DELIBERATIVE DEMOCRACY AND THE INSTITUTIONS OF JUDICIAL REVIEW

by Christopher F. Zurn. New York: Cambridge University Press, 2007. 374pp. Cloth. $85.00/ £48.00. ISBN: 9780521867344. eBook format. $68.00. ISBN: 9780511276200.

Reviewed by James A. Gardner, University at Buffalo Law School, State University of New York. E-mail: jgard [at] buffalo.edu.

pp.620-623

In the forty-five years since Alexander Bickel branded US courts “countermajoritarian,” a thriving academic industry has pondered the “legitimacy” of judicial review, the practice whereby appointed judges possess final authority to evaluate the constitutionality of actions taken by democratically elected officials. Questions about the legitimacy of judicial review can be raised in one of two very different senses. In one sense, such questions ask whether judicial review is a normatively desirable institution as judged against some extraconstitutional standard of institutional merit, often a democratic one. In a trickier, internal sense, questions about the legitimacy of judicial review ask whether courts have maintained fidelity to the constitution in the actual practice of judicial review. In the first sense, the issue is whether judicial review should or should not be incorporated into some constitutional system. In the second sense, judicial review is accepted as a constitutional fact, and the issue is whether courts are doing it properly. In the first sense, the legitimacy of judicial review is a question of sound institutional design; in the second sense, it is a question of how judges ought to practice their craft.

Entire forests have been leveled in the production of books and articles about the legitimacy of judicial review, and the vast bulk of the work on this subject is by legal academics who have taken up the question in the second sense: their purpose has been to attack or defend a particular practice of judging. The great exemplar is of course Ronald Dworkin who, although he writes at times like a political theorist, has in fact been engaged throughout his career in elaborating a deeply grounded defense of a heroic brand of constitutional adjudication. Even Bickel himself, who initially raised the legitimacy question, had little to say in his writing about democracy and a great deal to say about judging.

In DELIBERATIVE DEMOCRACY AND THE INSTITUTIONS OF JUDICIAL REVIEW, Christopher F. Zurn, a political philosopher at the University of Kentucky, has struck off in a different direction: he seeks to offer a justification for judicial review in the external sense, by showing that judicial review is an institutional arrangement that comports, or can be practiced in a way that comports, with a normatively attractive theory of democracy. This is an unusual project for a philosopher. In the first place, for many political philosophers the question “Is judicial review democratic?” is simply an uninteresting one. For pragmatists, conventionalists, neo-Aristoteleans, [*621] communitarians, utilitarians, Schumpeterians, Downsians, and even classically liberal Lockeans, not much turns on whether any particular political institution deserves or does not deserve the label “democratic.” Second, even among contemporary democratic theorists (with perhaps the one significant exception of Jeremy Waldron), the desirability of judicial review is rarely contemplated, mainly because most theories of democracy are simply too coarse to specify particular institutional arrangements, a great variety of which could in at least some circumstances be compatible with most such theories. Third, inquiries into the democratic legitimacy of specific institutions can be treacherous territory for philosophers because it is difficult to evaluate constitutional institutions in isolation from one another (you want to talk anti-democratic? how about the Senate? the Electoral College? the presidential veto? bicameralism? separation of powers?), and because so many real-world contingencies influence the way institutions actually operate that ex ante judgments about their democratic bona fides are extremely risky.

Nevertheless, undaunted, Zurn attacks his project with obvious enthusiasm. The book’s main argument goes something like this. Zurn dislikes extant justifications for judicial review because, in his view, the democratic theories upon which they rest are unappealing. The book therefore begins by showing that the standard justifications for judicial review do in fact rest ultimately on some underlying theory of democracy – typically a theory that Zurn describes, accurately, as “majoritarian democracy and minoritarian constitutionalism” (Ch. 2). Zurn then proceeds at length to review and criticize this theory and its variants, eventually offering as a superior alternative a slightly tweaked version of Habermasian deliberative democracy. From this account of deliberative democracy, Zurn derives a conception of constitutionalism, which he calls “deliberative democratic constitutionalism.” This conception of constitutionalism is procedural rather than substantive – it takes the primary purpose of a constitution to be the maintenance of the conditions for a successful deliberative democracy rather than, say, entrenching various substantive norms. This conception in turn provides Zurn with a justification for some form of “constitutional review,” by which he means an institutionalized process to evaluate whether official actions fall within constitutional bounds. Zurn takes pains here to argue that deliberative democratic constitutionalism provides no a priori justification for allocating the function of constitutional review to a court; it could in principle reside in other bodies.

The book concludes with two chapters laying out briefly some proposals for institutionalizing constitutional review consistent with the premises of deliberative democratic constitutionalism. One of these proposals happens to be judicial review in the form of a European-style constitutional court, but Zurn also endorses other mechanisms and forums for public and governmental constitutional review – institutions, that [*622] is to say, in which deliberation about the meaning of fundamental law can occur. These include legislative and executive self-review panels, a Canadian-style “notwithstanding” clause permitting legislative override of judicial rulings, constitutional requirements of legislative specification, forms of judicial deference to other branches, easy constitutional amendment through popular participation, and deliberative opinion polling, among others. Any or all of these institutions, Zurn speculates, might encourage appropriate reflection and dialogue both within and among the various official power centers, and between civil society and officialdom.

The book’s main flaw, it seems to me, is that it tries to do too much, and so ends up doing rather little. Among the goals Zurn sets for himself are analyzing the work of virtually every major theorist of judicial review, providing a better justification for judicial review than any of these thinkers, reconciling constitutionalism and democracy, which are generally thought to be in tension, and working out a blueprint for institutionalizing deliberative democracy – and not just any deliberative democracy, but the best possible account of deliberative democracy. This is the work of a career, not a book.

Zurn is at his best and most interesting when engaged in exegetical analysis of the thought of others who have written on judicial review. Their work is treated fairly, engaged sympathetically, and analyzed perceptively. But Zurn takes on too many of them. In the first seven of the book’s nine chapters, he manages to work over Alexander Bickel, Learned Hand, Jesse Choper, John Hart Ely, Robert Dahl, Michael Perry, Ronald Dworkin, Jeremy Waldron, Samuel Freeman, John Rawls, Christopher Eisgruber, Frank Michelman, and Jürgen Habermas. More importantly, these portions of the book do rather little of its real work in advancing the main argument, to the point where the book at times feels like a somewhat contrived vehicle for the delivery of exegetical analyses of thinkers Zurn wishes to discuss.

Zurn states plainly at the outset that he intends the book primarily as a work of institutional design (p.30), yet turns to this task only in the final two chapters. If the portions of the book laying the theoretical groundwork are somewhat more developed than necessary, this portion seems disappointingly underdeveloped. Wearing his institutional design hat, Zurn seeks to derive from his theory of democratic deliberative constitutionalism a set of institutional structures that, if constitutionalized, would help create in practice the conditions in which a normatively attractive deliberative democracy could flourish. Although Zurn deduces from his theoretical premises a variety of institutional arrangements that might conceivably do the job, the utility of his suggestions is compromised by his refusal to offer any particular view about the likely behavior of the human beings who will inhabit the institutions he describes. This, it seems to me, is a significant oversight in a work of institutional design.

Think, for example, of the work of James Madison, the father of modern [*623] constitutional design. Madison’s ingenious innovation lay not in his political theorizing, which was standard-issue, eighteenth-century natural law metaphysics, but in yoking his political theory to a robust political sociology. That innovation permitted him to evaluate and compare the efficacy of highly specific alternative institutional arrangements. Contemporary constitutional designers are certainly entitled to replace Madison’s political theory with a more appealing modern alternative, but if they are to apply that theory helpfully to questions of institutional design, they must also adopt some account of political behavior. That is why many contemporary works of constitutional design deal extensively with unruly real-world variables such as incentive structures, agency costs, transaction costs, political rationality, and political culture. Moreover, a new, fast-growing body of empirical research on the behavior of individuals in deliberative settings suggests grounds for great caution in the construction of political institutions suitable for deliberative varieties of democracy (Mendelberg 2002).

Zurn repeatedly shows that he is aware that the nature of actual political behavior could make or break his institutional proposals, but he is content simply to note the problem without taking a position. “The problem of institutional design,” he observes, “is . . . one of mediating between the ideal and the real” (p.323). It is, but Zurn’s withdrawal from the field at this point in the argument leaves the reader with two chapters of concrete institutional proposals derived from high political theory, yet lacking any tools to evaluate their feasibility.

DELIBERATIVE DEMOCRACY AND THE INSTITUTIONS OF JUDICIAL REVIEW will be of interest mainly to political theorists concerned with the justifications for judicial review. Because it offers no prescriptive conclusions about the practice of judging, the book will likely be of somewhat less interest to legal scholars and political scientists who study constitutional adjudication. The book also makes a modest contribution to the growing literature on deliberative democracy, and so might be of interest to political theorists for that reason as well.

REFERENCE:
Mendelberg, Tali. 2002. “The Deliberative Citizen: Theory and Evidence.” In Michael X. Delli Carpini, Leonie Huddy, and Robert Y. Shapiro. (eds), RESEARCH IN MICROPOLITICS, VOL. 6: POLITICAL DECISION-MAKING, DELIBERATION AND PARTICIPATION. New York: Elsevier Science.

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© Copyright 2007 by the author, James A. Gardner.

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THE SUPREME COURT OF FLORIDA, 1917-1972

by Walter W. Manley, II, and Canter Brown, Jr. Gainesville, FL: University Press of Florida, 2006. 448pp. Cloth. $59.95. ISBN: 081303003X.

Reviewed by Christine L. Nemacheck, Department of Government, The College of William and Mary. E-mail: clnema [at] wm.edu.

pp.612-614

In THE SUPREME COURT OF FLORIDA, 1917-1972, Walter Manley and Canter Brown provide a thorough account of the state’s high court and its growth in size, caseload, and prominence, as Florida evolved from a largely rural state dominated by native Floridians and citizens from other bordering southern states, to one that became predominantly urban and the destination of many “snowbirds” from the north who flocked there as tourists and later as permanent residents. Commissioned by the Florida Supreme Court Historical Society to provide a comprehensive account of the high court’s development, this is the authors’ second volume on the court’s history (the first focused on the 1821-1917 time period).

Manley and Brown put forward two goals: first, to document the history of the state’s judiciary and especially its high court; and second, to contribute to the renewed interest in state appellate courts generally, as legal scholars have begun to redirect attention to the important role of state courts in our federal judicial system. Regarding their first goal, the authors provide a comprehensive account of the state supreme court’s history, and their organization of the book helps to meet their objective. Each of the five parts, divided chronologically, first provides a snapshot of the state during a particular time period. For example, in Part One, focusing on the period from 1917-1932, the first chapter describes the effects of World War I and the economic growth and development that occurred immediately in its aftermath. Manley and Brown then address the bank failures and financial crises that hit Florida more slowly than many other states, but whose impact was exacerbated by devastating storms and hurricanes in 1926 and 1928.

Having provided a general historical overview, the authors turn their focus to the state’s supreme court during that time period. Much of this discussion focuses on the structural rules and changes, including the court’s size, caseload and methods of judicial selection. Particularly in the account of the earlier years, the authors’ description of the court’s operation provides for interesting and even surprising reading. For example, until 1925, the chief justice of the court was chosen through a lottery system that sometimes included cutting to a particular page in the Bible wherein the justice with the highest last digit on a particular page was named chief (p.26)! In addition to discussing the court’s institutional position and evolution, the authors also provide biographical overviews for the justices serving during that period. This too, offers interesting reading and helps to locate the court’s activities in its proper context. [*613]

Finally, in the third chapter of each section, Manley and Brown analyze some of the prominent cases decided during the time period. In many instances, the authors describe individual cases deemed to be of particular importance to the state, such as GAULDEN v. KIRK (1950) in which the court unanimously upheld the state’s new sales tax. Additionally, they also provide discussions of several broad issues that were important to the court in the era. Several of these issues, such as labor law, local governmental powers, and race relations receive treatment within each chronological period, though that is not uniformly the case across all issues addressed.

The basic organizational structure described above continues throughout each of the five chronological sections, and through that structure the authors very ably meet their first goal of presenting a thorough overview of Florida’s supreme court and its development. However, that structure does not provide a suitable vehicle to achieve their second goal, at least not to the same degree as the first. Although some themes emerge throughout the detailed historical accounts, had Manley and Brown initially and explicitly laid out a theoretical focus, the reader would be in a much better position to appreciate how this particular story of the Florida Supreme Court contributes to an understanding of the importance of state high courts within our system of judicial federalism.

There are several themes the authors could have developed to emphasize the broader insights that can be gleaned from their discussion. One important theme that might have been highlighted is the dynamic nature of judicial federalism. Although the authors touch on the difficulty of maintaining the appropriate balance between the state and federal courts, if they had dealt with the issue more explicitly at the beginning, they could have then created a sustainable thread to guide the reader through the succeeding chapters on the court’s development and to provide some leverage in understanding parallel judicial experience in other states as well.

Another theoretical thread that could have been woven into the discussion, particularly of the individual justices, is the effect of urbanization and migration on our state high courts. Florida’s court would provide an especially good illustration of trends we might see elsewhere, though perhaps not to the same extent, given the degree to which Florida experienced both urbanization and substantial migration of non-native Floridians into the state, and eventually before its Supreme Court.

These are just two examples of themes that might have further contributed to to consideration of the role state high courts play in our federal judicial system. Certainly other themes could be emphasized as well, but the key is to provoke thought beyond this individual court.

One additional feature that would have enhanced the authors’ quest to meet both of their stated goals would be a series of tables laying out the basic court structure at the various points in the time period [*614] under consideration, including such factors as the number of justices, degree of discretionary appellate jurisdiction available to the court, and the selection methods utilized for individual justices and the chief justice. Although changes in these and other institutional rules are discussed throughout the book, presenting the information in a few accessible tables or an appendix would be greatly beneficial to readers unfamiliar with the court and would certainly be a good, quick reference resource even for those very familiar with its structure.

In sum, Manley and Brown provide a very comprehensive account of the Florida Supreme Court’s history and its development during much of the 20th Century. This book will make an excellent resource for those interested in Florida’s judicial history. However, the book is less successful in utilizing the history of Florida’s high court to provide insight into questions regarding state high courts more generally within our system of judicial federalism.

REFERENCES:
Manley, II, Walter W., Canter Brown, Jr., and Eric W. Rise (eds). 1998. THE SUPREME COURT OF FLORIDA AND ITS PREDECESSOR COURTS, 1821-1917. Gainesville, FL: University Press of Florida.

CASE REFERENCE:
GAULDEN v. KIRK, 47 So.2d 567 (1950).

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© Copyright 2007 by the author, Christine L. Nemacheck.

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LEX POPULI: THE JURISPRUDENCE OF POPULAR CULTURE

by William P. MacNeil. Stanford: Stanford University Press, 2007. 260pp. Cloth. $45.00. ISBN: 0804753679.

Reviewed by Paul Parker, Political Science, Truman State University. Email: parker [at] truman.edu.

pp.609-611

LEX POPULI is part of Stanford’s Cultural Lives of Law, a series edited by Austin Sarat that focuses “on the production, interpretation, consumption, and circulation of legal meanings.” In this contribution, William P. MacNeil, a law professor at Griffith University (Queensland, Australia), attempts a “recontextualization of jurisprudence from the specialist to the generalist interpretive community”(p.2). The specialists from whom MacNeil hopes to reclaim jurisprudence are the sociolegal studies and law and economics scholars, who have displaced traditional jurisprudential questions of rights and justice with their own foci on policy goals and efficiency. MacNeil’s recontextualization involves an analysis of the “culture of law and the law of culture” to produce a new “intertext”: MacNeil aspires to “a unique mode of analysis, of interpretation, and of reading, and what this book in part proposes is nothing less than a practical demonstration of how to read jurisprudentially” (p.2).

This practical demonstration consists of eight substantive chapters in which he “reads” a popular cultural text from the standpoint of a popular jurisprudential school, shedding light on both. In Chapter 1, HARRY POTTER AND THE GOBLET OF FIRE sheds light on how liberal legalism involves substantive injustice. “Natural law, and its semio-psychoanalytic transmorgrification by Buffy [the Vampire Slayer, Chapter 2] is succeeded by an analysis of positivism-as-psychomania in Chapter 3: ‘The First rule of Fight Club Is—You Do Not Talk About Fight Club!: The Perverse Core of Legal Positivism” (p.3). In subsequent chapters, THE LORD OF THE RINGS is read against Kelsen –“the lawless looking for the law, the illegitimate looking for legitimacy” (p.65) – and MINORITY REPORT and Law and Economics are argued to embody a “jurispruidence of antijurisprudence,” seeking “results without rules” (pp.83-84). Grounded in critical feminist analysis, legal training is analyzed through THE PAPER CHASE and LEGALLY BLONDE, while critical race theory and the Australian film THE CASTLE are the intertext of Chapter 7. Finally, MILLION DOLLAR BABY and THE SEA INSIDE are read against the discussion of the right to die. A brief introduction and a conclusion round out the 157 pages of text.

This is not a book of casual essays. The prose is lively, witty, and challenging, full of puns and cultural references that pay a careful reader. MacNeil wants to demonstrate how one can have fun with popular culture, and fun with jurisprudence, and consistent with his use of intertext, how works can be read together for greater enjoyment [*610] (or joiussance, a term he borrows from Lacanian psychoanalysis; more below). But while this text about entertainment and law is entertaining, MacNeil has a serious goal: MacNeil wants the legal community to take jurisprudential issues seriously, so that we think about the rights and duties under law, the access to justice, the role of the state. Parallel to how MURPHY BROWN provoked conversation about single parenting, MacNeil believes we can bring jurisprudential issues into public dialogue with the aid of popular culture (p.156). We read these texts jurisprudentially to think then also of the contributions and shortcomings of the schools of jurisprudence.

The close readings by MacNeil will be most comfortable to those already swimming in the interpretive community. Familiarity with the texts MacNeil interrogates, as well as the schools of jurisprudence he engages, also helps. The essays do fulfill his goal of being “a practical demonstration of how to read jurisprudentially” (p.9), and thus the book is especially well suited for graduate students or scholars wishing to join an interpretive community. But this is demonstration, and not instruction.

One extended example that will give some flavor of this approach is a discussion of legal education through the lenses of THE PAPER CHASE and LEGALLY BLONDE. MacNeil argues the two films, set 30 years apart, demonstrate “that law school trains not only for hierarchy but also for hysteria – and a whole host of symptoms, illnesses, and mental disturbances that support and sustain hierarchy” (p.99). The chapter is quite rich; MacNeil persuasively argues, for instance, how the Harvard Law of LEGALLY BLONDE is “something of a gynocracy,” transformed from the role of women-as- sustenance in “the precritical phallocracy under Kingsfield” in THE PAPER CHASE (pp.102-103). In both films, there is a central issue of “sorting.” While nominally this is sorting into a hierarchy of ability to succeed (in law school), in MacNeil’s interpretive lights, the central issue is what that success means, and what that tells us about legal education and the law.

In MacNeil’s Lacanian psychoanalysis of THE PAPER CHASE, protagonist Hart is hysterical in his attempt to sort his (masculine/feminine) identity, a struggle that centers on Kingsfield: Hart’s claim to be “having a ‘true Socratic experience’ with Kingsfield” is “not only suggestive of the Platonic Dialogues’ implicit anal-eroticism, but in its blurring of sodomy and Socrates, also indicative of Hart’s deepening psychic crisis as he moves from neurosis (hysteria) to full-blown psychosis (paranoid delusion)” (p.105).

MacNeil argues that the dysfunction created by law school, long critiqued by “crits” like Duncan Kennedy, is functional: law-schools-as training-for hirerarchy needs the “nervous and neurotic energy” (p.107). For Elle, in LEGALLY BLONDE, the sorting and psychic energy revolves around fitting in to the man’s world of the law. While both Hart and Elle “succeed,” they do so on the law (school)’s terms, argues MacNeil, diminishing themselves in the [*611] service of the phallus of the law (embodied in the professors Kingsfield and Stromwell). However, there is difference. For MacNeil, the top-dog of the hierarchy, the phallus, in THE PAPER CHASE – a text from when women were largely outsiders – is Kingsfield. In LEGALLY BLONDE, the phallus is the female Stromwell. The former is blinded to social realities and relationship, all in the service of the law; Hart is nothing to Kingsfield. Meanwhile, Stromwell’s suspension of her phallic power in order to nurture Elle demonstrates the possibilities of a nurturing law school. The law as hierarchy, and law schools and professors as masters, are thus challenged by LEGALLY BLONDE.

The book has extensive chapter notes – five of the eight analytic chapters are based on previously published articles or chapters – and an extensive bibliography, chock full of both scholarly and popular cultural entries. While necessarily there is great breadth to the bibliography, as he surveys several schools of jurisprudence, he also has some favorites that mark his grounding and approach: Hart (5 entries) Sarat (6) Dworkin (7), Freud (10) Jacques Lacan (11) Slajov Zizek (12). Additionally, several pages in the introduction provide a quick tour of scholars active in this interpretive community, helping to locate MacNeil’s influences and position.

REFERENCES:
BUFFY THE VAMPIRE SLAYER. 1997-2003. Joss Whedon. Mutant Enemy, 20th Century Fox.

THE CASTLE. 1999. Directed by Rob Stitch. Village Roadshow.

FIGHT CLUB. 1999. Directed by David Fincher. 20th Century Fox.

HARRY POTTER AND THE GOBLET OF FIRE. 2005. Directed by Mike Newell. Warner Bothers Pictures.

LEGALLY BLONDE. 2001. Directed by Robert Luketic. Metro-Goldwynn-Mayers.

LORD OF THE RINGS. 2001. Directed by Peter Jackson. New Line Cinema.

MILLION DOLLAR BABY. 2004. Directed by Clint Eastwood. Warner Brothers Pictures.

MINORTY REPORT. 2002. Directed by Stephen Spielberg. Dreamworks SKG.

MURPHY BROWN. 1988-98. Created by Diane English. Warner Brothers Television.

THE SEA INSIDE (Mar Adentro). 2004. Directed by Alejandro Amenábar. Sogepaq.

ZIZEK, SLAJOV. 1991. LOOKING AWRY: AN INTRODUCTION TO JACQUES LACAN THROUGH POPULAR CULTURE. Cambridge, MA: MIT Press.

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© Copyright 2007 by the author, Paul Parker.

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THE INNOCENT MAN: MURDER AND INJUSTICE IN A SMALL TOWN

by John Grisham. New York: Doubleday, 2006. 368pp. Hardcover. $28.95. ISBN: 9780385517232.

Reviewed by Jack E. Call, Department of Criminal Justice, Radford University. Email: jcall [at] RADFORD.EDU.

pp.602-608

John Grisham’s legal novels are well-known to avid readers of that literary genre. THE INNOCENT MAN is Grisham’s first (and so far only) venture into non-fiction. It tells the story of Ron Williamson, an Oklahoma boy with great promise as a professional baseball player. However, the demons of drink, drugs, and mental illness prevented Williamson from fulfilling that potential. Eventually, Williamson’s demons also destroyed his marriage, prevented him from holding a decent job, and resulted in his development of a local reputation as an erratic, unpredictable man who could be likable at times but was generally not to be trusted. When a young female acquaintance, Debbie Carter, was found raped and murdered in her garage apartment in his hometown of Ada, Oklahoma, in 1982, it was not surprising that the police eventually considered him a person of interest.

For many readers, THE INNOCENT MAN will interest them as a story about a man whose promise as a person is unrealized and who becomes a victim of the criminal justice system. Their interest will lie in Ron Williamson, the person. For others, the interest lies in the story the case tells about the criminal justice system. As such, it can be added to a growing list of stories told about justice gone awry.

THE INNOCENT MAN paints a picture of a seriously flawed criminal justice system. While virtually no component of the system portrayed in the book emerges unscathed, it is the police who look particularly bad, with the prosecution running a close second. The police did a reasonably good job of investigating the murder scene (although at trial, Williamson’s defense attorney pointed out in his cross-examination of one of the primary investigators that they had failed to look for fingerprints in several logical places). Numerous people who knew Debbie Carter or had been at the night club where she was last seen alive in public were interviewed. None of them mentioned anything about Ron Williamson.

Glen Gore should have been an obvious suspect. He had been seen with Debbie hours before her death, talking with her at her car in the parking lot of the night club she had attended that evening. At least one witness said that Debbie was seen pushing Gore away, although others reported seeing nothing unusual occur between the two. At least two people indicated that Debbie had told them that [*603] she was afraid of Gore. (Unfortunately, Grisham is a bit unclear as to how much of this information was known to the police. He makes it clear that one person called the police and reported to them that Debbie had a running dispute with Gore about a windshield wiper that she thought Gore had stolen from her car and that she was afraid of Gore. It is unclear how much of the other evidence connecting Gore to Debbie on the night of her murder was uncovered by the police. However, if the police were unaware of much of this evidence, they obviously could have found it, since Grisham was able to find it).

The police apparently focused on Williamson as a suspect when, three months after the murder, Robert Deatherage told the police that he had just finished a short stint in the local jail, where he had shared a cell with Williamson. He indicated that Williamson had seemed uneasy every time the subject of the Carter murder had come up in conversation. (Grisham does not indicate why the police interviewed Deatherage). The interest of the police in Williamson as a suspect was increased further because he kept weird hours, had engaged in much erratic behavior, lived a short distance from Debbie Carter’s apartment, and had recently been acquitted on two rape charges. When Williamson reported “dream confessions” about Debbie’s murder (“I dreamed that I . . .”) on two separate occasions to a jailer and to two police interrogators, he became their primary suspect.

Although there was little to no evidence suggesting more than one perpetrator, the investigating officers were convinced that there were two murderers. They decided a friend of Williamson, Dennis Fritz, must have been involved. The evidence against him was not strong, but they convinced him to take a polygraph examination. The examiner found his answers evasive. Given the evidence against Fritz, as described by Grisham, it is difficult to see how the police thought they even had probable cause to arrest Fritz, much less proof beyond a reasonable doubt to convict. Nevertheless, he was arrested, tried (before Williamson), and convicted.

The case against Fritz consisted of guilt by association with Williamson (although the case against Williamson was not presented to the Fritz jury); testimony from three jailhouse snitches; forensic evidence that Fritz was a non-secretor (a person whose blood type cannot be determined from bodily fluids, which is true for about 20% of the population); and forensic evidence that hair samples found at the murder scene were consistent with Fritz’ hair. As weak as this evidence was, it was further weakened by the fact that the forensic expert who testified that Fritz was a non-secretor was far from certain that the killer (or killers) were non-secretors. In addition, the first lab analyst to examine the hair samples found at the murder scene concluded that those samples were only microscopically consistent with Debbie Carter’s hair and not with any samples taken from other persons (a fact that was never shared with the defense). This result required analysis from another technician, who ultimately concluded that some of the samples were consistent with Fritz’ hair. It took this expert over two years to do his analysis, and he did so with the knowledge that when he was analyzing Fritz’ hair, Fritz was a suspect in the case. (Other hair samples that he analyzed were not marked as having come from a suspect). [*604]

The prosecution’s case may have been strengthened when it was able to prove during cross-examination of Dennis Fritz that he had lied to the school system when he indicated on his job application that he had no criminal convictions. In fact, he had once been convicted of growing marijuana. (When the police had discovered this fact during its investigation, they called the junior high school where Fritz was working and told them that he was under investigation for murder and had lied about his marijuana-growing conviction. The school system fired him immediately). The prosecution also established that Fritz had lied about the marijuana-growing conviction on an application for a gun permit. Although this testimony may have strengthened the prosecution’s case a little by showing that Fritz had lied on at least two occasions, the case in chief from the prosecution was so weak to start with that it is difficult to imagine how the case survived a motion for a directed verdict from the defense, much less provided a sufficient basis for a jury’s conclusion that Fritz was guilty beyond a reasonable doubt. The jury sentenced him to life in prison.

The prosecution was now ready to try Williamson. Much of its case consisted of the same evidence presented against Dennis Fritz. However, the prosecution had a couple of advantages that it lacked at the Fritz trial. First, it had the “dream confessions” that Williamson had related to the police and a jailer. Second, Williamson was clearly mentally ill and prone to exhibiting behavior in the courtroom that did not make a good impression on the jury. For example, when a jailhouse snitch testified against Williamson, he interrupted her more than once, calling her a liar and threatening her.

The prosecution may also have benefited from the fact that when Glen Gore was called to testify, he refused to answer questions. His reasons for doing so were unclear (he was in prison on charges unrelated to the Carter murder, and he may have been concerned about the impression he would have created with his fellow inmates if he had “snitched” on Williamson). Since he had testified at the Williamson preliminary hearing, however, and had been subjected to cross-examination there, the trial judge allowed that testimony to be read to the jury. Such testimony might not be as forceful as in-court testimony, but this was no doubt more than counteracted by the fact that at the preliminary hearing, Williamson’s defense attorney had not cross-examined Williamson about his criminal record of violent offenses and his own whereabouts on the night of the murder. Consequently, the jury heard none of this information.

Although the prosecution’s case was no doubt a little stronger against Williamson than it had been against Fritz, it was still quite weak. Yet it yielded the same result – a unanimous jury vote for conviction after deliberations of only six hours (including a lunch break). And this time the jury recommended a sentence of death.

To this point in the case, the criminal justice system had done little to inspire confidence. The police failed to investigate the possibility that the last [*605] person seen with Debbie Carter, a person with a propensity for violence and known to be a person she feared, might have killed her. The police had made misrepresentations to suspects and pressured them and other witnesses, although that pressure may not have risen to the level of coercion.

One witness, who lived not far from Dennis Fritz, had heard some noise outside his home very late one night in December (the month of Debbie’s murder). When he looked outside, he saw two men washing themselves off with his garden hose. The police were convinced that this was Fritz and Williamson washing Debbie’s blood off after killing her. However, the witness could not remember what night this was, nor could he say for certain who the two men were, even after being shown pictures of Fritz and Williamson. Not long before Williamson’s trial, Grisham indicates that one of the primary police investigators visited the witness, trying to suggest details that would strengthen the witness’ testimony. When the witness declined to make his answers more helpful to the prosecution, Grisham says that the police officer “brushed his coat away from his hip so [the witness] could see his service revolver . . . and said that [the witness] might get lead poisoning if his memory didn’t improve” (p.193).

The prosecution did not fare much better. It proceeded with two murder prosecutions on very limited evidence. It made extensive use of testimony from jailhouse snitches whose credibility was, at the very least, questionable. It failed to question why the police did not investigate Glen Gore’s possible involvement in Debbie Carter’s murder. Either the prosecution or the police labeled the hair samples of Fritz and Williamson as samples from suspects. The prosecution placed great reliance on the forensic analysis of the hair samples, even though one of its experts had failed to conclude that the samples that came from Fritz and Williamson were consistent with hair found at the murder scene. It failed to share this latter piece of information with the defense. It also failed to share with the defense a videotaped interrogation of Williamson in which he had steadfastly maintained his innocence.

The forensic experts engaged in some questionable activities also. It seems inappropriate for one analyst to re-examine evidence when another competent analyst failed to arrive at the result desired by the prosecution. It is also questionable that hair samples should be analyzed when they are known by the analyst to have come from a suspect. The second hair sample analyst also testified at trial that the samples taken from Fritz and Williamson “matched” some hair found at the murder scene. Virtually all court decisions agree that hair sample analysis is too imperfect a science to permit use of the term “match” (“consistent with” is the term that courts allow). The trial judge upheld an objection to the expert’s use of this term, but the jury had heard it and the damage was done.

Perhaps the most egregious action taken by a forensic expert in this case involved the examination of a bloody palm print found on the wall in Debbie Carter’s [*606] apartment. The initial forensic analysis concluded that the palm print was not that of Fritz, Williamson, or Debbie Carter. This was a potential problem for the prosecution, because the palm print almost certainly had to have been left either by the victim or one of the killers. Since it was not Debbie’s and did not come from Fritz and Williamson, it could be argued persuasively that the true killer had still not been found. The prosecution’s solution to this dilemma was to have Debbie Carter’s body exhumed and her palm print examined again. The forensic expert who did the initial analysis did it again and changed his mind, concluding that the bloody print on the wall was indeed Debbie Carter’s. In his 24-year career, this forensic expert had never changed his mind before.

The trial judge can also be criticized. When it became apparent during the cross-examination of one of the investigating officers that the videotaped interrogation in which Williamson maintained his innocence had not been shared with the defense (a clear violation of the Supreme Court case, BRADY v. MARYLAND), the judge decided not to rule on the defense’s motion for a retrial until after the trial. After trial, he ruled that withholding the videotape was not a violation of BRADY. As we have seen, the hair sample analysis was critical to the prosecution’s case, but the trial judge refused to appoint an expert for the defense to permit it to conduct its own hair sample analysis. Perhaps the most questionable action taken by the trial judge was his failure to require that Williamson be examined for mental competency. While the responsibility to raise this issue lay primarily with the defense attorney, the trial judge had observed so many instances of strange and erratic behavior on the part of Ron Williamson that he almost certainly should have ordered a competency evaluation on his own initiative.

One of the things that the literature on wrongful convictions makes abundantly clear is that, once a defendant has been convicted at a trial when there are serious questions regarding actual guilt, the likelihood that the defendant will ever be exonerated by the court system becomes extremely slim. Appellate courts only hear legal issues and do not generally review facts (such as the guilt or innocence of the defendant). Thus, Ron Williamson was clearly facing an uphill battle. However, it was exactly at this point that the system began to perform better.

First, Williamson was represented by a series of indigent defense counsel (working as part of the public defender system in Oklahoma) who took their responsibilities very seriously indeed. All of them performed their duties conscientiously (although one might question whether Williamson should have had five different attorneys assigned to his case at various stages, with each new attorney being required to familiarize himself or herself with the case from scratch).

In spite of the conscientious efforts of these attorneys, they lost all their motions in the state appellate courts. (The Oklahoma Court of Criminal Appeals did conclude that errors had been made at Williamson’s trial, but it [*607] also concluded that they were all harmless errors that had not affected the verdict). This left the case at the stage where federal habeas corpus relief could be sought, and Williamson was assigned yet another attorney, Janet Chesley, to handle this proceeding.

Habeas corpus petitions are notoriously unappealing to federal judges (in no small part because most of them are crafted by prison inmates). However, the petition put together by Chesley was well-written and organized and immediately caught the eye of the US Magistrate assigned to review it by US District Judge Frank Seay. Her petition focused on the performance of the defense attorney (a common tactic because it is a back-handed way of arguing the defendant’s innocence), the failure to evaluate Williamson’s mental competency, and the reliability of the hair sample analysis. The magistrate asked two law clerks in Judge Seay’s office review the petition as well. All three read the entire trial transcript and agreed that Williamson had not received a fair trial. After lengthy consideration, Williamson’s execution was stayed, five days before it was to take place.

One year after granting the stay of execution, Judge Seay granted Williamson’s habeas petition and ordered a new trial. Several bases for the decision were cited, but the most important were the ineffectiveness of Williamson’s trial attorney, admission of the hair sample analysis, denial of the defense request for its own hair sample expert, and failure of the trial court to look into Williamson’s mental competency. The state appealed, and the order for retrial was upheld.

At retrial, a competency hearing was conducted, and Williamson was found incompetent to stand trial. The defense knew that Williamson might well become competent with the assistance of medication, so it prepared for a new trial. It persuaded Barry Scheck’s Innocence Project to take on the case because it concluded that much forensic evidence in the case had not been properly analyzed. In early 1999, the semen found on Debbie Carter and at the crime scene was subjected to the latest DNA technology. That analysis excluded both Williamson and Fritz as sources of the semen. The prosecution still resisted a motion to dismiss, however, and insisted that the hair samples be analyzed also. When that DNA analysis also failed to match Williamson and Fritz, the prosecution finally agreed to dismiss the charges against both, and they were released.

In an interesting post-script, the DNA analyses suggested that the semen found in Debbie Carter’s vagina was that of Glen Gore, who was in prison for another offense. When he heard from national reporters that they wanted to talk with him, he surmised that he was now a suspect in the Carter murder. (Two of Williamson’s attorneys had questioned Gore, suggesting that they thought he might have killed Debbie Carter). However, prison authorities had not been informed of this, so they did not remove him from an out-of-prison work detail to which he was assigned. The day after hearing from the reporters, Gore simply walked away from his work [*608] site. Six days later he turned himself in. Four years later he was convicted of Debbie Carter’s murder and awarded a death sentence (later reduced to life imprisonment as a result of appellate proceedings).

John Grisham is both a storyteller and a lawyer. However, it is the storyteller that dominates this book. That makes the book very readable, but it detracts from the usefulness of the book as a pedagogical tool. The book has no footnotes (or index, for that matter), and Grisham seldom tells us the source of his information. For example, the story about the police officer who told a witness that he “might get lead poisoning if his memory did not improve,” reflects very badly on the police. However, the reader does not know why Grisham thinks this incident occurred, so it is very difficult for the reader to assess the reliability of the story. (Presumably the witness in question was the source, but Grisham simply does not share that information with the reader). Sometimes Grisham points to damning information that seems to reflect negatively on someone involved in the case, but his description of the information leaves the reader uncertain as to who knew what and when. For example, he is very critical of the police failure to investigate Glen Gore as a suspect. As described earlier, there was a lot of information pointing to Gore, but Grisham never makes it clear how much of that information was actually known to the police or when it was known to them. In addition, Grisham sometimes refers to cases or studies without providing cites to them. For all these reasons, THE INNOCENT MAN would be of questionable utility in a course on the judicial process, criminal procedure, or wrongful convictions.

CASE REFERENCE:
BRADY v. MARYLAND, 373 U.S. 83 (1963).

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© Copyright 2007 by the author, Jack E. Call.

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REFLECTIONS ON FREEDOM OF SPEECH AND THE FIRST AMENDMENT

by George Anastaplo. Lexington, Kentucky: The University Press of Kentucky, 2007. 336pp. Paper. $26.95. ISBN: 9780813191744. Cloth. $70.00. ISBN: 9780813124247.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College. Strauber [at] Grinnell.edu.

pp.591-601

For thirty some odd years, George Anastaplo has been an inimitable advocate of his philosophical approach to First Amendment jurisprudence and reading the Constitution. It would be justifiable to locate and read his oeuvre within the intellectual circles of Leo Strauss and Joseph Cropsey, and the present work echoes many well-rehearsed Straussian themes originally presented in THE CONSTITUTIONALIST: NOTES ON THE FIRST AMENDMENT (1971, 2005) that is cited as the foundation work for REFLECTIONS. These themes include, but are not exhausted by, interpreting the ills of the present via canonical texts of Western civilization; an emphasis on citizenship and civility; the close association between political and religious freedom; the primacy of judgment and the precise use of language versus uncritical thinking and unbridled passions; and law as the embodiment of reason, judgment, and precise language.

But there is more to REFLECTIONS than solely those themes. First, REFLECTIONS is dedicated to Alexander Meiklejohn and Harry Kalven Jr. Readers attentive to their or Anastaplo’s work will profitably associate REFLECTIONS with critical readings of Meiklejohn’s and Kalven’s jurisprudence. For example, there are suggestions of engaging Meiklejohn in REFLECTIONS’ approach to jurisprudence via: a conception of human nature; a focus on freedom, self-government, and the common good as dependent on civic education and a vigorous public exchange of ideas; the premise that neither freedom nor political truth is assured; the premise that a conception of freedom appropriate for one polity might not be appropriate for another; a wariness about the impact of private enterprise on political liberty; and the role of jurisprude as teacher. And there are suggestions of engaging Kalven in the book’s discussion of Justice Black, the speech/action distinction, seditious libel, obscenity, the risks of freedom of speech, and First Amendment versus Due Process clause interpretations of case law.

Secondly, REFLECTIONS continues to address Anastaplo’s long-running dispute with his critics over the extent to which the roots of freedom of speech are to be found in common law or, as the author would have it, a more radical natural genesis in the revolutionary principles of the Declaration of Independence. Thirdly, the personal has been the political for Anastaplo: his jurisprudence explicitly and tacitly reflects his losing 1950 battle with the Illinois bar (he refused to answer questions about his political affiliations) and expulsions from both Russia and Greece (CONSTITUTIONALIST, pp.xi-xiii). [*592]

The meld of these personal experiences and eclectic intellectual influences contributes to a voice that is more often than not distinctive, self-assured, audaciously unconventional, and challenging. A salient example of all of this is Anastaplo’s reference to his considerations as “sonnets” (p.xi). Parts One and Two each have thirteen chapters; each chapter has thirteen sections; and each section has three paragraphs. Philip A. Dynia’s LPBR review (2007) of Anastaplo’s most recent REFLECTIONS ON CONSTITUTIONAL LAW (2006), noted the sonnet form at work there, each Part with nine chapters and sections, each section, three paragraphs. Dynia, a self-proclaimed non-Straussian, prudently refused to say anything more about the “sonnet” form, other than to suggest that perhaps it was related to some Straussian secret.

I too am no Straussian, but I am less cautious and sensible than Dynia. I venture to suggest that the “sonnet” form is related to Anastaplo’s stated goal that “constitutionalism” (p.xiii) calls for, requires, and deserves reading “with . . . seriousness and . . . care” (p.xii). Very generally conceived, reading a sonnet requires attentiveness to a text that has been divided into “syllogistic” parts, with its parts containing material that compare and contrast ideas, often shifting from the general and specific, all toward the end of developing and qualifying the character and consequences of ideas for the sake of illustrating a major premise or point of view (Finch and Varnes 2002, pp.298-299; Hunter 1999, p.258; Dubrow 1981, p.66; Rivers 1958, p.51).

Readers of REFLECTIONS will find that they are reading a text that requires attentiveness to this kind of writing. Coincidentally or not, readers of REFLECTIONS will find that jurisprudence-cum-sonnet implicates them in webs of continuities and discontinuities among ancient and modern texts, historical references, and political opinions that coalesce into the author’s views about the past, present, and future of constitutionalism, the common goods of a law-governed polity, and First Amendment adjudication.

As a self-styled New Institutionalist, and therefore outside the author’s intellectual circles, I admit to the guilty pleasure of being intellectually captivated and engaged by working through these “sonnets,” and of trying to get within them to write a prose review which does them justice. I want to add that I am not a close enough reader of Anastaplo’s oeuvre to say how much here is actually old wine in new bottles. But even to the extent that might be so, those within Anastaplo’s circles will want to look at this book for its skilled and precise rendition of established fare. And those outside those circles, who are less familiar with Anastaplo’s concerns, or even those ill-disposed toward those circles, should yet find the book worth careful reading and deliberation.

Part One provides the materials for an education in constitutionalism, liberty of speech and press, and the common goods of a republican polity. (There are appendices of original materials for Part [*593] One and Two.) Chapter One situates Plato’s APOLOGY as one of those “sacred texts upon which Western Civilization rests” (p.3). To step aside from a chapter-to-chapter review for a moment, REFLECTIONS, in its entirety, depends upon Anastaplo’s appreciation of Socratic commitments to reason, principle-based action, civic responsibility, and the “folly of suppressing conscientious men and women of talent” (p.4). REFLECTIONS also depends upon a Socratic-like condemnation of (today’s) “rampant individualism” (p.184), self-regarding actions based on the passions and mere preferences of persons, and “the tyranny of an undisciplined imagination” (p.185). At bottom, tensions between Socratic commitments and today’s values lead to “the heart of the problem . . . , [which] is the question of whether the community should be able to shape the character of its members” (p.184, italics omitted).

Back to Chapter One, one of its main functions is to situate Anastaplo’s positive answer to this question in the Socratic tradition that requires civic education to develop the character of a people and good citizenship. As a fundamental principle of constitutionalism (p.8), opinion leaders are responsible for this instruction, which must take place in both the public and private sector. Readers will be taught that, absent this civic education, the First Amendment becomes part of the problem as it becomes over-extended as a shibboleth encouraging “freedom of expression” and the promotion of those self-regarding actions based on the passions and mere preferences of persons. Anastaplo consistently contrasts this selfishness with an authentic understanding of the First Amendment which encourages public-spirited citizens to be engaged in the reason-giving activities associated with a republican form of government (p.187), and willing like Socrates, to “to speak out about the issue of concern to the community” (p.8).

The cultural forces that threaten an authentic First Amendment polity and encourage a political culture of selfishness are perhaps a central reason why Anastaplo is concerned about whether our founding constitutional beliefs “can continue to shape and guide a Country that is now almost a third of a billion” (p.187). Chapter Two presents St. Paul as a paradigm for a spiritual and philosophical conception of the meaning of a people, and for continuities and discontinuities among Greek, Judaic, and Reformation conceptions of a people, to characterize elements of the authentic roots of freedom of speech. Authentic roots, if nourished, contribute to cultural values associated with attentiveness to the significance of precise language, personal choice, transcendent principles, conscience, and commitment.

Chapter Three presents Thomas More’s career as, in effect, an embodiment of these values and commitments. Co-related, it presents the experience and tradition of Parliamentary freedom of speech as precursors for freedom of speech in Congress and then among the American people. It also reflects on More’s career (attacking heretics) and post-1215 repudiations of the Magna Carta as object lessons about how [*594] otherwise sound values and commitments can be turned to inappropriate uses. These lessons are meant to teach that advocates of free speech values in a republican regime must be vigilant in defending their proper use, and that use includes a Socratic-like attentiveness to differences between appearance and reality and the need to challenge deceptive ideas and a false sense of complacency in the rightness of things (p.19).

John Milton, the focal point of Chapter Four, is championed for his rejection of the law of prior restraint of the press, for his appreciation of the proper role of government in publishing offensive materials, and for the efficaciousness of his rhetoric. However, Anastaplo raises questions about Milton’s “rapturous accounts of the power of truth” (p.23), granted the extent to which a population might not be well-informed and “even more important . . . the caliber of the people” (p.23). Milton’s willingness to recognize distinctions among citizens resonates with Socratic-inspired observations that “it may be . . . that the deepest truths are reliably accessible to only a few” (p.24), and that “a decent community . . . recognizes that its most talented members should be treasured” (p.25). In this, looking both to the past (Greece) and the present (our polity), Anastaplo warns about misuses of free speech values and offers the caveat that “some communities are better equipped than others for the robust debate that Milton considers useful” (p.24). (This argument foreshadows his later praise of English political cultural sensibilities, and, in Part Two, ensuing doubts about the utility of Declaration of Human Rights).

Chapter Five’s discussion of William Blackstone’s chronicle of “the development in Great Britain of an effective recognition of liberty under law” (p.27) is the exemplar for Anastaplo’s emphasis on the role of lawyers as trustees for constitutionalism in a rule governed polity. The primary focus is on Blackstones’ defense of law, the necessity of limited power and the gracious behavior of rulers, the principle of habeas corpus, and respect for tradition (also associated with Edmund Burke) as backbones for the preservation of liberty. This chapter also discusses Patrick Henry as both an American heir of Blackstone and a precursor to Lincoln’s trusteeship for “rational liberty” (p.35) and free speech.

Chapter Six provides a defense of the Declaration of Independence and the Northwest Ordinance for an originalist (my word) interpretation of the fundamental principles of the Constitution in general, and, specifically, the right of and duty to engage in full and frank discussion of government (p.37). Perhaps the discussion of the Declaration is a more or less familiar, albeit controversial, one in defense of its implications for republican values entrenched in the Constitution. Perhaps the more engaging discussion concerns Section 14 of the Northwest Ordinance and its extension of the fundamental principles of civil and religious liberty to the government of territories (p.38) purportedly foreshadowing, and implicitly justifying the Fourteenth Amendment’s extension of those principles to State government. This [*595] chapter also includes a few words of long-standing concerns with the Ordinance and slavery as foreshadowing the appropriateness of a sustained debate over its constitutional status as conditional.

Chapter Seven characterizes the text of the Constitution as a product and expression of popular power and of free, honest, and well-considered political discussion. To that end, the chapter addresses free speech and legislative immunity, the Preamble, Article IV, a republican form of government, and evidence for reading the Constitution as requiring and justifying the duty and rights of citizens to exert their influence on one another and their governments.

Chapter Eight represents the Virginia Statute of Religious Freedom as the pre-eminent State document bespeaking fundamental principles of a free people, freedom of the press, and the free exercise of religion. Its apparent crucial contribution is its rhetoric, for a people of reason and conviction, which is contrasted favorably to the Massachusetts Declaration of Rights and its rhetoric of piety. This chapter thus raises interesting tensions between spirituality and political freedom. The Statute is also significant for its forward-looking rejection of state establishment of religion (in line with the Declaration and laws of nature) and for its Preamble, which is underscored as a source for an emphasis on the due process of law, a Milton-like defense of a free press, and as expression of confidence in political conflict and free speech as the means of constituting shared political truths.

The Statute’s Preamble is also highlighted for its appreciation of the circumstances of politics, particularly the extent to which there must be limits on political power because of its potential to either corrupt religion and/or limit religious liberty. The circumstances of politics also leads Anastaplo to suggest that the Statute serve as a reminder that freedom, making the right choices, and appropriate political action are not the same things, and that for liberty to achieve its ends it must be accompanied by self-discipline (p.54).

Chapter Nine is Anastaplo’s version of the evolution of a Bill of Rights for the Constitution, with particular attention to the incorporation process in the House and Senate. This version puts great weight on seeing the Constitution as a statute and its foremost concern as Congressional power to address the applicability of the Bill of Rights to States. (This discussion reverts back to the previous chapter’s consideration of the role of chance in politics and its impact on law.) The chapter concludes with a discussion of the unenumerated rights of the Ninth Amendment to represent the existence of rights antecedent to the Constitution, and thereby to makes those antecedent rights available for interpreting the values and principles upon which the Constitution rests. All of this leads to the more abstract claim that, for written law to be efficacious, it must be rooted in the traditions, political practices, and understandings of a people.

Chapter Ten addresses the organization of the First Amendment. The specific [*596] concern is why religion is addressed prior to speech and press. The chapter indicates that the organization of the Amendment reflects commitments to freedom of religion as the antecedent liberty, making religious and political liberties simultaneously inter-related and distinct (thereby returning to the issue of relationships between spiritual concerns and political ones). For example, the relationship between the two is the bridge to a number of considerations: a comparison between First Amendment restrictions freedom of religion and political speech and press within the context of considerations of due process of law; distinctions between political and non-political speech; what is and is not protected by the First Amendment; and “the development and protection of the moral standards upon which effective republican government depends” (p.67).

Another example comes with a comparison between concerns about the consequences of not adhering to fundamental distinctions between what is and is not protected by the First Amendment or to concerns about effective republican government. This comparison relates to concerns about the present (the extent to which it appears that there are “no effective limits placed either upon what can be said or upon how and where it may be said”) (p.68) and observations about the past (the prosecutions legitimized in the 1919 decisions of SCHENCK v. UNITED STATES and DEBS v. UNITED STATES, and the 1951 decision of DENNIS v. UNITED STATES). This comparison is constructed to have readers think about the “deprecation both of citizenship and of those community measures that contribute to the proper shaping of the moral character of citizens” (p.69), and to challenge readers to think historically and philosophically about “what we consider proper for the community to do, acting through its governments, to shape the moral character of citizens” (p.69).

History and philosophy are also in play in Chapter Eleven, comparing and contrasting the Alien and Sedition Acts of 1798 with the Jeffersonian Revolution of 1800 and the Virginia and Kentucky legislative resolutions of 1798-1799. At one level, in this readers will find themselves thinking the extent to which “the integrity of a constitutional process depends upon the morale and wisdom of the people” (p.76). At another level, they are invited to draw an analogy between the politics surrounding the PATRIOT ACT of 2001 and the political history of the Alien and Sedition Acts. For example, for all its faults, the earlier statute did provide for its own expiration, trial by jury, and truth as a defense against its charges. Also, rather than depending on courts to challenge the constitutionality of legislation, the Sedition Acts were vigorously challenged in the political realm (e.g., the Jeffersonian Revolution). The tacit point is to remind readers that the present does not necessarily provide greater protections of freedom than the past did, and that the defense of freedom depends primarily on political participation and processes.

Chapter Twelve situates John Stuart Mill’s ON LIBERTY as a canonical text for understanding challenges to restrictions on speech. ON LIBERTY is [*597] an opportunity to revisit Socrates and Jesus, and to see ways in which Mill actually improved upon these precursors. For example, Mill is praised for the extent to which he was more tolerant of freedom of thought and discussion yet had well-considered doubts about (especially Milton’s) faith that truth will necessarily prevail. Mill also draws Anastaplo into a discussion of the fact that the elite (i.e., Socrates and Jesus) are sometimes subject to oppression; and More, Milton, and Mill draw him into a discussion of the extent to which liberty depends upon the character of a people, and the character of the people can be improved if we only had the political education and sensibilities to take full advantage of them (p.84).

Chapter Thirteen is especially difficult to characterize briefly because it amalgamates, explicitly and implicitly, many of the continuities and discontinuities of Part One’s themes and claims. Suffice it to say then that the chapter’s architectonics are the rhetoric of John C. Calhoun, his defense of the South and slavery, and his being at liberty to express himself accordingly in the midst of the “clear and present danger” (p.92) of the onset of the Civil War. The two systemic implications of this architectonics are: (1) “Freedom,” says Anastaplo, “is like medicine that is hardly likely to do one much good if it is not capable, in some circumstances, of doing one harm” (p.88, italics omitted), and (2) The slavery debate exemplifies a polity and people with a mature enough sense of liberty and constitutionalism to address, without governmental interference, its seriously inflammatory issues. Readers are, of course, left to make their own inferences about today.

Part Two addresses a range of First Amendment cases and issues within the context of the tensions among Part One’s materials and themes. Granted space constraints, what follows are but shafts of light on each chapter aimed to reflect on respective elements of Part One of the review. Chapter One commends and defends Justice Hugo Black’s jurisprudence for its First Amendment, Commerce Clause, and Fourteenth Amendment “originalism” of principle and constitutionalism. Black’s originalism of principle is offered up as the jurisprudential superior to “realism” that makes more of forces than it does of ideas, and more of precedent than constitutional principles, for constructing “the human soul and of human communities” (p.99).

In Chapter Two, the ESPIONAGE ACT (1917) convictions in SCHENCK v. UNITED STATES AND ABRAMS v. UNITED STATES, and the realistic jurisprudence of Justice Oliver Wendell Holmes, are the focal points for how things go wrong when realism, passions of the moment, and excessive concerns over dangerous speech triumph over true First Amendment principles. Nonetheless, the chapter finds yesterday’s reaction to volatile speech “healthier” than today’s tolerance for virtually anything and everything said. (In this regard, Anastaplo finds the Internet especially disturbing.)

Chapter Three compares the words and deeds of (labor organizer and Socialist) Eugene V. Debs in opposition to the draft in World War I, and the Court’s [*598] upholding his conviction under the ESPIONAGE ACT in DEBS v. UNITED STATES (1917), with the words and deeds of President Wilson in his pursuit his passion for a world to be made safe for democracy, and the prosecutors in the case. The point of the comparison is to suggest the extent to which the words and deeds of the latter two ought to be seen as more “dreadfully mischievous” (p.112) as threats to liberty than those of Debs.

Also GITLOW v. NEW YORK (1925), upholding Benjamin Gitlow’s conviction for publishing THE LEFT WING MANIFESTO as a violation of the New York State criminal anarchy statue, but also stipulating the First Amendment’s protection of speech as incorporated into the Fourteenth Amendment restrictions on States, is highlighted as an example of the role that chance plays in constitutional adjudication, as well as an example of the legal and political problems that arise when the stable meaning of original principles falls prey to realism.

Chapter Four explores (mainly) the relative strengths of the words and deeds of Winston Churchill, from 1940 through to his “Iron Curtain” speech of 1946, in defense of freedom as a spokesperson for freedom who had the courage, as a leader, to convey to the public messages that sustained the spirit of liberty. In contrast, Chapter Five is the author’s take on the Smith Act convictions sustained in DENNIS v. UNITED STATES (1951), and prosecution of Julius and Ethel Rosenberg, to characterize a tendency for the legal community, from bottom to the top, to follow political passions in times of perceived crisis that discourages both elites and citizens to sustain the spirit of liberty, freedom of speech, and association. These two chapters together constitute Anastaplo’s warning that the only alternative to principles of liberty abandoned to realism and the passions of the moment are for spokespersons for free speech to engage the public in sustained criticisms of goals and methods of those who would limit speech. (Specific mention is made to our HOMELAND SECURITY program.)

Of course, we know from Part One how and why Anastaplo believes that freedom of speech is not absolute. Chapter Six is primarily about COHEN v. CALIFORNIA (1971), and overturning Cohen’s disturbing the peace conviction for wearing a jacket displaying the slogan, “Fuck the Draft,” (Anastaplo would prefer I did not write that) in a courthouse. The case provides Anastaplo the opportunity to give vent to his despair over individualism, uncontrolled passions, an ethos of freedom of expression, and his remorse over fundamental principles connecting spiritualism, politics, and the common good left unattended.

Chapter Seven’s discussion of the Pentagon Papers controversy, interwoven with discussions of the publication of instructions about how to make a hydrogen bomb and overturning of a libel verdict in NEW YORK TIMES v. SULLIVAN (1964), is presented as a case-study of what it means to hold dear principles of freedom of the press, the dictum of no prior constraint, and the [*599] necessity to show harm to the community to limit freedom. Although the Court is commended for refusing, in both the Papers contoversy and the TIMES case, to back efforts to enforce military security practices, Anastaplo points out that it is really the “patriotism” (p.146) of those struggling with whether to publish sensitive materials that is the ultimate resource for drawing lines about what should be published.

Chapter Eight addresses primarily obscenity and the law, and secondarily cell phones, to address relationships and tensions between non-political speech, its cousin freedom of expression, and property rights (i.e., conceived as what rightfully belongs to persons as persons, rather than as citizens). All of this is encompassed by what the author finds is a culture with tendencies toward excessive individualism, “spiritual waste,” “lascivious tastes,” and the higher passions becoming boorish (p.153). Anastaplo’s primary concern in all this appears to be not so much to recommend legal solutions to line-drawing about what is protected and what is not (here he sees predicaments best resolved by due process considerations) but rather to warn that a society overly concerned with privacy and property rights as related to obscenity might not be one that is situated to respond to Churchill-like calls for the sacrifices of citizenship.

Issues of property rights, this time conceived in economic terms, and public freedom are the controlling theme of Chapter Nine. The focal point is the writings of Milton Friedman, who is characterized as having his heart in the right place (p.159) when it comes to justifying market-freedom. But Friedman is criticized for an over-emphasis on material freedom that the author identifies with excessive individualism and a conception of the good defined relative to supply and demand. In this, the author contrasts material and spiritual freedom and the extent to which the former can be at odds with a “public character upon which an enduring freedom depends” and an authentic concern for “the common Good” (p.160). At a more abstract level, property rights becomes a means to raise the question about “who is truly free” (p.158) and how a “genuine freedom is . . . a reliable grasp of excellence” (p.159).

BUCKLEY v. VALEO (1976), the constitutionality of campaign finance regulations, money as property, political freedom, and the common good occupy Anastaplo’s attention in Chapter Ten. Here again, Anastaplo raises the question whether the Court ought to intervene rather than leave it to Congress to sort out campaign finance regulations issues. For Anastaplo, the constitutionality of campaign finance regulations comes down to much ado about nothing. He sees finance regulations as having an insignificant positive impact on an electoral process undermined by the undue influence of wealth. And he doubts whether regulations have a significant negative impact on freedom of speech. Hence, such regulations per se are not likely to make much of a difference, save unless they help to create public confidence in public institutions, and thereby teach the [*600] public what should be important about elections (p.169).

The impact of the market on public character and of the over-extension of freedom of speech is revisited in Chapter Eleven’s discussion of the protection of commercial speech, particularly in relation to permitting lawyers to advertise. The crucial issue here is “what it should mean for one to be a member of a profession” (p. 173, italics omitted), and the extent to which advertising tends to undermine and displace the role of the lawyer as a trustee for the community and the law with the role of lawyer as that of the money-maker.

The penultimate chapter picks up on the roots of liberty in English political cultural sensibilities and the political circumstances of a people and its politics to consider the extent to which the post- World War II UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) represents “the highest aspirations of the common people or rather the highest aspirations for the common people” (p.178). The point here is to have readers question the appropriateness and efficaciousness of a universal declaration of rights, albeit high aspirations and prescriptions for liberty. The potential inappropriateness of the DECLARATION is traced to its being “more the work of intellectuals than the results of political processes” (p.181), and its uncertain efficaciousness is traced to its distant connections to the traditions, privileges, and obligations of respective citizens with which the DECLARATION is supposed to concern itself. In its stead, Anastaplo promotes “international law developed and applied across centuries” (p.182) and its putative greater sensitivity to respective political regimes and citizens, rather than abstract rights, as the preferable path for aspirations to improve political life.

The book concludes with provocations about the cultural insidiousness of television and the Internet as forces which could undermine a “sense of community and the character of a people” necessary to sustain constitutionalism and free speech. Again readers are prompted to consider the impact of cultural forces, like “rampant individualism” (p.184) and the “tyranny of undisciplined imagination” (p.185), which threaten liberty and the civic competence of citizens. In turn, readers are asked to think seriously about the necessity of legislation that seeks to shape the public morality of citizens (p.186), ostensibly without which the First Amendment could become nothing more than a declaration in defense of the freedom of expression of a people who have given themselves over to the proclivities and infatuations of self-centeredness and private satisfactions.

REFRENCES:
Anastaplo, George. 1971. THE CONSTITUTIONALIST: NOTES ON THE FIRST AMENDMENT. Dallas, Texas: Southern Methodist University Press.

Anastaplo, George. 2006. REFLECTIONS ON CONSTITUTIONAL LAW. Lexington: The University Press of Kentucky. [*601]

Blackstone, William. 1979. COMMENTARIES ON THE LAWS OF ENGLAND. Chicago: University of Chicago Press.

Dubrow, Heather. 1981. “Shakespeare’s Undramatic Monologues: Toward a Reading of the Sonnets. 32 SHAKESPEARE QUARTERLY 55-68.

Dynia, Philip A. 2007. Review of REFLECTIONS ON CONSTITUTIONAL LAW, by George Anastaplo. LAW AND POLITICS BOOK REVIEW, 17:4, pp.286-289.

Finch, Annie and Kathrine Varnes. 2002. AN ECHALTATION OF FORMS, CONTEMPORARY POETS CELEBRATE THE DIVERSITY OF THEIR ART. Ann Arbor, Michigan: The University of Michigan Press.

Hunter, J. Paul. 1999. THE NORTON INTRODUCTION TO POETRY (7th ed). New York, London: W.W. Norton & Company.

Mill, J.S. ON LIBERTY.

Plato. DIALOGUES.

Rivers, Elias L. 1958. “Certain Formal Characteristics of the Primitive Love Sonnet.” 33 SPECULUM 42-55.

CASE REFERENCES:
ABRAMS v. UNITED STATES, 250 U.S. 616 (1919).

BUCKLEY v. VALEO, 424 U.S. 1 (1976).

COHEN v. CALIFORNIA, 403 U.S. 15 (1971).

DEBS v. UNITED STATES, 249 U.S. 211 (1919).

DENNIS v. UNITED STATES, 341 U.S. 494 (1951).

NEW YORK TIMES v. SULLIVAN, 376 U.S. 254 (1964).

SCHENCK v. UNITED STATES, 249 U.S. 47 (1919).

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© Copyright 2007 by the author, Ira L. Strauber.

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RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS

by Matthew J. Streb (ed). New York: New York University Press, 2007. 272pp. Cloth. $45.00. ISBN: 9780814740347.

Reviewed by Tara W. Stricko-Neubauer, Department of Political Science, Kennesaw State University. Email: tstricko [at] kennesaw.edu.

RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS, edited by Matthew Streb, contains essays from a large number of leading scholars in the field of judicial politics and provides detailed information on the current state of judicial elections for state courts. The studies are timely with nearly all including data from within the last ten years. The authors examine a variety of topics relating to state court elections, including the First Amendment and judicial speech, contemporary developments in judicial elections, campaign spending, interest group participation, partisan involvement, news coverage, voter response, competition and accountability, the death penalty connection, and recent reform efforts. Nearly all chapters make use of descriptive statistics. This approach makes the book accessible to a broad audience with a wide variety of methodological backgrounds, yet its content makes it a very useful read for those who specifically study state courts.

The volume is noteworthy for its philosophical orientation. While much of the political debate surrounding judicial elections centers on whether judicial elections are a positive or negative development, the goal of the book is explicitly non-normative. As noted by both Matthew Streb and Melinda Gann Hall, the book examines data often cited by both sides of the debate but does not go round and round pondering opposing interpretations of the same evidence. Each chapter takes a different area and considers recent developments and possible implications but does not question the basic wisdom of judicial elections. The authors’ choice is imminently understandable given the limits of a single tome, however readers with strong opinions on the wisdom of judicial elections will find themselves wanting more debate on the merits of electing judges.

The first chapter introduces the central theme that judicial elections are increasingly starting to resemble elections for other explicitly political offices. Of particular importance is the case of the REPUBLICAN PARTY OF MINNESOTA v. WHITE (2002) in which the United States Supreme Court struck down a state provision prohibiting judges from publicly announcing their views on disputed issues. The central issue in WHITE was how to weigh the political speech rights of judicial candidates with the need for judges to appear impartial. The decision and subsequent cases significantly changed the landscape of judicial elections by negating some speech codes which had previously restricted judges from announcing political positions to the electorate, a freedom enjoyed by other [*589] elected officials. The WHITE case reflected the changing nature of judicial elections and represented a turning point in how many states conduct judicial elections.

The next two chapters go in-depth into the WHITE ruling and its impact on judicial speech restrictions across various states. Through careful consideration of the WHITE ruling and extensive evaluation of its later impact, both Richard Hasen and Rachel Caufield agree that recent developments are changing the conduct of judicial elections. The former explores rules changes, while the latter examines the changing tone of judicial elections. Chris Bonneau’s chapter explores the relationship between campaign spending in competitive elections and institutional and political factors while Deborah Goldberg’s chapter focuses on the increasing involvement of interest groups. Both predict continued increases in the cost of judicial campaigns, much like the patterns we have seen for other elective offices.

The argument that judicial elections are starting to resemble other elections can also be seen in the role of other actors in the election process. In Chapter 6, Matthew Streb documents the level of involvement county party organizations play in judicial elections. Brian Schaffner and Jennifer Segal Diascro find mixed evidence of the ability or willingness of the media to better educate voters on the issues and candidates for the bench, although Lawrence Baum and David Klein present some evidence of a voter response (primarily through decreased voter rolloff) to modern judicial campaign developments. In Chapter 9, Melinda Gann Hall explores the challenging area of electoral competition and judicial accountability. Based on a preponderance of the evidence, she argues that judicial elections do indicate the presence of an accountability function, albeit a limited one. Paul Brace and Brent Boyea further explore the connection between public political preferences and judicial decisions in death penalty rulings. Not surprisingly they find evidence of a linkage, which they note raises major normative questions about judicial impartiality. Matthew Streb and Brian Frederick’s Chapter 11 rounds out the book with a summary of recent reform efforts taking place in various states and offers observations about the future of judicial elections research. Unsurprisingly, from the philosophical perspective that judicial elections are negative, most of the reform discussion mentioned by Streb and Frederick centers around public financing for campaigns and nonpartisan elections. This final chapter should appeal most to readers looking for normative insights.

One of the challenges confronting an editor is the difficulty in tying all the results of multiple studies conducted by different authors into one coherent package. While it is true that each chapter in RUNNING FOR JUDGE contains an independent study that is a solitary snapshot in research time, the book does a wonderful job of bringing the different research projects together. All the chapters provide detailed and timely information in an effort to explain recent developments in judicial [*590] elections, specifically in light of the Supreme Court’s ruling and subsequent state court interpretations of the WHITE decision. As more time passes, we will be able to assess with greater accuracy the impact of the WHITE case, but already it seems to be a major turning point in the development of judicial elections.

In sum, this is a comprehensive, well-written book, ideal for readers who already have a high level of knowledge of state courts. It is a worthwhile read for judicial scholars wanting a broad summary of current information on state court elections. The descriptive statistics make the book accessible to those of varying methodological backgrounds but the authors’ conscious choice to take a non-normative approach may disappoint readers expecting a more thorough critique of the wisdom and implications of recent changes in judicial selection processes.

CASE REFERENCES:

REPUBLICAN PARTY OF MINNESOTA v. WHITE, 536 U.S. 765 (2002)

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© Copyright 2007 by the author, Tara W. Stricko-Neubauer.

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GUS J. SOLOMON: LIBERAL POLITICS, JEWS, AND THE FEDERAL COURTS

by Harry H. Stein. Portland: Oregon Historical Society Press, 2006. 282pp. Paper. $22.00. ISBN: 9780875952987.

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University. Email: jvile [at] mtsu.edu.

pp.584-587

With the exception of those who have written either individually or collectively about individuals who were at the center of civil rights cases in the 1950s and 1960s or about mavericks, most legal biographers have focused on lawyers known for courtroom theatrics or on US Supreme Court Justices. In what may well be a more representative portrait of federal judges, Harry Stein’s biography of Gus Solomon focuses on a lawyer who distinguished himself as an attorney and activist before serving as a judge on the US District Court for Oregon. Stein, an historian who has specialized in the history of the area, draws from a wide variety of oral histories, personal interviews, government documents and records, manuscript collections, and court decisions. He ably supplements these with secondary historical materials and relevant literature on judicial processes that place Solomon in the context of his time, place, and ethnic background. Stein amply documents his book and includes a bibliography, which, curiously, does not include citations to court decisions, and whose titles are similarly missing from the index.

Gus [Gould] J. Solomon (1906-1987) was born in Portland, Oregon to Jacob and Rose Solomon, immigrant parents from Romania and the Ukraine who had married in the United States. Jacob was a moderately successful businessman. Gus attended the University of Washington before completing his undergraduate degree at the age of 19 at Reed College. He then enrolled in Columbia University Law School where legal realism was in fashion but subsequently completed his degree at Stanford.

Following graduation, Solomon returned to Portland, where he found that his ethnic identity made entry into, and advancement within, the legal profession more difficult than it otherwise would have been. He compensated by entering private practice in 1929, but, as Stein notes, did not therefore depart from the norm, as 60 percent of his contemporary lawyers were in similar circumstances (p.25). Solomon subsequently affiliated [*585] with Leo Levenson and Irvin Goodman, without forming a formal partnership, and later set out completely on his own shortly after marrying Elisabeth (Libby) Willer, a medical technologist and fellow political activist, in 1939.

Influenced by both the sense of justice that he imbibed as part of his Jewish heritage and by his exposure to legal realism, Solomon “was no morally neutral legal technician but, rather, a fervent agent of change” (p.32). He became an advocate for publicly-owned utilities and labor unions, joined the American Civil Liberties Union and other rights organizations, and affiliated with numerous Jewish organizations. Most of his casework involved relatively routine business matters, often involving family friends and acquaintances, but at the age of 30, he helped launch the appeal that resulted in the US Supreme Court decision in DEJONGE v. OREGON (1937), which helped incorporate freedom of assembly in the Fourteenth Amendment.

Stein classifies Solomon as “a centrist liberal” (p.45). Although some organizations to which Solomon belonged sometimes made common cause with communists, he “considered Communism to be an anti-democratic force” (p.47), increasingly distanced himself from communists, and tried to undermine their influence. He supported mainline New Deal programs. As a committed Zionist and member of the American Jewish Congress and other Jewish organizations, Stein identifies Solomon with “personal identity politics” (p.64); he was a member of a local Jewish congregation but does not appear to have been particularly religious.

Although he tackled many liberal issues, Solomon regretted that he did not oppose the internment of Japanese Americans during World War II. The war’s end brought increased business, prosperity, and success; he won nine of the last 10 cases he argued before Oregon’s high court (p.85). Although Truman did not get the state’s electoral votes, Solomon, who was increasingly active in Americans for Democratic Action, helped Truman gain the support of Oregon’s Democrats over Henry Wallace.

In one of the few places in the book where Stein’s transition to a new phase in Solomon’s life is inadequate, Stein observes that by 1949, Solomon was pursuing a federal judgeship. Stein does not indicate what spurred Solomon’s interest in the job or whether the interest was relatively new or long-standing, but Solomon won the support of Oregon’s Democratic National Committeeman, Monroe M. Sweetland, and US Senator Wayne Morse and survived a fairly bruising confirmation battle that lasted from the beginning of 1949 until June 1950. Recognizing Solomon’s commitment to liberal Democratic principles, the only assurance that President Truman wanted (and that Solomon gave) was that he was not, nor had ever been, a communist. Opponents included business leaders, especially in the electric power industry, conservative Republicans, and the almost equally conservative American Bar Association, who tried to use innuendos dredged up by the FBI; there was probably sub rosa concern over his Jewish identity. Truman eased Solomon into his job with the use of an interim appointment.

Solomon believed that his appointment required him to act as disinterestedly as possible and emphasized the difference between “political choices” and “judicial choices” (p.120). Off the Court, he continued to be a liberal Democrat, but on the court he sometimes leaned over backwards to avoid the appearance of favoritism, especially to fellow Jews or to those whose causes he had once trumpeted. Solomon was often willing to defer to congressional statutes, observing that “I do not believe that the [*586] courts should be used to thwart the will of Congress, absent some constitutional basis” (quoted on p.124). Although Stein does not say so, Solomon’s philosophy on this point seems similar to that of Justice Felix Frankfurter.

Solomon was a tireless worker who, in 1958, became the district’s chief judge. He worked assiduously to streamline pleadings and so effectively disposed of work that he often served as an extra judge on the Ninth Circuit, where he authored 111 opinions (p.139) but to which his appointment was later blocked. Less positively, he developed a reputation for being fairly hard on lawyers, whom he often castigated in his court in a condescending fashion. Stein refers to his “idiosyncratic judicial autocracy” (p.149).

Solomon combined judicial restraint with the search for justice; Ernest Bonyhadi noted that “To effect justice a la Judge Solomon did not mean seeking near-utopian justice, ultimately, but justice now – pragmatic justice, putting a dispute to rest” (quoted on p.156). Higher courts overwhelmingly approved his decisions on appeal, and both the Ninth Circuit and the US Supreme Court praised his work. Following up on earlier observations throughout his book, however, Stein notes that Solomon’s greatest weakness was his lack of a “judicial temperament” (p.164). Stein cites both Solomon’s short temper and the treatment that he often doled out to lawyers in his courtroom. Although Stein paints a picture of a relatively strong marriage and of early joy over his three sons, he does not indicate whether Solomon’s autocratic style in the court room might have affected his home life, to which Stein directs relatively little attention.

A strong proponent of civil rights who furthered joint efforts between Jews and African-Americans, like other liberals of his era, Solomon emphasized “equal opportunities” over “equal results” (p.175) and opposed racial quotas. He was concerned about much of the social disruption of the 1960s. He strongly supported the draft but was relatively indulgent to conscientious objectors who were motivated by religious convictions and who were willing to accept punishment for their convictions (for a time, he worked out a plan that enabled Jehovah’s Witnesses to accept alternative service).

Solomon was a strong defender of the First Amendment, but he disagreed with the ACLU’s support of Nazi demonstrators in Skokie. Solomon consistently construed treaties to protect Native American rights. He avoided death penalty cases, at least twice, according to Stein, pleading “nonexistent calendar conflicts” to escape reviews of such penalties while helping the Ninth Circuit (p.212). Although he held confessions to high standards, US Attorney Sidney Lezak observed that “Solomon, the liberal judge, refused to suppress evidence as a version of a Supreme Court decision that would elevate the rights of criminals to an extremely high degree” (p.215). The US Supreme Court upheld his decisions relative to the confrontation clause in NELSON v. O’NEIL (1971), jury instructions in NAUGHTEN v. CUPP [*587] (1973), and search and seizure in CUPP v. MURPHY (1973).

Solomon worked diligently to integrate Jews both into Portland law firms and into the city’s private clubs. In time he not only refused to speak at such venues but encouraged others to boycott as well.

The victim of an early heart attack and beset with a variety of other ailments, Solomon took senior status in 1971, but continued to maintain an office in chambers and to serve actively on both district and circuit courts. Cancer finally felled him in 1987 at the age of eighty. Two years later the federal courthouse in Portland was named in his honor.

Stein’s account not only provides a convenient lens through which to examine justice in Oregon but the role of lawyers and judges (especially Jews) through several critical decades of American history.

CASE REFERENCES:

CUPP v. MURPHY, 412 U.S. 291 (1973).

DEJONGE v. OREGON, 299 U.S. 353 (1937).

NAUGHTEN v. CUPP , 414 US 141 (1973).

NELSON v. O’NEIL, 402 U.S. 622 (1971).

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

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THE LIMITS OF SOVEREIGNTY: PROPERTY CONFISCATION IN THE UNION AND THE CONFEDERACY DURING THE CIVIL WAR

by Daniel W. Hamilton. Chicago and London: University of Chicago Press, 2007. 200pp. Cloth. $39.00. ISBN: 9780226314822.

Reviewed by Robert M. Spector, Department of History and Political Science, Worcester State College. Email: rspector [at] worcester.edu.

pp.582-583

THE LIMITS OF SOVEREIGNTY, by Daniel W. Hamilton, is a well-written concise consideration of an important feature of the Civil War—first, the confiscation of enemy property by the Union sovereignty, and second, that of the so-called Confederacy during the Civil War.

When the war began, Union confiscation of properties belonging to those who were admitted rebels took place in the Thirty-Seventh Congress through the First Confiscation Act of August, 1861, and the Second in July 1862. The First “authorized the federal government to seize the property of those participating directly in the rebellion.” The Second “provided for the permanent uncompensated seizure of all the real and personal property of anyone taking up arms against the government, anyone aiding the rebellion directly, or offering aid or comfort for the rebellion.” The precedent for these acts lay in English Medieval law, where the lords held their lands in loyalty to the king, and lost their lands based on their failure to recognize and practice the incidences required by feudal procedure. Later, on the rise of Republicanism, as Parliament took the place of the king, the State was substituted for the king. In a word, the sovereign state became the owner of all land and property, and the possessor continued to hold not title but seisin in property. And this was what was practiced during the American Revolution, when the colonial Congress and/or former colonies passed measures confiscating the properties of Tories and those opposing the Revolution.

Yet, considering that legislative Bills of Attainder, or corruption of the blood, in early modern times had been declared contrary to the English legal field, among other issues, factions rose in the Thirty-Seventh Congress over the constitutional validity of these Confiscation Acts. For one, there were the Radicals, led by such persons as Lyman Trumbull of Illinois, who “argued for the legitimacy of confiscation.” For them, loyalty to the sovereign was “paramount, and membership in a political community contingent” (p.24). A second faction, conservative, led by such men as Orville Browning of Illinois and Jacob Collamer of Vermont, opposed confiscation, on the theory that a person did not hold property based on loyalty to the sovereign but on the Lockean principal of individual title or a form of fee simple. Joseph Story in his COMMENTARIES ON THE CONSTITUTION had attacked the confiscation acts of the Revolution as Bills of Attainder, contrary to modern enlightened Anglo-American law. Still, a third faction, opposing confiscation, lay [*583] in the moderates, such as John Sherman of Ohio, who insisted that confiscation could only occur judicially and not legislatively; without a trial, such Acts of Congress were unconstitutional. As far as just compensation by the sovereign went, although Trumbull was a radical he felt that where the judiciary of the Union was still operating, a judicial trial for the determinations of both aid and comfort to the enemy and just compensation were obligatory. Further, although most of the Democrats in the Thirty-Seventh Congress had withdrawn (Virginia and Tennessee still had membership), the majority Republican Party, hardly united except on the absolute agreement that slave property had to be confiscated without compensation, held fractions present throughout these groups. Lincoln, himself, had been supportive of the Conservative view and wa