SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT

by Jeff Shesol. New York: W.W. Norton Press, 2009. 656pp. Hardcover. $27.95. ISBN: 9780393064742.

Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.

pp.136-140

In his State of the Union address on January 27th, 2010, President Barack Obama looked squarely at the six justices of the Supreme Court seated before him and declared, “With due deference to separation of powers, last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” Immediately Democrats from both the House and Senate rose to their feet in enthusiastic applause. As the camera focused in on the stone-faced justices, Samuel Alito is seen mouthing the words “not true” as the three top Senate Democrats, Harry Reid, Richard Durbin, and Chuck Schumer, hovered behind him with wide smiles on their faces. That outburst prompted Chief Justice John Roberts to respond a month and a half later: “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless, I think is very troubling.” Roberts concluded: “To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.”

Thus the latest flare up in a long history of skirmishes between presidents, members of Congress, and justices of the Supreme Court – a history that goes back at least to Andrew Jackson’s retort to the 1832 Supreme Court decision WORCESTER v. GEORGIA (31 U.S. 515 1832): “John Marshall has made his decision, now let him enforce it!” Such conflicts are at the core of our constitutional system of separation of powers and checks and balances, and serve to crystallize James Madison’s famous declaration in Federalist #51 that “ambition must be made to counteract ambition.” Indeed, we would be shocked if the three national institutions of American government didn’t butt heads regularly, or even bitterly at times.

Perhaps fittingly, the 2010 State of the Union controversy coincides with the publication of Jeff Shesol’s SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT. Shesol, a former speechwriter in the Clinton administration and author of MUTUAL CONTEMPT, has provided us with the definitive work to date on certainly the most notorious conflict between a president and the Supreme Court – FDR’s failed effort to “pack” the Court in the spring of 1937. While the story of Roosevelt’s court packing plan is familiar to constitutional scholars and historians, it is most likely not widely known among the lay public. Which makes this book all the more important: Shesol has taken a buried piece of [*137] American history on a highly esoteric topic and transformed it into an easy-to-read tale that unfolds like a thrilling novel.

During Roosevelt’s first term, the Supreme Court struck down key parts of his New Deal legislation, including the National Industrial Recovery Act in SCHECHTER POULTRY CORP. v. UNITED STATES (295 U.S. 495 1935), and the Agricultural Adjustment Act in U.S. v. BUTLER (297 U.S. 1 1936). In the summer of 1936, the Court also announced in MOREHEAD v. NEW YORK STATE ex rel. TIPALDO (298 U.S. 587 1936) that New York state’s minimum wage laws were unconstitutional. In each of these cases, the Court relied on various precedents – most stemming from the “liberty of contract” doctrine set forth in LOCHNER v. NEW YORK (198 U.S. 45 1905) – to argue that state and national governments had exceeded their authority to regulate commerce. On the eve of his bid for reelection in 1936, Roosevelt feared that most of the rest of the New Deal (the Wagner Act and the Social Security Act foremost) was now in jeopardy.

Nonetheless, FDR won in a landslide that fall and brought with him an even larger Democratic majority. After a much needed vacation, Roosevelt then plotted with his staff and his allies in Congress to do something about the Nine Old Men. Shesol meticulously recounts the genesis and development of each of the proposed schemes to curb judicial power. Most surprising, perhaps, were the efforts at constructing a constitutional amendment aimed at restricting judicial review of Congress – an act that would essentially eviscerate the powers of the judiciary. By February 1937, Roosevelt had decided on a plan: he would ask for legislation that sought to expand the Court by one member for every justice over the age of 70, for a total of six new justices. Roosevelt argued that the Court was overworked, and fresh blood would help to clear the docket of pending cases. Of course, no one really believed him – not Roosevelt’s allies, not his opponents, and not the general public. In fact, Roosevelt himself never consistently stuck to his own argument; within weeks of his announcement, Roosevelt was advocating for the court packing plan on purely ideological grounds.

In fascinating detail, Shesol explores the major players in this 136-day battle between the executive, legislative, and judicial branches, stopping to provide crucial biographical information on the principles in the conflict or offering insights from diaries and personal letters. By late spring, as support for the court packing plan waned in Roosevelt’s own party, we witness a proud and stubborn FDR unwilling to accept the inevitable, pushing his staff and allies in the Senate to the breaking point. The plan even causes a serious rupture between Roosevelt and his vice president, John Nance Garner, who in the midst of the furor leaves rather abruptly for a fishing vacation in his home state of Texas. He returns only upon learning of the sudden death of Senate Majority Leader Joe Robinson who had led the fight for FDR’s plan. Garner returns to Washington to take up the “cause” of the reform bill in the Senate – and ends up driving the last nail in its coffin.

Just as the wheels were coming off of Roosevelt’s legislation in Congress, a [*138] surprising thing occurs across the street in the chambers of the Supreme Court: a series of 5-4 decisions are announced that uphold crucial elements of the New Deal. On March 29th, 1937, the Court held in WEST COAST HOTEL v. PARRISH (300 U.S. 379 1937) that Washington state’s minimum wage law for women was constitutional, undoing the TIPALDO decision handed down a year earlier and overturning the Court’s landmark ADKINS v. CHILDREN’S HOSPITAL (261 U.S. 525 1923). Several more victories for Roosevelt follow, and by the time the 1936-1937 term ends, the Supreme Court had upheld New Deal legislation no fewer than sixteen times without overturning one law. At the center of the maelstrom stood Justice Owen Roberts, who provided the crucial fifth vote in many of these cases and appeared to have reversed himself once Roosevelt threatened to pack the court. Yet, as Shesol recounts, Roberts had voted to uphold the minimum wage law in PARRISH before Roosevelt made his scheme public. Contrary to opinion at the time, this was not the “switch in time that saved the nine.” Further, Roberts himself argued years after the controversy that his decision in PARRISH was constitutionally consistent with his vote in TIPALDO. In his own mind he had not in fact reversed himself for political or other reasons.

Though Shesol writes with a lay audience in mind, SUPREME POWER nonetheless raises many constitutional, legal, and theoretical questions that professors of law and political scientists should find useful in their classes. The first centers on the difficult question of how much power the Supreme Court really does have in our constitutional system. In Federalist 78, Alexander Hamilton argued that the courts were “the least dangerous branch” simply because they had none of the formidable powers granted to the executive (the power of the “sword”) or legislature (power of the “purse”). Hamilton, perhaps wryly, contended there that courts have nothing more than the power of “judgment.” Courts cannot enforce laws and justices should not “legislate” from the bench. In his majority opinion in U.S. v. BUTLER, Justice Roberts echoed this sentiment emphatically while striking down the Agricultural Adjustment Act: “All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy” (p.183). And yet, the power of judgment is as potent a power as any granted in the Constitution. On several occasions, Shesol quotes Chief Justice Hughes when he was governor of New York: “We are under a Constitution, but the Constitution is what the judges say it is” (p.171). The Constitution says what it says, but the Court tells us what it means. We abide whether we like the decision or not.

But how does the Court decide what the Constitution means? Especially when urgent action is required amid a national crisis? Should the Constitution’s meaning change over time? SUPREME POWER offers a fascinating look into the problem of judicial interpretation, and thereby provides us with a second set of questions worth exploring. Behind Roosevelt’s plan, however ill-conceived and poorly executed, was the fundamental belief that the Supreme [*139] Court’s decisions were a “barrier to social progress” (p.404). According to FDR, the Court held fast to a constitutional interpretation ill-equipped to meet the demands of twentieth-century, industrialized America. Time and again Shesol points to comments by Roosevelt or his Attorney General Homer Cummings which indicate that the Court’s blindness to a muscular interpretation of the government’s commerce powers was a result of the inability to comprehend the very concept of the “living Constitution.” So what should guide justices in their deliberation? Original intent? Precedent? Here we return once again to Justice Roberts, whom Shesol quotes at the very end of the book:

It is, in the end, impossible to know what sways a judge. Even the judges themselves do not always know whether their decisions are driven, in the main, by doctrine or emotion, by the dictates of law or politics or conscience. “Who knows what causes a judge to decide as he does?” [Justice] Roberts once shrugged, reflecting on PARRISH. “Maybe,” he joked, “the breakfast he had has something to do with it.” (p.516)

A third set of questions which runs through SUPREME POWER fasten on the problem of checks and balances. No matter how the justices of the Supreme Court decide what they decide, they ultimately tell the other branches what is constitutional and what is not. Faced with that reality, what powers do presidents and Congresses have to check judicial power once a decision has been handed down? Especially if it derails their political agenda? The answer from SUPREME POWER is: relatively few. Roosevelt and his staff explored just about every one of them – from a series of proposed constitutional amendments restricting the powers of judicial review, to several legislative proposals that would either mandate retirement or alter the ideological balance of the Court by increasing the number of justices. The fact that none of these proved successful is as much a testament to the limits the “political branches” have on judicial power as it is to the clumsy way Roosevelt’s court packing plan made its way over the public airwaves and through Congress.

And yet in the end, Roosevelt got what he wanted: the Hughes Court began to rule in his favor after he turned up the heat. By the end of the Court’s 1937 term, judicial interpretation of the interstate commerce clause had been completely transformed. This fact points to a last set of questions at the core of this excellent book: in the end, SUPREME POWER is a meditation on the Supreme Court’s role in the push and pull of the political process. If Hamilton argued that the courts are the least dangerous branch, he and James Madison also made the case that the courts should be the least “political branch.” But the least political branch does not mean that the Supreme Court is wholly divorced from politics. Roosevelt’s court packing plan drew the Court into the political arena in a way that few events in constitutional history have. After all, here was a popular president, coming off a landslide victory in his reelection bid who knew he had a mandate handed to him through the legitimate mechanisms of democracy. The “unelected” Supreme Court stymied his efforts to give the people what they voted for. Roosevelt had no other choice, to his mind at least, but to simply turn up the political pressure on the members of [*140] the Court. Shesol’s account makes it clear that not one member of the Court greeted Roosevelt’s actions favorably – not even Justices Brandeis, Stone, and Cardozo, the liberal block of the Court who consistently voted to uphold New Deal legislation. Even Roosevelt’s dear friend Felix Frankfurter, who would join the Court several years after the court-packing plan failed, consistently disapproved of Roosevelt’s actions because he felt FDR had dragged the Court through the mud with his plan.

Yet this does not mean that the members of the Court are “apolitical.” In fact, one of the most fascinating elements of Shesol’s account lies in the particular actions of Chief justice Hughes throughout the crisis. As Shesol points out, Hughes had been working behind the scenes nearly since the moment Roosevelt announced his plan to counter the narrative that the Court had fallen behind on its work. On March 21st, as the Senate Judiciary Committee began hearing testimony on the plan, Hughes sent a letter to Roosevelt’s foe, Senator Burt Wheeler, who surprised everyone in the hearing room and beyond by reading it aloud before the committee. Point by point, Hughes refuted Roosevelt’s assertions about the Court’s incapacity. It was a political masterstroke, and it signaled the beginning of the end of the court packing plan.

This brings us back to Chief Justice John Roberts’ comment about whether justices of the Supreme Court should be present at the “political pep rally,” better known as the State of the Union address. If Chief Justice Hughes were summoned to provide Chief Justice Roberts with some advice, he would probably say: don’t have such a thin skin, John. At least Obama is not threatening to pack your court. More importantly, we justices of the Supreme Court don’t make decisions in a vacuum. Yes, we judges get to decide what the Constitution says. The power of judgment will always have political consequences. If I was able to handle FDR, I’m sure you will be just fine.

REFERENCES:
Alexander Hamilton, John Jay, James Madison. 1961. THE FEDERALIST PAPERS, ed. Clinton Rossiter. New York: New American Library.

CASE REFERENCES:
ADKINS v. CHILDREN’S HOSPITAL, 261 U.S. 525 (1923).
LOCHNER v. NEW YORK (198 U.S. 45 1905).
MOREHEAD v. NEW YORK STATE ex rel. TIPALDO (298 U.S. 587 1936).
SCHECHTER POULTRY CORP. v. UNITED STATES (295 U.S. 495 1935).
U.S. v. BUTLER (297 U.S. 1 1936).
WEST COAST HOTEL v. PARRISH (300 U.S. 379 1937).
WORCESTER v. GEORGIA (31 U.S. 515 1832).

---

© Copyright 2010 by the author, Christopher Malone.

Continue Reading...

HUMAN RIGHTS AND THEIR LIMITS

by Wiktor Osiatyński. Cambridge and New York: Cambridge University Press, 2009. 262pp. Hardback. £60.00/$95.00. ISBN: 9780521110273. Paper. £21.99/$32.09. ISBN: 9780521125239. eBook format. $26.00. ISBN: 9780511629891.

Reviewed by Lawrence M. Friedman, Law School, Stanford University. Email: lmf [at] law.stanford.edu.

pp.133-135

HUMAN RIGHTS AND THEIR LIMITS is a concise survey of the way the concept of human rights has developed over the years: what it means; what it has come to mean; what is good about the ruling concepts of human rights; and what their limitations are. It is an intelligent overview of a subject that has become a field of its own. There are literally shelves and shelves of books on the subject, and more and more of them pour out of the presses each year.

Wiktor Osiatyński is a professor at the Central European University in Budapest. He is described as a “former director of the Chicago Law School’s Center for the Study of Constitutionalism in Eastern Europe,” and as a sometime adviser to the Polish parliament. In his book, he covers many of the major issues that scholars of human rights take up – the history of the movement, for example. He also examines the rather sterile debate over whether human rights are “universal” (whatever that might mean). He tackles the much discussed (and also rather sterile) issue of whether the human rights movement, in its present form, is “Western” and unsuited to those societies that are not “Western,” and perhaps even that it is imperialism in a thin disguise. He goes into the question of whether rights-consciousness is always a good thing, or whether it can be, at times, counter-productive.

He covers all these subjects well, intelligently, and with moderation. The book begins with a short history of the concept of human rights, tracing its development from the 18th century to the contemporary world. “Rights” originally belonged basically to adult white males. Toward others, there was at most “humanitarianism” and “paternalism” (p.63). The modern forms are, essentially, products of the last few generations. Later chapters of the book discuss the topics mentioned above, and many others: the relationship of rights to democracy, the distinction between rights and needs, the place of so-called “social rights” (health care, housing, education, jobs) in constitutional law and in constitutional practice; and the vexed question of cultural rights and the possible conflict between these rights and other, “universal” human rights.

This is a valuable and well-written book, and it is in many ways a useful addition to what I have already described as an enormous body of scholarship. And yet . . . . somehow, something is lacking. The problem with the literature in general is not quantity, but quality. Or at least quality in one particular sense. The literature, vast as it is, is surprisingly narrow. Most of the books and articles [*134] are written by philosophers, political theorists, and lawyers. This is not bad in itself; moreover, most of them are passionate about human rights, which is also not bad in itself. Undeniably, one can learn a lot by immersing oneself in the oceans of words that these scholars have written. One can learn a lot about the textual history of all those declarations, treaties, manifestoes, and covenants that have sprouted like weeds since the second World War. The literature also tells us about great thinkers of the past and the present, and what they have had to say about the rights of humankind. There are debates on various controversial subjects, as I have mentioned. But what is missing, on the whole, or in short supply, is what one might call the sociological dimension. The human rights movement – the social movement that has inspired this enormous literature – is a massive social fact. But where does it come from? Why has it been so successful (in places)? Where is it going, and why? Why, in this period, unlike all others, do we have a feminist movement, a gay rights movement, a movement of indigenous peoples, a revolt of the handicapped, the aged, prisoners, students, speakers of small languages, and so on?

The cardinal sin of reviewers is to ask for a different book than the one the author has written. I will avoid this in the sense of not finding fault with HUMAN RIGHTS AND THEIR LIMITS. But the sociological question nags at me. What is it about the late 20th century, and the early 21st, that has led so many millions of people, in developed countries, but elsewhere as well, to accept certain doctrines or dogmas, which then become central premises of the human rights movement? What led people to decide that all human beings are and should be equal in law and in society – women as well as men; people of all races and religions; minorities as well as majorities? To many of us, equality of this sort seems obvious, seems right, seems simply just and proper. But did any society in the past think this way? Does any traditional society, in the contemporary world, think this way? What, then, is it about modernity that pushes women – and men – in the direction of gender equality? What gives rise to the struggle – often more or less successful – for the other equalities that lie at the base of the human rights movement?

The answer is far from obvious. Of course it has something to do with democracy; but that simply pushes the question off one notch or so. Does it have something to do with markets, with capitalism? With new ways of communicating – with radio, TV, the movies, and now the web? With tourism, and travel? Or all of these? Perhaps some kind of personality change lies at the root of it; some mutation, as it were, brought about by social and technological change; the development of forms of individualism which were alien to other times and places. The various thinkers, commentators, and philosophers have played a role, no doubt in this transformation. They synthesize and give voice to norms and attitude that bubble up from the muddy chaos of modern societies; but they play only a secondary role, not the primary one that so much of the literature seems to ascribe to them. [*135]

Osiatyński had legal training, and training in social theory. He has concerned himself in his career mostly with social and political thought. His book fits squarely into the mainstream of work on human rights. It is an excellent piece of work. But perhaps there are some scholars out there who are willing to take the next step.

---

© Copyright 2010 by the author, Lawrence M. Friedman.

Continue Reading...

GOD AND THE FOUNDERS: MADISON, WASHINGTON, AND JEFFERSON

by Vincent Phillip Muñoz. New York: Cambridge University Press. 252pp. Cloth. $85.00/£45.00. ISBN: 9780521515153. Paper. $24.99/£16.99. ISBN: 9780521735797. eBook format. $20.00. ISBN: 9780511590764.

Reviewed by Jacob M. Blosser, Department of History and Government, Texas Woman’s University. Email: JBlosser [at] mail.twu.edu.

pp.129-132

According to Vincent Phillip Muñoz’s compelling new book, the penultimate trinity of Founding Fathers – James Madison, George Washington, and Thomas Jefferson – possessed divergent opinions on religious freedom and the separation of church and state. Contrary to scholars and policy makers who, in their pursuit of original intent, have described the Founders’ rationale for the First Amendment in sanitized, univocal categories such as strict separation or non-preferentialism, Muñoz’s nuanced study shows that three fundamental Founders profoundly disagreed on these issues and, consequently, the quest for a uniform and univocal consensus of Founding opinion on the First Amendment is quixotic. Describing a modern judicial climate in which “the Founders have been invoked time and time again to guide church-state jurisprudence,” Muñoz argues that the repeated conflation of Founding opinion with consensus-bearing univocal and a-historical categories (i.e. all the Founders were strict separationists or, alternatively, non-preferentialists), has resulted in a Supreme Court which has “never gotten the Founders right” (p.206). In contrast, Muñoz’s book aims to “set the historical record straight” by illuminating the contradictory and multivalent First Amendment opinions of Madison, Washington, and Jefferson (p.208).

According to Muñoz, James Madison’s public and private statements on religious freedom and the role of religion in public life advocated governmental noncognizance of religion. Arguing that religious views were inalienable, and therefore excluded from the Lockean social compact, Madison’s position maintained that the government “must be blind to religion” (p.26). Neither preferring religion nor punishing it, Madison’s noncognizance put religious faith outside the realm of state activity.

In contrast, Muñoz maintains that George Washington’s public and private statements envisioned a far different relationship between personal faith and state action. Unlike Madison’s governmental noncognizance of religion, Washington believed in harnessing the moral authority of religion to inculcate civic virtue. Far from being blind to religion, Washington believed that the state could support religions that benefitted the public good and, conversely, limit faiths deemed to be subversive of national civic ends. Importantly, in granting the state a role in the religious life of the nation, Washington avoided denominational sectarianism by appealing to civic ecumenism – any religion that improved the morality of citizens and, thereby, improved the public good, could receive state sanction and support. [*130]

Washington’s use of the civic good as a litmus test for religions that received public support echoed Thomas Jefferson’s belief that the federal government should only assist rationally-based religious groups. Muñoz paints Jefferson as an anticlerical Deist whose wariness of clerical political authority and opposition to orthodox Christian belief included the hope that, within seventy-five years of the nation’s founding, most Americans would be ardent, “rational” Unitarians. Until the national Unitarian conversion, however, Jefferson advocated governmental antagonism toward traditional revealed religion and its clerics. The state, Jefferson argued, could use its authority to restrict orthodox religious belief and limit the political power and influence of clerics while at the same time supporting non-sectarian “rational” religious views. Importantly, Muñoz is quick to point out that Jefferson’s desire to limit religious orthodoxy and champion rational religion directly contradicted his sweeping statement in the Virginia Statute for Religious Freedom guaranteeing the unrestricted freedom of the human mind. Describing yet one more fundamental contradiction in the mind of an American paradox, Muñoz attributes this example of Jeffersonian conscious dissonance to the distance between his philosophical ideals and his lived political reality. Describing Jefferson’s ideas on church and state in terms consistent with his political efforts to reduce governmental support for traditional Christianity, yet inconsistent with his broader philosophical platitudes, Muñoz paints a portrait of Jefferson as fiercely antagonistic to traditional religious exercise.

In describing three views on church state relations that vary from state noncognizance of religion (Madison), to outright state support for civic-minded religion (Washington), to state antagonism for non-rational religion (Jefferson), Muñoz definitely demonstrates the intrinsic multivalency of Founding opinions on the issue. And yet, legal scholars may be deeply troubled by Muñoz’s lack of historical context in describing these three views. While Muñoz grounds his treatment of the Founders’ opinions on religious freedom and church-state relations in a careful, close-reading of several key texts including Jefferson’s Virginia Statue and Madison’s “Memorial and Remonstrance,” his analysis does not go beyond these texts. For example, with very few exceptions, Muñoz completely divorces his analysis from the much larger religious culture of eighteenth-century Virginia. Consequently, the reader is left to wonder why, in a book about the three Virginians’ views of church-state relations, the author says almost nothing about Virginia’s Anglican establishment or the latitudinarian theology it communicated. Ostensibly, both the established church’s polity and its ideology formed and nurtured these founders’ personal religious views and their diverse reactions to church-state relations. While Muñoz clearly shows that Madison, Washington, and Jefferson possessed divergent views, he does not show the cultural or historical justification for their opinions. The reader is left to wonder why Jefferson was so anticlerical. Why was Washington, raised in the same colony as Jefferson, so trusting of clergy to inculcate civic virtue? Why did Madison, also a Virginian, think [*131] governmental blindness to religion was best? The answers to these questions lie in a far greater analysis of Virginia’s religious establishment, its denominational pluralism, and the colony’s pervasive latitudinarian theology. Consequently, while Muñoz is correct to extrapolate differences between Madison, Washington, and Jefferson in key church-state issues, far greater historical context is needed in order to, as Muñoz suggests, “set the historical record straight” (p.208).

Having distilled, with limited cultural context, the differing views of Madison, Washington, and Jefferson, Muñoz applies these views to thirty-five post 1878 First Amendment Supreme Court cases. Examining cases involving both the establishment and free exercise clauses, Muñoz predicts how Madisonian noncognizance, Washingtonian support for civic-minded religion, and Jeffersonian anticlericalism and antagonism of non-rational orthodoxy would have decided cases ranging from prayer in public schools, to public displays of religious symbols, to direct and indirect state burdens upon religion. While highly entertaining, this imaginative exercise assumes that Madison, Washington, and Jefferson’s views on religion can be systematically converted into “legal doctrines” (p.119). Given the fact that these three Founders never expressed their views from the bench but, rather, described them in a variety of public and private papers conditioned and inspired by disparate cultural and historical moments and considering that their own actions often contradicted their written views, one wonders if such opinions bear the weight of judicial doctrines. Nevertheless, it is counter-factually entertaining to imagine Jefferson sitting alongside Justice Black in MCCOLLUM v. BOARD OF EDUCATION or Washington sitting on the Rehnquist Court in VAN ORDEN v. PERRY.

Muñoz’s goal in imagining the Founders’ decisions in contemporary First Amendment cases is, of course, to reiterate the very different state we would live in if only one Founder’s views were uniformly followed. Indeed, the great accomplishment of GOD AND THE FOUNDERS is its demonstration of the multivalency of Founding opinion on religion in public life and the eclectic nature of the Supreme Court’s interpretation of the Founders’ views. In the closing chapter, Muñoz shows that all recent Supreme Court justices have cast votes consistent with all three Founders’ views. Even Justice Scalia, who would have unanimously agreed with Washington in the fourteen First Amendment cases adjudicated during his tenure, would also have found himself, at times, in agreement with Madison and, more rarely, with Jefferson.

In showing the great diversity of Founding opinion among three Virginia founders, albeit with limited historical context, the reader is left wanting more. How did the views of other Founders, from other parts of the country, compare with these Virginians? What other multivalent possibilities for imagining religious liberty and church-state relations did other Founders leave us with? For raising these and other provocative questions, Muñoz’s well-written and clearly-argued text will undoubtedly be beneficial to undergraduate and graduate students of church-state relations. [*132]

CASE REFERENCES:
MCCOLLUM v. BOARD OF EDUCATION, 333 U.S. 203 (1948).
VAN ORDEN v. PERRY, 545 U.S. 677 (2005).

---

© Copyright 2010 by the author, Jacob M. Blosser.

Continue Reading...

HOMELAND INSECURITY: THE ARAB AMERICAN AND MUSLIM AMERICAN EXPERIENCE AFTER 9/11

by Louise A. Cainkar. New York: Russell Sage Foundation, 2009. 312pp. Cloth. $35.00. ISBN: 9780871540485.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff [at] desu.edu.

pp.126-128

Louise Cainkar, an assistant professor of sociology at Marquette University, thanks the Arab and Muslim Americans at the outset of her study for “opening their doors and lives to me” (p.xii). The purpose of her work is to demonstrate how the post-9/11 period in the United States affected the aforementioned communities. Her research is based on two waves of surveys and interviews with Chicago-area residents who are Arab and Muslim, one done over the 2003-2004 period, and the other during 2008. The results indicate feelings of insecurity after the September 11, 2001 terrorist attacks. According to Cainkar, these views are the result of behavior towards Arab and Muslim persons together with preconceived stereotypes of members of those groups held by others.

In the initial chapter, Cainkar discusses the reasons for the study and the method of investigation. She lists the direct impact of the 9/11 attacks on the Arab and Muslim communities, which is covered in depth in subsequent chapters. The next chapter seeks to verify the ramifications of the post-9/11 policies undertaken by the U.S. government though open-ended interviews conducted in 2008. Through the stories of Samir and Nora Kulthum, Hala Darwish, Layla, Usama Alshaibi, and Walid, the author is able to give the reader a first-hand look at how Arab and Muslim persons coped with the derisive glances, name-calling, and even hate crimes which targeted them.

In Chapter 3, the author traces the history of immigration policies affecting those of Mideast descent. One interesting finding from this chapter is that approximately half of the 1.5 million persons of Arab ancestry emigrated to the United States over the last forty years, and that as many as one-third of the total mosques in the country were constructed since 1990. There is no question that American attitudes toward Arab and Muslim citizens changed as a result of the 1967 Arab-Israeli conflict and its aftermath. Later, the 1979 Iranian revolution, the 1990-1991 Gulf War, and the 1993 bombing of the parking garage at the World Trade Center in New York contributed to the social construction of these persons as “radicalized.” Cainkar makes the comparison between Arab and Muslim Americans in the post-9/11 environment and the manner by which Japanese Americans were regarded before and after the Pearl Harbor attack in December 1941.

Chapter 4 goes into detail about how policies put in place by the George W. Bush administration negatively affected thousands of Arab and Muslim Americans. For instance, more than 1200 persons belonging to these groups [*127] were rounded up and arrested following the 9/11 attacks, with one person held in custody for as long as five years. Further, mandatory interviews with representatives from the Federal Bureau of Investigation stigmatized large segments of the Arab and Muslim communities. Additionally, as a consequence of the 2002 Absconders Initiative by the Immigration and Naturalization Service, thousands of non-citizen aliens were deported. Perhaps the most extensive policy had to do with special registration, whereby almost 130,000 non-immigrant aliens had to be photographed, fingerprinted, and questioned; this policy led to the deportation of more than 13,000 persons. Enhanced border security, ethnic profiling, and the surveillance procedures adopted as a part of the original USA Patriot Act are also discussed.

Chapters 5 through 7 depict how those of Arab and Muslim background reacted to government policies and individual behavior toward them. Over half of the more than one hundred people sampled in the 2003-2004 surveys claimed that they experienced acts of discrimination. For Arab and Muslim families, this meant keeping children home from school for periods of time, avoiding certain locales such as shopping malls, and even altering friendships. Though organizations like the American-Arab Anti-Discrimination Committee kept tabs on violent acts taken against Arabs and Muslims, Chicago-area groups such as the Southwest Organizing Project helped in the effort to guard mosques from desecration. Among the segments of the Arab and Muslim communities most targeted for abuse in the post-9/11 milieu were women who chose to wear traditional head dress, referred to as hijab. Indeed Cainkar discovers that twice as many Arab and Muslim women as men felt unsafe in certain places following the terrorist attacks on the World Trade Center and the Pentagon.

The Conclusion presents some positive outcomes for Arab and Muslim Americans as a result of what they endured in the years following 2001. For one, many members of these groups emerged with a renewed sense of religious faith. Further, the government policies and disgraceful behavior toward them demonstrated the value of organizing to retain or recoup rights. Lastly, an augmented awareness of anti-Arab and anti-Muslim sentiments became necessary to prevent the spread of hate messages and actions. The author recommends that, in the same manner as “African Americans, Native Americans, Latinos, Jews, Catholics, women, and other groups have challenged legal and customary barriers to social, economic, and political equality in the United States, so must Arab and Muslim Americans” (p.279).

Cainkar’s book may be compared with several others written on related topics over the past four years. In their 2006 coauthored work, Yvonne Haddad, Jane Smith, and Kathleen Moore (2006) portray Muslim women at home, work, and play in America. Jocelyne Cesari (2006; 2009) offers cross-national comparisons of the treatment of Arab and Muslims in democratic countries. Two books released in 2007 and 2009, respectively, offer case studies of the latter communities from the individual and group perspectives. Perhaps the study that comes closest to Cainkar’s in content is that by Geneive Abdo (2007). [*128] At 256 pages, this study is significantly shorter than Cainkar’s (325pp); the Abdo work focuses on persons of Arab ancestry from four distinct nations of origin, as opposed to the thirteen nations of origin encompassed in the persons surveyed in the present text.

Though a groundbreaking study due to its inclusiveness, the Cainkar book does have a few shortcomings. For instance, there is an inaccurate date identifying the fall of the Soviet Union (1990 as opposed to the end of 1991). Next, the placement of the chapter with the more recent interviews at the front of the text (Chapter 2) rather than after reviewing results of the 2003-2004 surveys is confusing. On the latter point, the author could have furnished the reader with more extensive findings from the aforementioned surveys in an appendix or presented data from these surveys in a more balanced fashion.

Since Cainkar’s book was released late last year, there have been a few recent developments of pertinence to her study. For one, President Barack Obama has made several efforts to improve ties with the Muslim world, the latest of which is naming an American envoy to the Organization of the Islamic Conference. Second, in advance of the 2010 census, Arab leaders in California have launched a movement to have Arab citizens write in their true ancestry rather than checking “white.” These seemingly divergent actions are actually consistent with two points made by Cainkar. On the one hand, greater tolerance by Americans toward the Arab and Muslim communities globally will help integration of these groups within the United States. On the other hand, the effort by the latter groups to assert their Americanness should not lead to a disappearance of ethnic or religious heritage.

REFERENCES:
Abdo, Geneive. 2007. MECCA AND MAIN STREET: MUSLIM LIFE IN AMERICA AFTER 9/11. New York: Oxford University Press.

Barrett, Paul M. 2007. AMERICAN ISLAM: THE STRUGGLE FOR THE SOUL OF A RELIGION. New York: Picador.

Cesari, Joselyne, editor. 2009. MUSLIMS IN THE WEST AFTER 9/11. RELIGION, POLITICS, AND LAW. New York: Routledge.

Cesari, Joselyne. 2006. WHEN ISLAM AND DEMOCRACY MEET: MUSLIMS IN EUROPE AND THE UNITED STATES. New York: Palgrave Macmillan.

Haddad, Yvonne, Jane Smith, and Kathleen Moore. 2006. MUSLIM WOMEN IN AMERICA: THE CHALLENGE OF ISLAMIC IDENTITY TODAY. New York: Oxford University Press.

Malek, Alia. 2009. A COUNTRY CALLED AMREEKA: ARAB ROOTS, AMERICAN STORIES. New York: Free Press.

---

© Copyright 2010 by the author, Samuel B. Hoff.

Continue Reading...