientists benefit from Tehranian’s profound scholarship, but this book will also be a tremendous benefit to law students, graduate students, and even advanced undergraduates. In a rare achievement for legal scholarship, Tehranian offers writing that is both erudite and accessible. His lively accounts of personal experiences nicely complement the technical legal analysis. [*416] Readers will be most impressed with the writing in Chapter Four, dealing with the entertainment industry. Tehranian deftly blends sarcasm and pointed criticism to reveal the media’s culpability in the negative portrayals of Middle Easterners.

Despite these strengths, there are a few problems with this book. The discussion is often repetitive, and at times unorganized. For example, Chapter Two focuses on the history of immigration law pertaining to Middle Easterners, but on page 38 the discussion deviates towards the current treatment of Middle Easterners in airports, which was already discussed in the Introduction and covered in great detail in Chapter Five. Additionally, Chapter Four’s main focus is on the entertainment industry’s portrayal of Middle Easterners, but the last part of that chapter (starting on page 106), discusses specific examples of actual discrimination, which again belongs in Chapter Five. There are other isolated examples of this problem throughout the book.

Considering the scholarly quality and thoroughness of this book, the end is somewhat disappointing. At the beginning of Chapter Six (page 165) Tehranian lists eight reforms that would alleviate the problems he uncovers in the first five chapters; however, he neglects to explain in detail most of those reforms in the remainder of the chapter. He should either discuss in detail all the reforms he mentions, or only list the reforms that he plans to discuss. Finally, a two page conclusion for an almost 200 page book is insufficient. Readers, particularly graduate students and law students, require a more substantial summary of Tehranian’s complex argument and a discussion of the implications it has for American law and politics. Although this drawback leaves the reader with a negative impression at the end of the book, the work as a whole is definitely worth reading.

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© Copyright 2009 by the author, Steven Tauber.

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AGAINST PERFECTIONISM: DEFENDING LIBERAL NEUTRALITY

by Steven Lecce. Toronto: University of Toronto Press, 2008. 352pp. Cloth. £45.00/$70.00. ISBN: 9780802092120; Paper. £20.00/$29.95. ISBN: 9780802094476.

Reviewed by Ryan K. Balot, Department of Political Science, University of Toronto. Email: Ryan.Balot [at] utoronto.ca.

pp.409-413

In light of recent challenges to liberal neutrality, Steven Lecce’s book is timely. According to Lecce, previous theorists, whether liberal or not, have typically misunderstood the conceptual foundations of liberal neutrality. In order to clarify the issues and to motivate his discussion, Lecce first revisits debates between Locke and Jonas Proast, J.S. Mill and James FitzJames Stephen, and H.L.A. Hart and Lord Patrick Devlin (Chapters 1-3). He then offers a critical appraisal of the liberal perfectionism of Raz and Dworkin, followed by a vigorous rejoinder to three important critics of contractual arguments for neutrality (Chapters 4-6). Finally, Lecce defends a particular version of contractualism and neutrality, developing his own ideas largely in conversation with Rawls’ POLITICAL LIBERALISM (Chapters 7-10). Lecce’s conclusion, along with parts of Chapter 10, explores the policy implications of neutrality, particularly in response to socialist and feminist critiques.

Lecce’s excursion into the historical controversies is interesting, but his normative arguments owe little to his investigation of them (consider the absence of any reference to these debates in the section entitled “The Argument Revisited,” pp.228-230). Meanwhile, his criticisms of Raz and Dworkin will be familiar to those conversant with the relevant literatures. The heart of the book is the normative account developed in the third part. Within their decidedly circumscribed parameters, Lecce’s arguments are carefully reasoned, plausible, and thorough (occasionally painstakingly so). On the way to fleshing out his own position, Lecce guides the reader through the subtle disagreements among a handful of generically similar or like-minded theorists, chiefly Rawls, Nagel, Barry, and Scanlon. Lecce’s own position bears a close family resemblance to theirs.

Lecce begins with the premise of the “equal primary importance of everyone’s life” (p.186). He helpfully distinguishes his variety of egalitarianism construed as a democratic ideal from arguments that justify moral equality, mysteriously and even incoherently, as he contends, on the basis of human capacities. If we accept democratic equality, then the cardinal question is how to construct a political life that enables citizens to stand in an equal relation to one another; and “the answer,” Lecce argues, “is a democratic politics tempered by contractually generated principles of justice” (p.229). What makes “tempering” necessary is the principle of equal respect combined with the need to take ethical pluralism seriously. Since “thickly” embedded citizens are unlikely (ex hypothesi) to agree on substantive principles of [*410] justice, and since legitimacy, in Lecce’s conception, demands that citizens consent to their polity’s regulative standards, we must find a way to abstract from contentious ethical claims in order to discover mutually acceptable principles. Lecce follows his chief interlocutors in proposing a hypothetical constitutional convention attended by abstractly conceived “reasonable people.” At this convention, perfectionist principles of justice would reasonably be rejected because they are based on controversial ethical or ontological premises. This much is relatively uncontroversial in the literature dominated by the views of Rawls, Nagel, and Scanlon.

At this stage, however, we reach an apparent impasse. As critics such as Simon Caney have asked, how can we be any more certain about liberal neutrality than we can be about comprehensive conceptions of the good? Why do liberal sensitivities to reasonable disagreement over the good not extend to liberal neutrality itself? If neutralists reject perfectionist principles because comprehensive conceptions of the good are not sufficiently certain to warrant imposing them on others, as Barry (for example) argues (p.168), then why should such skepticism not also apply to the hypothetical contract and its (seemingly inevitable) liberal results? Lecce argues that the major accounts of liberal neutrality all fall prey to this kind of objection, which he calls the “reflexivity thesis.” The reason is that previous neutralists have relied unnecessarily on a belief in “epistemic asymmetry” between our knowledge of contractually produced justice and our knowledge of comprehensive conceptions of the good.

Lecce aims to avoid this objection by proposing that it is not epistemic asymmetry, but rather moral equality (to be superseded by “democratic equality” in a later chapter: cf. pp.185-193), that underwrites the contractualist case for neutrality. In his own terminology, Lecce avoids the damning consequences of the reflexivity thesis by devising a conception of “reasonableness as fairness,” as opposed to the more typical “reasonableness as valid argument”: “The content of the reasonable is best elaborated by asking which principles of justice fairly situated hypothetical contractors would choose to regulate the democratic institutions of the civic equals for whom they are trustees” (p.230). Lecce’s distinction between moral and epistemic conceptions of reasonableness is one of the chief sources of his claim to originality, but he does appear to build directly on ideas already explored in Rawls’ POLITICAL LIBERALISM (cf. p.203) and in the work of Scanlon and others (cf. p.224). To his credit, on the other hand, Lecce helpfully sorts out the ambiguities and tensions in Rawls’ discussion of the “reasonable” (pp.210-221), although I am not convinced that Lecce’s thoughtful arguments are enough to refute Rawls’ view that a well-ordered society requires reasonable as opposed to simple pluralism.

To challenge Lecce’s argument on its own terms, I would draw attention to the familiar worry that the contracting situation antecedently “builds in” the principles of justice that theorists purport to derive from it. This not only gives rise to a vicious circle, but also appears, as Habermas and others have urged, to ignore the arguably valuable work of democratic politics. Although Lecce [*411] discusses this “circularity thesis,” as he calls this particular challenge, he gives particularly short shrift to this set of objections (pp.195-200).

There remains, however, the larger concern that L.’s approach is less ecumenical than it might have been. A book entitled AGAINST PERFECTIONISM really ought to confront the doubts about neutralism raised by the diverse perfectionists and non-neutralists writing today: neo-Aristotelians such as Stephen Salkever; republican theorists such as Michael Sandel or Ronald Beiner; capabilities theorists such as Martha Nussbaum; consequentialist perfectionists such as Thomas Hurka; or virtue theorists such as Alasdair MacIntyre, Peter Berkowitz, or Stephen Macedo. Lecce mistakenly assumes that his audience will be as saturated in and fascinated by the intra-mural debates that he examines, as he is. Readers might find that the most serious challenges have not been adequately addressed.

For example, Lecce does not directly grapple with the following, now almost proverbial, criticisms of liberal neutrality: (1) that liberal democracy, despite its characteristically neutralist intentions, constitutes a “regime,” an educative political order that largely erodes the traditional liberal distinctions between public and private; (2) that liberalism itself implicitly offers a conception of the human good, though perhaps not one that is truly admirable; (3) that liberal democracy habitually shuns the virtues, and yet, as many liberal theorists have begun to see, virtues are required to sustain the liberal order; and (4) meanwhile, the liberal order itself presents certain virtues (e.g., civility or toleration) as intrinsically valuable. (For discussion of these criticisms and others, see especially Collins 2006, along with Beiner 1992; Macedo 1990, 2000; MacIntyre 1984; Salkever 1990; Sandel 1996; and many others). As Susan Collins (for one) has argued, more specifically, it is hard to grant that courage, moderation, and justice are admirable and excellent qualities of individuals, and then to propose that these virtues are merely instrumentally useful for enabling individuals to pursue ends that are, by comparison, worthless (such as counting blades of grass or consuming pornography) (Collins 2006: 36-38).

Lecce’s inattention to these broader “perfectionist” challenges is symptomatic of his narrow outlook on political philosophy altogether. At a crucial juncture in his critique of Rawls, the highly Lockean Lecce declares, “The task of the political philosopher is to explain how political justification should proceed, what principles are ultimately justified, and on the basis of which considerations” (p.222). At the risk of minimizing the salience of justification and legitimacy, it is only fair to respond that canonical political philosophers have also focused on questions of ethos and character formation; on civic education; on the dangers and opportunities of rhetoric; on the relationship between economic productivity and political power; and on the development of humanity’s most distinctive and essential capacities. The “other” perspective – i.e., the perfectionist perspective articulated and defended most profoundly by Plato and Aristotle – addresses itself to the deepest and most important dimensions of human existence: scientific, [*412] philosophical, and artistic achievement; the ongoing exercise of deliberative prudence; the satisfactions of civic friendship; the maintenance of a respectful and proportionate attitude toward the natural world and our place within it; and, in general, the healthy development of human beings in whatever ways and to whatever extent they are capable of flourishing. These features of human existence have a serious claim on our attention, whatever religion or creed we do or do not accept. If Lecce understandably urges us to take pluralism seriously, then so too should we insist on creating opportunities for ourselves and our fellow citizens to develop the human faculties even to the vanishing point of excellence. It is the great merit of Lecce’s book to have clarified the neutralist position to a tee, though the book’s corresponding defect is to have polarized the debate between neutralists and perfectionists to an even more desperately irreparable degree.

That is a shame, because the real task of the political philosopher, right now, is to address the rival claims of liberalism and perfectionism without doing serious injustice to either. This will require theorists to avoid the Scylla of liberal bread and circuses (cf. Kateb 1992: 229) and, equally, the Charybdis of tyrannically monolithic visions of human goodness. Achieving this ambitious goal may be virtually impossible – as virtually impracticable, anyway, as Plato’s strategy of empowering philosopher-kings and abolishing the nuclear family. Be that as it may, however, political theorists should not simply throw in the towel. Instead, political theorists should raise their eyes to the horizon and think big – as big, if possible, as Plato did, when he offered his utopian Callipolis as a regulative ideal in the REPUBLIC. It is only by resuming the tradition of enlarged speculation that we can promote equality that refuses to pander and liberty that is not license (cf. Locke, SECOND TREATISE, §6).

REFERENCES:
Beiner, Ronald S. 1992. WHAT’S THE MATTER WITH LIBERALISM? Berkeley: University of California Press.

Collins, Susan. 2006. ARISTOTLE AND THE REDISCOVERY OF CITIZENSHIP. Cambridge: Cambridge University Press.

Kateb, George. 1992. THE INNER OCEAN: INDIVIDUALISM AND DEMOCRATIC CULTURE. Ithaca: Cornell University Press.

Macedo, Stephen. 1990. LIBERAL VIRTUES: CITIZENSHIP, VIRTUE, AND COMMUNITY IN LIBERAL CONSTITUTIONALISM. Oxford: Clarendon Press.

Macedo, Stephen. 2000. DIVERSITY AND DISTRUST: CIVIC EDUCATION IN A MULTICULTURAL DEMOCRACY. Cambridge: Harvard University Press.

MacIntyre, Alasdair. 1984. AFTER VIRTUE: A STUDY IN MORAL THEORY (2d edn). Notre Dame: University of Notre Dame Press.

Rawls, John. 2005. POLITICAL LIBERALISM. New York: Columbia University Press. [*413]

Salkever, Stephen. 1990. FINDING THE MEAN: THEORY AND PRACTICE IN ARISTOTELIAN POLITICAL PHILOSOPHY. Princeton: Princeton University Press.

Sandel, Michael J. 1996. DEMOCRACY’S DISCONTENT: AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY. Cambridge, Mass.: Harvard University Press.

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© Copyright 2009 by the author, Ryan K. Balot.

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GOVERNMENT BY CONTRACT: OUTSOURCING AND AMERICAN DEMOCRACY

by Jody Freeman and Martha Minow (eds.). Cambridge, MA: Harvard University Press, 2009. 552pp. Hardcover $49.95/£36.95/€45.00. ISBN: 9780674032088.

Reviewed by Amanda Harmon Cooley, Department of Management, North Carolina A&T State University. Email: abcooley [at] ncat.edu.

pp.405-408

In the portrait of the “flat” world, as offered by Thomas Friedman, competitive global outsourcing has seen marked increases, while becoming a controversial and sometimes contentious subject in the realms of business and industry. However, it would be naïve to think that this process of outsourcing, which seeks lower costs for products and services with limited regard to the entity that provides them, is solely exercised by private, non-governmental actors. In GOVERNMENT BY CONTRACT: OUTSOURCING AND AMERICAN DEMOCRACY, editors Jody Freeman and Martha Minow, both professors at Harvard Law School, provide a significant forum for discussing the complex issues that arise when governmental functions are no longer performed by public employees but are instead executed by private contractors. Specifically, this edited volume focuses on the United States’ practice of government outsourcing, deemed by the editors to be “government by contract.” By performing a macro-level analysis of the current unprecedented levels of outsourcing, the editors and contributors aim to answer the broader question of whether this contractual allocation of responsibility and authority can truly fit within the structure of our democratic system of governance.

The Introduction, “Reframing the Outsourcing Debates,” presents a comprehensive outline of the structure and objectives of the text. In it, Freeman and Minow argue that September 11, 2001 was a pivotal moment in the timeline of government outsourcing that unleashed a torrent of no-bid contracts and abandonment of certain standard governmental contracting procedures. Further, the editors claim that this practice extends not only widely into many diverse aspects of federal and state responsibility, but deeply as well into the nature of the contractual duties – ranging from traditionally non-governmental procurement contracts to arrangements that one could argue lie within the exclusive provenance of the government itself. The Introduction proceeds to detail the complexities of this practice, as well as the inherent risks that accompany it. Freeman and Minow then highlight the lack of transparency often found in the outsourcing process, the paucity of legislative oversight of implementation and enforcement of these contractual agreements, and the possibilities for reform that could reduce the amount of waste, fraud, and abuse that has become nearly synonymous with the term. Freeman and Minow conclude the Introduction by providing a succinct snapshot of the perspective of the volume, which frames the most salient issues: [*406]

Our current government contracting system does not work. It is largely invisible and unresponsive to the public in whose name it is undertaken. The existing rules and procedures fail to guard adequately against inefficiency, conflict of interest, and abuse. And much of the power being exercised through contracting is largely unaccountable to any regime of oversight – market, legal, or political. Yet government by contract has arrived, and it is here to stay. This fact should prompt serious and sustained public dialogue about the short- and long-term implications of outsourcing for American democracy. Offering contrasting and at times conflicting views, the contributors to this book aim to spark that dialogue in pursuit of better governance in this challenging age. (p.20)

This introductory discussion mirrors the basic structure of the text, as it is subdivided into Part One, “Recent Developments,” which provides, in part, the historical context of government outsourcing; Part Two, “Cases and Critiques,” which provides exemplars of this governmental practice and critical analysis of such exemplars; and Part Three, “Responses and Reforms,” which presents a comprehensive reformative call to action, including arguments for limits to increased regulation, use of existing tools and resources, and the insistence on constitutional limitations. Due to the length of the text, several particularly noteworthy sections will be highlighted to identify the major themes of the volume and their treatment by the various authors.

Chapter One, “Public-Private Governance: A Historical Introduction,” authored by history professor William J. Novak, provides historical contextualization of the U.S. government’s turn to privatization. Novak argues that, since colonial times, there has been a tension in the country between public and private forces for power and authority. As such, the interaction between the government and private entities is not as “new” a thing as some would assert. To support this position, Novak provides a litany of examples of the concept of public-private governance. Ultimately, he stresses that the “power of public-private governance as a technology of public action flowed from its ability to counter the twin evils of both public corruption and private coercion” (p.39). Finally, Novak asserts that public-private governance can be an effective tool for the distribution of power, so long as the focus on the primacy of public law remains unobscured.

John D. Donahue and Mathew Blum build upon the foundations established by Novak in the remaining chapters of Part One, providing specific examples of government outsourcing that range from the United States Postal Service to information technology, as well as outlining the federal framework for public-private competition. Each of these authors brings forth a perspective that is reflective of their backgrounds. In combination, their work rounds out the historical and policy environment in which outsourcing has operated and evolved. All of these efforts lay the groundwork for Part Two, “Cases and Critiques.”

Chapter Four, “Rent-a-Regulator: Design and Innovation in Environmental Decision Making,” by Miriam Seifter presents a framework to understand how governmental authority can be [*407] outsourced but in a different way than is usually thought. Seifter states her view in the following manner:

The model, which I nickname “rent-a-regulator,” transfers regulatory decision making to licensed professionals who directly serve regulated “clients.” Rather than contracting out regulatory functions or privatizing them entirely, the government licenses professionals, just as it would doctors or plumbers, to make compliance decisions pertaining to regulated parties – their paying “clients.” (p.93)

This perspective relays how outsourcing has even spread into the ways in which governments perceive their central oversight duties. The chapter also outlines instances in which government outsourcing has resulted in the sacrifice of long-term protection of the public for short-term political victories.

Chapter Five, “Outsourcing Power: Privatizing Military Efforts and the Risks to Accountability, Professionalism, and Democracy,” is authored by Martha Minow. This chapter takes on one of the most high profile recent examples of government outsourcing – private military contractors. The focus of Minow’s contribution here is on the troubling aspects of vesting non-governmental employees with positions that require a commitment to the public interest. Most disturbing is the legal loophole that these groups often fall into that leave them unaccountable to military courts or the courts of the countries in which they operate. Minow phrases it this way:

Due to impairments of legal and political oversight and defective private markets, the escalating use of private military contractors by the U.S. government poses serious jeopardy to the integrity and effectiveness of the military and to the interests of society. These interests include minimizing financial waste, maximizing military effectiveness, guarding against atrocities, and ensuring a functioning democracy. (p.123)

For Minow, the key to reforming this aspect of outsourcing is a functioning accountability system that provides oversight for contractors similar to those types of systems for governmental employees. If this reform cannot be achieved, Minow suggests eliminating these contracts until the chapter’s suggested requirements can be met.

The third part of the volume is titled “Responses and Reforms.” It is further divided into three subsections: A) “Don’t Increase Regulation”; B) “Use Existing Tools” and C) “Press Constitutional Restrictions.” The chapters of these sections provide explanations and strategies for improvement of the present system of outsourcing by ensuring economic efficiency and supporting the public aims of government. Throughout these chapters, the overriding themes of increasing accountability and transparency are emphasized. However, the authors also press the reasons why current “government by contract” fails to attain these lofty ideals. Too often, in government, greed, power, and self-preservation have trumped the noble goals of public service; this threat becomes even more acute when the acting entity only serves the people because of an independent contract.

Of particular interest in Part Three is Laura Dickinson’s Chapter Thirteen, “Public Values/Private Contract.” This [*408] chapter details aspects of international concerns that come into play in the outsourcing debate. The discussion is especially of note as many of the popular media outlets rarely address these important issues. Dickinson advocates a flexible policy and legal response to this movement. She states:

We must remember that the proper management of privatization will almost certainly require a variety of approaches, and we need not choose one to the exclusion of others. My aim here is simply to focus attention on privatization in the international realm as a crucial field of study, to call for dialogue among international and domestic scholars, advocates, and policymakers concerning appropriate responses, and to suggest that more attention be paid to the possibility of using contractual provisions to provide accountability. . . Only through such efforts will we be able to find ways to protect crucial public law values in the era of privatization that is already upon us. (p.358-359)

Overall, GOVERNMENT BY CONTRACT: OUTSOURCING AND AMERICAN DEMOCRACY provides a substantial introduction to and superb discussion of the legal, economic, social, and political aspects of government outsourcing in both domestic and international contexts. The significance of the book’s contributions will clearly resonate in academic communities concerned with these issues. However, it is less certain if the innovative ideas offered within the text will be taken up by the public policy communities that shape the legislative agendas in Washington, D.C. Of course, this is by no means a failure of the volume; rather, it is a failure of those policymakers and elected officials who do not live up to the ideals to which they so often appeal.

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© Copyright 2009 by the author, Amanda Harmon Cooley.

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COUNTERFEIT JUSTICE: THE JUDICIAL ODYSSEY OF TEXAS FREEDWOMAN AZELINE HEARNE

by Dale Baum. Baton Rouge, LA: Louisiana State University Press, 2009. 320pp. Cloth $45.00 ISBN: 9780807134054.

Reviewed by Doris Marie Provine, School of Justice & Social Inquiry, Arizona State University. Email: marie.provine [at] asu.edu.

pp.402-404

What is law when litigants pack the courtroom with armed men to intimidate witnesses, when voters are routinely beaten, and when employers argue that hanging a worker by his thumbs is a sound business practice? COUNTERFEIT JUSTICE is a solemn reminder that courts and legislatures can still operate in these circumstances. Legal documents can be duly recorded and lawyers can practice law. Racial apartheid actually requires a dual system that provides the protections of law for whites and systematically withholds those protections from non-whites. COUNTERFEIT JUSTICE is the history of a person who challenged this system, freedwoman Azeline Hearne. She is an unusual hero, a Rosa Parks of litigation who claimed the most prosaic of rights in a situation of extreme inequality, and in the process exposed the legal system’s tolerance for virulent racism. The difference is that Azeline Hearne is a forgotten heroine, lost in the history of her time.

Ms. Hearne became one of the nation’s wealthiest former slaves when she inherited Samuel R. Hearne’s estate shortly after the conclusion of the Civil War. Hearne owned one of the most profitable cotton plantations in Texas when he died. He was Azeline’s master, and also the father of her four children, only one of whom survived to adulthood. Before he died, Samuel Hearne, a bachelor, acknowledged his relationship with Azeline, implicitly challenging the prevailing Southern racial mythology, which placed Blacks in near sub-human status.

Most of the legal action in this saga took place in the Reconstruction era in Robertson County, a rural agricultural area of northern Texas that grew wealthy in the aftermath of the Civil War. The place was virtually unchanged by the War, which never reached this part of Texas. During the conflict, in fact, hundreds of slaves were “refugeed” to Robertson County plantations in order to protect the interests of their owners. The Reconstruction effort came late to this place, but eventually the Freedman’s Bureau did arrive. Azeline Hearne’s legal struggle thus occurred against the backdrop of a federal commitment to extend equality to the freed slaves. It was, in some ways, a valiant effort to re-configure the racial order through law. But the government’s effort fell far short of its ambitions, as the story of this ultimately unsuccessful litigant poignantly reveals.

This story has many missing pieces. One can only speculate about the domestic relationship between Azeline and Sam Hearne. It would be easy to over-simplify this relationship, which began in bondage but ended in a kind of partnership in which Sam gave his entire [*403] estate to their only surviving son Dock, with a life interest for Azeline. For this relationship, Sam Hearne was rejected by his family and community. He was accused of being an alcoholic and mentally ill. Azeline herself is also a mystery. There are no pictures of her and few records. She was probably illiterate. Her son died shortly after reaching adulthood. She was soon forgotten by her contemporaries.

Dale Baum, a skilled historian, nevertheless constructs a persuasive picture of rural life in the South during the Civil-War era. He constructs the story from court documents, deeds, diaries, government documents, news accounts of the time, and other original documents and historical sources. He is careful to warn the reader when the trail is faint, offering speculations of various possible scenarios when necessary.

For socio-legal scholars, the juxtaposition of law and non-law is the most startling element of the story. Thus Sam Hearne’s last will was dutifully recorded and treated as valid (much to the dismay of his family, who wanted that land for themselves). The Freedman’s Bureau adhered more or less to its legal mandate, attempting, from time to time, to force the judicial system to render justice to Ms. Hearne. Lawyers did not always behave unethically toward Azeline Hearne. One lawyer, who had previously sought to swindle Ms. Hearne, later became her staunch defender in court. The struggle to divest her of the rich productive, bottom land that made up the bulk of her estate was conducted entirely peacefully, with skilled lawyers taking unconscionable fees, but always recording their agreements in perfect legal order.

For many of the ex-slaves, conflicts with whites were settled with violence. Freedmen who believed the promise of Union soldiers that they could contact freely for their labor were routinely cheated and sometimes beaten or killed when they complained. Voting Republican was dangerous for these freedmen and their white supporters. Those who openly resisted the Ku Klux Klan and white landowners took even greater risks. Consider the fate of George Edward Brooks, one of Robertson County’s three voter registrars and a charismatic Methodist minister who had served in the Union army. His efforts to achieve justice for his people frightened the white establishment, and so a posse hunted him down with blood hounds, tortured him by stripping the flesh from his body, broke both of his legs, and then hung him as a warning to others. No Robertson County whites were ever punished for this or any other attack on their Black fellow citizens.

Azeline Hearne was not alone in her struggle for justice. Lawyers did represent her and she received some assistance from the Freedman’s Bureau. But no one worked assiduously for long on her behalf. The Freedman’s Bureau failed to assist her in paying off the debts of the estate or keeping proper records. Her lawyers filed papers, but only for extortionate fees. Sam Hearne had tried to convince his doctor, a man he trusted, to be executor of the estate, but he refused, fearing loss of friendship with other members of the Hearne clan. The basic problem was that the enthusiasts of the Confederacy, who endorsed slavery [*404] and believed in their own racial superiority, continued to hold most of the reins of power throughout Reconstruction. The federal government was a temporary presence, and often not very effective even when it was present. After years of legal struggle, Azeline Hearne lost her final appeal. She was defeated by the greed of the people she trusted to represent her. She died at about 65 years old a pauper, a tenant at will on her own former land.

COUNTERFEIT JUSTICE can be read as a straightforward historical account of a curious lawsuit that occurred during the unsettled period when slavery came undone legally, but not socially. It can also be read as an account of how ostensibly color-blind law can be manipulated to maintain extraordinary disadvantage. The book is much less self-consciously reflective about the historical role of law in constructing and maintaining inequality than, for example, to Ian Haney López’s WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE, or MANIFEST DESTINIES (2006) or Laura Gomez’s recent inquiry into New Mexico’s racial history (2008). Its illumination of racial relations and the construction of inequality is more indirect, in the style of Linda Gordon’s THE GREAT ARIZONA ORPHAN ABDUCTION (2001).

Readers may be somewhat deterred by parts of this book where Baum goes into detail about the series of cases filed against Azeline and her ultimately futile efforts to fight back. The details drive home the point that law can be obtuse, even when ostensibly searching for a just result. The reality of structural inequality is also brought home to the reader in these details. Fortunately, even with the weight of perhaps too much information about the movement of cases through the system, the story does shine through. This is a historical account that is both sad and revealing in demonstrating the power of racism, gender inequality, and the power of a determined elite to defeat honorable intentions.

REFERENCES:
Gomez, Laura. 2008. MANIFEST DESTINIES: THE MAKING OF THE MEXICAN AMERICAN RACE. New York: NYU Press.

Gordon, Linda. 2001. THE GREAT ARIZONA ORPHAN ABDUCTION. Cambridge, MA: Harvard University Press.

Haney-López, Ian. 2006. WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE. 10th Anniversary Edition. New York: NYU Press.

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© Copyright 2009 by the author, Doris Marie Provine.

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