STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY, Volumes 1-3.

STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY. Volume 1, THE POLITICS OF STATE CONSTITUTIONAL REFORM, by G. Alan Tarr and Robert F. Williams (eds). Albany: State University of New York Press, 2006. 217pp. Hardcover $40.00. ISBN: 9780791466131. Paperback $19.95. ISBN: 9780791466148.

STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY. Volume 2, DRAFTING STATE CONSTITUTIONS, REVISIONS, AND AMENDMENTS, by Frank P. Grad and Robert F. Williams. Albany: State University of New York Press, 2006. 135pp. Hardcover $40.50. ISBN: 9780791466476. Paperback $17.95. ISBN: 9780791466483.

STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY. Volume 3, THE AGENDA OF STATE CONSTITUTIONAL REFORM, by G. Alan Tarr and Robert F. Williams (eds). Albany: State University of New York Press, 2006. 374pp. Hardcover $50.00. ISBN: 9780791467114. Paper. $24.95. ISBN: 9780791467121.

All three volumes. 752pp. Hardcover. $100.00. ISBN: 9780791470015. Paper. $50.00. ISBN: 9780791470022.

Reviewed by Dan Friedman, Esquire, Saul Ewing LLP, Baltimore, Maryland and University of Maryland School of Law (adjunct). Email: dfriedman [at] saul.com.

pp.347-357

I. INTRODUCTION

In 1967, the state of Maryland held a constitutional convention and proposed a new draft document to replace its hundred year-old charter that had been written in the aftermath of the American Civil War. Criticism of the resultant draft Maryland constitution, which drew upon the model promulgated by the National Municipal League, came in many forms and from many sources, included charges that it was “too intellectual” and “too progressive.” The draft and its framers also suffered from a political naiveté that resulted in allowing opponents of specific proposals to coalesce against the whole document, leading to a stunning defeat at the polls in May of 1968 (Friedman 2000, at 534).

Elizabeth Chesnut Barnes, a member of the Maryland bar, daughter of Maryland’s long-serving federal district judge, W. Calvin Chesnut, and wife of her father’s former law clerk, Judge Wilson K. Barnes of the Court of Appeals of Maryland, led an important opposition group called “Save our State.” Mrs. Barnes laid out her group’s opposition to the draft constitution in an article published in the MAGAZINE OF THE DAUGHTERS OF THE AMERICAN REVOLUTION (Barnes 1968). Mrs. Barnes argued that the draft document was a “Mail Order Constitution” drafted by the National Municipal League without regard for principles of limited government or for Maryland’s unique traditions. Her arguments have an anachronistic, 1950’s feel. Relying on tracts published by the [*348] John Birch Society, Mrs. Barnes argued that the National Municipal League’s radical agenda was to eliminate the states and replace them with 12 regional government collectives, which, in her Cold War-era rhetoric, she derided as “soviets.”

To my thinking there can be no doubt that the National Municipal League and its Model State Constitution contributed greatly to the development of our modern thinking about state constitutions. G. Alan Tarr of Rutgers University (one of the editors of the books reviewed) has done substantial work in analyzing the importance of the Model State Constitution to the development of state constitutional law (Tarr 1998, at 151-157). But despite the vital role performed by the National Municipal League and the Model State Constitution, and despite her over-heated rhetoric, Mrs. Barnes’ criticisms might also have merit. The Model State Constitution may have been too uniform, too doctrinaire, and too indifferent to state-specific traditions, concerns, and variations.

It is as a response to this criticism of the National Municipal League and the Model State Constitution that I see the value of this new series, STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY. As Tarr describes in the introduction to the third volume: “State constitutions necessarily reflect diverse state constitutional traditions, historical developments within individual states, and the particular political complexion of each state. As a consequence no single model is appropriate for all states, and this volume eschews the creation of a model state constitution” (Tarr and Williams 2006b, 4). Instead, these volumes dig deeper, and make suggestions for improving each state constitution while still respecting the important diversity in the constitutions of our fifty states.

II. VOLUME 1: “THE POLITICS OF STATE CONSTITUTIONAL REFORM.”

Volume 1 of this series explores, through six case studies, the politics of constitutional revision, including creating a favorable climate for constitutional revision, selecting the appropriate (or most effective) means of constitutional revision, and choosing methods for garnering support for the proposed revisions.

The first three essays investigate the role of constitutional commissions in constitutional reform. Rebecca Mae Salokar’s essay analyzes the effectiveness of a novel system under Florida’s 1968 constitution that creates a periodic revision commission that may propose constitutional amendments directly to the voters without legislative involvement (p.19). Salokar chronicles the failure of the 1978 Revision Commission to get any of its proposals adopted and contrasts that failure with the very successful 1998 Revision Commission. Such a revision commission system may prove salutary, if difficult to implement, in other states in which the legislature proves to be an obstacle to responsible constitutional amendment. The broader lesson of Salokar’s essay, however, is that the success of Florida’s 1998 Revision [*349] Commission may, in part, be attributed to its efforts to engage the public in setting the agenda for constitutional revision and to educate the public about the revisions proposed. Those lessons are immediately transferable to any system of constitutional revision.

The second essay, by Bruce Cain, compares the methods of constitutional change used in California (p.59). While the California Constitutional Revision Commission presents an attractive forum for deliberative discussion, it has proven unsuccessful in having its proposals adopted. By contrast, California has seemingly fallen in love with the constitutional initiative, which has produced “piecemeal and disjointed” amendments. Cain argues the uncontroversial point that wholesale, coherent revision is preferable to the initiative-amendment-mania that has gripped California. Given the procedural advantages of initiative amendment over the commission revision track, however, Cain argues that future commissions must coordinate with public opinion and be willing to surrender high-minded aspirational proposals in favor of more politically attractive proposals. Obviously, this recommendation remains important even removed from the California context of revision commissions and initiative amendment-mania.

A. E. Dick Howard’s contribution, “Adopting a New Constitution: Lessons from Virginia,” is the third essay in this volume (p.73). The essay, which originally appeared in the UNIVERSITY OF RICHMOND LAW REVIEW in 1974, has a homey, old-fashioned quality, despite the final section that updates its conclusions. Howard identifies both extensive educational outreach and bipartisan support as the key factors permitting holistic constitutional reform. Ominously, Howard’s newly-added conclusion notes that it would be difficult in the charged partisan atmosphere of present day Virginia politics (and likely so in other states) to replicate the conditions that enabled constitutional reform.

The second half of volume 1 turns its attention to the manner in which constitutional reform is put on a state’s political agenda. H. Bailey Thomson chronicles nearly 90 years of unsuccessful efforts to reform the Alabama constitution (p.113). Even today, despite bipartisan citizen support, Alabama lawmakers have thus far stymied grassroots citizen efforts at constitutional reform. Similarly, Gerald Benjamin’s essay describes the political difficulties that have prevented voters from responding favorably to the mandatory question of whether to call for a constitutional convention in New York (p.145). Finally, Anne G. Campbell’s essay, “Direct Democracy and Constitutional Reform: Campaign Finance Initiatives in Colorado,” takes a wholly different approach, as she traces the decisions, road-blocks, and ultimate success in amending the state constitution – by citizen initiative – to provide campaign finance reform (p.175).

The six essays of Volume 1 present an interesting picture. One might quibble about the extent to which the six states discussed are illustrative of the recurrent, [*350] nationwide political issues surrounding constitutional revision. The implications of these essays for Maryland, however, are very clear.

The Maryland constitution was originally drafted during the American Revolution. Maryland held three state constitutional conventions in the middle of the 19th Century, and the current constitution was drafted in 1867, in the immediate aftermath of the American Civil War. In the 1960s, after U.S. Supreme Court decisions requiring reapportionment of state legislatures (MARYLAND COMM. FOR FAIR REPRESENTATION v. TAWES 1964; BAKER v. CARR 1962), Marylanders called the state constitutional convention of 1967-1968, described above. The proposed constitution was rejected by the voters. Since then, Marylanders have been reluctant to call a constitutional convention, and have, instead, made only piecemeal changes to their constitution (Friedman 2000, at 598-599). The result is an unwieldy constitution that is hard to read, hard to interpret, and hard to understand.

One provision of the Maryland constitution requires the legislature to “tak[e] . . . the sense of the People in regard to calling a Convention for altering this Constitution” every 20 years (Md. Const., Art. XIV, §2). The next such vote, if everything proceeds on schedule, will be held in November of 2010. Without public support there will be no constitutional convention. And without significant efforts to engage the public in setting an agenda for constitutional reform, there is no chance for public support. That is the message of Volume 1 for Marylanders and citizens of other states where such a regime is in place.

III. VOLUME 2: “DRAFTING STATE CONSTITUTIONS, REVISIONS, AND AMENDMENTS.”

The second volume of the series is a detour – a welcome detour, but a detour nonetheless. In contrast to the other two volumes of the series, which are essay collections, Volume 2 is a single, unified piece. It also violates the chronological order of the series – it addresses the drafting of state constitutions, which must come after putting state constitutional reform onto the political agenda (Volume 1) and after setting the substantive state constitutional agenda (Volume 3). Volume 2 is, on its own terms, however, a terrific manual for any drafter (and perhaps of equal importance, for any interpreter) of state constitutions.

The history of Volume 2 is noteworthy. Frank Grad of Columbia Law School wrote the antecedents of this volume in anticipation of the New York state constitutional convention in 1963. Grad’s work was circulated, in mimeograph form, to the staffs of state constitutional conventions throughout the country in the 1960s and beyond. I first saw the purple pages of Grad’s book in my review of the documents of the Maryland Constitutional Convention of 1967-1968. For the STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY series, Grad has worked with his former student, Robert F. Williams of Rutgers Law School (himself a founding father [*351] of the field of state constitutionalism), to revise and update this forty-something-year-old reference work for its initial formal publication. The book is directed to the drafters of state constitutions, but its widest readership will come from those interested, not in drafting themselves, but in interpreting the work of others.

Interpreting state constitutions is a unique exercise. Although the techniques applicable to interpreting the federal constitution, on the one hand, and ordinary legislation (and even private contracts) on the other, may be useful, those techniques cannot be dispositive. Grad and Williams provide useful insights into the interpretive issues arising from the multi-step process of state constitution writing and amendation that may obscure the role of “legislative” or “framers’” intent; the state constitution’s role as a document of limitation on authority not a grant of power; as well as interpretive canons that may limit the effect of provisions, including the distinction between mandatory and directory provisions, the self-executing/non-self executing dichotomy, and the doctrine of substantial compliance. Each of these interpretive questions is important to anyone – judges, lawyers, and citizens – who would seek to determine the meaning of a state constitution.

A recent decision of the Maryland Court of Appeals serves to illustrate the value of Volume 2 of this series. The case, FREDERICK v. PICKETT (2006), presented (at least tangentially) an interpretive question unique to state constitutions: the problem of negative implication. What is the effect of a constitutional amendment telling the General Assembly that it may legislate on one specific topic when it already had the power to legislate on that and every other topic? Is the amendment merely redundant? Or does it create – by negative implication – a limitation that was not there before?

Before 1960, the General Assembly of Maryland clearly had both (1) the power to condemn private property for public use so long as just compensation was paid; and (2) the power to delegate its condemnation power to local governments. In 1960, however, the people of Maryland passed a constitutional amendment granting the General Assembly the power to authorize local governments to exercise condemnation authority in “slum areas” only. The amendment makes clear that only an area with multiple buildings can be a “slum area.” Trouble arose in 1995 when the legislature passed a statute authorizing local governments to condemn property in non-slum areas. Did the 1960 amendment, by negative implication, divest the General Assembly of the power it used to adopt the 1995 statute? The Court of Appeals of Maryland, in PICKETT, did not answer the question, choosing instead to decide the case on a statutory basis (Friedman and Nichols 2006).

If the Court of Appeals had attempted to address the problem of negative implication raised in the PICKETT case, it would have had difficulty finding an interpretive aide to help it think about the problem. No treatise on federal constitutional theory would have proven [*352] useful: because the federal constitution is a document that grants (rather than limits) governmental powers, the problem of negative implications does not arise. I suspect that interpreters of a state constitution might treat the problem the same as if it had arisen under ordinary legislation or even as if it had arisen under contract law. Under either of those two arguably analogous circumstances, a court would likely apply the canon of statutory interpretation, expressio unius est exclusio alterius (the expression of one thing means the exclusion of another). Thus, in the PICKETT example, the positive grant of the power to delegate condemnation authority in slum areas by definition includes the withdrawal of the same authority for use in non-slum areas. That is what state supreme courts generally do with the problem of negative implication, mostly, I think, because they are so much more familiar with the interpretation of ordinary legislation and of contracts.

Grad and Williams, focused exclusively on state constitutions, suggest caution in ascribing negative implications to state constitutional amendment or in using the expressio unius principle for interpreting state constitutions (pp.83-86). The sovereign people of the state, exercising their power to amend the constitution, might have considered only the question presented to them and not inquired into existing law (pp.76-78). Moreover, for the voters, adoption of a constitutional amendment is a binary question – yes or no – and no opportunity is given for the citizens to broaden the issue. Had they been asked the question, maybe the voters would have granted (somewhat redundantly) the power to delegate condemnation authority in both slum and non-slum areas. They were not asked and, Grad and Williams seem to counsel, we should not presume. Of course, this analysis of negative implications is predicated on the traditional constitutional amendment process as employed in Maryland. If a constitutional commission had studied the issue (as happens, for example in Florida (Tarr and Williams 2006a, 19)), the outcome might well be different.

IV. VOLUME 3: “THE AGENDA OF STATE CONSTITUTIONAL REFORM.”

In Volume 3 of the series, a different expert is assigned to each of the common articles of state constitutions to review those topics that can or should be on a state’s agenda of constitutional reform. The result is terrific. The chapter authors treat their respective subjects comprehensively with a 50-state review that leads to a variety of suggestions that would modernize state constitutions, while simultaneously being respectful of the independent and different histories, traditions, and values of the state constitutions. In this way, each essay fulfills the highest aspirations of modernization that reflect the work of its predecessor in the National Municipal League’s model state constitution, while simultaneously avoiding the pitfalls pointed out (albeit somewhat hysterically) by Elizabeth Chesnut Barnes.

Rather than undertake an essay-by-essay review of each of these excellent essays, I pay them the compliment of using [*353] them as they were intended, to help define the agenda for possible state constitutional reform. For purposes of this review I will use the Maryland case as an example. (And of course, as described above, engaging in the public discussion of an agenda for constitutional revision is necessary to building public support for a constitutional convention and ultimate adoption of a revised constitution).

Chapter One: Rights

Robert F. Williams’ essay looks holistically at the rights provisions of state constitutions. While not suggesting that all states adopt any specific list, Williams urges consideration of a variety of categories of rights provisions. Maryland’s Declaration of Rights, drafted in 1776, and updated periodically over the last 230 years, presents a specific, detailed list of rights (Friedman 1998). It is now 47 articles long. Other rights provisions, including the protection against condemnation without just compensation, are scattered throughout the Maryland Constitution (Md. Const., Art. III, §40). Length (or number of rights provisions), however, should not be confused with comprehensiveness. Viewing Williams’ recommendations against the current Maryland Declaration of Rights produces the following potential agenda items:

Should Maryland revise its eminent domain provisions to restrict government’s ability to condemn private property (Tarr and Williams 2006b, 24-25)?

Because the text of the constitution does not contain one, Maryland courts must imply the existence of an equality guarantee (Friedman 2006, 35). Should Maryland add an explicit, textual equality guarantee (Tarr and Williams 2006b, 20-24)?

Should Maryland adopt an explicit right to privacy (Tarr and Williams 2006b, 26)?

Should Maryland reconsider three new rights that it rejected in 1968: (1) an explicit right to freedom from invidious forms of discrimination; (2) a protection against electronic eavesdropping; or (3) a guaranty of fair treatment in investigations (Friedman 2000, 542-543)?

Should Maryland consider adding a prohibition against double jeopardy (which it currently lacks)?

Should Maryland adopt a modern statement of position on so-called “tort reform” (Tarr and Williams 2006b, 18-19; Friedman 2006, 26-27)?

Should Maryland add a provision protecting the rights of prisoners (Tarr and Williams 2006b, 19-20)?

Should Maryland add “positive rights” to protect the elderly or the poor (Tarr and Williams 2006b, 25-26)?

Chapter Two: The Legislative Branch

Michael E. Libonati presents an analysis of the legislative provisions of state constitutions. Not surprisingly, Maryland’s constitution provides for each of the elements identified by Libonati as important in a state constitution’s legislative article, but the phrasing of many of these provisions is neither modern nor concise. An agenda for [*354] Maryland constitutional reform might include the following:

In all state constitutions, the responsibility for the budget and appropriation process is divided between executive and legislative branches. In Maryland, the division of that responsibility is heavily weighted in favor of the governor (Friedman 2006, 59, 133-142). Should Maryland consider a different distribution of budget responsibility?

Should Maryland join the national trend away from multi-member legislative districts in favor of single member districts (Tarr and Williams 2006b, 52-53)?

Should Maryland liberalize its legislative procedure provisions, including the single subject rule, descriptive title rule, the prohibition on special laws, and reading and voting requirements (Tarr and Williams 2006b, 55-59)?

Should Maryland consider modernizing the legislative investigative power (Friedman 2006, 103-104)?

Should Maryland modernize its impeachment provisions (Friedman 2006, 102-103)?

Chapter Three: The Executive Branch

Thad Beyle provides a framework for considering the powers provided governors under each state’s constitution. While Beyle notes a significant increase in gubernatorial power in all of the states over the last forty-two years (from 14.8 on his scale in 1960 to 17.7 in 2002), the powers of the Maryland governor still significantly exceed the national average (using Beyle’s scale, I calculate that Maryland’s governor scores a whopping 21.5). In fact, Maryland’s governor is one of the nation’s strongest (Friedman 2006, 133-159). The principal question for any agenda of constitutional revision is whether the governor has sufficiently unified executive powers. If not, the state might consider, as we did in 1967-1968, making the offices of Attorney General and Comptroller appointed rather than independently elected (Friedman 2000, 560-562). Constitutional reformers might also consider clarifying the eligibility requirements to serve as Attorney General (ABRAMS v. LAMONE 2007).

Chapter Four: The Judicial Branch

Alan Tarr’s essay assesses modernization of state court systems through state constitutional revision. Many of the goals of consolidation and professionalization have previously been accomplished in Maryland, although not always by constitutional amendment (Friedman 2000, 571-578). An agenda for Maryland constitutional reform should include the following topics concerning the judiciary:

Should Maryland consolidate the various circuit courts into a unified statewide court (Tarr and Williams 2006b, 87-88; Friedman 2000, 573)?

Should the merit-based judicial nomination process be enshrined in the state constitution (Tarr and Williams 2006b, 98-100; Friedman 2000, 574-576)?

Should Maryland abandon contested circuit court judicial elections in favor of retention elections (Tarr and Williams 2006b, 98-100; Friedman 2000, 574-576)? [*355]

Chapter Five: Local Government

In a second essay, Michael E. Libonati considers current state constitutional trends in local government provisions. Maryland’s constitutional provisions establishing local governments are in need of modernization. Article XI, which describes the form and powers of Baltimore City, is largely obsolete (Friedman 2006, 210). The other local government provisions, Md. Const., Arts. XI-XI-I, are difficult to read and harmonize. These provisions create, in effect, four different categories of “county” government: (1) the county commissioner form, (2) the code home rule form, (3) the charter home rule form, and (4) the special form of charter home rule that applies to Baltimore City. Another provision, Md. Const., Art. XI-E, creates the structure and powers for municipalities (except Baltimore City). The Maryland Constitutional Convention of 1967-1968 sought to unify this system by forcing each county to accept a charter home rule form of government (Friedman 2000, 578-582). This proved to be a divisive issue with voters in 1968, and, on the subsequent occasions on which counties have independently considered adopting charter home rule, home rule has not been universally popular (Friedman 2000, 582 n. 303). Nonetheless, it is incumbent on potential constitutional reformers to fashion a harmonious modern system of local government provisions that will be efficient, effective, and acceptable to the voters. Libonati’s essay will provide a good starting place.

Chapter Six: Voting and Elections

In his essay, James A. Gardner addresses voting and elections. While other issues may emerge and become relevant, three topics he identifies are already on Maryland’s state constitutional agenda. First, based on its interpretation of the state constitution, the Maryland Court of Appeals recently invalidated legislative attempts to create “early voting” (LAMONE v. CAPOZZI 2006). Constitutional reformers may wish to consider revising the provisions to permit early voting or other innovative methods of increasing voter participation. Second, Maryland statutory and constitutional law is among the most restrictive in disenfranchisement for felony conviction. While legislative changes currently under consideration may remedy this, the issue is ripe for constitutional inquiry. Third, in my view the standards for legislative apportionment require adjustment to avoid a recurrence of the Court’s rudderless invalidation of the 2002 legislative redistricting plan (In re LEGISLATIVE DISTRICTING 2002).

Chapter Seven: Constitutional Amendment and Revision

Gerald Benjamin provides an excellent chapter on constitutional amendment and revision. This is an area of the Maryland constitution that works well and has created only minimal controversy. In fact, those controversies have been satisfactorily resolved by judicial opinion. I suspect that future constitutional framers may wish to update the language, but likely not the methods, of state constitutional revision in Maryland. [*356]

Chapter Eight: State and Local Finance

Richard Briffault’s essay notes “the enormous gap between the written [state and local government finance] provisions of state constitutions and actual practice” (p.212). He might well be discussing Maryland’s experience (Friedman 2006, 118). Briffault urges reformers to abandon the state constitutional public purpose doctrine in favor of improved disclosure of the public benefits claimed. Briffault gives a lukewarm endorsement to retaining state constitutional debt limitations, but suggests that reformers avoid continuing or adding additional process requirements. Briffault also reviews newer state constitutional limits on taxation and/or expenditures (which Maryland’s current constitution does not contain). Although Maryland state constitutional reformers will almost inevitably consider adopting such limitations, Briffault generally counsels against their adoption.

Chapter Nine: Education

Paul L. Tractenberg takes on the educational provisions of state constitutions, providing the history of such provisions, the varied interpretations given those provisions, and a long list of potential components of a modern state constitutional education provision. While Maryland’s provision, Md. Const., Art. VIII, §1, is certainly not modern – it was drafted in 1867 (Leviton and Joseph 1993) – its requirement that the state provide a “thorough and efficient System of Free Public Schools” is similar to provisions found in many other state constitutions. The Court of Appeals, however, has given this provision a narrow interpretation and held that Maryland’s constitution does not protect education as a fundamental right (HORNBECK v. SOMERSET COUNTY BOARD OF EDUC. 1983). Future framers of a Maryland constitution will need to consult Tractenberg’s chapter if they wish to make the right to education fundamental and enforceable.

Chapter Ten: The Environment and Natural Resources

Barton H. Thompson, Jr.’s chapter analyzes state constitutional provisions that provide for protection of natural resources and the environment. Maryland is among the minority of states that lack such provisions. An agenda for constitutional reform should include a discussion of whether and what type of environmental protection provision should be added.

V. CONCLUSION

The three volumes of STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY are a wonderful resource for anyone seeking to amend or interpret a state constitution. They provide universal guidance to the state constitutional reformer without falling into the trap of ignoring each individual state’s unique history, tradition, circumstances, and culture.

REFERENCES:

Barnes, Elizabeth Chesnut. 1968 (February). “Mail Order Constitutions – The Twilight Of The States?” DAUGHTERS OF THE AMERICAN REVOLUTION MAGAZINE 90. [*357]

Friedman, Dan, and Megan R. Nichols. 2006. “FREDERICK v. PICKETT: Questions For Another Day” THE DAILY RECORD (September 5).

Friedman, Dan. 1998. “The History, Development, and Interpretation of the Maryland Declaration of Rights.” 71 TEMPLE LAW REVIEW 637.

Friedman, Dan. 2000. “Magnificent Failure Revisited, Modern Maryland Constitutional Law, 1967-1999.” 58 MARYLAND LAW REVIEW 528.

Friedman, Dan. 2002. “Tracing the Lineage: Textual and Conceptual Similarities in the Revolutionary-Era State Declarations of Rights of Virginia, Maryland, and Delaware.” 33 RUTGERS LAW JOURNAL 929-1028.

Friedman, Dan. 2006. THE MARYLAND STATE CONSTITUTION: A REFERENCE GUIDE. Wesport, CT: Praeger.

Leviton, Susan P., and Matthew H. Joseph. 1993. “An Adequate Education for All Maryland’s Children: Morally Right, Economically Necessary, and Constitutionally Required.” 52 MARYLAND LAW REVIEW 1137.

Tarr, G. Alan. 1998. UNDERSTANDING STATE CONSTITUTIONS. Princeton, NJ: Princeton University Press.

CASE REFERENCES:

ABRAMS v. LAMONE, ____ Md. ____ (2007).

BAKER v. CARR, 369 U.S.186 (1962).

FREDERICK v. PICKETT, 392 Md. 411 (2006).

HORNBECK v. SOMERSET COUNTY BOARD OF EDUC., 295 Md. 597 (1983).

LAMONE v. CAPOZZI, 396 Md. 53 (2006).

In re LEGISLATIVE DISTRICTING, 370 Md. 272 (2002).

MARYLAND COMM. FOR FAIR REPRESENTATION v. TAWES, 377 U.S. 656 (1964).

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© Copyright 2007 by the author, Dan Friedman.

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THE CAMBRIDGE COMPANION TO ANCIENT GREEK LAW

by Michael Gagarin and David Cohen (eds). Cambridge: Cambridge University Press, 2005. 494pp. Cloth. $85.00/£50.00. ISBN: 9780521818407. Paper. $29.99/£18.99. ISBN: 9780521521598

Reviewed by Ryan Balot, Department of Political Science, University of Toronto, ryan.balot [at] utoronto.ca.

pp.343-346

This attractive volume will be helpful to legal historians and political scientists interested in obtaining an overview of the major topics, trends, and controversies in the study of ancient Greek law. Like most volumes of its kind, the present survey features mostly well-known authorities writing on topics that have previously been the subject of their own specialized research. This, of course, represents an editorial choice with both advantages and disadvantages. The chief advantage is that such essays tend to be – and these essays certainly are – solid and trustworthy. Yet, to scholars already well-versed in Greek law, most of the essays will strike a familiar note. Such is the dilemma faced by every COMPANION editor. Should one encourage seasoned scholars to summarize prevailing wisdom, or possibly exhort contributors to offer a novel treatment? Is it possible to do both? The answer is surely yes, but only, perhaps, through unusually creative editorial design and risk-taking. One possibility is to ask well-known scholars to write on unfamiliar topics, and to lead promising younger scholars to rethink the bread-and-butter categories. On the back cover of the present collection, readers are told that this “volume is intended to introduce nonspecialists to the field as well as to stimulate new thinking among specialists.” This COMPANION does provide excellent guidance for non-specialists, but those with a substantial background will have to pick and choose carefully to find original lines of thought.

The best essays achieve the desirable balance between general presentation and original interpretation. Michael Gagarin’s “The Unity of Greek Law,” for example, begins by explaining the previous debates over the existence of a “common substratum” of Greek law. This is useful in itself. Yet Gagarin’s essay transcends the pre-existing discussion by showing that unity in Greek law should be sought not in substance, but rather in procedure. For, as Gagarin persuasively argues, procedure produced the distinctive features of archaic and classical Greek law: “It thus appears that Greek poleis largely shared the same general approach to the judicial process, with the litigants themselves pleading their case as they saw fit before the judge or judges, who were free to reach a decisions as they saw fit within the established rules (i.e., in accordance with the laws, etc.). The formalism that is well known from Roman or early English law seems never to have had a significant place in Greek legal procedure” (p.35). Greek law was [*344] public, anti-authoritarian, and contextual. Its basis was the popular discretion of entire communities. Through his careful attention to Greek political culture, and through his comparisons and contrasts with other pre-modern legal systems, Gagarin identifies common features of Greek law while also respecting the local pressures that shaped law in particular historical and geographic contexts.

Equally successful is A.A. Long’s wide-ranging survey of law and nature. Although Long covers familiar territory, he does so in an original and helpful way, because of his capacity to write as both philosopher and historian. Long’s methodological eclecticism enables him to ask seemingly simple but interesting questions, such as why early Greeks avoided introducing the concept of “law” into their scientific theory. Here Long opts for an historical explanation – namely, “the strongly human and specifically legislative and local connotations that nomos acquired in fifth-century political life” (p.416). Elsewhere, though, Long offers a sagacious conceptual treatment of the relationship between Plato, Aristotle, and the Stoics on “natural law” (a universal moral code often theological in orientation) and “laws of nature” (which are “basic principles governing physical reality”). Long underestimates the Stoics’ indebtedness to Plato’s LAWS for their conception of “natural law,” but he manages to pose original questions while providing just the sort of synoptic discussion that beginners need.

Third, Part V (“Other Approaches to Greek Law”) succeeds in offering synthetic surveys with notable original touches. In addition to Long’s essay, this section features Ober on law and political theory, Allen on law and tragedy, and Wallace on law, comedy, and free speech. All three scholars provide exemplary overviews of their subjects, both breaking new ground while also giving readers a different perspective on their own notable research in these areas. All of these chapters locate their discussions historically, illuminate the dialectic between law and society, and reach surprising, albeit attractive and well-defended, conclusions. It would be hard to ask for more within the generic framework of COMPANION literature.

Other chapters will be helpful to the non-specialist, but less so to scholars in the field. In her “Relevance in Athenian Courts,” for example, Adriaan Lanni revisits the arguments of her recent book LAW AND JUSTICE IN THE COURTS OF CLASSICAL ATHENS (on which see my forthcoming review in the AMERICAN HISTORICAL REVIEW). Lanni argues that while Athenian popular courts generally interpreted legal relevance broadly in order to reach contextual judgments, Athenians also applied strict relevance to their homicide and maritime cases. A similarly solid contribution is Michael Gagarin’s “Early Greek Law.” Drawing on his deservedly well-regarded book of the same title, Gagarin shows that archaic Greeks combined written law with oral procedures that favored rational argumentation, publicity, transparency, and flexibility, instead of “formal procedures or automatic proofs, such as oath-swearing” (p.93). This [*345] unusual combination leads Gagarin to assert, plausibly but controversially, the distinctiveness of early Greek law by comparison with other ancient legal systems.

Yet several chapters are less than satisfactory even for the non-specialist, because they provide hardly any conceptual framework for understanding an extraordinarily dense mass of legal detail. Into this category fit the technical and rule-oriented chapters of Thür (classical Athenian witnesses), Maffi (classical Athenian family and property law), Rupprecht (Greek Law in Foreign Surroundings), and Modrzejewski (Hellenistic family and marriage law). For all their erudition, moreover, Rupprecht and Modrzejewski go astray by assuming “the existence of a number of basic juridical conceptions,” and thus the fundamental unity of Greek law, even across the divide between classical and Hellenistic periods (p.329, Rupprecht; cf. the slightly qualified version of this thesis expressed by Modrzejewski, p.344). This view now appears highly implausible in light of arguments such as Gagarin’s, specifically; and, generally, in light of this volume altogether. Meaningful interpretation of ancient Greek law depends upon sensitivity to historical contingency, rhetorical context, and the dialectic between law and society.

Based on a shared orientation toward the technical exploration of Greek legal rules, these four chapters perhaps illustrate the trends in continental legal scholarship that David Cohen ably criticizes in his provocative introduction to the volume. Cohen argues that in the past twenty-five years Anglo-American scholarship has considerably improved the study of Greek law, through its methodological self-consciousness, theoretical insight, and interdisciplinarity. Cohen’s particular target is the continental scholarly traditions that have assumed, largely without argument, the fundamental unity of Greek law and have thus concentrated on technical questions of legal doctrine and interpretation with little reference to the peculiarities of different social, cultural, and political contexts.

Cohen’s division of legal scholarship into Anglo-American and continental European sub-groups makes sense, but only within limits. A major exception is Eva Cantarella (Milan), who offers a terrific overview of the gendered qualities of law in classical Greece. With admirable theoretical sophistication, Cantarella moves easily from Homer to classical authors to the archaeology of Greek houses. Her survey genuinely teaches readers how they might themselves probe the sources (for example, Lysias I: ON THE MURDER OF ERATOSTHENES) in order more deeply to understand law’s embeddedness within cultural norms and practices.

Many other chapters shed light on long-standing (mis)interpretations and force readers to examine the differences between ancient and modern conceptions of justice and law. To take one example, Cynthia Patterson’s chapter on citizenship makes good on her initially jarring claim that Aristotle’s definition of citizenship is “not an historical given but rather an historical product” (p.268). [*346] Patterson patiently leads readers through the history of Athenian citizenship from Solon into the fourth century. Her account illustrates the limitations of Aristotle’s focus on deliberative and judicial participation at the expense of other political activities which real-life citizens found important, such as holding deme-based political positions, serving in the emphatically political role of priest, and taking part qua citizen in burial and inheritance procedures. Beyond providing a context for Aristotle’s own theoretically informed definitions, Patterson’s essay encourages readers to ponder the vast gulf that separates ancient from modern citizenship.

Equally, David Cohen’s two chapters show that the classical philosophers were indebted, at least structurally, to the ideological discourse on punishment at work in the Athenian democracy. More importantly, though, Cohen’s treatment reveals that the ideology of democratic punishment was at odds with itself. On the one hand, Athenian democrats viewed punishment politically, as an instrumentally useful tool for maintaining social order. On the other hand, those same democrats emphasized the necessary impartiality of punishment: punishment must be the natural consequence of fair-minded reflection on the merits of a particular case. Democracy’s critics picked up on this tension. Whatever the democrats’ self-proclaimed ideals of fairness, democratic law was a major source of the demos’s political power.

This tension is worthy of reflection. For Cohen concludes “the Athenian understanding of concepts of justice, democracy, and the rule of law in important ways differed fundamentally from our own” (p.235). Fair enough. But can we ever be certain that we, too, are not susceptible to the critique offered by writers such as the “Old Oligarch” or Plato or Aristotle, to the effect that positive law is devised by, and is therefore partial to, the regime in power? To express this point in more updated language, it may be that law, despite the best intentions of its framers, is chiefly an effect of power. And so the question arises whether we can ever be confident that our own sincere efforts to promote justice and the rule of law in a disinterested and impartial way are not always already motivated by, and entrenched within, pre-existing structures of political power. Perhaps they are and perhaps they are not. But we would be better off, I think, if we cultivated modesty and self-consciousness in such matters. The distorted mirror of democratic Athens still proves capable of awakening these virtues in us.

REFERENCES:

Lanni, Adriaan. 2006. LAW AND JUSTICE IN THE COURTS OF CLASSICAL ATHENS. Cambridge: Cambridge University Press.

Gagarin, Michael. 1989. EARLY GREEK LAW. Berkeley: University of California Press.

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© Copyright 2007 by the author, Ryan Balot.

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SAN ANTONIO V. RODRIGUEZ AND THE PURSUIT OF EQUAL EDUCATION: THE DEBATE OVER DISCRIMINATION AND SCHOOL FUNDING

by Paul A. Sracic. Lawrence, KS: University Press of Kansas, 2006. 176pp. Cloth. $29.95. ISBN: 9780700614837. Paper. $15.95. ISBN: 9780700614844.

Reviewed by Aaron Cooley, School of Education, University of North Carolina at Chapel Hill. Email: aacooley [at] email.unc.edu.

pp.340-342

The task set forth in Paul Sracic’s SAN ANTONIO V. RODRIGUEZ AND THE PURSUIT OF EQUAL EDUCATION: THE DEBATE OVER DISCRIMINATION AND SCHOOL FUNDING is a difficult one. This volume is one of a series of texts that seeks to introduce a signifigant case in the history of American jurisprudence and flesh out its cultural and political impact, as well as its constitutional legacy. It can be quite challenging to provide an accurate summation of the technical details of complex litigation while, at the same time, explaining the case in accessible terms for non-specialists.

Sracic manages to balance these goals in a masterful manner. In the preface, he relays that he uses RODRIGUEZ as an example in the courses he teaches. The text at hand reflects his immense knowledge about the events leading up to the litigation, the personalities and backgrounds of the major actors, the political effects on the nation’s educational system, and the legal consequences gained from years of its use in his classrooms. The volume proceeds chronologically from the rationale for why the case came into being to the effects of the case on present school equity litigation. Several sections merit particular consideration and analysis. Each of these sections will be examined in turn.

Sracic’s background work on the cases leading to RODRIGUEZ is significant. He discusses major cases relating to educational rights and cases that had an impact on the education of marginalized populations throughout the country’s history. Many of these are well known to readers outside the academy and legal profession, but other, less familiar cases, such as CUMMING, are of equal importance and deserve the attention Sracic grants them. He states: “in 1899, in the case of CUMMING v. BOARD OF EDUCATION, the U.S. Supreme Court heard a challenge by a group of African American parents in Georgia when the school board cut off funds for a segregated black high school. The Court decided in favor of the school board” (p.9).

This case essentially gave the legal cover necessary to institutionalize the PLESSY doctrine in America’s schools that ostensibly already existed. Clearly, Sracic makes use of this background section to set up why the country’s educational system was so dramatically unequal in the time before RODRIGUEZ.

The next noteworthy section that adds to the knowledge of readers is the way in [*341] which the case came to be litigated. Here, Sracic relays how idealistic law professors and students put together a plan to challenge the inequalities they found in Texas’ educational finance system and waited for someone to take it up. Of particular concern for these actors were the ways in which districts raised money for schools. Sracic puts the distress this way:

In looking at how schools were financed, Coons noticed that property-rich districts had enormous advantages when it came to raising funds for local schools. A rich district could tax its property at a low rate and still have much more money to spend on local schools than a poor district with very high property taxes. Therefore, whether a student attended a well-funded school was to a large degree dependent on the property wealth of the district in which he or she resided. This was a form of inequality, he thought, that might have constitutional significance. (p.17)

This difference in the ability of communities to provide education to their children is at the heart of the social and political ramifications of RODRIGUEZ. Further, the above identification began to raise fundamental questions about educational equity and the connections between educational attainment and democratic participation as a citizen in the United States.

Further into the text, Sracic fills in the background on Justice Powell as it relates to educational rights and equity cases. This section is very informative for illustrating possible factors that might have shaped Powell’s views on the RODRIGUEZ case. Of paramount importance in this area was Powell’s own work in the governance of schools. Sracic relays Powell’s position on education, which foreshadows the outcome of the case: “Powell’s experience on the Richmond School Board led him to develop great affection for the idea of local control over the schools. . . . He did not believe that unequal funding led directly to unequal education. The link between funding and quality had never, to Powell’s way of thinking, been definitively made” (pp.66-67). This notion of local control is something that plays a large role in sorting out the elements of the RODRIGUEZ case.

Next, Sracic’s analysis moves from the background on the law and the players involved in the case to the actual decision. In this section, we can see that there was a stark contrast from the liberal Warren Court that decided BROWN and numerous other landmark cases to the much more conservative Burger Court that decided RODRIGUEZ. In many ways, the decision in RODRIGUEZ stands as a rejection of the Warren Court’s policy of extending rights outward to more citizens.

The Burger Court took a more limited view of its institutional power and was not interested in asserting itself into local matters when it did not see an explicit fundamental right to education in the Constitution. Sracic frames this crucial transition from the Warren to the Burger Court in the following manner:

Implicit in Powell’s speech was a criticism of the Warren Court. Indeed, in discussing RODRIGUEZ in his speech, Powell brought up BROWN v. BOARD [*342] OF EDUCATION as a possible precedent for a different outcome. Although the Court was surely right to order desegregation, said Powell, “there are—there have to be—stopping points.” RODRIGUEZ was that stopping point. (pp.112-113)

Of course, the RODRIGUEZ outcome did not end litigation on school equity. It simply changed the venue from the federal level back to the states. In the following passage, Sracic speaks to another aspect of the case that has had a palpable effect on the ways in which state equity cases have been litigated: “Justice Powell’s opinion declared that individuals do not enjoy a fundamental right to an education. In addition, the majority opinion announced that state classifications based on wealth were not ‘suspect’ in a constitutional sense. The result was that RODRIGUEZ removed a legal burden from the backs of the states” (p.141).

Many of the states that have seen school finance cases are well into their second and third attempts to remedy the inequalities of the resources available to run schools in their state. Yet, inequalities persist when one compares a poor urban area with a nearby wealthy suburb. Sracic sees the same evidence: “Across the nation, large disparities in the amount of money available per student still exist. In part, this is because of the holding in RODRIGUEZ denying a federal remedy in educational funding cases” (p.148).

Overall, Sracic’s volume is fair and objective in its discussion of the case and its participants. Yet, one cannot mistake Sracic as anything but a scholar committed to greater educational equity. This assertion is drawn out from the final section of text where he discusses his encounter with the namesake of the litigation. Sracic displays an appreciation for the struggles that were confronted in the case as well as a desire to relay the fundamental democratic moment when Mr. Rodriguez decided to seek redress from his government for what he saw as an unjust system. Sracic eloquently states:

There is a temptation to overly personalize a case like this to give it a more human face. I would like to think, however, that Demetrio Rodriguez is an apt representative of all the litigants. Like others, Demetrio Rodriguez was unwilling to accept a system that he thought was unfair. He – they – demanded that the state of Texas explain “why” this inequality existed (p.153).

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION OF TOPEKA, 347 U.S. 483 (1954).

CUMMING v. BOARD OF EDUCATION OF RICHMOND COUNTY, 175 U.S. 528 (1899).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ, 411 U.S. 1 (1973).

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© Copyright 2007 by the author, Aaron Cooley.

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LIBERTIES LOST: THE ENDANGERED LEGACY OF THE ACLU

by Woody Klein (ed). Westport, CT: Praeger Publishers, 2006. 320pp. Hardcover. $49.95/£27.95. ISBN: 0275985067.

Reviewed by Lauren Bowen, Department of Political Science, John Carroll University. Email: bowen [at] jcu.edu.

pp.334-339

This volume includes excerpts of the speeches and writings of Roger Baldwin, founder of the American Civil Liberties Union, alongside contemporary commentary by political activists has two purposes. Woody Klein, a journalist and family friend of the Baldwin family, wants to demonstrate all that the ACLU has accomplished since its founding in 1920. Via the commentary, Klein also suggests that the concerns which motivated the creation of the ACLU remain as timely and urgent in 2007 as they were in 1920. The overall message of this book is that vigilance remains necessary to check the exercise of government power and to prevent the suppression of individual liberty.

It is noteworthy that the volume is moderately successful in reconciling these goals and objectives. Klein is quite explicit in the introduction in noting that Baldwin’s words are being used to demonstrate their relevance for present times. The clear motivation for preparing the text at this historical moment is the actions of the Bush Administration in the wake of events of September 11, 2001. Klein suggests that the people and government of the United States have not sufficiently heeded Baldwin’s advice and vision. In that sense, the book is a cautionary tale. Each chapter begins with excerpts from Baldwin’s writings and speeches. The commentators close the chapters and clearly seek to connect Baldwin’s views and experiences to the contemporary political environment.

The second goal is equally central to the book. The text also seeks to demonstrate that Baldwin and the ACLU fundamentally shifted the parameters of debate in the US. The idea that civil liberties exist and are worthy of protection is now part of popular discourse. While their scope remains contested as the text aptly demonstrates, the supposition that the protection of dissent and civil liberties more generally is essential to democracy is pretty well accepted in the US in 2007. Thus, the “book is an effort to put the issue of civil liberties in the framework of history . . . to awaken readers to the real and present danger of our government running roughshod over our basic rights in the name of national security” (p.xvi). Further, the text seeks to contribute to an ongoing dialogue to “awaken the conscience of all Americans to the gathering storm that threatens the very essence of our democracy” (p.xvi).

To do this, the book begins with a brief biographical sketch of Roger Baldwin via his interviews and writings. He was born into privilege in Boston in 1884. He worked as a laborer for four months to understand the lives of workers better. He was a conscientious objector during World War I and was jailed briefly. This forged his commitment to the rights of [*335] prisoners specifically and to the interests of the “underdog” more generally. By the 1950s after he stepped down as executive director of the ACLU, he increasingly turned his attention to international human rights. He became increasingly anti-Soviet and anti-communist during this time period because of Baldwin’s perception that civil liberties in these regimes were supported only for the allies of the state. His mantra that rights and liberties must be afforded to one’s enemies and opponents emerges clearly in the introduction and is a thread carried throughout the narrative.

The second chapter, “Watchdog for the Underdog,” suggests that racial injustice was also a catalyst for the formation of the ACLU in addition to the rights of workers and the protection of free speech and press during wartime that are more commonly associated with the ACLU’s creation in 1920. Baldwin’s writings during this time period suggest that while the labor movement was the primary catalyst for forming the ACLU and that the rights of workers was the main focus, quickly the emphasis expanded to freedom of assembly and dissent for all kinds of unpopular causes. What is particularly striking in this narrative is the clarity with which Baldwin’s political views and sensibilities emerge. At the same time, though, for this commitment to have integrity it was crucial to Baldwin and by extension the ACLU that all unpopular dissidents and their views be protected. So when he writes about defending the Ku Klux Klan in 1969, he can say that, while it was clearly distasteful, it “proved our integrity” (p.31).

Yet Klein and various commentators do not try and duck the controversy surrounding the ACLU’s expulsion of Communists from their board during the Red Scare or lengthy delay in the organization’s condemnation of the interment of Japanese-Americans during World War II. Although Baldwin does not suggest that the decision to purge the ACLU board of members with Communist ties was a mistake in subsequent writings, he is quite explicit in acknowledging that the ACLU should have weighed in much earlier to protest the treatment of Japanese-Americans during World War II. Commentators in the volume place the Communist controversy into its political context. They do not defend it nor apologize for it. They are not overly critical of it, either, however.

The third chapter reiterates the necessity of protecting civil liberties during wartime. As this is a recurrent theme throughout Baldwin’s career, it makes sense that so much text is devoted to the premise that protecting national security and individual liberty should not be seen to be in conflict with one another. As Baldwin wrote in 1941, “how can democracy be saved if civil liberty is sacrificed?” (p.68). Senator Russ Feingold makes the same argument in the present day, suggesting that “we need to make sure we don’t reward terrorists by giving up the freedoms they seek to destroy” (p.81).

The remaining chapters develop and reinforce these basic themes of the text. [*336] The protection of individual liberty is foundational to democracy and protecting the liberties and views of one’s enemies is necessary, not only to maintain a sense of integrity, but to realize fully the promise of robust and unfettered political debate. The ACLU changed public discourse by adding civil liberties to the public lexicon and changing the parameters of debate. And while obviously the Bill of Rights existed before 1920, until the ACLU was created and undertook its litigation strategy, there was no meaningful mechanism to enforce the provisions of the Bill of Rights and give them real and practical meaning. Thus, the litigation strategy adopted by the ACLU was worthwhile and productive. And yet, despite of and because of all that has changed in the past 90 years, the efforts of the Bush Administration to suppress liberties and dissent must not go unchecked. The author and the various commentators, including Ira Glasser, Patrick Leahy, Ted Kennedy, Victor Navasky, William Sloane Coffin and numerous others, are suggesting that while much is to be celebrated in the shift in public discourse, it can unwittingly lead to complacency and disbelief that, if given an opportunity, government will exercise power in ways that abuse the rights of the people.

In examining “The Courts and Equal Justice,” a wide range of topics and views are exhibited via Baldwin’s writings. As noted above, one of the goals of this volume is to demonstrate all that has been accomplished by the ACLU since its founding. This is most evident in the discussions of the role of litigation to effect social change. In 1930, Baldwin notes that the “test of the strength of the democratic institutions lies in the freedom of weaker, more unpopular forces to organize and carry on activities and propaganda” (p.93). And courts, in Baldwin’s judgment, are the best vehicles in the US system to protect minority rights. The included excerpts reflect on the role of the ACLU and Baldwin’s views on notable cases, including the Scopes monkey trial (the first truly notorious case sponsored by the ACLU), the Scottsboro Boys case, the right of Nazis to march through Skokie, IL, Sacco and Vanzetti, and various McCarthy era cases. What is most surprising in this collection of essays is Baldwin’s blunt assessment of various cases. According to Baldwin, Ethel and Julius Rosenberg received a fair trial, and there was no serious injustice despite Baldwin’s opposition to the death penalty (and as contrasted with Sacco and Vanzetti and the Scottsboro Boys). While beliefs should not be punished in a free society, Baldwin is quite clear in stating that the ACLU has no sympathy with efforts to overthrow government; actions can be punished while beliefs cannot.

Although Baldwin was on guard against government intrusion on individual liberties, he nonetheless put his faith in government as having the potential to offer solutions to the enormous wrongdoing he saw, such as discrimination against racial minorities, workers, women and especially immigrants (p.125) In the chapter devoted to “The Government and Civil Liberties,” this more affirmative role for government is explored. In an essay written in 1973, Baldwin quotes [*337] Churchill when he writes “democracy is the best form of government because it is the least evil” (p.130). Two years later, Baldwin reflects on the ACLU’s relationship with government since its founding and notes that much has been accomplished in fifty years. He writes, “industrial warfare has turned peaceful and racial warfare is greatly reduced. Potential and public violence are almost gone from American life.”

Chapter 6 focuses on the rights of workers. This chapter is one of the best because it offers some novel insights into the well-established themes of the book. For example, Baldwin saw NLRB v. JONES AND LAUGHLIN (1937) “as a turning point not only in the history of labor relations but in the history of constitutional rights” (p.145). The connection between the resolution of the constitutional crisis of 1936-1937 and the ascendancy of the protection of civil rights and liberties is familiar to LPBR readers, but the suggestion that the holding in NLRB itself was a civil libertarian decision enriches one’s understanding of that time period.

In Chapter 7, the focus turns to “Education: Key to Protecting Liberty.” The main idea of this chapter is that academic freedom must be valued and protected so that education is not merely to protect the status quo. Baldwin argues that public education must be controlled from the bottom up to ensure that schools are a place where the mind is liberated and dissent can thrive. And in this arena, he is perhaps more optimistic than in other areas (or perhaps than is realistic) as he argues that raising public awareness of the Bill of Rights via the educational system is a long term process of “intellectual change that begins with a few lonely advocates to the broader elite to elite institutions (like the Supreme Court) to the general populace” (p.167).

“Liberalism and Political Change,” Chapter 8, is not the strongest chapter in the book mostly because Baldwin’s definition of liberalism is that of a practitioner and thus often seems in his writings to be an expedient approach to the construct rather than a theoretically rigorous one. He suggests that liberalism is bound up with equality and that its central concept is the protection of individual rights that presupposes decentralization of authority and diversity of societal interests. He goes on to suggest that the “liberal position” is fluid and lacks dogma. Still, the power of this narrative is the evidence of Baldwin’s pragmatism and discussion of the tension between the radical, purist Baldwin and the pragmatic, liberal Baldwin. In this context, the decision to expel Elizabeth Gurley Flynn from the ACLU board in 1940 because of her communist ties is analyzed. Baldwin never acknowledged it as a betrayal, although the text suggests he was acceding to the demands of other board members. Yet Flynn’s posthumous reinstatement to the ACLU board is also seen as the right thing to do.

The discussion of “Liberty and the Media” in Chapter 10 is among the most timely, as this provides the occasion to discuss the balance between national security and a free press. Baldwin’s writings in this context support most aptly the argument that significant and [*338] meaningful change with regard to protection of civil liberties occurs between 1920 and 1980. In 1920, Baldwin writes that a free press does not exist. In 1945, he is more optimistic, suggesting that free communication is now accepted without question. By 1975, he writes that he is satisfied with the freedom the press enjoys and notes that upholding the First Amendment was the New Deals’ major achievement in protection of civil liberties. Here again Baldwin’s words support the overriding themes of the text. He states unequivocally that no language should be punished in the absence of actions. He notes that “free speech never exists as an abstract right . . . it takes determination and the organized power of men who want free speech for themselves and others” (p.183). As Nat Henthoff notes in his commentary for this chapter, “no civil liberties battle is ever won permanently” (p.197). The role and significance of the ACLU is thus demonstrated as is the institutionalization of the organization as a check on the exercise of government power.

The commitment to a wall of separation between church and state has long been associated with the ACLU, and Chapter 10 documents it. Baldwin argues that the concept of a secular state was fundamental to the US Constitution. While the framers were religious, the omission of god and religion from public life was intentional, purposeful and appropriate. That separation has been eroded in the intervening years, but advocacy from the ACLU has helped frame the debate. Baldwin’s description of the Scopes monkey trial of the 1920s demonstrates this capably (and also makes for a compelling read).

Roger Baldwin stepped down as executive director of the ACLU in 1950, although he remained actively committed to the goals of the organization for the remainder of his life. Much of his energy in the last 30 years of his life is devoted to international human rights and protection of civil liberties in nations other than the US. “A World United by the Rule of Law” is the focus of Chapter 11. This chapter lacks a clear narrative flow perhaps because Baldwin is more tentative and less consistent when stepping outside the US perspective, experience and structure. While he acknowledges the limits of an imperialistic approach to civil liberties, suggesting that “help is especially resented when it comes with the implication that the American way of life is superior” (p.226), he also observes that many developing nations are not ready for self-rule and that democracy is learned only by long experience. Most significantly, however, this discussion highlights Baldwin’s commitment to the rule of law and working within legal structures to effect change. While supportive of the work of the United Nations and the Universal Declaration of Human Rights, he notes on several occasions that such proclamations are not law and thus are not enforceable. All that exists in the international arena is moral influence. It is clear from these excerpts that his energy came from litigating provisions of the Bill of Rights in US courts. And as noted throughout the volume, his genius was giving the paper guarantees of the Bill of Rights [*339] life and meaning by taking seriously the proposition that they could be enforced by courts of law.

Because the themes are persistent, the book borders on being repetitive. The commentaries vary in their quality as some are more analytic than others. However, all are succinct and provide a contemporary context with which to contrast Baldwin’s writing. The Afterword, a previously unpublished interview with Baldwin by Anthony Lewis, is particularly salient, as the key themes of the volume are all included in this brief exchange. Baldwin notes the persistence of racism as the most significant issue in the US. He also articulates his world view in a clearer manner than included in the text. That is to say, he argues the need to recognize the sovereignty of individual states and suggests a commitment to nationalism coupled with global consciousness. Most powerful, however, is his belief in the “moral superiority of US institutions” and his commitment to the US structure that divides power, because power concentrated in a few is the greatest danger of all. Moreover, he believed (and this interview took place in 1981) in the US Supreme Court as a libertarian and liberal institution. Indeed, he saw it as the “saving institution.” For those not wanting to read the entire volume, its essence is captured in this final interview.

While Baldwin fashioned himself as a radical, his commitment to change within conventional modes of participation like litigation permeates the volume. And this commitment emerges in a way that makes sense and seems attainable. Ultimately, the book is an optimistic and affectionate narrative suggesting that the promise of the Bill of Rights can be fulfilled in ways that are relevant in 2007 – in ways that can alter the balance of power without dismantling the structure of government. The beauty of the narrative is that this pragmatic and conventional approach to social and legal change is also presented in a convincing manner as a radical and subversive proposition. In that vein, I think this book would be a nice resource for undergraduates. I have found it to be instructive in my teaching of Civil Rights and Liberties this semester because of various anecdotes as well as the overriding themes that augment casebooks.

CASE REFERENCES:
NLRB v. JONES AND LAUGHLIN STEEL CORPORATION, 301 U.S. 1 (1937).

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© Copyright 2007 by the author, Lauren Bowen.

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FAILURE TO PROTECT: AMERICA’S SEXUAL PREDATOR LAWS AND THE RISE OF THE PREVENTIVE STATE

by Eric S. Janus. Ithaca & London: Cornell University Press, 2006. 208pp. Cloth. $35.00. ISBN: 9780801443787.

Reviewed by Thomas L. Hafemeister and Amy Woolard, School of Law, University of Virginia.

pp.326-333

Eric Janus begins FAILURE TO PROTECT: AMERICA’S SEXUAL PREDATOR LAWS AND THE RISE OF THE PREVENTIVE STATE much in the same way that sexual predator laws typically begin, namely, with a victim’s story, but he reaches a very different conclusion. Dru Sjodin’s picture was a recurrent feature of many national newscasts in the months following her disappearance in late 2003. A young, attractive co-ed finishing her studies at the University of North Dakota, Sjodin was kidnapped as she walked in the early evening to her car parked at a North Dakota shopping mall. Although Alfonso Rodriguez, Jr. was ultimately convicted and given a death sentence for Sjodin’s abduction, sexual assault, and murder, it was widely noted that seven months earlier Rodriguez had been released from prison where he had been held for twenty-three years as a repeat sex offender.

Janus describes the resulting political backlash as understandable but misguided. There was a general outcry that Sjodin’s fate, and others like hers, could and should have been prevented. Rodriguez was labeled a “sexual predator” and calls were renewed to use modified civil commitment laws to place such individuals in secure facilities – for the rest of their lives if possible – to fill a perceived gap in the criminal justice system. These increasingly popular sexually violent predator (SVP) civil commitment laws, now approved in twenty states, typically authorize the civil commitment of persons who, due to a “mental abnormality” or “personality disorder,” are likely to engage in “predatory acts of sexual violence.” These laws are primarily designed to place inmates completing their prison sentences for a sexual offense in a secure facility long after their sentence has ended.

Janus decries the use of this mechanism for three primary reasons. First, these laws distort society’s understanding of the real nature and scope of sexual violence, which he characterizes as a public health crisis, and divert attention from a more rational response to it. Second, they facilitate a dehumanizing portrayal of these offenders as the worst of the worst that justifies society’s failure to implement alternative efforts that can better prevent such crimes by diminishing the level of sexual violence in our culture. Third, they “introduce dangerous principles into the sensitive balance between liberty and security” (p. 24), which undercut and bypass normal constitutional constraints on the government’s ability to confine individuals because of possible future dangerous acts.

Distortion of the Nature and Scope of Sexual Violence
[*327]
Willing to travel unpopular ground, Janus argues that the headline-grabbing stories of victims like those of Dru Sjodin, Megan Kanka (the inspiration for the sex offender community registration and notification measures known as “Megan’s laws” now found in all fifty states), Jessica Lunsford, and Sarah Lunde, among others, distort the public’s perspective of the nature of sexual violence in the United States. While these crimes are undeniably heinous, Janus documents that these events are far rarer than media accounts represent and that these accounts fail to address the greater societal problem of sexual violence in general.

Janus asserts that these accounts create an inaccurate image of the archetypal sex offender, namely, a career criminal previously unknown to the victim who is driven by uncontrollable urges. As he points out, however, the data indicate that (1) sexual homicides are extremely rare; (2) sexual violence is predominantly committed by relatives or acquaintances, not strangers; (3) sexual violence is ubiquitous with many sexual reports never reported (although a sex offense by a stranger is far more likely to be reported); (4) sexual violence is not random but is mainly directed at the young and at people the offender knows; (5) most sex crimes are committed by people who have never been convicted of a violent offense, and most released convicted sex offenders are not arrested for a new sex crime; and (6) a lack of self-control is characteristic of most criminals with most crimes being impulsive actions, as well as of large portions of society in general, where people have serious difficulty controlling their smoking, alcohol or drug use, gambling, eating, and the like, and thus provides little rationale for the “ritual exiles” of this population.

Failure to Implement Alternative Efforts That Can Better Prevent Such Crimes

Janus further contends that these SVP civil commitment laws shift public focus and public funds to the “stranger” rapist-murderer, which has become society’s “bogeyman” but which represents a relatively small and virtually impossible to prevent aspect of the greater sexual violence problem. Janus argues that this attention and these funds would be better spent on the far more widespread but less media appealing issues of domestic partner sexual abuse, intra-familial child sexual abuse, date-rape, and other less sensational but highly injurious crimes that may, with the right approach, actually be preventable. Janus also suggests that focusing on confining the sexual predator gives the public a false sense of security from sexual violence and erodes efforts to recognize and combat how societal attitudes facilitate more pervasive forms of sexual abuse.

Furthermore, Janus provides a cost-benefit analysis that strongly suggests that the extraordinary funding of these commitments flies in the face of common sense. He reports that the average annual cost to house and treat one SVP is $75,000. He adds that estimates for the total national cost for the then sixteen existing SVP commitment laws ranged up to $320 million, which did not include the one-time litigation costs for new [*328] commitments (estimated at up to $100,000 per case) and the capital costs of constructing confinement facilities (with one state’s estimate being $69 million). A 2007 survey by the NEW YORK TIMES found that the total SVP civil commitment budget for the eighteen states for which data were available was $446.8 million (Goodnough and Davey 2007). Janus projects that within the next decade the annual national expenditure on SVP commitments will be $750 million to $1 billion. These expenditures, however, only pay for the incarceration of about three thousand offenders. Further, SVP civil commitment confines only 3-12% of sexual recidivists and can be expected to confine only 0.4-1.7% of the individuals who would otherwise be convicted of sex offenses each year.

In contrast, Janus notes a lack of correctional treatment programs for sex offenders, cut-backs in parole services for released sex offender inmates, and a failure to appropriate adequate funding for programs that will reduce the level of sexual violence in general and provide a needed continuum of interventions. Janus asserts that the limited public funding available would be far better spent on more effective preventative measures that address the wider problem of sexual violence.

Subverting the Balance Between Liberty and Security

Civil commitment laws, argues Janus, cement the idea of the sex crime as stranger violence and the sex offender as a mentally ill deviant who cannot control his own behavior. The result is that society is willing to relax its protections of liberty and override criminal justice safeguards if it means certain “monsters” are locked away for good. Further, Janus contends that cordoning off the “stranger-danger” sex crimes results in a failure to identify and address the causes of sexual violent and prevent sexual violence before it happens.

Janus worries that SVP civil commitment laws, which hinge upon ably identifying potential dangerousness, are a harbinger of an increasingly “preventive state.” Janus draws apt comparisons to the detainment of suspected terrorists in the post-9/11 United States. Both groups are confined for their perceived risk of future dangerousness, rather than for their past criminal actions. He argues that those who would celebrate the distance United States law has traveled from decisions like BUCK v. BELL (1927), which upheld mandatory sterilization of individuals with a mental disorder, and KOREMATSU v. UNITED STATES (1944), upholding the internment of citizens of Japanese ancestry during World War II, need only look to the USA Patriot Act, passed in 2001, to understand that this country is not yet beyond providing a reduced-rights status to certain disfavored groups, or what Janus refers to as the “degraded other.”

Janus also notes that many additional types of legislation have historically been enacted to identify “dangerous” people and restrain their liberty before they can do harm. Among the examples he sites are racially discriminatory laws, including the “separate but equal” laws targeting blacks, broad-sweeping [*329] vagrancy and anti-loitering laws, and criminal sanctions for being an alcoholic or a drug addict. Janus asserts that “the idea that our laws may pick out a disfavored group of others for specially disfavored treatment in the law has been all but eliminated” (p.97) but argues that these limits were hard won and are potentially fragile.

Legislatures and courts that have sanctioned the commitment of sex offenders must do so in the name of “treatment” rather than punishment to pass constitutional muster. However, organizations such as the American Psychiatric Association and the National Association of State Mental Health Program Directors have categorized these laws as a “misuse” of civil commitment, noting that often no meaningful treatment exists or is provided for many of those who are detained. Janus adds that (1) the range of mental disorders that justifies SVP commitment has generally been broadened to encompass personality disorders, even though this is not typically a sufficient basis for civil commitment in general; (2) the treatment services provided in conjunction with SVP civil commitment are of questionable efficacy, and it is far more difficult to achieve release back into the community following SVP civil commitment; and (3) current dangerousness, a requirement of civil commitment in general, can be based on an inmate’s prior conviction of a sexual offense, even when a relatively long period of time has elapsed since the crime, or a questionable prediction of future dangerousness. Although the United States Supreme Court in KANSAS v. HENDRICKS (1997) upheld the constitutionality of the prototypical Kansas Sexually Violent Predator Act, it is worth noting that Justice Kennedy’s pivotal concurring opinion warned that if the object of such a law is to provide treatment but the treatment provided is a sham or mere pretext, the law would violate constitutional protections.

Registration and Community Notification and Other Legislative Actions

Janus also describes with concern a related step taken in response to the perceived threat posed by violent sexual predators. For example, he notes that although all states have some form of a sex offender registry and community notification (i.e., a Megan’s law), the routine underfunding of these mechanisms impairs delivery of their clearest benefit, namely, the provision of useful information so people can take meaningful measures to protect themselves. One national study concluded that states on average were unable to account for 24% of offenders supposed to be in these databases. With 603,245 registered sex offenders in the United States at the end of 2006 (National Center, 2007), this study suggests that accurate information on the location of nearly 145,000 registered offenders is unavailable.

Janus also comments that the value of this mechanism is challenged by research indicating that (1) six out of seven sexual assaults are committed by people who are not previously convicted sex offenders and thus are not subject to [*330] community registration and notification, (2) roughly half the states do not perform an individualized assessment of each sex offender’s future risk, as a result including individuals on the list who may pose little if any risk to others, (3) many of these schemes do not provide any practical advice to citizens about how best to protect themselves, and (4) this approach is overbroad as the vast majority of victims of sexual assault are related to or are already acquainted with the person who assaults them. Furthermore, inclusion on these lists can make it extremely difficult for listed individuals to obtain a job or a place to live, which are vital steps for a reintegration into the community, and few treatment or support programs are provided to facilitate this reentry, which ironically may place the community at greater risk.

Janus also notes that many states and locales now have provisions banning registered sex offenders from living within a specified distance of schools, parks, daycare centers, and other places where potential victims may congregate. He cautions, however, that the dedication of extensive but scarce police resources are needed to enforce such provisions at even the most basic level but which are then not available to respond to other societal needs such as preventing sexual violence in general. Plus, offenders may find themselves unable to find housing in any acceptable area, leading many to go “off the grid” when they fail to re-register or disappear to neighboring states, thereby further diminishing the value of such registries.

Caveats

Although comprehensive in its scope, there are some limitations to Janus’ treatise. First, although he should be credited for providing an extensive review of relevant research on sex offenders and sexual violence, as a law professor it is perhaps to be expected that his focus is the legal and public policy ramifications of SVP commitment laws and related enactments. His review of the literature on sex offender treatment, however, is relatively cursory. For a more extensive review of available treatment modalities within the context of a discussion of the laws in this country designed to monitor and control sex offenders, see Shajnfeld & Krueger (2006). Similarly, Janus’ review of risk assessment and related instruments and their reliability when applied to this population is relatively brief. For an analysis of the use of the increasingly popular construct of psychopathy and associated measures to assess future risk, see Kolbe (2007). For a review of violence risk assessment in general, see Monahan (2006).

In addition, Janus could have noted that civil commitment in general has historically been used to confine and control unpopular or disfavored groups (Appelbaum, 1994). Furthermore, mental illness per se tends to engender stigma and potential discrimination. As a result, certain procedural protections are employed to ensure that the civil commitment of individuals with a mental illness is limited to individuals truly in need of care and treatment. In much the same way that calls for increased SVP civil commitment have been driven by well-publicized tragic [*331] events, similar events where an individual with a mental illness has attacked others, typically after a loved one unsuccessfully sought mental health services for the individual, have stimulated calls to expand the availability and reach of civil commitment in general as well (Zdanowicz, 2006). Although Janus’ analogizing SVP civil commitment to the detainment of suspected terrorists is valuable, it would have been of interest to learn whether he, an expert in this field, finds efforts designed to pressure individuals perceived to be in need of mental health treatment to accept this treatment – including expanding the criteria for civil commitment in general, enhancing the availability of out-patient commitment, increasing the use of psychiatric advance directives, and establishing mental health courts – also reflect efforts to control a disfavored and what may be perceived to be a threatening group within an increasingly “preventive state.”

Finally, Janus vigorously argues that efforts to enact SVP commitment laws reflect a conservative agenda to undercut feminist assertions about the prevalence and causes of sexual violence, including their position that sexual violence is used to maintain the oppression of women. According to Janus, “[t]he predator laws arrived just in time to provide conservatives with a Trojan horse, a stealth vehicle for pushing back against the ‘tidal wave’ of change wrought by the women’s movement” (p.87). Janus asserts that the predator laws (1) resurrect the archetypal sexual offense as stranger violence, (2) reemphasize the model of a sexual offender as a person with a mental disorder who lacks the ability to control his sexual impulses, and (3) diminishes the need to address the contribution of traditional community values and attitudes to the occurrence of sexual violence. While a provocative and intriguing thesis, this argument has the unfortunate potential of engulfing his other important assertions within the cultural wars that have polarized and immobilized efforts to resolve other important societal issues, ranging from abortion to end-of-life decision making. As Janus acknowledges, calls to enact SVP commitment laws are typically bipartisan once a tragic event has unfolded. Furthermore, conservatives in this country have for some time sought to advance a law-and-order agenda, as reflected for example by the explosion of the prison population and the wide enactment of “three-strikes” laws. As Janus notes, calls for SVP civil commitment readily fall within this agenda as well. Janus has more than sufficient bases for his critique of SVP commitment laws without framing them within an ideological argument that may ultimately undercut his ability to promote his goal.

Conclusion

Janus warns that when people mistakenly come to believe that sexual violence is limited to sexually violent predators who can be readily identified and controlled, legislators feel obliged to answer by introducing SVP civil commitment and related bills. The implicit message associated with these bills is that once they are in place, the public will be adequately protected. [*332] SVP civil commitment laws seek to legislate away the public’s fear of sexually violent crime by embracing an “out of sight, out of mind” approach. When these enactments follow a particularly monstrous crime, as they usually do, the legislative response is often swift, leaving little room for reflection, discussion, or research. Megan’s law was enacted in New Jersey less than three months after the death of Megan Kanka. Florida’s Jessica Lunsford Act, which increased minimum sentences for sexual offenses against children and requires offenders to be closely tracked upon release, was enacted in thirty-two days. After all, as Janus notes, no one wants to be the state representative who votes “for” violent rapists and pedophiles over the safety of children.

Janus does see some value in sexual predator laws in that they “give loud expression to our collective disapproval of sexual violence” and “empower victims and other innocent members of society [to give] voice to their hurt and their fears” (p.145). However, he contends that these laws fail to address the systemic conditions that foster sexual violence in our culture, with the result that these crimes will continue to occur relatively unabated. Ultimately, Janus advocates for a policy that casts sexual violence as a public health crisis that demands a more effective community response. By redirecting the exorbitant sums that support the few violent sex offenders being housed in state-funded SVP civil commitment facilities, Janus suggests that more appropriate options can be explored and implemented. Further, by broadening our focus and presenting the public with more realistic accounts of the problems that exist, he effectively asserts we can better redress the plight of the thousands of nameless victims who will suffer through crimes that do not even make the local police blotter, much less the evening news.

REFERENCES:
Appelbaum, Paul S. 1994. ALMOST A REVOLUTION: MENTAL HEALTH LAW AND THE LIMITS OF CHANGE. New York: Oxford University Press.

Goodnough, Abby, and Davey, Monica. 2007. “A Record Of Failure At Center For Sex Offenders.” THE NEW YORK TIMES, (Mar. 5, 2007). Available at http://www.nytimes.com/2007/03/05/us/05civil.html?em&ex=1173330000&en=30270e8fc8f37b62&ei=5070.

Kolbe, Vanessa L. 2007. “A Cloudy Crystal Ball: Concerns Regarding The Use Of Juvenile Psychopathy Scores In Judicial Waiver Hearings.” 26 DEVELOPMENTS IN MENTAL HEALTH LAW 1-25.

Monahan, John. 2006. “A Jurisprudence Of Risk Assessment: Forecasting Harm Among Prisoners, Predators, And Patients.” 92 VIRGINIA LAW REVIEW 391-435.

National Center for Missing and Exploited Children (visited on Mar. 9, 2007). “Registered Sex Offenders In The United States.” Available at http://www.missingkids.com/en_US/documents/sex-offender-map.pdf. [*333]

Shajnfeld, Adam, and Krueger, Richard B. 2006. “Reforming (Purportedly) Non-Punitive Responses To Sexual Offending.” 25 DEVELOPMENTS IN MENTAL HEALTH LAW 81-99.

Zdanowicz, Mary T. 2006. “Dealing With The Dangerously Ill: Maryland And Virginia Offer Little Defense.” WASHINGTON POST, p. B08, (May 21, 2006). Available at http://www.washingtonpost.com/wp-dyn/content/article/2006/05/19/AR2006051901362_pf.html.

CASE REFERENCES:
BUCK v. BELL, 274 U.S. 200 (1927).

KANSAS v. HENDRICKS, 521 U.S. 346 (1997).

KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).

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© Copyright 2007 by the authors, Thomas L. Hafemeister and Amy Woolard.

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REGULATING AVERSION: TOLERANCE IN THE AGE OF IDENTITY AND EMPIRE

by Wendy Brown. Princeton: Princeton University Press, 2006. 282pp. $29.95/£18.95. Cloth. ISBN: 9780691126548.

Reviewed by Benjamin Gregg, Department of Government, University of Texas at Austin. Email: bgregg [at] mail.utexas.edu.

pp.318-325

The liberal vision of tolerance is widely if not unanimously supported, even within liberal societies. It is not uncontested, especially outside the West. (Of course, the same can be said of any major concept of modern political community, from freedom, legitimacy, and justice to equality, democracy, and the rule of law.) Wendy Brown contests the liberal vision within the West as sometimes deeply repressive, as a terrible substitute for recognizing the Other, whose minoritarian identity often is tolerated as deviant, of lesser worth, and acceptable only behind the closed doors of private life and unacceptable in the public sphere.

I.

Brown renews a claim by Herbert Marcuse who, in 1965 (and in the long lost spirit of the ‘60s), wrote: “When tolerance mainly serves the protection and preservation of a repressive society, when it serves to neutralize opposition and to render men immune against other and better forms of life, then tolerance has been perverted” (Marcuse 1969:111). Whereas Marcuse analyzes tolerance as a defensive measure of “protecting and preserving” a repressive order, Brown observes it on the offense, “manag[ing] the demands of marginal groups in ways that incorporate them without disturbing the hegemony of the norms that marginalize them” (p.36). Now part of the necessary furniture of contemporary liberal Western politics, tolerance is “a mode of incorporating and regulating the presence of the threatening Other within” (p.27). It has “shift[ed] from an element in the arsenal of sovereign power to a mode of governmentality” (p.37). Perhaps Brown’s distinction implies something like law that has shifted from a means to justice to a tactic of control: from socially and legally respecting the Other to simply managing him or her.

That Brown constructs this shift within parameters conceived as exclusive alternatives to one another, rather than as different points on a continuum places her analysis less within the Frankfurt School of “Hegelmarxists” like Marcuse, to whom Brown’s analysis is indebted at least in spirit, and more in the ambit of its Parisian “other,” Michel Foucault (e.g., 1991), whose contribution to “understanding contemporary political life,” Brown writes, “pertains to his tracing of the formation and regulation of the modern subject through a discursive equation of certain beliefs and practices with essential truth of a given subject” (p.41). But whereas Foucault’s analyses eschew essential truths, REGULATING AVERSION presupposes one, yet is unable to deliver it. Instead we get an unresolved play of ambiguity, relativism, and ambivalence – as I will show. [*319]

Like Marcuse, Brown monitors in America and beyond the perversion of a utopian promise: “Tolerance as a primary civic virtue and dominant political value entails a view of citizenship as passive and of social life as reduced to relatively isolated individuals or groups barely containing their aversions toward one another” (p.88). But unlike Brown’s analysis, Marcuse’s does not presuppose political liberalism if that includes the non-violent resolution of social problems through legal and other procedures: “I believe that there is a ‘natural right’ of resistance for oppressed and overpowered minorities to use extralegal means if the legal ones have proved to be inadequate. Law and order are always and everywhere the law and order which protect the established hierarchy; it is nonsensical to invoke the absolute authority of this law and this order against those who suffer from it and struggle against it – not for personal advantages and revenge, but for their share of humanity. . . . If these use violence, they do not start a new chain of violence but try to break an established one” (Marcuse 1969:116-117). (The claim that violence can be deployed to end violence might seem to legitimize all violence, a conclusion that undermines Marcuse’s defense.)

Brown’s analysis reveals its author to be a liberal, if a disappointed one. Her goal is to “grasp tolerance as a technology of domestic governmentality” (p.87) which, by her lights, constitutes tolerance as a “retreat” (p.87) from justice, equality, emancipation, and social peace. Here we see her allegiance to political liberalism; she is its loyal opposition. Yet her incisive analysis of failed tolerance is haunted by the lack of some standard that might give her critique the radical normative foundation it lacks. She has no more than a hunch, never worked into a theory, about repression-free tolerance, a notion that, if developed, might take us beyond the horizon of political liberalism (whatever that might mean). She speaks of a “politically interested and mobilized citizenry, one that has certain solidarities, is capable of acting on its own behalf, and anticipates a future of ever-greater social equality across lines of race, gender, and class” (p.88). But she intimates more: a vision, not yet clarified, of social interaction in which the Other, to whom we may feel aversion, retains his or her integrity, autonomy, and freedom even in that interaction, because he or she is recognized in his or her difference as equally worthy of respect and consideration. Here one thinks of Hegel’s ideal of human interaction, “bei sich sein im Anderen sein”: a capacity to relate to the Other without in any way reducing the Other to oneself (positively, by understanding the Other as simply another version of oneself; or negatively, as failed or inadequate insofar as the Other is not identical with oneself). In Michael Theunissen’s words, “Hegel’s ‘normative ideal’ of an absolute relation implies the ideal of the absolute parity [Gleichrangigkeit] of the parties related. If the parties related had their being [Sein] only in their relation to one another, a situation would be reached in which ‘no one party would have an advantage over the other …’” (Theunissen 1980:30; Hegel 1969:160). [*320]

For now, however, her critique remains deeply ambivalent. Tolerance is (a) both cosmopolitan and parochial, (b) both universal and particular, (c) both group-based and individualistic, and (d) both fundamentalist and non-fundamentalist. In each of these ways we find that ambivalence is both a strength and a weakness: by capturing diversity, it allows for analytic subtlety; because it is conflicted, it precludes definite conclusions that might guide political and social behavior, as the following passage makes clear: “That tolerance has acquired such a troubling relationship to Western empire today does not add up to an argument to scrap the term or jettison its representation of a practice for living with what is undesirable, offensive, or repugnant. Rather, it calls for becoming savvy about the ways of tolerance today and contesting the anti-political language of ontology, affect, and ethos that tolerance circulates with a language of power, social forces, and justice. This means becoming shrewd about the ways that tolerance operates as a coin of liberal imperialism, intersects with racialized tropes of barbarism or of the decline of the West, and at times abets in legitimizing the very violence it claims to abhor or deter” (p.204). For what actions, let alone public policy, could possible follow from an exhortation to “become savvy and shrewd”?

Consider now each of the ways in which REGULATING AVERSION purveys unresolved ambivalence.

(a) Tolerance is both cosmopolitan and parochial. Brown on the one hand is a cosmopolitan; she considers tolerance as more than a parochial culture (and in this respect, tellingly, is not unlike that paragon of political liberalism, John Rawls, where he asserts that human rights, understood as the rights to life, liberty, and formal equality, “cannot be rejected as peculiarly liberal or special to the Western tradition. They are not politically parochial” (Rawls 1999:65)). Brown writes: “modalities of tolerance talk that have issued from postcolonial encounters with indigenous peoples . . . do not follow the same logics as those that have issued from European encounters with immigrants from its former colonies or those that are centered on parochial religious anxieties about insubordinate gender and sexual practices. Similarly, an Islamic state seeking to develop codes of tolerance inflects the term differently than does a Euro-Atlantic political imaginary within which the nation-states of the West are presumed already tolerant” (p.3). Hence to take tolerance as something indelibly Western is to render oppressive a potentially emancipatory idea: “If tolerance today is considered synonymous with the West, with liberal democracy, with Enlightenment, and with modernity, then tolerance is what distinguishes ‘us’ from ‘them’” (p.17).

On the other hand, Brown argues that the putatively universally valid ideals of political liberalism in fact express the merely locally valid ideas of a particular culture. What’s more, this particularism is hidden and denied behind a veneer of universal validity. As hidden and denied, it functions in ways hegemonic and imperialistic: “That which is inside civilization is tolerable and tolerant; that which is outside is neither. This is how, even amid plural definitions of [*321] civilization, the discourse of tolerance recenters the West as the standard for civilization, and how tolerance operates simultaneously as a token of Western supremacy and a legitimating cloak for Western domination” (p.182). Western liberalism then becomes Western chauvinism: “[Will] Kymlicka’s proposal to extend tolerance to nonliberal cultures tacitly exposes the antiliberal aspects of this aim, along with the absence of cultural and political neutrality in tolerance itself. It reminds us that tolerance in its liberal mode is more than a means of achieving civil peace of freedom: it is an exercise of hegemony that requires extensive political transformation of the cultures and subjects it would govern” (p.202).

(b) Tolerance is both universal and particular. On the one hand, Brown argues that the liberal vision of tolerance is (contrary to its self-understanding) particular, not universal. The “notion that liberalism, as a politics, is cultural, is catachrestic. The reasons for this nonreciprocity are several. There is, first, liberalism’s conceit about the universality of its basic principles: secularism, the rule of law, equal rights, moral autonomy, individual liberty. If these principles are universal, then they are not matters of culture, which is identified today with the particular, local, and provincial. There is, second, liberalism’s unit of analysis, the individual, and its primary project, maximizing individual freedom, which together stand antithetically to culture’s provision of the coherence and continuity of groups – an antithesis that positions liberal principles and culture as mutual antagonists. This leads to the third basis on which liberalism represents itself as cultureless: namely, that liberalism presumes to master culture by privatizing and individualizing it, just as it privatizes and individualizes religion. It is a basic premise of liberal secularism and liberal universalism that neither culture nor religion are permitted to govern publicly; both are tolerated on the condition that they are privately and individually enjoyed” (p.21).

Brown on the other hand suggests that the liberal vision of tolerance, if unperverted, would indeed be universally valid. If “it abets a developing relativism in the domain of moral truth,” then only because it generates collective and public truths that are “excessively thin” (p.39) or universally valid. In other words, the problem is not normative universalism but rather the miscalibration of universalism that turns it into its opposite, into normative relativism. Again, if the public sphere “cannot have a thick fabric to it without invoking the very belief structures that must be limited and private if they are not to be mandated by authority,” then communal life is “radically reduced” (p.32): the problem is not the communal or the universal but rather its reduction to the particular. If liberal polities can shield themselves from “charges of cultural supremacy and cultural imperialism” (p.203) on the pretense that liberal tolerance culturally is universally valid in the sense of not being an expression of any particular culture, then the problem is a tolerance not adequately universal, a tolerance criticizable insofar [*322] as it remains politically parochial because culturally particular.

(c) Tolerance is both group-based and individualistic. On the one hand, Brown depicts tolerance as homogenizing, melding al