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 all members into a unified group that as such sees itself as different vis-à-vis others: “Tolerance as a social ideal figures a citizenry necessarily leashed against the pull of its own instincts; it embodies a fear of citizen sentiments and energies, which it implicitly casts as inherently xenophobic, racist, or otherwise socially hostile and in need of restraint. In its bid to keep us from activating or acting out our dislikes and diffidence, the ubiquitous call for tolerance today casts human society as a crowded late-modern Hobbesian universe in which difference rather than sameness is the source and site of our enmity, in which bonds fashioned from mutual recognition are radically diminished, and in which both the heavy hand of the state and the constraining forces of necessity are frighteningly absent” (p.88).

Brown on the other hand depicts tolerance as anti-communal: “It is through these triple mechanisms – excision of the individual from the corporate community, loss of protection for communal norms and practices in a homogenizing cultural and political-economic context, and incorporation/inclusion of the community in a state discourse – that what begins as a project of freedom or inclusion acquires an edge of subjection and regulation” (p.93). Indeed, Brown would unmask the putatively universal validity of the claim that individuals are morally autonomous as a kind of particularism that undermines other particularisms: by “drawing the line between the tolerable and the intolerable, both domestically and globally,” tolerance discourse “sneak[s] liberalism into a civilizational discourse that claims to be respectful of all cultures and religions, many of which it would actually undermine by ‘liberalizing’” (p.8).

(d) Tolerance is both fundamentalist and non-fundamentalist. Brown on the one hand argues that the tolerant liberal West is no less fundamentalist than, say, the religious fundamentalists in some Islamic communities. Analogizing the “nearly compulsory baring of skin by American teenage girls” to “compulsory veiling in a few Islamic societies,” and doing so to counter claims that the first follows from freedom of choice whereas the second, from a tyrannous lack of choice, Brown concludes: “To acknowledge that we have our own form of compulsory feminine dress would undercut this identity of superiority; we need fundamentalism, indeed, we project and produce it elsewhere, to represent ourselves as free” (p.189). Elsewhere she identifies liberalism as inherently fundamentalist “as always already being the issue of miscegenation with its fundamentalist Other” (p.24).

On the other hand, Brown must distinguish liberalism from fundamentalism when she claims that liberalism turns into the very fundamentalism it claims to oppose: the “conceit that liberalism can tolerate religions without being conquered by them or tolerate certain fundamentalisms [*323] without becoming fundamentalist” (p.187). (To be sure, the American state privileges a vague Christianity over other religions (its particular Sabbath is a national holiday, as are December 25 and Easter), and religion over non-religion (“In God We Trust” adorns our currency and “One nation under God” is recited daily in our elementary schools) – and should not be, according to the liberal First Amendment. But to what extent are other religions, and non-religionists, damaged, marginalized, or denuded of their humanity by this bias, however unconstitutional and illiberal?) If liberal individualism and its defense via tolerance is something that flows from “Western notions of the individual, as well as of knowledge and freedom, is fundamentalized” (p.184), then liberal tolerance was not fundamentalist to begin with, and its becoming fundamentalist is an accident of history, not an unfolding of its true nature.

II.

Brown herself identifies none of these ambivalences and, not surprisingly, leaves all of them unresolved. How could it be otherwise? Presupposing the liberalism it challenges, yet lacking a normative foundation for that challenge, REGULATING AVERSION can only be ambivalent. A text that takes itself to be to an exercise in radical theory is incapable of providing any practical alternative to what it criticizes; it remains, despite itself, a text of critical liberalism. All it asks for is freedom from manipulated aversion toward others, not freedom from aversion itself: aversion without guile and deception; honest aversion, frank aversion: not goodness but the institutional and cultural transparency necessary for the individual’s autonomy and self-determination within society. By contrast, the potential of the thesis of repressive tolerance can only be redeemed if taken to the radical conclusion it entails (but never recovered by Brown, as it is by Marcuse): that tolerance in the sense of political liberalism not only finds no more than a wretched realization in specific cases in particular societies, but that there is something inherently oppressive about tolerance as such, and that no amount of institutional and cultural fine-tuning can cleanse liberal democratic polities of this “damn spot” (to quote Lady MacBeth on moral hygiene).

But Brown does not make that argument, nor as a liberal would she; instead she warns us not to “mistake [her] insistence on the involvement of tolerance without power for a rejection or condemnation of tolerance” (p.13). Her point is that oppressive are some forms of tolerance, not tolerance as such: “these operations of tolerance discourse in a civilizational frame legitimize liberal polities’ illiberal treatment of selected practices, peoples, and states. They sanction illiberal aggression toward what is marked as intolerable without tarring the ‘civilized’ status of the aggressor” (p.179). In short: the trouble with liberal states is that they do not always act in liberal ways (even as they say they do). Brown renders a genuine service to the American political community by reminding us of this point, one we need be mindful of all the more as the world-hegemon, [*324] especially in these “times of terror.”

The point, she says, is “not that there are no differences between regimes that expressly advocate tolerance and those that do not” (p.190). Yet given its deep ambivalence, her analysis slides into shooting down one orthodoxy with another. It rejects as oppressive the efforts of proceduralism to locate a universally valid because non-substantive form of justice, in the never-cashed-out presumption of some impossible counter-factual notion of universally valid, substantive justice: a tolerance that would embrace even those who order their world in illiberal ways. Thus it “Occidentalizes” political liberalism just as liberal tolerance “Orientalizes” the illiberal Other. As Edward Said reminds us, surely the “answer to Orientalism is not Occidentalism. No former ‘Oriental’ will be comforted . . . to study new ‘Orientals’ – or ‘Occidentals’ – of his own making” (Said 1994:328). Acute as it is in discerning ways in which liberalism can sometimes entail regulation, manipulation, a patronizing stance, and demonization – that is, the intolerant control of the illiberal weak by the liberal strong – REGULATING AVERSION is in intellectual arrears. Using the grammar of liberalism to critique liberalism, Brown cannot specify a practical, public-policy alternative to that grammar. Her critique is insightful but promptly undermines whatever practical political upshot it might otherwise have.

Other attempts have ended similarly. In its impotence, Brown’s political lacuna reminds one of Theodor Adorno’s epistemological aporia: “Whatever truth concepts [Begriffe] capture beyond their abstract scope [Umfang] can have no site [Schauplatz] other than what the concepts oppress, disdain, and discard. The utopia of knowing would be to use concepts to win access to the non-conceptual without thereby reducing it to the concepts” (Adorno 1966:21). Jacques Derrida, unlike Brown, actually imagines a positive alternative to tolerance – only to acknowledge its impotence: “Tolerance is actually the opposite of hospitality. Or at least its limit. … Tolerance is a conditional, circumspect, careful hospitality. . . . But tolerance remains a scrutinized hospitality, always under surveillance, parsimonious and protective of its sovereignty. . . . Pure and unconditional hospitality . . . opens or is in advance open to someone who is neither expected nor invited, to whomever arrives as an absolutely foreign visitor, . . . wholly other. . . . [But] I well recognize that this concept of pure hospitality can have no legal or political status. No state can write it into its laws” (Borradori 2003:127-129).

The unresolved ambivalence of Brown’s analysis has the unintended consequence of elevating some intolerant practices and institutions to innocent and aggrieved, hapless and helpless victims of tolerant ones. This ambivalence denies Brown the critical ordinance she needs to oppose forms of violence, injustice, and intolerance that, even as a disappointed liberal, she surely wants to oppose. [*325]

REFERENCES:
Adorno, Theodor. 1966. NEGATIVE DIALEKTIK [NEGATIVE DIALECTICS]. Frankfurt am Main: Suhrkamp.

Borradori, Giovanna. 2003. PHILOSOPHY IN A TIME OF TERROR: DIALOGUES WITH JÜRGEN HABERMAS AND JACQUES DERRIDA. Chicago: University of Chicago Press.

Foucault, Michel. 1991. Graham Burchell, Colin Gordon, and Peter Miller, eds. THE FOUCAULT EFFECT: STUDIES IN GOVERNMENTALITY. Chicago: University of Chicago Press.

Hegel, G. W. F. 1969 [1812]. DIE WISSENSCHAFT DER LOGIK [THE SCIENCE OF LOGIC], vol. 1. Frankfurt am Main.

Marcuse, Herbert. 1969. “Repressive Tolerance,” in Robert Paul Wolff, Barrington Moore, Jr., and Herbert Marcuse, eds. A CRITIQUE OF PURE TOLERANCE. Boston: Beacon Press.

Rawls, John. 1999. THE LAW OF PEOPLES. Cambridge: Harvard University Press.

Said, Edward. 1994. ORIENTALISM. New York: Random House.

Theunissen, Michael. 1980. SEIN UND SCHEIN: DIE KRITISCHE FUNKTION DER HEGELSCHEN LOGIK [BEING AND APPEARANCE: THE CRITICAL FUNCTION OF HEGEL’S LOGIC]. Frankfurt am Main: Suhrkamp.

Note: Translations of Hegel, Adorno, and Theunissen are by the author.

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© Copyright 2007 by the author, Benjamin Gregg.

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FROM LYNCH MOBS TO THE KILLING STATE: RACE AND THE DEATH PENALTY IN AMERICA

by Charles J. Ogletree, Jr. and Austin Sarat (eds). New York: New York University Press, 2006. 320pp. Cloth. $75.00. ISBN: 0814740219. Paper. $22.00. ISBN: 0814740227.

Reviewed by Mitzi Dorland, Institute for Law and Society, New York University. Email: mmd322 [at] nyu.edu.

pp.312-317

FROM LYNCH MOBS TO THE KILLING STATE, edited by Charles J. Ogletree, Jr. and Austin Sarat, assembles an impressive collection of essays from a diverse cast of authors for the task of explaining how and why the connection between race and the death penalty has been so strong throughout American history. By first grounding the connection in America’s history of racially motivated lynchings of suspected black criminals, and then illustrating the ways in which race has since continued to play a role in the administration of the “official” death penalty, this interdisciplinary collection provides much more depth to the connection between race and capital punishment than is often seen in other works. And, while the book focuses on the role of race, the essays also touch upon a wider range of important issues surrounding contemporary administration of the death penalty.

In their Introduction, Ogletree and Sarat contend that we are “now in a period of national reconsideration” of capital punishment. Surely, in recent years, and even since the book was published, prominent death row exonerations and, most recently, questions surrounding the humaneness of lethal injection, have coincided with significant reductions in the use of the death penalty. As the authors note, there have been dramatic declines in both the number of death sentences imposed each year and the number of offenders who are executed. Additionally, recent Supreme Court decisions have narrowed the scope of the death penalty, banning its application to the mentally retarded (ATKINS v. VIRGINIA 2002) and juveniles (ROPER v. SIMMONS 2005).

In contrast to the book’s focus, however, the issue of racial discrimination has seemingly been pushed from the forefront in recent years within the abolitionist movement itself, particularly by allegations of actual innocence, and, most recently, the surge of litigation alleging the cruelty of current lethal injection procedures. In his independent contribution (Chapter 8), Sarat chronicles and analyzes this shift toward highlighting actual innocence over racial disparities. Stuart Banner, however, suggests that race continues to play a prominent role in the “tactical decisions of death penalty opponents.” He notes, in part, that the website of the Death Penalty Information Center, “the most sophisticated and thorough of the abolitionist organizations,” had listed “Race” as the “very first of the ‘Issues’ surfers might wish to explore, ahead of competitors like ‘Innocence,’ ‘Costs,’ and ‘Deterrence’.” But “Race” has lost this distinction since Banner visited the site in 2002—the “Issues” have now [*313] been alphabetized, with “Arbitrariness” listed first. Of course, this change may have little or no significance, but the new listing of “Race” as just one among a whole litany of issues may better signify its current treatment within the abolitionist movement and the contemporary debate over capital punishment.

Still, statistical studies demonstrating racial disparities in the administration of the death penalty abound. In their recent review of post-1990 empirical research on the issue, David Baldus and George Woodworth found that, “in a substantial majority of jurisdictions where studies have been conducted, the data document race-of-victim disparities reflecting more punitive treatment of white-victim cases among similarly aggravated cases, regardless of the race of the defendant.” Additionally, in several jurisdictions, “cases involving black defendants and white victims are treated more punitively than cases with all other defendant/victim racial combinations” (Baldus and Woodworth 2003). And the research goes on. New studies continue to be commissioned and conducted in states where apparent disparities have not yet been tested. Thus, while the issue of race may no longer be front and center in the movement to abolish the death penalty, it has not lost its significance. And what the authors in FROM LYNCH MOBS TO THE KILLING STATE aptly address, from a variety of disciplinary perspectives, is how we may understand and account for these statistics suggesting a continuing connection between race and the death penalty.

In their Introduction, Ogletree and Sarat identify the main question that the authors seek to address: how and why the connection between race and the death penalty has been so strong throughout American history. Ogletree and Sarat further describe, “our book is an effort not so much to describe the fact of the race-capital punishment nexus but to show the ways that the death penalty is racialized, the places in the death penalty process where race makes a difference, and the ways the very meanings of race in the United States are constituted in and through our practices of capital punishment.” The book is divided into three parts, in which historical, legal, cultural, and social science perspectives are brought to bear on these issues.

Part I, “The Meaning and Significance of Race in the Culture of Capital Punishment,” explores the connection between our country’s history of “spectacle” lynching, a highly racialized practice, and racial disparities in the administration of the death penalty today. In the first essay, Timothy Kaufman-Osborn provides an insightful and well-developed examination of the contention that pervasive racism in the criminal justice system renders the contemporary execution of African-American men akin to the lynchings that occurred throughout our country’s history. Ultimately, he finds, appropriation of the term “lynching” to describe contemporary capital punishment “conceals as much as it reveals.”

Kaufman-Osborn rejects the idea that contemporary due process protections [*314] secure a “categorical distinction” between lynchings and capital punishment. However, he also stresses the differences between these practices, both in the ways in which they are conducted and in the state’s degree of participation, and the effect of these differences on our perceptions of the role of race in contemporary capital punishment. In particular, he examines the way that these “transformations” have contributed to an “epistemology of ignorance” regarding the contemporary interplay between race and the death penalty, which he argues has rendered the death penalty’s contribution to racial subordination “more difficult to apprehend.” For instance, our current use of a method of execution (lethal injection) that no longer sends a message about the race of the offender masks the use of racism at other stages in the death penalty’s administration and covers up racial disparities. Thus, much of what may be regarded as “accomplishments” in administration of capital punishment, such as the movement to more “humane” forms of execution, actually “render it more difficult to recognize how the liberal state remains implicated in perpetuating the racial polity.”

In “Making Race Matter in Death Matters,” Ogletree brings a legal perspective to the historical relationship between race and the death penalty. He focuses, in particular, on courts’ and legislatures’ continued toleration of the death penalty’s disparate impact, despite repeated attempts to bring evidence of racial disparities to their attention. In MCCLESKEY v. KEMP (1987), the Supreme Court held that statistical evidence of racial disparity was insufficient to establish discriminatory purpose in a particular case under the Equal Protection Clause of the Fourteenth Amendment. Ogletree, however, provides an excellent account of the justifications for a measure like the Racial Justice Act, which would permit capital defendants to challenge their death sentences using statistical evidence of discriminatory impact, rather than requiring proof of discriminatory intent. But Ogletree may put too much faith in what a measure like this could achieve, beyond official acknowledgement of the potential influence of race in death sentencing. Although this acknowledgment, in itself, may be significant, research from Kentucky, the only state to pass a Racial Justice Act, suggests that the state’s own Act has rarely been invoked and likely has had little effect (Lesman 2005).

Stuart Banner ends Part I with “Traces of Slavery: Race and the Death Penalty in Historical Perspective.” Banner stresses the importance of understanding and evaluating the connection between race and the death penalty in its historical context. For centuries, capital punishment was, in part, a method of racial control. If not for this history, Banner argues, the issue of race would not have such prominence today, and we might treat the racial disparity in the imposition of the death penalty the way we treat other acknowledged disparities in other institutions—by working to reform the disparity, rather than rid ourselves of the institution all together. It is this history, he argues, that makes all the difference.

Part II, “Race and the Death Penalty [*315] Process,” provides an excellent sampling of research examining the influence of race in juries’ capital sentencing decisions. One criticism of this section, however, is that all three essays deal with discrimination at the same stage in a capital punishment proceeding. Although each of the chapters employs a different methodology and disciplinary perspective, the section may have been further enhanced through examples of research documenting racial disparities at a number of different stages in the process.

In “The Role of Victim’s Race and Geography on Death Sentencing: Some Recent Data from Illinois,” Michael L. Radelet and Glenn L. Pierce provide an in-depth account of the statistical study documenting racial disparities in juries’ death sentencing decisions that was cited by Illinois Governor George Ryan in his blanket clemency of death row inmates in 2003. This chapter is an especially welcome addition to the book because it centers on racial discrimination outside of the southern region of the United States. Although much of the book’s historical focus concerns lynching in the South, it is important to note that this is not the only region in which empirical studies have noted racial disparities in death sentencing. In his chapter, Benjamin Fleury-Steiner examines the same stage of the death penalty process through interviews with capital jurors, providing insights into the influence of race in death sentencing from a contextual evaluation of jurors’ statements in these interviews. And, Mona Lynch provides a fascinating report on the results of an experimental study examining the role that subtle or unconscious racism plays in death-sentencing decisions by mock jurors.

Lynch’s article highlights well what is a common theme throughout the book—the recognition that racism today is often subtle or unconscious, rather than overt. This distinction is important for a number of reasons. First, it suggests that the current legal standard set forth in MCCLESKEY, requiring proof of discriminatory intent, is not sufficient to address the type of discrimination that still pervades the administration of the death penalty today. When racism is subtle or unconscious, where is the “smoking gun”? Secondly, a recognition and explication of the forms of unconscious racism that may influence death sentencing is also important in helping both laypersons and death penalty supporters understand the significance and seriousness of documented racial disparities. Many may reject the significance of such disparities because they cannot understand them—they cannot imagine being influenced by the race of a defendant or victim, and struggle to understand how race can still affect death sentencing to such a degree. Recognition that subtle or unconscious racial prejudice may be at play is important in explaining the persistence of these disparities.

Part III, “Race, Politics, and the Death Penalty,” includes two essays, by Stephen B. Bright and co-editor Austin Sarat. One disappointment with this section is that the Bright article provides nothing new—it was published in essentially the same form (absent minor changes in phrasing and a few updated [*316] statistics) over 10 years ago (Bright 1995).

However, Sarat does an excellent job of tracing the ways and instances in which racial discrimination has played a role in the “new abolitionism,” beginning with the concurring opinions of Justices Douglas and Marshall in FURMAN v. GEORGIA (1972). Racial disparity, he argues, has largely been treated as just one factor in an overall assessment that the death penalty, as administered, does not comport with the constitutional dictates of fairness and equal protection. However, where his essay is less successful, in my opinion, is in its challenge to abolitionists to place the issue of race back at the forefront of the debate. Sarat fails to explain convincingly how this would prove a more successful strategy for abolitionists than placing the issue of actual innocence front and center (as Governor Ryan did in his blanket commutation of death row inmates) or including racial disparities as just one factor among many that demonstrate the irremediable and thus fatal inequities of the death penalty system. Ultimately, Sarat provides a more convincing account for why race has fallen behind the issue of innocence within the “new abolitionism” than for why abolitionists should return the issue of race to the forefront.

Most of the authors in FROM LYNCH MOBS TO THE KILLING STATE are clearly speaking from an abolitionist perspective, and it is not surprising that most of the essays carry the implicit or explicit suggestion not only that racial disparities exist and must be eliminated, but that the death penalty itself should be eliminated. Conceptually, however, there is an apparent disconnect between arguing that racial disparity permeates the system (which suggests reform is needed) and arguing that this disparity warrants, or dictates, abolition. As Banner points out in Chapter 3, even if it could be guaranteed that the death penalty would be implemented on a race-neutral basis, this would not satisfy most activists, whose ultimate goal is really abolition, not equality in death sentencing. Thus, in order to connect these two points—the racial inequality in capital punishment and the need for abolition—it must also be argued that these racial disparities cannot be eliminated. As Sarat points out in the final chapter, this is exactly the argument made by the “new abolitionists.”

FROM LYNCH MOBS TO THE KILLING STATE presents an engaging collection of essays from a broad range of perspectives that together provide a far-reaching and insightful examination of the link between race and the death penalty from the past through the present. Through the lens of our country’s long history of racial discrimination in both the legal and extralegal infliction of death, it forces the reader to reexamine how and why this connection between race and the death penalty still endures. And it reminds us, lest we forget, in the face of death row exonerations and claims of cruelty in lethal injections, the extent to which race still matters in the imposition of the death penalty. [*317]

REFERENCES:
Baldus, David C., and George Woodworth. 2003. “Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research.” 39 CRIMINAL LAW BULLETIN 194-226.

Bright, Stephen B. 1995. “Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty.” 35 SANTA CLARA LAW REVIEW 433-483.

Lesman, Alex. 2005. “Note and Comment: State Responses to the Specter of Racial Discrimination in Capital Proceedings: The Kentucky Racial Justice Act and the New Jersey Supreme Court’s Proportionality Review Project.” 13 JOURNAL OF LAW AND POLICY 359-424.

CASE REFERENCES:
ATKINS v. VIRGINIA, 536 U.S. 304 (2002).

FURMAN v. GEORGIA, 408 U.S. 238 (1972).

MCCLESKEY v. KEMP, 481 U.S. 279 (1987).

ROPER v. SIMMONS, 543 U.S. 551 (2005).

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© Copyright 2007 by the author, Mitzi Dorland.

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RITUALS OF VIOLENCE IN NINETEENTH-CENTURY PUERTO RICO: INDIVIDUAL CONFLICT, GENDER, AND THE LAW

by Astrid Cubano Iguina. Gainesville: University Press of Florida, 2006. 224pp. Cloth. $59.95. ISBN: 0813029961.

Reviewed by Charles R. Venator Santiago, Department of Politics, Ithaca College. Email: csantiago [at] ithaca.edu.

pp.308-311

In recent years we have seen an increase in conferences and publications in the United States addressing the anomalous constitutional status of Puerto Rico (e.g. Duffy Burnett and Marshall 2001; Rivera Ramos 2001; Sparrow 2006). These conferences and publications have been part of a broader push to re-evaluate the importance and relevance of the INSULAR CASES, a series of Supreme Court rulings dating back to 1901, to a more comprehensive understanding of US legal history and constitutional interpretation more generally. The study of the INSULAR CASES and the case of Puerto Rico in particular, provides an interesting and enduring example of the ways that the law has been used to institutionalize imperialist ideologies and to subordinate US citizens residing in this unincorporated territory to a second-class status. To be sure, to this day Puerto Rico remains an unincorporated territory that can be treated as a foreign country for constitutional purposes, and US citizens residing in the island can be denied basic rights such as a 6th Amendment trial by jury (USGAO 1991: 33). Yet these publications have taken the INSULAR CASES as an historical point of departure for the understanding of the formation of the rule of law in Puerto Rico overshadowing the influence of Spanish colonial law, which after all had been present in the island in various forms for more than four hundred years. More importantly, given the training of legal actors in Puerto Rico, and the establishment of a mix-law system in the island that incorporated some aspects of Spanish legal traditions, it is especially important to understand the institutional context of the Spanish legal system in the island before the US occupation in order to understand the emergence of the rule of law in Puerto Rico. Astrid Cubano Iguina’s path-breaking book provides a clear and comprehensive socio-legal history of the late nineteenth-century Puerto Rico anteceding the Spanish-American war of 1898.

Drawing on extensive archival legal records and focusing on local court rulings from the Arecibo municipality/judicial district, this book weaves together a narrative that connects individual or quotidian disputes with broader social-legal ideologies and practices. Cubano Iguina specifically addresses the relationship between interpersonal violence, gendered subjectivities, and police and judicial intervention during a complex period of social-economic transformations such as the abolition of slavery and the transition to a wage-labor economy. In a sense, the Spanish colonial courts become a contested terrain where individuals negotiate multiple dimensions of their [*309] social realities during a time of socio-economic transformations. This focus enables Cubano Iguina to show how individual claims often reflect broader social narratives.

Cubano Iguina’s work not only fills an historical vacuum, but also offers a refreshing alternative to traditional nationalist Puerto Rican historiography. To be sure, her book situates the case of Puerto Rico in broader global debates and inserts this case study into debates that transcend the status question. This case study both provides an interesting approach to be reproduced in other places, and lends itself to be part of broader comparative discussion. Cubano Iguina uses a post-structural approach that relies on discourse analysis of individual cases and situates them within a broader socio-legal context. This approach enables the author to demonstrate some of the ways in which larger social narratives are often reproduced by individuals making claims in the judicial system, as well as some of the broader social narratives that often reproduced gendered narratives rooted in a subaltern experience. However, this approach is not without its challenges.

To be sure, while Cubano Iguina provides clear examples of the continuities and discontinuities of gendered ideologies in both individual and social narratives, or rather the connections between a micro-history (Arecibo) and broader island-wide, or empire-wide, macro-narratives, the reader is often left without a clear understanding of the procedural issues that either shape the appeals process of particular cases or with a consistent discussion of parallel cases that could link these two dimensions. However, in all fairness, this could be the subject of a subsequent book project.

RITUALS OF VIOLENCE IN NINETEENTH-CENTURY PUERTO RICO is divided into five chapters that explore multiple dimensions of gendered violence and various ways that individuals, the “masses” and “elites,” contribute to establishment of modern legal institutions in Puerto Rico between the 1870s and 1890s. The third chapter is especially interesting because it provides a substantive reflection of the emergence of a modern rule of law in the island through a discussion of the criminal justice system’s response to shifting labor practices resulting from the abolition of slavery and transition to a wage-labor economy. This chapter is especially useful for those interested in the ways that Spanish colonial subjects negotiated an authoritarian regime during a time of structural transformations. It also provides interesting examples of the ways in which multiple legal actors, such as police officers, prosecutors, and even medical doctors, contributed to the development of legal institutions. Cubano Iguina provides readers interested in how local courts and a local judicial system functioned with clear examples of the discursive narratives used by competing legal actors.

I take exception, however, in Cubano Iguina’s discussion of political (or rather of her representation of what constitutes political) action in the individual narratives of the disputes that she [*310] analyses. In one example, Cubano Iguina discusses a case involving an incident where a crowd attending a dance party disarmed a local police officer who sought to stop a fight in progress between two young men, and she argues that this case becomes representative of a subaltern political act of resistance against state authority. Presumably the act of disarming a police officer representing the Spanish colonial authority at a dance party was sufficient to constitute a political act. To be sure, Cubano Iguina writes:

The act of disarming a police agent can be read as a symbolic gesture of resistance to a condition of unequal strength. This case suggests a deep sense of the political on the part of the crowd that pushed the guard to the floor, disarmed him, but finally left him unharmed. It suggests an affirmative and independent gesture of adherence to an alternative code among urban popular groups. Urban population, having been exposed to anticolonial and radical political discourse, transformed the customary ritual of masculine violence into an act of passive resistance to state intervention. (pp.104-105)

Perhaps my apprehension is due to my disciplinary concern for the relationship between individuals and public political institutions, but I find examples like this one to be more telling of episodic expressions of passion, rather than a rational act against the state. By this I mean to suggest that it is a stretch to treat episodes like this one, which did not transcend to any form of public institutional pressure or change, as political, symbolic or otherwise. To this extent, it is not readily evident to me that “quotidian and private scenes of violence” (p.148) necessarily translate into political acts or acts that will have some sort of influence on public institutions. This is not to say, however, that the cases that Cubano Iguina discusses can not help us understand some of the ideology that shaped the socio-legal context of politics in late nineteenth century Puerto Rico.

Overall, I think that this book represents rigorously researched legal history that will provide a clear socio-legal foundation for understanding the development of the modern rule of law in Puerto Rico, as well as an alternative critical history of the island. More importantly, it provides an interesting case for comparison with other global examples, as well as an interesting application of a methodological approach that can be reproduced in other localities. Cubano Iguina makes a number of sound contributions to the study of gender and legal institutions and to the field of Law and Society more generally by providing an interesting case study that both discusses multiple socio-legal dimensions and weaves them together within a coherent historical narrative. This book also provides a substantive and innovative discussion of court rulings that are representative of broad socio-legal ideologies and practices. In sum, Cubano Iguina has written a clear and insightful legal history worth reading.

REFERENCES:
Duffy Burnett, Christina and Burke Marshall (eds.) 2001. FOREIGN IN A DOMESTIC SENSE: PUERTO RICO, AMERICAN EXPANSION, AND THE CONSTITUTION. Durham: Duke University Press. [*311]

Rivera Ramos, Efrén. 2001. THE LEGAL CONSTRUCTION OF IDENTITY: THE JUDICIAL AND SOCIAL LEGACY OF AMERICAN COLONIALISM IN PUERTO RICO. Washington, D.C.: American Psychological Association.

Sparrow, Bartholomew H. 2006. THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE. Lawrence: University Press of Kansas.

United States General Accounting Office. 1991. U.S. INSULAR AREAS: APPLICABILITY OF RELEVANT PROVISIONS OF THE U.S. CONSTITUTION. Washington, D.C.: Government Printing Office. (GAO/HRD-91-18).

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© Copyright 2007 by the author, Charles R. Venator Santiago.

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LAW, CULTURE AND SOCIETY. LEGAL IDEAS IN THE MIRROR OF SOCIAL THEORY

by Roger Cotterrell. Hampshire: Ashgate, 2007. 206pp. Hardback. $114.95/£60.00. ISBN: 0754625052. Paperback. $39.95/£22.50. ISBN: 0754625117.

Reviewed by Thomas Scheffer, FU Berlin, Emmy-Noether Group. Email: scheffer [at] law-in-action.org.

pp.304-307

Some books are better read from end to start. Roger Cotterell’s LAW, CULTURE AND SOCIETY. LEGAL IDEAS IN THE MIRROR OF SOCIAL THEORY is one of these, because his argument is not developed from chapter to chapter, but tightened up and systematised only at the very end. Cotterell is a major advocate for the application of sociological thoughts to the understanding of legal doctrine. Or, as one previous reviewer, a legal scholar from Edinburgh put it: “It is now widely accepted that sociological inquiry is valuable and necessary to illuminate the social or historical processes that shape legal doctrine.” In this book, not unlike his previous publications, Cotterrell advocates the following idea: Law & Society creates a wrong analytical horizon. Why? There is no such thing as one unified and contained society; there are only various ideological efforts to imagine the nation state as community, in terms of instrumental relations, values, traditions or affection (p.166). Instead of a single integrated society, we are confronted with various communities, according to Cotterrell, with various modes of creating mutual trust under local as well as global conditions. Law in general contributes to and stabilises these various structures of mutual trust. State law, he argues, supports some (sorts of) communities – especially instrumental relations – while excluding others. But, Cotterell adds, there is much more to “law-and-community” than just state law.

In light of the conclusion, the reader can re-read the chapters. In Chapter 1, Cotterrell argues for the need to bring law and sociology together, while keeping their independence. Later he will assert that they are linked “only for specific purposes” (p.133). In this division of labour, the role for trans-disciplinary sociological inquiries is specified: They study forms of communal integration and the various contributions that legal norms can play to create foundations of mutual trust. In Chapter 2, Cotterrell discusses legal pluralism and why it is important to diverge from ideas of a unified law founded by one central institution (the state). There is no “single form of legal participation” (p.35). In Chapter 3, he discusses “why legal ideas (must) be interpreted sociologically.” His call for a sociological perspective must be seen in relation to his idea of communal involvement and the creation of mutual and sustained trust. The role of the sociological inquiry is classic: how, the question would be, is this community possible? How is it kept together? What are its bonds? Law serves as one integrating mean amongst others. Sociological inquiry means the “systematic interpretation” of law “as an [*305] aspect of social relationships” (p.55). In Chapter 4, Cotterrell introduces his concept of community as types of “collective involvement” (p.68). At this point he shows what he means by systematic by applying Weber’s method of the “ideal type.” He identifies four “ideal types,” as Weber did in his study of social action (and degrees of rationality): the instrumental, the value-based, the traditional, and the affective. Law guarantees systems of confidence, in the main, indirectly by sustaining and encouraging patterns of trust embodied in ideal typical forms of collective involvement or interaction” (p.75).

These four chapters build the first part of the book. They are followed by five chapters with an emphasis on legal culture and legal comparison. Chapter 5 discusses the shortcomings (less the potentials) of the concept of legal culture. Cotterrell rejects the broad notion of culture for its “imprecision and vagueness” (p.82). Relevant in his view is not culture as such, but cultural components of collective involvement. He rejects the broad concept of “legal culture,” preferring a focus on the ideological components of legal culture. And this is important: The focus is “on the power of the state legal system to produce structures of social understandings, attitudes and values among lay citizens, than on the ways in which these kinds of diffuse understandings, attitude and values shape the workings of the state legal system” (p.94).

In light of Cotterrell’s conclusion, the reader could work through the next chapters as well: Chapter 6 on “law in culture,” including a critique of the loose conception by Friedman; Chapter 7 on legal transplants, with an important critique of its lack of social foundation; Chapter 8 on “sociology and comparative law,” including a useful “list of reasons to compare law” (p.130); and Chapter 9 on “comparative law,” presented as an exercise that is better carried out as “interpretation.” The presentation of problems, issues, and areas of specialisation is impressive. He discusses system theory, legal hermeneutics, Habermas’ theory of the life world, and legal pluralism. However, the key ideas remain the same throughout these excursions: “Today, in legal studies, the social can no longer be thought of as an undifferentiated entity of some sort. We can no longer speak of law’s function in relation to ‘society’ as though law and society are monolithic entities confronting each other” (p.154). Cotterell repeatedly returns to his law-and-community perspective, and it serves as a solution to the various conceptual problems of legal scholars, of law and society research, and of comparative law.

Communities provide the valid context to understand (the function of) law. Cotterrell rejects the communitarian thinking that builds an opposition of law and trust, or law and belonging. Law does not undermine, but gives foundation to communities; it does not cut off communal bonds but strengthens and maintains them. This is why legal studies and sociological inquiry must go hand in hand. The first can dwell on the technical knowledge of doctrines and laws, while the latter can focus upon the reconstruction and explanation of social [*306] ties. Both together can explain how the local, as well as global, communities are built on law. Cotterell uses this relation to specify the role of legal culture, which nests in-between the two and can therefore not be reduced to legal institutions or to moral beliefs. Everything, it seems, falls into place. But do his broad and abstract conceptions still work once they are put to empirical inspection? And what is the place of the state, of individuals, or of conflicts in this integrative framework of trust and community?

There are more concerns that may stimulate a critical re-reading of Cotterell’s “mirror”: (a) In the name of legal pluralism, the book does not mention empirical studies on courts, disputes, legal discourse, or the legal profession. What if the working of the judicial apparatus impressed communities and their members in terms of chances, options, or resources? What if the observation of legal institutions would teach them about the scope and usability of law for strategic purposes? (b) While sticking to classic sociology, Cotterell brackets out new studies on post-social mechanisms (Knorr Cetina 1997), on human-machine interaction (Suchman 2007), and on socio-material assemblages (Latour 1999). Is it adequate to describe these practical connections as “social relations of community” that “are moral relations” (p.164)? (c) All communities, Cotterrell claims, are “slowly and steadily built. The key characteristic of such gradually evolved relations is that they are imbued with a high degree of trust” (p.73). Is it possible to capture the new social movements, the experimental forms of cultural-political demonstrations, or the situative media spectacles in this manner? There is a whole range of new forms of inter-activity that come about with new and mobile media, with electronic and audiovisual communication. These forms seem to resist Cotterrell’s descriptions of the “slow and steady development.” How does law-and-community relate to them?

Cotterrell’s book stipulates these ‘specific’ reservations and requests because of its wide range of abstract themes, problems, and pledges. The price to pay for his hasty discussions on law and social life is a lack of clarity and precision. In LAW, CULTURE, AND SOCIETY no empirical (ethnographic, anthropological, or discourse analytical) insights would slow down his train of thought. No attempts to further specify – not even by telling stories or anecdotes – his claims would control the expectations on the side of the audience. Cotterrell is too busy demarcating the disciplinary landscapes of law and social theory. And he knows how to play this game of generalisation and differentiation. A core example for this variation may serve his notion of “law.” It is treated as self-explanatory. It is not defined. It basically covers everything from dangerous driving regulations to constitutional doctrines, while at the same time he contends that the concept of “legal culture” should be restricted. The discussions of concepts carried out in this ‘theoretical manner’ cause some longing for thick descriptions or detailed cases. For now, the reviewer doubts that Cotterell’s law-and-community framework could stand the details of the [*307] everyday life, the struggles, and the workings of legal cultures.

REFERENCES:
Knorr Cetina, Karin. 1997. “Sociality with Objects. Social Relations in Postsocial Knowledge Societies.” 14 THEORY, CULTURE & SOCIETY 1-30.

Latour, Bruno. 1999. PANDORA’S HOPE: ESSAYS ON THE REALITY OF SCIENCE STUDIES. Cambridge, MA: Harvard University Press.

Suchman, Lucy. 2007. HUMAN-MACHINE RECONFIGURATIONS: PLANS AND SITUATED ACTIONS (2nd ed). New York and Cambridge UK: Cambridge University Press.

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© Copyright 2007 by the author, Thomas Scheffer.

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NO MAGIC WAND: THE IDEALIZATION OF SCIENCE IN LAW

by David S. Caudill and Lewis H. LaRue. Lanham, Maryland: Rowman & Littlefield Publishers, Inc. Co-published with The Center for Public Justice, 2006. 170pp. Cloth $65.00. ISBN: 0742550222. Paper $24.95. ISBN: 0742550230.

Reviewed by Timothy M. Hagle, Department of Political Science, The University of Iowa. Email: timothy-hagle [at] uiowa.edu.

pp.300-303

“Political Scientists (and other social scientists) are no doubt well aware of both the requirements and limitations of what might be termed ‘scientific knowledge.’ We routinely consider matters of reliability and validity, but two questions persist: what do we know and when did we know it. Even the most rigorous study with highly significant results must be couched in probabilistic terms that reduce the certitude with which we can claim to know something.”

“There are certainly disagreements about what constitutes ‘good science,’ and various disciplines likely have variations concerning their practices, but the overall model is relatively stable within the scientific community. Like most models, however, it is only valid within a certain context. Problems ensue when results derived from scientific studies are used in other contexts, such as legal proceedings.”

The above two paragraphs were the beginning of my 1999 review for the Law and Politics Book Review of Foster and Huber’s JUDGING SCIENCE: SCIENTIFIC KNOWLEDGE AND THE FEDERAL COURTS. Eight years on, they still provide a good introduction to the topic addressed by the authors of NO MAGIC WAND.

Unlike Foster and Huber, David Caudill and Lewis LaRue take a more philosophical approach in NO MAGIC WAND. They begin by briefly describing the two sides in the “science wars.” As they describe them, one side consists of the “believers in science as an enterprise that reports on natural reality, or at least successfully represents nature with models that correspond to reality.” The other side consists of those “who view science as a social, rhetorical, and institutional enterprise that only manages to convince us that it deals in natural reality.” I suspect that we would be hard pressed to find strict adherents to either position – science as revealed truth versus science as social construct – and the authors reject the need to choose between them as a false dichotomy. To do so is to fall prey to the “idealization of science” of the book’s subtitle.

Caudill and LaRue describe three basic mistakes that result in idealizing science. The first is to view science as merely a social construct, and therefore virtually meaningless. Those who take this view [*301] place undue emphasis on the human side of science; the mistakes, biases, and human failures of scientists. The result is that all science is minimized. The second mistake is to unduly glorify science. Those who take this view, according to the authors, make one of two mistakes. They either blithely accept anything the scientist says without considering the human side, or they punish scientists for not living up to their lofty expectations of what science should be. Not surprisingly, Caudill and LaRue recommend a middle ground.

Before proceeding to a fuller explanation of these three mistakes, the authors review the legal context in which judges, as the gatekeepers of scientific evidence used in court, operate. The authors briefly review DAUBERT v. MERRELL DOW PHARMACEUTICALS (1993), as well as two post-DAUBERT cases that clarified the Supreme Court’s position on the use of scientific evidence. DAUBERT, of course, is the Supreme Court’s decision that clarified how Rule 702 of the Federal Rules of Evidence should be interpreted in considering the admission of expert evidence. Although DAUBERT is well known at this point, the review is helpful as it highlights the lower court decisions and how the Supreme Court corrected them. In particular, the authors note that most lower court decisions focused on four critical paragraphs in Justice Blackmun’s opinion for the DAUBERT Court. These paragraphs contain what are known as “the DAUBERT criteria,” which Caudill and LaRue characterize as testability, low error rate, peer-reviewed publication, and general acceptance. Although important, the authors argue that commentators placed more emphasis on these criteria than the Court intended. They note that the Court qualified the use of these criteria in the paragraph immediately preceding and the one following the four in question. In particular, Justice Blackmun emphasized in these two paragraphs that the standard the Court laid out was “a flexible one.” Although I generally agree with the authors that commentators and others may have placed too much emphasis on the four criteria the Court specified, one can hardly blame them for doing so. When the Court indicates that it approves of a specified set of criteria, the smart bet is to follow that set of criteria in arguing a case – at least until the Court provides additional guidance.

Having provided the legal context, in the next three chapters Caudill and LaRue flesh out the mistakes identified in their initial chapter. They do so by using passages from the opinions of federal Court of Appeals decisions that highlighted mistakes the district courts had made. The material in these chapters is interesting, as the authors examine a variety of aspects of each mistake, providing concrete case examples along the way. The authors rely heavily on passages from the Courts of Appeals decisions explaining the errors made by the trial courts. Although informative, these passages are too specific to the individual cases. Moreover, the analysis would be stronger had the authors provided additional explanation on each mistake and correction. Perhaps they believe that by recognizing that the mistakes exist they can be avoided. Either way, at [*302] the end of these chapters readers are left expecting more guidance. The fifth chapter attempts to explain how science works as a practical (i.e., not idealized) activity. This information is interesting and useful, but, again, falls short of offering direction as to how to avoid or correct for the three basic mistakes. The final chapter moves in this direction, but only slightly. The authors suggest the need for science studies for law but do not delve into specifics.
I must give credit to Caudill and LaRue for highlighting problematic aspects of using science in the courtroom, but the fact that science is a messy business is not new – even within the legal community. Thus, it is fair to ask how does this recognition advance the discussion regarding how judges are to serve in their role as gatekeepers of scientific evidence post-DAUBERT?

Even to the extent that one considers this an introduction to the practical aspects of science, it would have helped if the authors had paid greater attention to the different ways that science enters the courtroom. At a very fundamental level, a judge may need to inquire whether any particular activity can even be considered “science.” Phrenology and astrology are certainly not considered sciences today, though there was a time when they were certainly in fashion. Few would reject psychology outright, but it can often be on shaky ground when it seems that any number of experts can be lined up on either side of an issue, the unending discovery of new syndromes, and approaches that have been widely rejected. On the other hand, how can judges evaluate whether a new technique should be admitted? John Douglas, who developed criminal profiling techniques for the FBI, speaks in one of his books of the initial difficulty in getting courts to admit his profiling testimony. Thus, judges must have some criteria to determine whether an activity can properly be considered scientific. Of course, because these criteria depend on outside evaluations of the activity’s merit – i.e., acceptance in the “scientific community” – they are subject to change as relevant scientific communities accept or reject various theories and approaches.

Of course, even if a particular theory is considered scientific, the question remains as to whether appropriate procedures were followed to arrive at the result. For example, DNA matching is firmly established as a valid and reliable technique for identification – and I use those terms in both their scientific and legal senses. Even so, that does not necessarily mean that an identification made as a result of DNA matching cannot be challenged based on faulty or improper handling by the testing facility or by the police. One could fairly say that such issues are beyond the essential question of DAUBERT and its progeny, as the question addressed there was simply whether the judge should let the evidence in, not what conclusions the fact finder (judge or jury) was to draw from it. True enough, but the authors do not draw this distinction. This may be unfair to the authors, however, as it was clear from their examples that many judges drew their conclusions as to the worth of the proposed scientific evidence at the gatekeeping stage. [*303]

On the whole, NO MAGIC WAND is readable and interesting. It is useful in that it provides specific examples from cases to show how various judges have interpreted the DAUBERT criteria. The book will be more useful to those less familiar with the problems associated with using scientific evidence in the courtroom.

REFERENCE:
Foster, Kenneth R., and Peter W. Huber. 1999. JUDGING SCIENCE: SCIENTIFIC KNOWLEDGE AND THE FEDERAL COURTS. Cambridge, Massachusetts: MIT Press.

CASE REFERENCE:
DAUBERT v. MERRELL DOW PHARMACEUTICALS, 509 U.S. 579 (1993).

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© Copyright 2007 by the author, Timothy M. Hagle.

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INTERSTATE DISPUTES: THE SUPREME COURT’S ORIGINAL JURISDICTION

by Joseph Zimmerman. Albany, NY: SUNY Press, 2006. 231pp. Hardback. $60.00. ISBN: 9780791468333.

Reviewed by Peter J. Galie, Department of Political Science, Canisius College. Email: galie [at] canisius.edu.

pp.297-299

In this work, Joseph Zimmerman, Professor of Political Science at the University of Albany, State University of New York, continues his examination of neglected dimensions of federalism. In 1996, his work, INTERSTATE RELATIONS: THE NEGLECTED DIMENSION OF FEDERALISM, examined federalism from the vantage point of interstate relations. His purpose there was to demonstrate the need for new approaches to resolve disputes between states and to promote economic development for the benefit of citizens of all states. He concluded with a model and recommendations for improved interstate relations. One of the neglected dimensions examined was the Supreme Court’s role as a referee in interstate disputes. In INTERSTATE DISPUTES, Zimmerman, noting the absence of any monograph on the subject, concentrates exclusively on the cases in which the Supreme Court has exercised its original jurisdiction in settling interstate conflict.

Zimmerman introduces his analysis of the original jurisdiction provision of Article III with a background and overview chapter. He examines pre-constitutional experience, including disputes under the Articles of Confederation as well as those during the Revolutionary War, the defects of the Articles, the debates at the Constitutional Convention, and treatment of the topic in the Federalist Papers. He concludes the chapter with a brief look at the original jurisdiction clause as it pertains to ambassadors, ministers and consuls. This jurisdiction, though seldom invoked, must comport with the law of nations when it is exercised.

The work proceeds with an examination of the criteria the Court has fashioned over its history in determining whether its original jurisdiction should be invoked. A chapter is devoted to the Court’s use of Special Masters. Chapters Four through Six are devoted to specific issues in contention: boundary disputes, mostly over rivers; suits involving escheat by two or more states of unclaimed property and taxation disputes; major water conflicts, including allocation, diversion and pollution; and a miscellaneous chapter devoted to unique decisions such as the pre-Civil War debt of Virginia, quarantines, and the electoral college voting system. The last chapter describes and analyzes the mechanism available for resolving controversies between sister states.

After the Court struck down the 1789 Judiciary Act provision making the Supreme Court’s original jurisdiction exclusive, it decided to exercise its original jurisdiction over interstate controversies on a discretionary basis and fashioned three criteria to determine [*298] whether its jurisdiction should be invoked: is the complaining state a real or nominal party; does a justiciable controversy exist; and is the dispute an appropriate one for the court to adjudicate.

Once the Court assumes jurisdiction, it appoints a Special Master to collect evidence, make actual determinations, and prepare a report for the Court. Zimmerman presents a detailed look at the origin of their use (English Chancery Courts); how they are appointed (the Constitution is silent on the subject of Special Masters); and fees and expenses. He concludes the chapter with criticism that has been leveled at the use of this procedure.

Chief Justice Rehnquist raised questions about Special Masters in a 1981 dissenting opinion (MARYLAND v. LOUISIANA, 451 U.S. 725, at 761). Because their use is dictated by the fact that the Court lacks the time to conduct fact finding, the Court would be better served by trials in lower courts. Building on Rehnquist’s argument, other critics have noted that resort to Special Masters bypasses traditional characteristics of the trial process such as adversarial testing of evidence, presentation of witnesses by parties, and multi-layered review, among others.

Zimmerman reaches two conclusions on the basis of his examination of the cases in his four categories. He believes that the crowded docket makes it imperative that the Court exercise its jurisdiction only when confronted with a “major interstate controversy” (p.108). The second conclusion, drawn primarily from his analysis of the continuing disputes over interstate waters, is that the Court is not the “appropriate body to resolve such controversies” (p.142).

Having raised serious questions about the efficacy of the Court’s handling of these disputes, Zimmerman concludes with an examination of the alternative dispute resolution proposals. He lists four: (1) granting concurrent jurisdiction to U.S. District Courts or create a new court with limited jurisdiction; (2) increasing the size of the Supreme Court; (3) preempt regulatory authority of states in the particular fields where disputes have re-occurred; (4) encourage states to enact interstate and federal state compacts creating commissions with authority to issue regulations superseding member state regulations and to resolve disputes. He thinks that the first two are not viable candidates. A review of three other specialized courts created by Congress under Article III powers, the Court of Appeals for the Federal Circuit, the Court of International Trade, and the now defunct Commerce Court, lead him to agree with other critics that their disadvantages outweigh their advantages. In any case, it is unlikely that Congress would create such a Court. As to increasing the number of justices on the Court, that is even less likely.

Zimmerman believes that three and four offer better possibilities. Congress could draft a statute designed to prevent interstate controversies as a preemption statute with an “opt out” provision allowing state legislatures to exclude the state from coverage. He thinks it “improbable” that state legislatures [*299] would opt out of a law aimed at strengthening the national economy or achieving some other important public policy objective. The fourth alternative, encouragement of interstate compacts, can be achieved if Congress were to take four specific actions: grant blanket consent in advance to states to enter into and amend compacts; offer grants-in-aid to states to conduct research on the major interstate issues facing them and draft and enact compacts; enact contingent preemption statutes to encourage adoption compacts in areas that have involved disputes; and direct relevant federal departments and agencies to work with concerned state governments toward solving problems.

Zimmerman concludes with the question, “How adequately do the two current theories of United States Federalism explain interstate relations” (p.174)? Dual federalism, noted in Chapter One, explains our status as a compound republic, but says little about interstate relations. Cooperative federalism, on the other hand, does provide a basis for understanding interstate relations, and the role of operating interstate compacts and formal and informal administrative agreements epitomize that understanding. This work exhibits the solid scholarship we have come to expect from Professor Zimmerman. Written from the perspective of traditional doctrinal analysis, it is public policy advocacy in the best tradition of the discipline of Political Science.

REFERENCE:
Zimmerman, Joseph. 1996. INTERSTATE RELATIONS: THE NEGLECTED DIMENSION OF FEDERALISM. Westport, CT: Praeger.

CASE REFERENCE:
MARYLAND v. LOUISIANA, 451 U.S. 725 (1981).

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© Copyright 2007 by the author, Peter J. Galie.

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QUEST FOR TRIBAL ACKNOWLEDGMENT: CALIFORNIA’S HONEY LAKE MAIDUS

by Sara-Larus Tolley. Norman: University of Oklahoma Press, 2006. 304pp. Cloth. $29.95. ISBN: 9780806137483.

Reviewed by John R. Wunder, Department of History and Journalism, University of Nebraska-Lincoln, and Renvall Institute, University of Helsinki. Email: jwunder [at] unlserve.unl.edu.

pp.294-296

QUEST FOR TRIBAL ACKNOWLEDGMENT, by Sara-Larus Tolley, is a difficult book to review. It clearly has value, and it represents a contribution to the literature on the evolution of federal Indian policy and Indian law and the history of California Indians. But there are fundamental problems that go to the book’s very core. These problems throw into question its ultimate value. In many ways, this book offers some excellent insight, particularly into the acknowledgment process as a colonial concept, but the way Tolley reaches conclusions is often problematic. This reader has weighed the pluses and minuses and believes the book does indeed have some merit, but it was not an easy sorting process.

This book involves the recent history of a group of California indigenous peoples, the Honey Lake Maidus, who have unsuccessfully attempted to achieve federal recognition of their tribe. The Honey Lake Maidus of rural northeastern California are a small group that has in many ways slipped through the cracks of the state and federal Indian hierarchy. It would have been easy for the Honey Lake Maidus to have been absorbed by various Indian rancherias in California or with other tribes through intermarriage, but they have maintained their separateness and identity against extremely difficult odds and circumstances. Tolley conducted significant fieldwork with the Honey Lake Maidus and ultimately was hired to help write the petition for the acknowledgment process. Out of this activity came her monograph.



There are fundamental flaws that permeate this book. First, it is basically an autobiography. The title might actually read, “My Life with the Honey Lake Maidus and the Federal Government.” Oddly, the author makes herself the primary subject in the Honey Lake Maidus acknowledgment process. It is Tolley’s ups and downs that seem to generate the most intense writing, even to the point of revealing petty internal struggles that broke out during this emotional moment for her and the Honey Lake Maidus. She reveals her own personal dislikes of various Maidu leaders. Perhaps because she was ultimately unsuccessful with her petition, she felt free to include these personal respites.

Second, Tolley seems intent on adding and applying methodologies and analyses that have little to do with the acknowledgment process. The book reads like a dissertation where a professor has forced upon a student some pet theories that have little to do with the subject at hand. In fact, the author writes, “Observing how [Michel] [*295] Foucault’s and [Antonio] Gramsci’s ideas intersect one another on their routes to different places casts light upon the Honey Lake Maidu experience as petitioners” (p.15). Worse, the theories injected are post-colonial concepts that indigenous scholars and a number of non-indigenous scholars have rejected as both irrelevant and false. They argue that Indians cannot possibly be living within a post-colonial framework when colonialism is alive and well, thank you. Even though Tolley recognizes that the acknowledgment procedure is a colonial process, fundamental inconsistencies become imbedded as a basic part of this book which is littered with such unenlightened phrases as “decentered,” “techniques of the self,” and “broad discourses.” The reader wonders, “Is this the Honey Maidus’ story?”

Third, Tolley, who is a very honest writer throughout, states in her introduction that “Some names and facts have been changed to protect people’s identities” (p.xviii). This is amazing. Is this then fiction? Or, that anomaly – historical fiction? Or, an old goodie – fieldwork fiction? What names and/or facts are false are not identified. Given this uncertainty, how do we know what is true and what is false? This startling admission makes one wonder whether this book is a fantasy. To be fair, social science method often allows the conduct of surveys or interviews in which the participants are not identified. But it does not allow for made-up facts or giving participants false and misleading names. The credibility of the book is undermined before it even proceeds.

Fourth, the research for the book is minimal. It fails to consult a variety of works on Indian law that might have helped avoid false statements. By not using the many federal court cases on this subject, and the courts have approved their own acknowledgment requirements that differ from the federal government bureaucracy requirements, or the numerous applicable law review articles (including AMERICAN INDIAN LAW REVIEW, ironically out of the University of Oklahoma School of Law), ignorance is not always overcome. For example, Tolley states, “The famous phrase that defined the Indian nations as ‘domestic and dependent’ quasi sovereigns comes out of Supreme Court [Chief] Justice [John] Marshall’s decision in CHEROKEE NATION v. GEORGIA (1831), a case in which the Cherokees requested the Court’s protection from the predations visited upon their lands by the state of Georgia” (p.42). Here the Court’s actual language is slightly twisted and not quoted accurately, and many subsequent decisions have hinged on Marshall’s true words. Or take an example from the following page when Tolley allows that in California is found “the creation of the nation’s first modern reservation system.” This is simply false. Tell that to the Powhatans of 17th century Virginia, the Narragansetts of 18th century Rhode Island, the Lakotas of 19th century South Dakota, or the Yaquis of 20th century Arizona.

And fifth, the author really does not like her subject. She seems to emerge from her experience as bloodied and bruised. Early on, she gives us a hint of her feelings. On page 13, she allows that [*296] “the Honey Lake Maidu sense of belonging seems to come from finding a sustainable antagonism.” Identity, therefore, comes from who they are not, and not from who they are. This is a damning statement that some federal official might latch onto to deny the Maidus tribal status. If this is how the author felt, why then did she work for the Maidus to try to obtain tribal status? Autobiography is clearly the way to perceive of this book, and for the Honey Lake Maidus who may try again to become federally recognized, it is how this book should be read.

Still, through it all, what is best about this book is the author’s sense of outrage. There is a stiletto-like quality to some of her observations and syntheses. When characterizing the connections between 19th and 20th century California Indian history, she writes, “yesterday’s genocide has given way to ethnocide” (p.39). And she then concludes, “After the government’s sanction of murder, hangings, and rape after the forced marches, forced indentures, and then the neglect and bureaucratic ‘extinction’ of California’s tribes, it now asks them, by way of the Federal Acknowledgment process, to prove to the state that they are Indian peoples.” Incredulous. And well put. Tolley is correct to pull these historical forces and treatments together and ask how this can really be happening. For the Honey Lake Maidus, it is the chilling reality.

CASE REFERENCE:
CHEROKEE NATION v. GEORGIA, 30 U.S. 1 (1831)

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© Copyright 2007 by the author, John R. Wunder.

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OVERDOSE: HOW EXCESSIVE GOVERNMENT REGULATION STIFLES PHARMACEUTICAL INNOVATION

by Richard A. Epstein. New Haven, CT: Yale University Press, 2006. 296pp. Hardcover. $30.00. ISBN: 9780300116649.

Reviewed by Robert M. Howard, Department of Political Science, Georgia State University. Email: polrhh [at] langate.gsu.edu.

pp.290-293

Recent surveys show significant dissatisfaction with the cost of health care. For example, a New York Times/CBS News Poll in late February 2007, and reported in the paper on March 2, 2007, showed that 59% of respondents were “very dissatisfied” and another 22% of respondents were “somewhat dissatisfied,” with the cost of healthcare in the United States. In contrast only 14% pronounced themselves satisfied with the current cost of health care. More than 50% of Americans were dissatisfied with their health insurance coverage and out of pocket costs and a strong plurality (47% to 38%) favored a national single payer system administered by the federal government over the current private health care system. A significant portion of this dissatisfaction lies with the cost of prescription medication. In a 2005 Kaiser Family Foundation Survey almost 70% said high drug company profits are a very important reason for high health care costs, and the same percentage said drug companies put “profits ahead of people. Finally the Kaiser survey revealed that 65% of respondents favor greater government regulation of the pharmaceutical industry.

Given the Democratic takeover of Congress following the 2006 midterm elections, many assume that the new Congress will revisit the Medicare law and impose greater governmental control over the health care industry and in particular seek greater regulation over the pharmaceutical business. Among others things, the legislation would undoubtedly call for some type of price regulation of pharmaceuticals. Based on the above survey results, such legislation would have broad public appeal.

Into this passionate and heated debate, Richard Epstein’s book, OVERDOSE, provides a very timely examination of the pharmaceutical industry, drug costs and government regulation. Sailing against the wind and public opinion upset with “Big Pharma,” Epstein argues, for less, not more, government regulation of prescription medicines and the pharmaceutical industry. The book is a thoughtful, dispassionate series of arguments to decrease, if not abolish, prescription medicine regulation. In fact a weakness of the book might just be the dry dispassionate tone of the manuscript. There are no fireworks. Instead, Epstein lays out in a methodical fashion following from economic principles to market analysis why drug regulation will lead to increased cost and less innovation. Eschewing complex figures or formulae, the book appears aimed at a general audience in addition to scholars and students interested in public policy and the intersection of law and economics. [*291]

The subtitle neatly summarizes the premise of the book. Epstein argues that there is a trade-off between regulation and innovation. Given the tremendous cost involved in developing and marketing pharmaceuticals, any regulation of drugs will increase the cost to the drug companies. This will in turn reduce potential profit and therefore the willingness of pharmaceutical companies to engage in the costly research and testing needed to bring new drugs to market. More regulation thus leads to less innovation and ultimately the public will suffer. Any one who believes, along with the majority of the American public, that greater regulation is warranted will have to confront and deal with Epstein’s analysis. The argument succeeds to the extent that, at various parts of the book, the reader actually starts feeling sorry for so called “Big Pharma.”

Epstein lays out his analysis in 18 chapters divided into six separate sections or parts. In the first, Epstein offers some introduction to basic market principles. He leads off his analysis by arguing that science is a victim of its own success. Such great advances were made in science and medicine in reducing mortality and increasing life expectancy, particularly during the first half of the twentieth century, that it is unlikely science and medicine will again match that success. However, the public still expects the same type of advances in the 21st century. This is a problem because, when the expectations are not met, the public inevitably blames the drug companies for valuing profits over public health and no longer understands or tolerates the risks inherent in researching and developing pharmaceuticals. Even the slightest risk is deemed unacceptable. Epstein then spends the next several chapters formulating the basis of his argument by discussing property rights, externalities, common goods, intellectual property and government regulation. Epstein uses this to lead to a discussion of patents, monopolies and rate regulations. Much of this is a primer in free market economic theory.

From this Epstein delves into the heart of his argument on government regulation and the pharmaceutical industry. Step by step he argues against price regulation, for putting limits on the FDA approval process, limiting drug company liability for consumer fraud, and letting consumers guided by their doctors determine whether to use a particular medicine. At each point he argues that the cost of such regulation exceeds the benefits. Moving beyond price regulation as a curb on innovation, he argues that, by relying on averages in determining the safety of drugs, the FDA prevents patients who might be helped and not hurt by such drugs. For example, just because three percent of patients suffer adverse reactions to a drug does not mean that many other patients might not benefit from it. Epstein argues that the decision to weigh risk versus benefit should be left to the patient and her doctor. Extensive marketing is necessary because, without it, the pharmaceutical companies would have no chance to recoup their investment in research and development. Thus, it all comes down to the large cost of developing and then marketing drugs versus the risks inherent in the process, not the least of which is [*292] the potential danger to a small percentage of users. As I said, at times one actually feels sorry for “Big Pharma.”

Of course the argument hinges on several assumptions about the purposes and benefits of advertising and marketing and on cost and expected return. For example, for Epstein advertising is critical, in that it is the only way drug companies can get their message out to doctors and consumers. This assumes perfect information and perfect knowledge. It assumes consumer manipulation does not happen, and it overlooks that fact that pharmaceutical companies expend significant advertising dollars on high profit drugs such as erectile dysfunction medications. The goal of advertising is to get consumers to ask for Cialis over Viagra (or vice versa) or to get doctors to recommend one over the other. Is the choice the best for the individual patient? Who knows? It is hard to argue that either of these choices is best for overall social utility.

In fact, the argument that the profit motive alone leads to innovation overlooks how profit motives can get in the way of innovation. One only has to examine the significant disparity in sales and advertising as compared to research and development. According to 2005 SEC filings of the nine Fortune 500 pharmaceutical companies, the companies spent, on average, more than twice as much for sales and advertising (32.2% of revenues) as they do for research and development (14.9%). The same SEC filings show that these nine companies reported, on average, extremely healthy profits of over 17% of revenue. A company has a right to make a profit, and each company has a right to make their own decisions on the allocation of revenue. If a company wants to sell an erectile dysfunction drug by showing two people sitting side by side in separate bathtubs looking out on the setting sun, well, that is the market system.

However, given this profit, and the disparity in marketing expense as compared to research and development expenditures, it is hard to argue that there is significant innovation occurring and that somehow the United States government, seeking to control escalating drug prices, is stifling this innovation. What will occur? Will companies reduce the already low percentage devoted to research and development? If profits are so high and there is already little innovation, how much more can be cut without a pharmaceutical company endangering its existence? Why assume innovation will suffer? Perhaps a company will spend less on sales and advertising and more on research and development.

That leads to another assumption – that of cost. Epstein assumes that it is extremely risky to bring drugs to the market given the cost of developing and marketing the drug and the potential liability. However there is no independent verification of the cost of developing and marketing pharmaceuticals. “Big Pharma” does not release this information. The companies claim these are trade secrets. One disputed study estimated the average cost of developing and marketing a drug [*293] at $802 million. This is an enormous sum, but there is no independent verification. Until we have such independent verification, we simply do not know how expensive it is to research and develop pharmaceuticals. Polling data suggest the public is highly suspicious, and as valuable a contribution as OVERDOSE is to the literature, it is doubtful that it will change many minds in the debate.

REFERENCES:
NEW YORK TIMES/CBS NEWS POLL. 2007. February 23-27, New York Times, March 2, 2007

KAISER FAMILY FOUNDATION. 2005. http://www.kff.org/spotlight/rxdrugs/index.cfm

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© Copyright 2007 by the author, Robert M. Howard.

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REFLECTIONS ON CONSTITUTIONAL LAW

by George Anastaplo. Lexington: The University Press of Kentucky, 2006. 288pp. Cloth. $65.00. ISBN: 9780813123967. Paper. $24.95. ISBN: 9780813191560.

Reviewed by Philip A. Dynia, Department of Political Science, Loyola University New Orleans. Email: dynia [at] loyno.edu.

pp.286-289

George Anastaplo, Professor of law at Loyola Chicago School of Law and lecturer in liberal arts at the University of Chicago, may well be the Energizer Bunny of American constitutional scholars. His academic career began in 1964, and by the 1990s his scholarly output was sufficiently prodigious and noteworthy to be celebrated in a two-volume festschrift (Murley, Stoner and Braithwaite 1992) and a collection of essays (building upon an APSA panel – sponsored by the Claremont Institute – devoted to Anastaplo’s contributions) in the 1997 volume of POLITICAL SCIENCE REVIEWER. Many would have taken these honors as occasions to retire, or at least slow down, but that has not been the case with Anastaplo. In the past decade, he has produced, in addition to the volume under review, six other books, a seventh (REFLECTIONS ON FREEDOM OF SPEECH AND THE FIRST AMENDMENT) forthcoming this year, several other volumes in preparation, and nearly a dozen articles to add to scores of previous ones.

Certain themes inevitably recur, and that is true with respect to the work being reviewed here. Anastaplo has always sought to bring the insights of classical and political philosophy to his writings on the American Constitution. As he puts it in REFLECTIONS: “Critical . . . [is] the relation between the old (if not even the ancient) and the good. There is something to be said for the proposition that that which is long-established, at least among a civilized people, has likely been ‘certified’ by nature as somehow good. It is this expectation that makes precedents attractive” (p.122).

Two figures are crucial to understanding Anastaplo’s work: Leo Strauss, who taught Anastaplo political philosophy at the University of Chicago, and William W. Crosskey, another of Anastaplo’s Chicago teachers, who introduced him to constitutional law.

The close and careful reading of classical texts that informed the work of Strauss is consistently used by Anastaplo to read the Constitution. In the present volume,
Anastaplo describes this endeavor as drawing on “the literary, philosophical and theological materials that can illuminate how we should think about self-government and the common good” (p.x).

Anastaplo shares with Crosskey the belief that the Constitution is internally consistent, a work of extraordinarily fine legal craftsmanship (chiefly attributable to Gouverneur Morris and James Wilson). According to Crosskey (and Anastaplo as well), the Framers created a national government of plenary powers and intended the Congress to be [*287] supreme, with the executive and judiciary playing subordinate roles.

Perhaps Anastaplo’s approach is best understood by consulting two of his earlier works (Anastaplo, 1989 and 1985) that take the form of commentaries on the original constitution and subsequent amendments. In the present volume, Anastaplo quotes approvingly a reviewer who described these commentaries as “the first time anyone has tried to read the Constitution like a book” (p.x).

In REFLECTIONS, Anastaplo is more concerned than in many earlier works with case law and the way the Supreme Court has understood (or in several important instances misunderstood, Anastaplo would argue) the Constitution. Anastaplo offers the reader “two dozen sets of constitutional sonnets” (p.x) about these cases (more on their “sonnetness” below). Anastaplo eschews any attempt to provide exhaustive or extensive accounts, but rather selectively reflects upon aspects of these cases and the relevant constitutional provisions not generally noticed by jurists and scholars.

As Anastaplo himself concedes, most of his topics here are quite familiar to experienced students of constitutional law and track fairly closely the syllabus of a typical constituonal law course. Anastaplo does urge students to read the cases in their entirety rather than to rely on the edited versions found in casebooks (although it seems to this reviewer that most of the language he scrutinizes is highly likely to be found in most leading casebooks).

Two cases to which Anastaplo returns several times are SWIFT v. TYSON (1842) and ERIE RAILROAD CO. v. TOMPKINS (1938). Together, he tells his readers, they demonstrate different approaches to a most fundamental question: what is the nature of law. Anastaplo prefaces his discussion with Thomas Aquinas’s definition of law: “an ordinance of reason, for the common good, promulgated by those who have the care of the community.” Modern legal positivism, Antastaplo notes, stresses only the element of promulgation—law is the directive of those who have authority. Anastaplo, true to the natural law/natural right tradition he reveres, praises Justice Joseph Story’s opinion in SWIFT while denouncing ERIE as a “jurisprudential development [furthering] the nihilistic tendencies of a hedonistic modernity” (p.xiii). Anastaplo presents, needless to say, quite a different perspective from that which simply describes the earlier case as endorsing the notion that federal judges discover federal common law principles as opposed to the later case’s leaving federal understandings of common law to the insights of state judges.

There are a few other areas in which Anastaplo’s approach differs from standard constitutional law course fare. He has far more to say about the pervasive effect of the slavery issue on the development of constitutional law, including a genuinely masterful discussion of the relationship between slavery and understandings of the commerce power in the first half of the nineteenth century. [*288]

A chapter on the constitution of the Confederate States of America is also quite insightful. By noting what the Confederate Framers did or did not retain from the 1787 Constitution that was their model and starting point, he is able to illuminate some essential elements of the original Framers’ philosophy, as well as pointing to mechanisms that later generations found problematic. Thus, while the Confederate constitution is much more direct than the 1787 Constitution in its protections of slavery, it also contains some innovations that today are regarded by many as commendable: limiting the President to a single six-year term, provision for a line-item veto, participation by Cabinet members in legislative debates on the floors of the two houses of Congress, and a clear statement of presidential power to dismiss nonjudicial appointees.

One extremely salutary aspect of REFLECTIONS, particularly in light of developments in American politics since 2000, is Anastaplo’s persistent mistrust of the modern presidency and the corresponding weakening (or if you will abject surrender) of congressional authority. The present reviewer recalls his early years of graduate study. Lyndon Johnson’s Great Society was sailing through Congress, the “deadlock of democracy” seemed to be broken, and people like Willmoore Kendall (another influence on Anastaplo and a thinker much-admired by some of my own professors and mentors) seemed quaint and slightly out of touch in their insistence on the importance of congressional prerogatives. And then along came a little glitch—Vietnam. Currently, that glitch, a little bigger, is Iraq (by way of Iran-Contra)—arguably, the inevitable product of a century of war and national emergencies that saw the aggrandizement of executive authority and the corresponding dwindling of congressional authority and oversight. Anastaplo’s argument that such an arrangement was not desired by the Framers, and that it must be corrected, seems more vital than ever. To his credit, Anastaplo made these same arguments even when presidents were thought to be doing good things.

Thus, while there is much familiar ground in REFLECTIONS, the reader should recall, as Anastaplo himself once suggested, that after two hundred years too much originality in such matters would be suspect. Anastaplo summons us to return to fundamental principles, and he does so with considerable command of our history, traditions, and the scholarly literature.

Certainly, there are things about which one might quibble. There are no footnotes in this volume. Much of what he says is indeed common knowledge (at least among scholars). At times, though, one would appreciate a source, as in the following: “Chance was critical as well in the timing of the Civil War: Union forces would have been markedly inadequate a generation earlier, and Southern forces would have been markedly inadequate a generation later” (p.7). There are some idiosyncracies that seem inexplicable: why is “opinion” (as in “the opinion of the Court” or “dissenting opinion”) consistently capitalized? (Indeed, why is “Dissenting” capitalized?) Same for [*289] “country” (as in “the Civil War in this Country was devastating”).

Most puzzling, though, is the reason for each chapter to consist of nine sections (headed by a Roman numeral) and each section to contain exactly three paragraphs. Is this the “sonnet” form to which Anastaplo refers in the Introduction? The prose does not seem to reflect the traditional abba abba form of a poetic sonnet. While certainly a display of concise, ordered, indeed virtuosic organizational and writing skills, it leaves this reviewer at least wondering if there lurks beneath the form some underlying mystery or truth known only to Straussian initiates, to whose ranks this reviewer does not belong.
But, at the end of the day, Anastaplo’s REFLECTIONS is an interesting, thoughtful, provocative look at American constitutional law and some of its most famous (and infamous) cases, as well as many of the fundamental legal and philosophical origins of American constitutionalism and constitution. I would certainly offer it as a supplementary reading to my undergraduates. In fact, I suspect I will require it.

REFERENCES:
Anastaplo, George. 1989. THE CONSTITUTION OF 1787: A COMMENTARY. Baltimore: The Johns Hopkins University Press.

Anastaplo, George. 1995. THE AMENDMENTS TO THE CONSTITUTION: A COMMENTARY. Baltimore: The Johns Hopkins University Press.

Murley, John A., Stoner, Robert L., and Braithwaite, William T. (eds.) 1992. LAW AND PHILOSOPHY: THE PRACTICE OF THEORY. Athens: Ohio University Press.

CASE REFERENCES:
ERIE RAILROAD CO. v. TOMPKINS , 304 U.S. 64 (1938).

SWIFT v. TYSON , 41 U.S. 1 (1842).

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© Copyright 2007 by the author, Philip A. Dynia.

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