LAW AND IRRESPONSIBILITY: ON THE LEGITIMATION OF HUMAN SUFFERING

by Scott Veitch. New York, NY: Routledge-Cavendish, 2007, 168pp. Hardback. $160.00. ISBN: 9780415442503. Paper. $44.95. ISBN: 9780415442510.

Reviewed by Kevin M. Wagner, Department of Political Science, Florida Atlantic University. Email: wagnerkj [at] comcast.net.

pp.975-976

Scott Veitch challenges the premise that law always presents a working framework to organize human society in a responsible manner. LAW AND IRRESPONSIBILITY is a studied philosophical look at how law itself can support or even be a cause of human suffering by acting as a systematic framework that endorses actions that cause suffering under the guise of legality. In presenting law as neither the representation of fairness nor even neutral in the arena of human responsibility, Veitch challenges an important paradigm in the legal studies discipline.

The notion that the application of law can result in outcomes that are unexpected is not new. Critical theorists and legal theorists have explored such topics in the past. Veitch’s contribution is to take this notion and make a plausible case that law can not only result in unforeseen developments, but as a system, can be the very foundation of irresponsibility and suffering. In making this assertion, Veitch is careful to concede that all implications of the application of law do not produce massive damage, but rather that they can, and on important occasions almost certainly do, result in the production of significant harms.

Veitch explores his ideas with an analytical framework supported by a series of examples that demonstrate how lawful actions, which he argues are often irresponsible, ultimately cause human suffering. The examples are the strength of the book, as they drive home his thesis by grounding them in a real world circumstance. The initial example, the United Nations sanctions regime in Iraq, is particularly effective. The sanctions were authorized through the appropriate legal mechanism of the United Nations and resulted in the death of 500,000 Iraqi children.

Veitch illustrates two key principles in this example. Initially, he asserts that the sanctions regime was not illegal, but expressly legal and authorized under international law. There was no criminal action as defined by the law, although the extent of death is significant. The law itself legitimizes the sanctions, removing not just criminal responsibility, but eliminating any basis for finding a responsible party.

It is in this principle of responsibility that Veitch makes his strongest case. Beyond the outcome-oriented analysis, Veitch asserts effectively that the legal regime itself is effective in generating conditions of extreme harm while creating a circumstance where there is almost no responsibility attributed to any party, including a state level actor. As noted in the Iraqi sanction regime, the law not only insulates the actor, it defines the actor as a defender of human rights while authorizing actions that [*976] result in massive harm to the human rights of thousands of people.

Both the strength and weakness of the book is Veitch’s thorough and fairly nuanced review of the theoretical underpinnings of his premise. Once understood, the ideas are interesting and provocative, and Veitch’s often painstaking examination lends credence to his approach. Nonetheless, the book itself is not lengthy, yet the argument becomes fairly repetitive by the book’s midpoint. There is something to be said for a thorough review of terms, definitions and premises, but at times the minutiae seem to overwhelm the theory itself and vitiate the more visceral impact of the ideas. When Veitch illustrates through example, the ideas gain depth and the book is effective.

LAW AND IRRESPONSIBILITY should have appeal to political theorists in the area of law and society. While Veitch uses empirical examples effectively, the primary substance of the book is theoretical and the methodology is fundamental analytical argument. This limits the appeal to students of policy and political behavior since it lacks any real measures. As a result, I would recommend this book as a supplement to graduate and upper division jurisprudence or law and society classes as a means to engage students on the meaning of law and its role in defining and constructing societal behavior. It is a strong theoretical contribution to the study of law and behavior and stands as a meaningful and innovative contribution to the discipline.

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© Copyright 2008 by the author, Kevin M. Wagner.

Law and Irresponsibility: On the Legitimation of Human Suffering

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CONSTITUTIONAL CONSCIENCE: THE MORAL DIMENSION OF JUDICIAL DECISION

by H. Jefferson Powell. Chicago: University of Chicago Press, 2008. 144pp. Cloth. $22.50. ISBN: 9780226677255.

Reviewed by Dr Stephen James, Member, Australian Association of Constitutional Law. Email: stephen.james [at] mail.com.

pp.969-974

This ‘little book,’ as H. Jefferson Powell modestly describes CONSTITUTIONAL CONSCIENCE (Frontispiece), makes a significant contribution to scholarship on American constitutional interpretation. In it one can clearly see the influence of the author’s background as an academic lawyer, theologian and former assistant attorney general in the US government. It is a defense of Supreme Court justices’ duty faithfully to interpret the words of the Constitution, while recognizing that ambiguity will often be present, that extra-textual considerations and values may have to be examined and that the words cannot be cordoned off from political and moral considerations.

Powell is a sophisticated textualist. While he recognizes that constitutional interpretation is a creative exercise, he is (like the rather different originalist, formalist or conservative interpreter) nevertheless opposed to judges treating interpretation as camouflage for the substitution of personal values, or the pursuit of values and outcomes that cannot plausibly be reconciled with the text of the Constitution. Thus, he is no friend to the instrumentalist interpreter or the judicial ideologue who, like the Marxist, sees no distinction between law and politics in a pejorative sense.

Powell tries to balance his recognition that the American Realists have tolled the bell signaling the death of the formalist, mechanistic, positivist fantasy that judges merely apply but do not make law, with his insistence that judges must obey the Constitution in a democratic republic. Thus there is a certain tension in the book, one the author thinks is unavoidable in the complex work of constitutional interpretation; that is, between traditional aspects of the judicial role and the moral dimensions of ‘the faithful interpretation of a fundamental law’ (p.x). This faithful interpretation means that a Supreme Court justice must take the Constitution as ‘the ultimate rule governing his official actions’ (though he never explains precisely how the text is a rule, and of what kind). While the book is largely focused on the role of Supreme Court justices as constitutional interpreters, Powell considers that the conscientious approach he advocates is applicable to other judges, and, indeed, to constitutional interpreters in the legislative and executive branches.

The book begins with a discussion of Chief Justice John Marshall’s defense of judicial review in MARBURY v. MADISON (1803). In particular, Powell emphasizes the importance of a judge’s oath to support the Constitution. In his view, this constrains the exercise of judicial review. The ‘central claim’ (p.9) of the book is that ‘the exercise of the power of judicial review presents [*970] profound moral questions for those who wield it and thus for all of us affected by it.’ Supreme Court justices must act in ‘good . . . conscience’ in interpreting the Constitution (p.11). That is, they must take the language of the Constitution seriously, act within the broad tradition (p.9) and practice of American constitutional interpretation and ‘use [the Constitution’s] language fairly’ (p.11). Much of the book is devoted to elucidating what ‘fair play’ (p.54) in constitutional interpretation would look like.

A judge acting conscientiously will, among other things, be honest, candid, frank about the ‘ambiguities’ in the text of the Constitution, and humble. She will know and accept the proper limits of her role as an interpreter (and the limited applicability and decisiveness of constitutional law in relation to issues faced by society) (p.11). Regarding humility, Powell further argues that justices must act in a fiduciary capacity. They have been entrusted with power and responsibility by the community and must act on its behalf (pp.6–7). This argument is not dissimilar to the originalist’s position (though Powell is certainly not an originalist) that judges must not usurp the sovereign power of the electorate, or, more crudely, ‘the people’. They have no authority to modernize the Constitution through undemocratic, irreversible judicial ‘amendment’ of it. For that reason, textualists have also argued against the ‘judicialization of politics,’ seeing what they regard as the disproportionate power of the US Supreme Court as a prime example of this unwanted development. Powell’s prescription for the ill of judicial usurpation is a range of ‘constitutional virtues’ (p.11), some of which I have referred to above. These virtues stop judges straying from their proper interpretive role, while legitimately allowing them to exercise moral judgement, consider political matters (and Powell is surely right that such matters are inescapable in constitutional law) and creatively make law.

In Chapter 1 Powell evaluates the controversial ‘Rule of Five.’ This so-called rule is based on an anecdote about Justice William J. Brennan of the US Supreme Court. Reportedly, in an impish exchange with one of his associates, he identified the ‘fundamental rule’ of ‘constitutional law’ by holding up one hand and declaring that ‘Five votes can do anything around here’ (pp.16-18). The incident has been interpreted to mean, in the most cynical Realist characterization, that providing it can garner a majority there are effectively very few constraints on Supreme Court decision-making. In contrast, Powell considers that the Court is constrained by what justices think is plausibly constitutional, what is ‘morally imaginable’ to society, and what the community is prepared to ‘support’ or at least acquiesce in (pp.16-20). One could also note that judges may be constrained by common law tradition, precedent, curial and extra-curial criticism and the doctrines of judicial independence, impartiality and the separation of powers. While Powell mentions these potential constraints, he spends relatively little time on them.

Chapter 1 also introduces, in the spirit of the long tradition of jurisprudential thought experiments (for example, those of Lon Fuller and Ronald Dworkin), a number of characters. We meet the [*971] corrupt Justice John, the politicized Justice Johanna (‘Her vote is the servant of her political ideals.’ (p.21)), the formalist/positivist Justice Oliver (‘a kindly caricature’ of what ‘most’ judges say publicly about how they adjudicate (p.25)) and the teleological Justice Marsha, who believes the Constitution itself demands that justices always seek ‘the best human outcome’ (pp.26-28). Powell is particularly critical of John and Johanna since they do not treat the text of the Constitution seriously, but also of Oliver and Marsha. Oliver is engaged in a form of self-deception because it is not possible to draw a bright line between legal and political content in adjudication. Thus, Oliver’s claim to act ‘apolitically’ is not credible (p.23). Powell’s criticism of Marsha is based on the liberal thesis that it is dangerous for anyone, let alone a judge, to assume that they can identify with any certainty optimal human outcomes.

Chapter 2, ‘Playing the Game,’ has a similar theme. What did Justice Oliver Wendell Holmes, Jr. mean when he said that his job on the bench was not to do justice but ‘to play the game according to the rules’ (p.38)? Did it mean he was as cynical about the Constitution as the fictional justices John and Johanna? Or did it reflect instead a distinctive and legitimate judicial wariness of collective or personal commitments to ‘just’ outcomes? Powell thinks the latter account is the proper understanding. Supreme Court justices can pursue justice providing they do so ‘within a certain activity or practice’ (p.40). What does this mean? According to Powell (p.42), Holmes thought that ‘the justices of the Supreme Court are supposed to play a game, an ordered, rule-bound activity, not to pick and choose what they like, even if what they prefer is justice in some ethical or political sense.’

Little of this would cause indigestion to conventional positivist and formalist judges in the common law tradition. The judge’s fidelity is to the law, not to societal or personal values, especially where stare decisis is applicable. These notions are evident when a judge applies law she thinks is regrettable. She may even in dicta criticize the binding law, but, consistent with the traditional doctrine of the separation of powers, remind the reader that judges are not legislators. The continuing injustice must then be corrected through the political process, through the amendment or repeal of the offending law. Some judges may resist even this level of commentary. So the difference between the approaches of Holmes and Oliver may be much less than Powell imagines.

For Powell, the rules of the game of constitutional interpretation are ‘expressed in the words of the constitutional text’ (p.44). He argues that constitutional theory ‘hasn’t worked’ since no theory has ever been instantiated in the practice of the Supreme Court, nor been accepted by other lawyers or judges, let alone by ‘the American public’ (p.46). Moreover, no particular theory can be identified within the US Constitution. Indeed, according to Powell, the Constitution is ‘resolutely atheoretical, at least when one goes beyond generalizations about the separation of powers and the rule of law’ (p.46). I find Powell’s view of theory strange. For one, CONSTITUTIONAL CONSCIENCE is an exercise in constitutional theory. Moreover, are [*972] there not clear theoretical dimensions to the US Constitution, at the very least in relation to the Bill of Rights, but also regarding such matters as federalism? (see also the author’s discussion of freedom of thought at p.112). Further, in chastising judges such as Justice Marsha who seek outcomes claimed to be the best for humans through their adjudication, Powell draws on liberalism to claim that acceptance of disagreement is fundamental to the US polity and Constitution (evident of course in the jurisprudence of the First Amendment). Also, democratic theory underpins Powell’s argument that judges must have humility, recognizing that much conflict and disagreement is properly resolved through political not judicial channels.

Nor do I find Powell’s argument that judges do not employ theory persuasive. There has in fact been quite an overlap between jurisprudential discussion and judicial practice (think, for example, of the writings of American Realists as scholars and judges). Theory has played an especially important role in ultimate constitutional courts such as the US Supreme Court, the Canadian Supreme Court and the High Court of Australia (even though the Australian Constitution has much less explicit reference to values than the American one does). Theory is also intrinsic to the concept of constitutionalism. Finally, Powell assumes that constitutional theorists are averse to the political, and so seek ‘technological means of excluding politics from constitutional law’ (p.47; see also p.50). But this is not an accurate statement about many constitutional theorists (for example, purposive interpreters like Justice Marsha).

In this chapter (as in Chapter 4) Powell further develops his account of judicial virtues. Many of these are consistent with the professional conventions and culture of the judicial role in the Anglo-American common law tradition: ‘loyalty to a certain objectivity, rationality and neutrality in law, and . . . distance from the passion, willfulness, and self-interest of electoral politics’ (p.47). In fact, ‘fair play’ in constitutional interpretation involves the judge exercising legal craftsmanship. This is a kind of cultural and professional constraint on constitutional interpretation. In making this argument, Powell draws upon the work of Bobbitt (pp.53-54). The virtues described here do not seem very different from the way that Justice Oliver would approach constitutional interpretation, despite Powell’s criticism of him.

Powell contends that judges ought to act ‘not from and on behalf of the judge’s personal politics or faction but in service to the community, to the government of laws and not of men’ (p.47). Much of this view can be reconciled with the hoary doctrines of the separation of powers, judicial impartiality and independence. However, serving the community, or acting on its behalf, is not the same as advancing the principle of a government of laws. Judges in constitutional democracies take oaths to administer the law without fear or favour, and to act independently, not only of the legislative and executive arms, but of the electorate. They are not answerable directly to the electorate and do not represent it. They ought to be insulated from populist pressures.

Chapter 3 shifts the focus from judicial interpretation of the Constitution to the [*973] role of members of the executive, using a case study of a nineteenth-century US Attorney General, Amos T. Akerman. Powell takes Akerman’s advice to President Ulysses S. Grant in relation to the presidential power to make civil service appointments as exemplary: as a model of his preferred ‘good faith’ interpretation of the Constitution (pp.56-57). The lessons for the constitutional interpreter that can be derived from Akerman’s advice are that she must act in a ‘lawyerly manner’: defining the issues, paying serious attention to the text as authoritative, attending to authorities, and constructing coherent legal arguments that will be approved by one’s professional peers (pp.60-70). The lawyer’s particular ‘technical expertise, learning and skill,’ which is ‘not common among the citizen body as a whole,’ facilitates judicial craftsmanship (pp.71-72). This sounds very much like Chief Justice Coke’s defense of the special training of the lawyer in the science of the common law, a special kind of reasoning that the monarch did not possess. Powell (pp.73-74) sees in this tradition of technical constitutional interpretation a partial solution to the lack of consensus in society over fundamental values:

In a community which is deeply divided . . . technical argument provides something which we all share in common. It serves as a sort of lingua franca, a means of communication which transcends the heated disagreements which it serves to express.

Again, I doubt that Oliver would have cause to object. He would be as happy as Powell is to endorse the ‘craftsman’s pride in getting it right, or as right as he could’ (p.70). Thus, the constitutional conscience of the book’s title requires judges to respect the traditions and conventions of their judicial role, not to follow the direction of their own internal moral compasses. As Powell says, it is conscience as part of judges’ ‘public personae as officials of the Republic’ (p.108).

Chapter 4 explores in greater detail the virtues necessary for a faithful judicial interpretation of the Constitution. The ‘virtuous justice’ (p.82) accepts a number of ‘presuppositions’ about the Constitution: its ‘intelligibility,’ the possibility of meaningful dialogue ‘about the purposes and goals of the American project,’ the unavoidability of uncertainty regarding the meaning and applicability of the text, and its ‘commitment to liberty’ (pp.83, 85, 86-93). With these presuppositions there are, as corollaries, various constitutional virtues (pp.83-93): faith (that one can understand and is bound by the text), integrity, candor, humility and ‘acquiescence’ (p.99), which is akin to the doctrine of precedent. The notion that the Constitution is underpinned by liberal values is unremarkable. But it goes against Powell’s frequent dismissals of the relevance of constitutional theory to the enterprise of constitutional interpretation and his insistence upon the great difficulty of identifying core norms in the Constitution. We might recall in this respect Powell’s claim that the Constitution is atheoretical.

Powell turns his attention in the final chapter to ‘substantive commitments’ that parallel the interpretive virtues. These are the ‘priority of the political’ as opposed to judicial channels for resolving social conflicts and moral [*974] dilemmas, the lack of orthodoxy in the American constitutional system (evident in the liberties of thought and speech) and ‘the inclusion of everyone’ within the constitutional republic (pp.110-116). Liberal democrats would have no difficulty accepting these norms, but it is not clear to me that all of these claims can be made out by someone who, first, seems at times so wary of constitutional theory, and second, requires that judges anchor their interpretations in the text. Think, for example, of Powell’s following claims. He claims that where his virtues ‘hold sway’ in Constitutional interpretation the ‘American political community will be resistant to the temptations to prejudice, cruelty, and heartlessness’ (p.102). He also says that the virtuous interpreter will recognize ‘the incorrigible otherness of those with whom they must live and yet who decline the old, sour, ultimately violent solution of denying the equal humanity of the other’ (p.101). I am not convinced that these admirable values flow clearly from the modest interpretive virtues he identifies. In this sense, it is similar to the substantive claims Lon Fuller made much earlier for his procedural prerequisites for the existence of law that were criticized by H.L.A. Hart. Powell begins his work by only asking ‘the reader to entertain . . . a very thin set of ethical presuppositions’ (p.6). But, by the end of the book, the presuppositions seem to have fattened quite considerably. Here Powell asks the reader to find in the interpretive virtues, and in the content of the Constitution, not only liberal but egalitarian commitments (see also pp.96-97).

CONSTITUTIONAL CONSCIENCE is an erudite and stimulating work, rich in insight. It makes innovative use of history, philosophy, law and political science. Refreshingly, Powell’s discussion is not limited to the much-ploughed territory of debates over originalism. His identification and elaboration of interpretive virtues is an original and important contribution that will have significance for jurisprudence and constitutional law well beyond the United States.

CASE REFERENCES:
MARBURY v. MADISON, 5 U.S. 137 (1803).

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© Copyright 2008 by the author, Stephen James.

Constitutional Conscience: The Moral Dimension of Judicial Decision

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INTERNATIONAL JUSTICE IN RWANDA AND THE BALKANS, VIRTUAL TRIALS AND THE STRUGGLE FOR STATE COOPERATION

by Victor A. Peskin. New York and Cambridge: Cambridge University Press, 2008. 294pp. Hardback. £45.00/$85.00. ISBN: 9780521872300. eBook format. $68.00. ISBN: 9780511372858.

Reviewed by William A. Schabas, Irish Centre for Human Rights, National University of Ireland, Galway. Email: william.schabas [at] nuigalway.ie.

pp.965-968

This is a book about the complex and often difficult relationship between the international criminal tribunals for the former Yugoslavia and for Rwanda with the governments of the constituent parts the former Yugoslavia, following the break up, and of Rwanda. Thus it concerns the almost inevitable tension that results when international institutions encroach upon an area that traditionally was the preserve of sovereign states: the prosecution of persons for crimes committed on their territory.

The International Criminal Tribunal for the former Yugoslavia was created by the United Nations Security Council in May 1993, at the height of the war in Bosnia and Herzegovina. Intended as a measure to promote conflict resolution, it was premised upon the likelihood that the courts of the various new states in the region would not do justice themselves to perpetrators of atrocities, with perhaps the exception of any of their enemies who might fall into their hands. The Tribunal did not really become fully operational until after the Bosnian war was over. But resistance to principled and impartial justice within the region remained. The court had stepped in to prosecute those whom the national courts were reluctant to pursue. Yet the court could not investigate the cases, gather evidence and even take custody of the accused without the cooperation of the very states that it did not trust to prosecute the cases themselves. Hence, the conundrum of cooperation that Victor Peskin endeavours to plumb.

Rwanda seemed to be somewhat different. It was actually the initial source of calls to create the International Criminal Tribunal for Rwanda, which was set up by a Security Council resolution adopted in November 1994, less than four months after the end of the devastating genocide. But Rwanda’s initial enthusiasm for international justice quickly soured when it could not agree with the United Nations on several important aspects of the new institution. For example, Rwanda disagreed with the Security Council’s insistence that there be no capital punishment. It did not accept limitation of the temporal jurisdiction of the Tribunal to the calendar year 1994. Rwanda wanted the seat of the Tribunal to be in its capital, Kigali, whereas the United Nations opted for nearby Arusha, in Tanzania. As a result, Rwanda, which was by sheer coincidence a member of the Security Council when the vote to establish the Tribunal was adopted, was the lone dissenter, opposing establishment of an important international effort to help [*966] render justice. In the years that followed, Rwanda’s relationship with the Tribunal was every bit as troublesome as the relationship between the Balkan states and the sister Tribunal.

As Peskin explains, by 2002 or so, a curious and unexpected pattern had emerged. The Balkan states had become increasingly willing to cooperate with the Yugoslavia Tribunal. This was manifested in such dramatic developments as the transfer of Slobodan Milosevic to stand trial in the Hague, which took place in late June of 2001. By contrast, Rwanda had grown more and more negative about its international court, threatening to block cooperation altogether and literally jeopardizing all future activities. In mid 2002, according to Peskin, the Rwandan government imposed travel restrictions that had the effect of preventing its nationals from testifying in Arusha. This brought at least one trial to a temporary halt.

The topic of cooperation has been largely neglected in the academic literature. Peskin highlights the ‘Court-centred’ studies, most of them authored by lawyers close to the Tribunals, that focus on the legal issues but fail to unravel adequately the political dimension of the problem. As for the Rwanda Tribunal, it also suffers from a more traditional neglect, because students of the subject are not only ‘Court-centric,’ they are also ‘Euro-centric.’ He also notes quite appropriately that most academic commentators are enamoured of the alleged independence of the international tribunals from the realm of the political, extolling their ability to transcend such considerations. By contrast, Peskin starts with the assumption that politics is at the core of the operation of these tribunals. The way forward is to acknowledge this reality, he posits, rather than to deny it.

Much of this volume consists of a very rich and useful narrative of some of the big crises in which the issue of cooperation has featured. Peskin explores the complexities of the arrest and transfer of various Serb suspects to The Hague, beginning with persistent and still only partially successful attempts by the International Tribunal to gain custody over two of its first indictees, Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. Only in mid-2008 was Karadzic finally arrested in Belgrade and surrendered to the Tribunal; his accomplice Mladic is still at large. And although these two leaders were only a source of great frustration, in the meantime Slobodan Milosevic was arrested and brought to trial. The whole business required time and patience, but in the end it was fundamentally successful. Peskin explores the political aspects that drove the process of arrest and surrender, insisting upon the democratic transition within Serbia rather than the simplistic, standard explanation of economic pressure from the United States and the European Union. Of course, both factors surely contributed here.

Serbia may have emerged as the main culprit in the conflict, but there is much evidence of Croatian atrocities whose responsibility lies at the highest levels. Croatia too frequently defied the Tribunal in the early years. An important decision by the Appeals Chamber of the Tribunal, in October 1997, responded to Zagreb’s resistance to a request for documents from the Prosecutor. Here, [*967] too, democratic transition was a decisive factor. Whether or not former Croat president Franko Tudjman was ever actually indicted by the Tribunal is a closely guarded secret that even the revealing and indiscreet memoirs of former United Nations officials, including Prosecutor Carla del Ponte, have not elucidated. But it is certain that his death brought about a positive change in Zagreb’s dealings with The Hague. Eventually, the Tribunal got what it wanted, arresting leading suspect Ante Gotovina in 2004 with the assistance of the Croat regime.

But just as Serbia and Croatia manifested a similar evolution, drawing steadily closer to the International Tribunal as their young democratic regimes became more stable, Rwanda’s attitude towards the Tribunal did not develop in the same way, or so Peskin argues. His thesis is that at the heart of the tension was concern that the Tribunal would turn its attention to the alleged crimes of the Tutsi-led Rwandese Patriotic Front, which took power in July 1994 under the leadership of now-President Paul Kagame. Since initial reports emerged in 1995 from both United Nations bodies and human rights NGOs, it has become increasingly clear that atrocities were also perpetrated by the victors in the Rwandan conflict, although on a scale that is nowhere near that of the genocide. Estimates vary inevitably, but a well-accepted estimate considers the victims of genocide to have numbered in the region of 800,000, while the victims of massacres committed by the other side, some of them inevitably driven by sentiments of vengeance, were in the order of 25,000. The first two prosecutors of the International Criminal Tribunal for Rwanda did not show much interest in pursuing the crimes committed by the Rwandese Patriotic Front, but this seemed to change when Carla del Ponte took office in September 1999. The investigations barely figure in the public record of the Tribunal, and it is therefore only through interviews and investigations by a scholar like Victor Peskin that we can glean much knowledge on the subject.

There is therefore one important difference between Rwanda and the Balkans that may explain the differences in attitude to cooperation. At the Yugoslavia Tribunal, the Prosecutor is after the leaders of old regime rather than their opponents, who have steadily taken power as democracy has prospered. This recalls the pattern in post-war Germany, where old Nazis and their sympathizers, who were present enough in government in the early years, became increasingly marginalised. One result was an increasing willingness of German courts to address Nazis war crimes and atrocities themselves. But it was only in the 1960s that meaningful domestic trials got underway, and Germany has never looked back. In Rwanda, although the Prosecutor has been and remains principally concerned with the enemies of the current regime, that is, the former leaders and instigators of the genocide, its threat to prosecute persons associated with the current government inevitably make the relationship more difficult and problematic.

But are the distinctions as important as Peskin indicates? Rwanda, too, has gone through its own progressive evolution, although it is probably more African than European in flavour. For example, [*968] in 2007, Rwanda abolished capital punishment, an indication of its aspiration for full membership in the progressive wing of the international community. By all accounts, its courts and prisons have steadily improved. The major episodes of non-cooperation with the Tribunal now appear more as anomalies in what has been a pretty good record, especially in recent years. The virtual melt-down in 2002, when Rwanda prevented witnesses from traveling to Arusha, was an ephemeral one. In semi-annual presentations to the Security Council, undertaken as part of the completion strategy of the Rwanda Tribunal beginning in 2004, both its Prosecutor and its President have extolled the cooperation of the Rwandan government. There have been no complaints whatsoever. Perhaps, then, Rwanda actually confirms the pattern that Peskin has observed in the Balkans.

Peskin’s important and valuable insights into the relationship between international tribunals and the governments of countries that are targeted by their prosecutions provide great assistance in understanding future problems. The United Nations Security Council may not ever repeat its experimental establishment of the two ad hoc tribunals for the former Yugoslavia and Rwanda. It is not entirely out of the business, but the more recent institutions, for Sierra Leone and Lebanon, manifest important differences in conception. The lessons that Peskin presents are surely most important for the permanent International Criminal Court. Because the Yugoslavia and Rwanda Tribunals were created by the Security Council acting pursuant to Chapter VII of the Charter of the United Nations, the institutions could always argue that States were obliged by international law to cooperate. They never tired of invoking this mantra, although without much result, as Peskin demonstrates. Political developments, rather than empty threats that the Security Council might intervene, moved the cooperation agenda forward. The powers of the International Criminal Court in this respect are even more modest, because it cannot in any way count upon Security Council muscle to help ensure compliance with its ‘requests.’ Peskin helps us to understand that here too political developments will be the key to cooperation. His findings should be much studied by those who are struggling to make the International Criminal Court work. Perhaps he will turn his attention to a sequel, examining the troubled dealings of the permanent International Criminal Court with the governments of Uganda and Sudan.

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© Copyright 2008 by the author, William A. Schabas.

International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation

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THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION

by Jack Goldsmith. New York: W.W. Norton & Company, 2007. 256pp. Cloth. $25.95. ISBN: 9780393065503. Paper. $12.95. ISBN: 9780393065503.

Reviewed by John E. Finn, Department of Government, Wesleyan University. Email: jfinn [at] wesleyan.edu.

pp.956-964

I. Introduction.
Among the challenges to constitutional government linked to the Bush era are the rise of the surveillance state, harsh interrogations and torture, indefinite detention and the suspension of habeas corpus, extraordinary renditions, and military commissions. Many of the decisions to adopt these policies were taken unilaterally, without the counsel of Congress, the federal courts, or other agencies and actors in the executive branch. Each of them poses a challenge to constitutional principles and practices, but more important than any one of them is the underlying understanding of the office of the presidency they rest upon. Taken together, they represent the rise (return?) of the unitary (imperial?) presidency, an executive with extraordinary obligations and equally enormous powers. This is, to put it mildly, a robust theory of the presidency, a theory in which the president’s duty to protect us from terrorism supersedes every other obligation of the office, including the oath to support the Constitution.

Notwithstanding obvious difficulties from the standpoint of constitutional theory, there are a number of ways one might try to justify the location of such extraordinary obligations and powers in a single office. One might argue, for example, that a crisis releases the chief executive from constitutional limitations that apply in times of peace and normalcy. Or one might argue that the office of the chief executive comes equipped with a Lockean prerogative. Both sorts of claims, whatever their merits, claim a long lineage in constitutional theory and practice. Jack Goldsmith makes clear, however, that the Bush administration’s justification for the use of extraordinary powers was intricately caught up with a theory of newer vintage, sometimes called the theory of the unitary executive.

The unitary theory of the executive holds that Article 2 vests the whole of executive power in the office of the presidency and that such power is not shared with the other branches or even, necessarily, accountable to them. Part of Goldsmith’s book is a story about how and why one version of this theory took hold in the Bush administration. In particular, the version of the unitary presidency that appealed to some officials, such as David Addington, in Vice President Cheney’s office, and John Yoo, in Justice, is this: In times of crisis, the President’s duties and powers as Commander-in-Chief trump constitutional rules and federal laws that would ordinarily constrain the executive. Relying on this expansive understanding of executive power, Goldsmith’s predecessors at the Office of Legal [*957] Counsel in the Department of Justice (OLC), including Yoo and Jay Bybee, prepared several classified memos asserting that the president may legally ignore a range of federal statutes, including laws prohibiting torture, and electronic surveillance without a judicial order.

One of the chief arguments in favor of the unitary presidency is that it purports to center responsibility in a single, identifiable public office and thereby promotes democratic accountability. Ironically, however, Goldsmith’s narrative suggests that the centralizing of public accountability in a single location has had the precise opposite effect. The fear of being held to account has not only skewed policy decisions and the policy making process, it has also led the presidency to isolate itself from the inevitable scrutiny and accountability that would result from a process in which it shares power with congressional and judicial actors.

There are important questions about the constitutionality of almost all of the major policy decisions taken by the Bush administration in the global war on terror (GWOT). But the more important, larger question – the one that that applies not just to the eight years of the Bush administration but to the office of the presidency after Bush leaves – is whether the conception of the presidency that rests behind specific policy decisions can be reconciled with constitutional democracy. To answer it, we need first to think carefully about the kinds of pressures and reasons that gave rise to the terror presidency as an institutional form. We need to consider, too, the durability of those pressures: Are the institutional changes wrought by the terror presidency local to the Bush administration or more permanent?

II. Fear and the Rise of the Terror Presidency.
Much of Goldsmith’s record of his time at the Department of Justice addresses the role of the OLC in advising the President about the legality of a series of decisions made in the war on terrorism, including decisions concerning the application of the Geneva Conventions to detainees. Among Goldsmith’s first priorities was a review of earlier OLC opinions that considered the legality of several secret counterterrorism policies. Goldsmith learned quickly, and much to his distress, that some of these opinions “were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President” (p.10). Goldsmith’s explanation for the inferior quality of these opinions, some of which were prepared by his friend John Yoo, is the “extraordinary pressure” incumbent on the Office of Legal Counsel (OLC). “Fear explains why the OLC pushed the envelope” (p.166).

Fear provides the occasion for the extravagant claims of power that undergird the terror presidency. Moreover, these fears are a more or less permanent feature of a political landscape dominated by the war on terrorism, a war that is both grave and unending. Goldsmith identifies two kinds of fear – ”fear of not doing enough” and “fear of doing too much and ending up before a court or grand jury” (p.12), but there is a third he does not name: the fear of electoral or public accountability. Thus there are three distinct kinds of fear in play: Fear of the next attack, fear of laws that overly [*958] circumscribe presidential power, and, paradoxically, fear of electoral accountability.

a. Fear of the Next Attack.
Goldsmith argues that it is “It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch who are responsible for protecting American lives” (p.72). Goldsmith offers up several examples of the pervasive effect of this kind of fear in the administration. In one case, after Goldsmith advised Addington against the legality of a particular policy, Addington responded: “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” Elsewhere, Goldsmith describes the impact of the “threat matrix.” Delivered every morning to the president, the matrix “lists every threat directed at the United States in the past 24 hours.” The matrix, Goldsmith notes, can be “many dozen pages long” (p.71).

The key point, however, is not that the administration is so keenly aware of the threats facing the United States. It is, instead, the administration’s view that these threats are grave, unprecedented, and that “success” in responding to them means preventing all of them. (Goldsmith notes that this definition of policy success was described by Suskind as the “one per cent doctrine” (Suskind 2006).) Goldsmith captures this sense in a quote from Jim Baker, who likened the wear on terrorism to a soccer game: “the task of stopping our enemy to a goalie in a soccer game who ‘must stop every shot,’” for if the enemy “‘scores a single goal,’” the terrorists succeed. To make matters worse, “‘the goalie cannot see the ball – it is invisible. So are the players – he doesn’t know how many there are, or where they are, or what they look like.’“ Indeed, the invisible players might shoot the ball “‘from the front of the goal, or from the back, or from some other direction – the goalie just doesn’t know’” (p.74). Such an approach, Baker admitted, can lead one to become “paranoid” and lead to “obsession” (p.72). It is far from clear this is a sensible strategy for coping with uncertainty and risk in general or with the threat of terrorism in particular (Macklem et al. 2001). Indeed, failure (in the sense that not all attacks can be prevented) under such a definition is a near inevitability, and the fear of failure, Goldsmith concludes, is a prime factor in the administration’s formulation of antiterrorism policy.

b. Fear and Lawfare.
A second kind of “fear” also appears in Goldsmith’s account. Goldsmith argues that the presidency is hobbled, if not crippled, by law. Goldsmith pictures a presidency cabined and enfeebled by a thicket of rules, statutes, and judicial decisions that, far from clarifying what the law permits and prescribes in the GWOT, instead confuses and cripples the executive branch.

Goldsmith identifies two sets of legal restraints upon the presidency – domestic law and international treaties and conventions. Domestic legal constraints include the War Powers Act of 1973, the Foreign Intelligence Surveillance Act of 1978, and the Torture Act of 1994, all of which, Goldsmith argues, unwisely confine presidential war power.

One of the chief difficulties with such laws, he argues, is their vagueness. The [*959] lack of clarity opens up the possibility that national security officials might later be prosecuted. Goldsmith reports that the Bush administration was concerned about the prospect of “lawfare” or the possibility of legal prosecution if they ran afoul of any one of a great many legal restrictions upon the presidency. The fear of prosecution was not so much a concern that such actions might occur in John Ashcroft’s term of office, but rather “in a subsequent administration of a different party” (p.68).

Goldsmith also argues that a snare of international obligations and commitments similarly circumscribe the presidency. After World War II, the international community embraced a broad range of conventions, such as the Geneva Conventions on Prisoners of War, that assert international jurisdiction over human-rights violations. (Goldsmith notes, in this regard, that Addington once advised Secretary of Defense Rumsfeld that international law is “a tool of the weak” and a threat to the interests of the United States.) Goldsmith writes at some length about the kinds of concerns in the administration generated by the International Criminal Court, and recounts his own memo on the “judicialization of international politics,” written while he was at Defense and later circulated to the National Security Council. (Goldsmith writes that “Yoo and I were a part of conservative intellectuals – dubbed ‘new sovereigntists’ in FOREIGN AFFAIRS magazine – who were skeptical about the creeping influence of international law on American law”(p.21).)

The proliferation of domestic and international legal constraints upon the executive branch has caused a profound transformation in the environment that surrounds the presidency. Goldsmith argues that past presidents, such as Lincoln and Roosevelt, were largely free of such restraints. They were free to respond to crises without the fear of subsequent indictment. More important, perhaps, is that these new rules have contributed to a new legal culture, “reinforced by the swarm of lawyers that rose up in the military and intelligence establishment” (p.91), a culture dominated by “risk-averse legalism” (p.93). Goldsmith concludes that the restraints on the presidency enacted after Watergate constitute a substantial obstacle to the Bush administration’s effort to respond to September 11. “The administration,” he writes, “has been strangled by law, and since September 11, 2001, this war has been lawyered to death” (p.69).

How did the Bush administration respond to these overbearing legal restrictions on presidential power, many of which would have required the president to act in cooperation with Congress? Goldsmith claims that Addington and others relied on a series of poorly argued, secret legal memos to simply sidestep them. Moreover, in Goldsmith’s view, Addington, and his superior, Cheney, deliberately rejected the counsel of those both inside and outside the administration, who had urged cooperation and consultation with Congress.

c. Fear and Politics.
Finally, Goldsmith alludes to another kind of fear prompted by the war on terrorism – the fear of electoral [*960] accountability, or of being held to account for failure to prevent the next attack. The clearest evidence for both the existence and the importance of this fear is the simple fact that most of the OLC opinions Goldsmith addresses were prepared in secret and classified. The purpose of such secrecy was precisely to evade accountability, whether in the Attorney General’s office, elsewhere in executive branch, or outside of it.

The distorting effects of this kind of fear on antiterrorism decision-making in the Bush administration should be of special interest to students of the unitary theory of the presidency, because it suggests an elemental flaw in one of the theory’s central premises. One of the advantages of the theory of the unitary executive is that it claims to locate popular accountability in the president. In other words, a president may not evade accountability for policy by claiming that his hands are unnecessarily tied by the demands of Congress or the federal courts. The president alone is responsible. But in Goldsmith’s view, the administration was unwilling to abide such scrutiny, in part because it fears the public no longer shares its sense of the urgency or importance of the threat. “The American public largely shared the government’s anxieties on 9/11. But since that time public concern about the terror threat has waned” (p.187). Elsewhere, Goldsmith observes that “it is natural for public vigilance to fade over time, even if to the President’s eye the threat has not faded one bit” (p.187). Goldsmith’s response to diminishing public concern is to urge the President “to educate the public about the threat without unduly scaring it. . . . And he must convince the public that he is acting in good faith to protect us and is not acting at our expense to enhance or protect himself” (p.192).

And yet in large measure it is precisely the fear of shouldering public accountability that explains overreaction to exaggerated fears. It is the same fear that leads, too, to unilateral decision-making, to decisions taken in secret and without the consult of other branches. Instead of concentrating responsibility in a single office – and in so doing advancing democratic accountability – the unitary theory of the presidency has had the opposite effect, of obscuring who bears responsibility by shielding decision making responsibility from the public and by vitiating the separation of powers. The unitary theory of the presidency has given us a presidency enshrouded in secrecy, entrusted with profound powers that cannot be held to account by co-ordinate constitutional actors.

III. Reconciling the Terror Presidency and the Constitution.
In Chapter Six, Goldsmith takes up directly the “failures” of the Bush administration. To put it simply, individual policy mistakes all trace to a larger failure of political strategy. In Goldsmith’s view, most if not all of the president’s policy decisions in the GWOT should have been made on the basis of greater consultation with Congress. They would thus have been considerably less vulnerable, both politically and legally.

It is here that Goldsmith comes closest to his position as an academic and not as a lawyer in the OLC. Goldsmith draws upon the presidencies of Lincoln and, especially, Roosevelt to think more expansively about the terror presidency [*961] and its relationship to the larger constitutional order. His comparison with Roosevelt starts with a claim that the challenges facing the terror presidency are similar to those Roosevelt confronted: “Franklin Roosevelt faced a similar set of challenges in the eighteen months prior to the Unites States’ entry into World War II in December 1941” (p.192). The basis for this comparison is perhaps questionable, itself another misjudgment occasioned by fear. It is far from clear that the challenges are even remotely similar, and Goldsmith does not do much to justify the comparison. But Goldsmith is right to think there are lessons to be had in Roosevelt’s use of the prerogative power. Goldsmith notes, for example, that neither Lincoln nor Roosevelt confronted the fear of lawfare; instead, they operated in environments largely free of the legal constraints that hobble the terror presidency.

Goldsmith attributes the “successes” of the Roosevelt presidency’s claim for and use of extraordinary powers to careful and widespread consultation with Congress and with potential critics of his administration. The failures of the Bush administration, by contrast, are grounded in a view of the presidency that regards consultation with other actors – indeed, voluntary compliance with the law – as an unwelcome constraint on presidential power. To consult, Goldsmith suggests, was a sign of weakness: “The Bush administration has operated on an entirely different conception of power that relies on minimal deliberation, unilateral action, and legalistic defense. This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise” (p.205).

At this point, however, the argument is not fully explained. Goldsmith never actually identifies how the absence of law promoted Roosevelt’s successful use of expansive emergency powers (largely by cooperating with co-ordinate constitutional actors), or how its presence forestalled the Bush administration from pursuing a similar path.

In some ways, Goldsmith’s sense – that Bush should have sought the active cooperation of Congress and other political actors – comports neatly with an understanding of constitutionalism that is based on “justification” rather than “invariance” (Finn 1991). But the failure of Bush to consult is, for Goldsmith, an unfortunate failure of political leadership, a method of governing that is flawed chiefly because it failed. It is flawed, too, because it left the office of the presidency weaker: “They borrowed against the power of future presidencies – presidencies that, at least until the next attack, and probably even following one, will be viewed by Congress and the courts, whose assistance they need, with a harmful suspicion and mistrust because of the unnecessary unilateralism of the Bush years” (p.140).

Goldsmith’s primary criticism of Bush, then, is not that the President acted unconstitutionally or illegally but rather only that he acted unwisely. The lesson we are to take away is that future presidents – all of which will be terror presidencies – should consult more broadly and more frequently with other constitutional actors. But Goldsmith’s recommendation (that future presidents consult, or give reasons), is driven not by any commitment to the rule of law, or [*962] to constitutional values, but rather simply and only by a desire to secure presidential power. In that respect, the differences between Goldsmith and Addington and Yoo are simply prudential. If the President’s policy agenda could be better advanced without such consultation and cooperation, there would be nothing in Goldsmith’s prescriptions – nothing in the law or the Constitution – that would or should foreclose that approach.

There are, of course, other counterweights to the terror presidency, such as judicial review. Indeed, one could argue that the terror presidency has already run up against a serious set of judicially imposed restraints (Dworkin 2008). On the other hand, it is far from clear that cases like RASUL, HAMDI, HAMDEN and BOUMEDIENE constitute unequivocal evidence of the efficacy of judicial review. As I have suggested elsewhere, “Although the Court appears to have insisted upon some measure of judicial accountability, it has also authorized important and far reaching departures from what the rule of aw requires in ordinary criminal cases. . . . The overall import of the decisions is to authorize a separate system of jurisprudence . . . for offenders designated by the government as enemy combatants” (Finn, forthcoming). Moreover, as Goldsmith acknowledges, the Court’s decisions in HAMDI and HAMDEN were followed by congressional actions that pretty much gave the President whatever he asked for, including authorization to pursue aspects of the military commissions that the Supreme Court had invalidated. Other counterweights to the terror presidency might include the kinds of accountability occasioned by elections, the free and open public dialogue guaranteed by the First Amendment, and a reinvigorated commitment to the separation of powers. Unfortunately, Goldsmith does not take up the question of whether or how these mechanisms might constrain the terror presidency.

In the end, Goldsmith’s recommendations are grounded not in the rule of law, or the Constitution, but rather in their utility as a mechanism for enhancing the powers of the terror presidency. Nowhere does Goldsmith really address the fundamental question of whether the terror presidency can be reconciled with our commitment to the Constitution. Instead, we get only a bromide: “In the permanent emergency we face, the best hope for preserving both our security and our liberty is to select leaders who will be beholden to constitutional values even when they are forced to depart from constitutional traditions” (p.216).

IV. Conclusion.
A long time ago, when the dangers terrorism poses for constitutional governments seemed safely a matter of history, I wrote that “Even in a crisis, there is a sense in which constitutionalism, government based on reason and limited by the rule of law rather than government by will or self-interest, can persist” (Finn 1991, p.28.) What is necessary in a crisis, I argued then and still believe, is not invariance from strict constitutional limitations on the use of power, but rather the project of public justification. Justification as a constitutional project is necessarily an activity that takes place in concert with other constitutional actors; it thus demands, as a constitutional obligation, [*963] that executives consult widely and broadly with other constitutional actors. It prohibits as unconstitutional claims of exclusive extraordinary power, whether grounded in theories of prerogative or the unitary presidency (Finn 1991, pp.28-40). They are not matters of political convenience or simply stratagems for increasing presidential power. They demand, instead, that the pursuit of power, no matter how nobly intentioned or how authentic the need, must conform to certain irreducible constitutional constraints. If antiterrorism policies fail to comply with these principles, the failure is not, as Goldsmith suggests, a mistaken approach of political style. It is a failure of constitutional governance.

Can constitutional government survive the terror presidency? Constitutionalism, Noah Webster once wrote, is “the empire of reason.” What constitutionalism demands is “a commitment to a public life premised upon the public articulation of reasons” (Finn 1991, p.30). Fear is an enemy of reason, and succumbing to it seems to answer in the negative Hamilton’s searching question, in Federalist One, of “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force” (Rossiter 1961). There is irony, therefore, in Goldsmith’s use of Roosevelt as a role model for how a strong presidency should function in a constitutional democracy. The irony is not that Roosevelt’s critics, like Bush’s, accused him of embracing dictatorial powers and disregarding constitutional restraints. The irony is that the Terror Presidency owes its existence to and requires fear. And it is the persistent durability of fear that explains why we should be careful not to assume that the constitutional challenges of the last eight years are unique to the Bush administration: “For generations,” Goldsmith warns, “the Terror Presidency will be characterized by unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so” (p.189).

REFERENCES:
Dworkin, Ronald. 2008. “Why it was a Great Victory.” http://www.nybooks.com/articles/21711 (August 14, 2008).

Finn, John E. 1991. CONSTITUTIONS IN CRISIS: POLITICAL VIOLENCE AND THE RULE OF LAW. New York: Oxford University Press.

Finn, John E. (forthcoming) “Counter Terrorism Regimes and the Rule of Law.” forthcoming in Martha Crenshaw, ed., THE CONSEQUENCES OF COUNTERTERRORIST POLICIES IN DEMOCRACIES. (New York; Russell age Foundation, forthcoming).

Mackle, Patrick, Ronald J. Daniels, Kent Roach (eds). 2001. THE SECURITY OF FREEDOM. Toronto: University of Toronto Press.

Rossiter, Clinton, ed. 1961. THE FEDERALIST PAPERS. New York: New American Library. [*964]

Rossiter, Clinton. 1948. CONSTITUTIONAL DICTATORSHIP. Princeton: Princeton University Press.

Schlesinger, Arthur. Jr. 1973. THE IMPERIAL PRESIDENCY. New York: Popular Library.

Suskind, Ron. 2006. THE ONE PERCENT DOCTRINE: DEEP INSIDE AMERICA’S PURSUIT OF ITS ENEMIES SINCE 9/11. New York: Simon & Schuster.

Yoo, John. 2006. THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11. Chicago: University of Chicago Press.

CASE REFERENCES:
BOUMEDIENE v. BUSH, 553 U.S.___ (2008).

HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

RASUL v. BUSH, 542 U.S. 466 (2004).

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© Copyright 2008 by the author, John E. Finn.

The Terror Presidency: Law and Judgment Inside the Bush Administration

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TEMPTATIONS IN THE OFFICE: ETHICAL CHOICES AND LEGAL OBLIGATIONS

by Stephen M. Goldman. Westport, CT: Praeger, 2008. 224pp. Hardcover $39.95/£22.95. ISBN: 9780275996758. eBook format. $43.95. ISBN: 9780275996765.

Reviewed by Bruce Howes, Department of Philosophy, Okanagan College. Email: bhowes [at] okanagan.bc.ca.

pp.952-955

TEMPTATIONS IN THE OFFICE by Stephen Goldman is a book in the best tradition of legal approaches to the application of ethics. It is stylistically clear and methodologically admirable. The organization of the book is simple and lucid: Chapters 1 and 2 are given over to the general diagnosis of ethical wrongdoing, Chapter 3 proposes a curative procedure, and Chapters 4 through 8 offer a guide to specific applications of that cure.

At its core the book sets out to accomplish two rather daunting tasks: a) construct a procedure to deal with already recognized ethical concerns, and b) set up a means by which to initially recognize concerns as ethical in nature. While the latter task is left somewhat incomplete, the former and arguably more important task is carried off with resounding success.

Goldman, a practicing lawyer in the Washington, DC area specializing in complex civil litigation and a Distinguished Lecturer in Law at the Catholic University of America Law School, lays down a procedure to aid managers through the choppy waters of clear ethical dilemmas in the workplace. This is the ‘crown jewel’ of the book – what Goldman calls “The Foursquare Protocol.”

Goldman suggests that if a manager finds herself on the horns of an ethical dilemma in the workplace, she should take the following four steps. First, she should marshal as many facts as possible. Second, she should seek out information on how previous ethical decisions within the company were arrived at, as well as how these decisions were generally received by employees. Third, the manager ought to sort out the relevant similarities and dissimilarities between those past situations and the present one. And last, the manager should honestly and clearly assess any personal interests, biases, or conflicting interests she has that might impair her proper treatment of the problem.

Now this is a very brief description of a template for which the balance of the book (pp.73-205) rather convincingly displays the advantages (It is worth buying the book to get more detail). There is a lot of horse sense here. Goldman applies his proposed protocol to the main areas where ethical problems are found: sexual harassment, conflict of interest, executive compensation, corner-cutting, and the abuse of power.

As Goldman says when dealing with, say, conflicts of interest it is helpful to “look at how the law treats business conflicts of interest” (p.120). The Protocol is explicitly an attempt to [*953] transplant the best traditions of the legal profession – practices, procedures, and general outlook – into the midst of business’ clash with values. While some might quip (after inserting their favourite lawyer joke) that, given the ever expanding range of ‘due process’ rights within the workplace, it was really only a matter of time before some lawyer somewhere got around to baldly proposing that managers be required to have the formal skills of a judge. Goldman may be asking a lot of managers here; but given that a new round of corporate scandals may be upon us, perhaps not too much.

Goldman observes that too often managers handle ethical qualms (at least those who acknowledge there is any such thing in business) by following their ‘intuition.’ This often leads to at least the semblance of unfairness and inconsistency, if not the reality of it, which can then lead to compounding the original problem. As such, a key “prong” of Goldman’s protocol is the 2nd one, with its demand that “organizational memory” be mined for insight (p.65). This is an excellent instance where the law provides solid guidance.

One thing to note about the 2nd protocol is its implicit limit. It requires the manager to research past decisions from her own company only. Though not explicit on the matter, Goldman is here suggesting an entirely ‘in-house’ solution to ethical woes. Given that private enterprises are often very sensitive to outside intrusion into internal decisions (beyond what the law demands), this ought to be a generally palatable place to draw the lines of responsibility. With the in-house restriction, each business is seen as a distinct ‘jurisdiction,’ and no serious changes to organizational ‘culture’ need be undertaken.

Now, some might argue that if it makes sense to look at precedents in my organization, then it would also make sense to look at similar situations elsewhere, or solutions found in similar organizations. So keeping things in-house might not be wise or even workable in the long term. But this quibble does not make Goldman’s advice any less reasonable for a manager dealing in real time with slippery ethical issues. And there is the added dividend that any manager adopting this framework will, as well, be building good ethical habits into her company’s “organizational memory” for future reference.

The task of providing a framework for already recognized ethical problems is solidly completed with the Foursquare Protocol. Goldman’s other important task is to help provide people with what he calls an “early warning system” for recognizing ethical problems in the first place. Such a system would provide managers with “a way of detecting when what seems like a perfectly straight-forward business issue actually hinges on values” (p.xi). This is very laudable aim, but a difficult one to define. As such, this aim remains, at best, only vaguely realized in TEMPTATIONS.

Early in the book Goldman makes the point that ethical problems are one of three major ways that businesses tend to get themselves into serious trouble (the other two are market failures and liquidity problems). And as he puts it, these ethical business failures “usually [*954] start in a mundane way” with people simply “ignoring the basic values underlying situations” (p.xi). This is a keen insight denoting that early diagnosis of a problem’s ethical core is the key to solving it.

Obviously such an early warning system will be of no use to those who positively refuse to acknowledge that there are business decisions that require ethical considerations. And indeed in Chapter 1 Goldman explicitly identifies such a group, referring to them as “Ethically Indifferent Persons”, or EIPs.

EIPs are described as people who are “impervious” to any kind of argument which shows sensitivity toward the well being of others (pp.13, 38-40). To those who have an EIP as a boss, Goldman counsels that they should avoid any attempt to question or challenge the EIP’s insensitivity – usually an encounter with a brick wall is less futile. Yet the goal of the employee must be nonetheless to make sure that his own decisions continue to be humane. So such an employee must find a way to do the ethically sensitive thing while framing the issue for the boss in terms of the bottom line.

The distinction Goldman builds between EIPs and non-EIPs seems right; and his advice that non-EIPs should attempt to approach EIPs on a footing consistent with business rather than on a ‘values’ footing, seems correct too (p.14). Chapter 2 seems to be the place where we ought to find the early warning system. But Chapter 2 seems no more than a well written but standard defence of the need of ethics in business. Is this the early warning system?

If so, EIPs will not use it, since they refuse to accept the existence of ethical concerns. And if so, non-EIPs do not need it. If the ‘early warning system’ is merely this argument that ethical concerns in the workplace should be taken seriously and treated distinctly – then it seems that Goldman is preaching to the choir. Non-EIPs already know they should be treated that way.

What an early warning system should be is a means by which to distinguish ordinary business problems from those with an ethical dimension while the ethical problem is still a small distant ‘blip.’ NonEIPs do indeed need such a system to alert them to the ethical dimension before it overruns them. Goldman alludes to this but fails to provide such a system.

So an early warning system remains elusive, but this in no way diminishes Goldman’s success at providing a very useful tool (The Foursquare Protocol) for managers to deal with already recognized ethical problems in the workplace.

One last subject needs to be delicately broached here. Goldman very early on states that moral philosophy is to be avoided as much as possible given that it is “dense and maddeningly divorced from reality” and that “[b]usiness ethics are too serious a business to be left to the philosophers” (p.xiv). As a philosopher who teaches business ethics, this view requires some token resistance here.

Be assured that I understand what Goldman means by this statement. I have seen the whites of my students’ eyes on more than one occasion. Goldman’s complaint about [*955] ‘maddening’ philosophical abstraction may be fair if being taught ethics in school (Goldman cites his own frustrations with philosophy as an undergraduate in the early 1970s) has the effect of making business people wildly flee in the face of ethical concerns on the job. Reflection has to be ‘managed’ in the real world. And I would hope that Goldman is not meaning to suggest that any ‘Protocol’ could make reflection redundant.

I would as well argue philosophy need not leave such permanent scars and no longer does. And a glance at recent business ethics texts by philosophers (at least the ones that I have seen) should be enough to convince Goldman that most of those authors fully agree that a first priority must be striking the right balance between theory and praxis. With such a glance he will see that even philosophers can be sensible – when we absolutely must.

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© Copyright 2008 by the author, Bruce Howes.

Temptations in the Office: Ethical Choices and Legal Obligations

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INTERNATIONAL LEGITIMACY AND WORLD SOCIETY

by Ian Clark. Oxford: Oxford University Press, 2007. 280pp. Cloth. $65.00/£32.00. ISBN: 9780199297009.

Reviewed by Mark Rigstad, Department of Philosophy, Oakland University. Email: Rigstad [at] oakland.edu.

pp.948-951

Ian Clark’s INTERNATIONAL LEGITIMACY AND WORLD SOCIETY (2007) is an ambitious and quite successful attempt to answer questions that were raised but left open in his LEGITIMACY IN INTERNATIONAL SOCIETY (2005). In the earlier study, Clark examined how historically contingent norms of legitimacy have been periodically renegotiated by states from the Westphalian peace settlement to the post-Cold War era. In the present companion volume, he employs the same historicist methodology – which explicitly owes its pedigree to the English School of international relations theory – in order to investigate the extent to which “international society has been persuaded to adopt new normative frameworks because it has been persuaded that world society has a right to be heard, and for its values to be incorporated” (p.11). His investigation proceeds by means of a series of historical case studies in which the terms of international legitimacy were recast in the process of negotiating peace settlements following major wars. This focus on post-war negotiations as the seminal moments for periodic restructuring of legitimacy builds upon one of the general observations of his previous book (p.37). New terms of legitimacy tend to emerge as victors’ norms. Separate chapters detailing these negotiations cover the post-Napoleonic abolition of slavery among the eight European powers that signed on to the Congress of Vienna in 1815, the regulations of warfare that emerged at the Hague conferences of 1899-1907, the failed attempt to include a norm of racial equality in the League Covenant at Versailles in 1919, the successful attempt to include international norms of social justice governing labor in the same Versailles Treaty, the insertion of human rights provisions at San Francisco in the UN Charter of 1945, and the requirement of democratic governance among European member states in the post-Cold War Charter of Paris. These historical chapters, which are too richly detailed to treat fairly here, are bounded by theoretical chapters that outline Clark’s general findings about the nature of the relationship between international society and world society.

In the theoretical chapters, Clark brings together a plausible blend of insights from both the English School and constructivist approaches to international relations theory. “What both share is a view of inter-state relations as being shaped by common understandings and values that impact upon state behaviour” (p.208). Whereas international society consists of official government actors, world society comprises individual citizens and transnational networks of nongovernmental organizations (INGOs). To understand the nature of [*949] these societies qua societies is to understand their “shared values” or “normative beliefs” (pp.34, 176-177). Although these two societies are “analytically separate,” they share an “increasingly overlapping” history of mutual interaction and interdependence (p.7). What emerges from the central case studies – as well as brief concluding accounts of the Ottawa Convention on Land Mines, the Rome treaty establishing the International Criminal Court, and recent gatherings of the World Trade Organization and the G 7/8 – is a narrative of “normative integration between international and world society” (p.208).

Clark sometimes touches upon the ways in which international society has shaped the development of world society, sometimes by facilitating and sometimes by obstructing the efforts of INGOs. But these moments are only elaborated insofar as they serve his central aim, which is to trace the direction of influence that world society has exercised over international society by acting as a “norm negotiator” (p.192). Norms of legitimacy shape the identities and interests of the members of international society by setting conditions for inclusion and exclusion. These norms are not to be understood as the principles of some ideal theory, but as part of the historically contingent and evolving consensus of international society (pp.32-33, 211). And since these norms sometimes pull in different directions, legitimacy is best understood as the “equilibrium point around which international society develops a consensus” (p.208). When international society periodically renegotiates its norms of legitimacy, in part under the influence of INGOs, “a critical identity shift takes place at the interface of international and world society” (p.209). Contrary to classical realist accounts of international relations, Clark maintains that these changes in norms of inclusion/exclusion are at least as important for understanding international relations as the strategic interplay of state interests. Among other things, states want legitimacy. The normative conceptions of international society tell states how to acquire and maintain this good. While recent constructivist IR theory has been “preoccupied” with this question of “how states come to know what they want” in the context of international society, Clark’s monograph addresses an important lacuna in the literature by focusing on “how international society comes to know what it wants” (p.178). To some extent, however modest, international society sometimes learns what it wants by paying heed to the claims of world society.

If the influence of world society sometimes instructs international society about where its true interests lie, it certainly does no do so with anything approaching sovereign or hegemonic authority. Not only is Clark careful to avoid any such exaggerated claims about the influence of world society, he takes great pains to argue that international society is far from being passive in its exchanges with world society. Although “legitimacy enhances power,” it is also the case that “power facilitates the adoption of certain notions of legitimacy” (p.19). The society of states sometimes must listen to the claims of world society in order to learn what legitimacy requires; but it also tends to grant influence to precisely those world society actors that are most likely to [*950] advance its preconceived interests. The latter, somewhat neglected side of the story makes it mysterious, if not dubious that, as Clark claims, “in most of the cases reviewed in this book, international society appeared to have no particular ‘interest’ in the norm proposed for adoption” (p.21). This claim would indeed be misguided if it were taken to mean that world society has somehow managed to impose new norms against the interests of international society. Clark rejects such an account of the transformations of legitimacy norms, however. Instead, world society actors, with the crucial aid of sympathetic and powerful victor states, manage to persuade international society to embrace changes in its identity and “concomitant changes in its interests” (pp.204, 212). There is no static opposition of interests between world society and international society, but a “progressive integration” between them that yields “reciprocal benefits” (pp.210, 211). On the one hand, international society needs world society as a source of instruction about conditions of legitimacy, especially insofar as these conditions hinge upon human rights norms; and on the other hand, world society needs international society to enforce these norms (p.196).

The extent to which world society now penetrates international society has given rise to two important theses that Clark is especially concerned to repudiate. The first is the notion, popular among “second-generation solidarists,” that the rise of world society’s influence amounts to a displacement of international society (p.33). To the contrary, the patterns of historical change examined here show that we are not simply seeing a transition from a society of states to a new world society of individuals. Detailed analysis of the historical record suggests a far more complex process, which cannot be explicated in terms of a single theoretical model of international social transformation (p.206). The second thesis that Clark is concerned to repudiate would challenge his basic terms of analysis. If, as he admits, world society’s influence has arisen “only in proportion to its relative abandonment of a ‘separate level of existence,’” then one might reasonably wonder whether it makes sense to continue talking about how it confronts and engages with international society (pp.210, 187). His response to this objection has two prongs, one contemporary, and one historical. Since the process of mutual integration between world society and international society is still underway, it “may remain helpful to cling to a concept of world society as a tendency or incomplete process” (p.188). Moreover, if we were “to allow one concept to swallow the other,” then we would forsake “the language needed to convey the rich history of the encounters between these two societies at a series of formative moments” (p.213). The implication of both arguments is that there may or may not come a time when the distinction between world society and international society is no longer significant for understanding geopolitics. We shall have to wait and see.

Clark’s INTERNATIONAL LEGITIMACY AND WORLD SOCIETY is clearly written and organized, informed and fascinating in its historical details, and methodologically cautious in the articulation of its findings. The author carefully lays out his theses in relation to [*951] the relevant literature, and he is consistently fair in his treatment of those with whom he disagrees. The book should be of interest not only to historically-minded theorists of international relations, but also to INGOs and statesmen who wish to learn about the contingencies that lead to successful or failed norm entrepreneurship.

REFERENCES:
Clark, Ian. 2005. LEGITIMACY IN INTERNATIONAL SOCIETY. Oxford: Oxford University Press.

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© Copyright 2008 by the author, Mark Rigstad.

International Legitimacy and World Society

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INTERNATIONAL ECONOMIC LAW: THE STATE AND FUTURE OF THE DISCIPLINE

by Colin B. Picker, Isabella D. Bunn, and Douglas W. Arner (eds). Oxford, England and Portland, Oregon: Hart Publishing, 2008. 344pp. Paper: $60.00/£35.00. ISBN: 9781841137551.

Reviewed by Susan L. Karamanian, The George Washington University Law School. Skaramanian [at] law.gwu.edu.

pp.942-947

INTERNATIONAL ECONOMIC LAW: THE STATE AND FUTURE OF THE DISCIPLINE is a collection of some of the papers presented at the 2006 meeting of the American Society of International Law’s International Economic Law Group (IELG). The 2006 meeting was held at Bretton Woods, New Hampshire, the birthplace in 1944 of what would become the post-war international financial and economic system. The conference organizers, Isabella D. Bunn of the University of Oxford and Colin B. Picker of the University of Missouri Kansas City, along with IELG leadership selected an iconic venue in an effort to inspire the participants. The festivities were held in the historic Mount Washington Hotel, the venue of the 1944 conference.

The focus of the 2006 IELG conference was not the likely one, the history of international trade and finance since 1944. Nor was it the second one that may come to immediate mind, the establishment of the three post-war economic pillars, the World Bank, the International Monetary Fund and the General Agreement on Tariffs and Trade (GATT), later the World Trade Organization (WTO), and the whirlwind of activity associated with each institution.

Instead, the meeting examined the current and future state of a relatively new discipline and what the discipline, understood in a broad sense, means for world order. The organizers pushed the participants to examine international economic law from a dynamic perspective with an emphasis on the future. Views from beyond Europe and the United States were presented, as were ones that added new twists, e.g., the feminist view (Tracey Epps and Rose Ann MacGillivray), the WTO and “opportunists” (Sara Dillon), and the domestic corporate law course as a forum for teaching international economic law (Franklin A. Gevurtz).

In addition to producing a conference with substantial scholarship as reflected in the papers, the IELG leadership had a more ambitious agenda – namely, to use the meeting to create a new, non-US based world forum dedicated to international economic law. True to the mission, the Society of International Economic Law (SIEL) was launched in Geneva, Switzerland in July 2008. SIEL is aimed at academics and academically-minded lawyers and officials, and expressly seeks members from “all parts of the world.” (See Society of International Economic Law available at http://sielnet.org.) [*943]

Bunn and Picker, along with Douglas W. Arner of the University of Hong Kong, edited the conference papers. The results of their efforts and those of the contributors are far more than just another account of trade and investment law with an inward, rigid or technical examination of institutions and the jurisprudence. This book is not a primer on international economic law. Also, the book may be of little use to the reader who is not interested in a critical assessment of the values and policy permeating the discipline. And, therein rests the work’s value, as quite often scholarship in the field gets bogged down in regulatory details without regard to the big picture and other disciplines.

Three chapters, research and scholarship, teaching, and practice/service, frame INTERNATIONAL ECONOMIC LAW. The treatment of these arguably narrow topics, however, is expansive at times. Many of the contributors examine the issues in depth and provide a variety of perspectives, which makes the book useful to an audience beyond the academy. Practitioners and officials of governments and international institutions who undertake their work without reflecting on its policy implications are apt to be blind-sided by the unexpected. This book, if studied closely, should enable the reader to anticipate and deal with the likely changes on the horizon.

Another of the collection’s strengths rests in the diversity of authors and subjects covered and the creativity and critical analysis many of them bring to the subject matter. The 21 contributors are from Europe, Asia, including the sub-continent, the Middle East, New Zealand, Canada and the United States. They are mainly academics, many with experience outside of the university setting, with a few practitioners. Most of the essays adeptly intertwine theory with real-world lessons.

The work’s subjects include an extensive treatment of how international economic law is studied, investigated, and analyzed, what makes it a discipline, its relationship to other disciplines, and the significance of this discussion beyond the discipline and the academy. Another recurring subject is the role of institutions, the WTO, IMF, World Bank, private corporations, and law faculties, in shaping, managing and responding to the discipline. Subjects such as international relations theory, economic theory, sociology, and public international law permeate the discussion on international trade, international banking, and international investment law.

Tomer Broude sets the stage for the book’s first chapter on research, as well as for the other two chapters on teaching and practice, by broadly and critically assessing the relevant landscape. According to Broude, the discipline’s roots, based on the theory that free markets lead to welfare maximization, manifest themselves through the pragmatic liberalism driving the important and essential work of John Jackson and his Michigan school. Yet, the theory may not adequately explain what has happened in practice, as Broude looks to the works of others who have questioned whether the multilateral and bilateral trade regimes have enhanced welfare. His point is not that the theory was wrong from the outset but that something is missing, mainly the [*944] “extra legal” tools to understand and explain.

Gregory Shaffer, Joel P. Trachtman and Andrew Lang respond to Broude by exploring research methods. Shaffer and Trachtman, in separate essays, call for empirical work with Shaffer arguing for a new legal realist approach to the discipline that would use both quantitative and qualitative methods. Both recognize that empirical work alone may not suffice, and it could and should be subjected to a healthy array of methodological criticism. Both admit, however, that serious empirical work would likely be illuminating and, for Shaffer at least, perhaps reshape predispositions. Lang draws on institutional theory within the discipline of sociology to make the same point, and he takes the next step by applying the reasoning and identifying specific research projects and objectives. For example, he makes the case that trade institutions are normative systems, and this, in turn, affects policy. His analysis reflects Shaffer’s plea for qualitative work, an effort that would examine who are the relevant actors, what motivates them when they act and with what result.

Other authors, namely Frederico and Matteo Ortino and Emmanuel Voyiakis, respond to Broude by examining the contours of international economic law. The Ortinos question the role of international law, and they effectively use case studies to prove their point. In their view, to understand cross-border transactions one must be grounded largely in municipal law and private legal instruments, including economic law. Voyiakis, on the other hand, argues thoughtfully about the relationship between WTO law and international law, re-defining and addressing the separatist argument. His essay pushes the reader to look beyond a simple characterization of the problem as one system of law versus another. Instead, the critical issue involves the values each system promotes, and the extent to which these values conflict.

The reasoning in the first chapter can be dense, at times, and its relevance may not be readily apparent to the lawyer in the trenches fighting one of the many daily international economic law battles, whether before the WTO, an international arbitral tribunal, or a municipal court. Yet, the issue of what is international economic law and how it should be studied, analyzed, and presented is important when considered outside of the academy. The lack of a clear understanding of the relevant sources of law and their effect, or at least an appreciation of the complexity of these issues, could result in irrelevant or misguided arguments and bad results.

The book’s second chapter, devoted to the teaching of international economic law, has a relatively narrow focus. Some of the essays, however, draw in broader themes beyond pedagogy. Epps and MacGillivray use empirical methods (data gathering based mainly on interviews and the review of (a) websites about law school faculty members and their teaching and publication records, (b) course enrollment records, and (c) international economic law journals) to establish “a real dearth of feminist perspectives in international economic law, which contrasts to public international law more generally” (p.169). They recognize and identify some of the women who have contributed scholarship to the field. An [*945] interesting focus, not developed but perhaps ripe for later work, would be to examine the role and influence of women trade negotiators who, through their position, have yielded substantial authority – e.g., Carla Hills, Charlene Barshefsky, and Susan Schwab (US Trade Representatives) and Mari Pangestu (Indonesia’s Minister of Trade). Have these women provided “fresh [feminist] insights” which would act “as a stimulus for growth and development” in the field (p.159)?

Frank Gevurtz and Constance Z. Wagner, in separate essays, examine the teaching of international economic law with a focus on corporate responsibility. Gevurtz documents how domestic corporate law imposes certain corporate social responsibility norms. In this and other respects, according to Gevurtz, the distinction between domestic corporate law and international economic law is not that clear. His analysis builds on his firmly-held belief, as reflected in other works, that disaggregating the international from the domestic can be counterproductive. Wagner, on the other hand, advocates a separate course or module on corporate responsibility in the international business transactions curriculum. Sandwiched between the contrasting essays of Gevurtz and Wagner is Seema Sapra’s discussion of teaching international economic law in India, a nation that has undergone substantial economic growth without a clear reform agenda. Sapra, like Gevurtz and Wagner, focuses on the appropriate vehicle for teaching the subject of international economic law, which she considers in a broad context, necessarily tied to domestic governance reform.

Gevurtz, Wagner, and Sapra offer cogent and reasonable arguments for their respective approaches, and none seems strident in his or her approach. Instead, they collectively offer their ideas for the readers’ taking, with Sapra’s of specific relevance to India.

The final chapter is devoted to the practice of international economic law. The essays in this chapter have a strong real-world dimension, which is a nice balance to the theory of the earlier chapters. Douglas Arner provides one of the book’s few overviews, a useful survey of international financial law. The analysis is prescient in its conclusion, as the current financial uncertainty evidences the lack of a crisis resolution mechanism. David A. Gantz documents Vietnam’s accession to the WTO and provides interesting and detailed insight into reforms of Vietnam’s domestic legal system. His work, in addition to being an important record of the accession process, takes on broader issues such as the long-term consequences of WTO membership.

A thought-provoking essay is submitted by Rumu Sarkar, who urges that the World Bank establish an appellate body within the bank, similar to the WTO institutional structure, to review certain decisions of the World Bank Inspection Panel (WBIP) arising out of a complaint by an affected party. At first blush the proposal is curious. Sarkar does not argue that the WBIP, which does not make legal findings, has made bad decisions. She acknowledges that a claim brought before the WBIP is based solely on the World Bank’s failure to follow its own internal guidelines, as opposed to a nation’s failure to follow a treaty. Hence, what is driving her [*946] effort? First, she relishes the development of international administrative law within the World Bank. Second, following the guiding principle of the WBIP, she argues for greater accountability and transparency within the World Bank through the appellate body. Her creative reasoning sets out a detailed draft protocol for an “appellate board” (which, she argues could also be established within the IMF). The unsettled issue, however, is whether there is a pressing need to add this legal dimension to the work of the WBIP.

Andrea Bjorklund’s essay on precedent and investor-state arbitration helps ease the transition from the previous chapters on research methods and teaching. Bjorklund combines legal formalism and a theoretical orientation in arguing that arbitral tribunals are establishing a modern international law of investment and they are doing so in a fairly disciplined manner, somewhat like courts’ reliance on precedent. The significance of her work goes beyond documenting this development, which is in itself important. Bjorklund also identifies various challenges to the process – e.g., the lack of formal rules for steering a tribunal to a particular prior decision, the lack of hierarchy in the tribunals, and the lack of defined ethical standards to guide arbitrators. Like many of the essays, Bjorklund’s contribution tees up a variety of issues for further examination.

The last essay, Andreas F. Lowenfeld’s submission on IMF conditionality, or what he calls the “jurisdiction to prescribe,” is a fitting final one. Lowenfeld targets issues addressed in some of the earlier essays – e.g., sovereignty, the narrowing distinction between international and domestic, and the international acceptance of certain practices. He sets out four proposed principles for the IMF and other international organizations in assessing the legitimacy of regulatory measures that cross national barriers. The proposed principles, measures of “reasonableness,” are consistent with the Restatement of the Foreign Relations Law of the United States’ standards for evaluating the law’s extraterritorial reach. Lowenfeld does not purport to give answers, but instead, as he has done ably over the years, he offers guidance and wisdom. For example, under his “mirror principle,” “[t]he more we would regard such a prescription as excessively intrusive, the less justification there is to break the jurisdictional barrier and prescribe it as a condition” (p.328, emphasis in original). He defines “we” as “first world nations such as the United States, Japan, the United Kingdom, the European Union or one of its prickly member states” (p.328). Ever cautious, Lowenfeld acknowledges the flexibility of the four proposed principles and the need to consider the economic pros and cons of most regulatory decisions.

Lowenfeld’s reasoning rings loudly when one considers the increased foreign investment in the United States, particularly from sovereign wealth funds, and the controversy associated with Dubai Ports World’s proposed acquisition in 2006 of the management of six US ports. Like some of the other authors in the book, he takes a pragmatic view of the issues. He is not wedded to inflexible notions of sovereignty when prudence dictates that a more studied and reasoned understanding of the [*947] world’s problems could bring relevant parties together to reach a better result.

INTERNATIONAL ECONOMIC LAW is a fitting tribute to the Bretton Woods international financial and economic system, with all of its complexities and challenges, and to all of those who have helped build and shape it. The work is necessary reading for the current and future generation of lawyers, policymakers, and scholars from around the world who are committed to maintaining the relevance and development of the discipline.

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© Copyright 2008 by the author, Susan L. Karamanian.

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THE FOUNDERS’ SECOND AMENDMENT: ORIGINS OF THE RIGHT TO BEAR ARMS

by Stephen P. Halbrook. Chicago, IL and Oakland, CA: Ivan R. Dee in association with The Independent Institute, 2008. 425pp. Hardcover. $28.95. ISBN: 9781566637923.

Reviewed by Robert J. Spitzer, Distinguished Service Professor, Political Science Department, SUNY Cortland. Email: robert.spitzer [at] cortland.edu.

pp.937-941

The continuing national debate over the meaning and consequences of the Constitution’s Second Amendment came to a boil this past June in the Supreme Court’s landmark ruling, D.C. v. HELLER. In its first express opinion on the amendment’s meaning in seven decades, the high court’s five member majority ruled, for the first time in American history, that the right to bear arms protects an individual right to own a handgun for the purpose of self-protection in one’s home. HELLER set another “first” in that it became the first federal court in history to strike down a gun regulation (D.C.’s strict ban on handgun possession, enacted in 1976) on Second Amendment grounds. While it did not overturn its 1939 ruling in U.S. v. MILLER, which interpreted the amendment’s meaning as a militia-based right, it now expanded the amendment’s protective umbrella to include at least a limited “individual” right, an interpretation that first gained prominence in the 1980s. In addition to personal self-defense, the other tenet of the individualist view – that the amendment somehow protects citizens’ rights to own guns to thwart tyrannical impulses of our own government – was mostly ignored by the court.

In his new book, lawyer Stephen Halbrook purports to offer “the first book-length account of the nature of the Second Amendment . . . during the generation of the Founders of the American republic” (p.ix). The author’s claim is disingenuous, however. While no book-length treatment focuses exclusively on the founding period, many books examine this ground in extravagant detail (e.g. Kennett and Anderson 1975; Cornell 2000, 2006; DeConde 2001; Spitzer 2001; Uviller and Merkel 2002; Bogus 2002). Unfortunately, these writings receive little or no attention from Halbrook. But more about that later.

Before proceeding with this review, a matter of the author’s credentials obliges mention. In two biographical notes accompanying this book, as in the author’s many previous publications (many of which I have read), Halbrook identifies himself as a prolific author, researcher, and “practicing attorney in Fairfax, Virginia.” What he steadfastly fails to mention, however, is that he has served for many years as counsel for the National Rifle Association (the NRA is headquartered in Fairfax), having represented the NRA and its legal views in court, before Congress, at NRA gatherings, and in many other venues. This advocacy role leads to an important question: is it possible for the NRA’s lead lawyer to produce writing that would ever deviate from this organization’s longstanding fealty to [*938] unfettered gun rights? It is a fair question. The nearest proximity to an answer lies in an evaluation of the work based on its own merits. I turn now to that evaluation.

Halbrook’s analysis covers the colonial period, the Revolutionary War, the period of Constitution formation and adoption, the formulation of the Bill of Rights during the First Congress, and the early Federal period. The book concludes with a brief summary of how, in the author’s view, the amendment should be interpreted today. Suffice it to say that Halbrook’s view closely matches that of the HELLER majority. In his lengthy chronicle, Halbrook searches documents, text, letters, articles, speeches, and other references to guns, arms, and rights. In Halbrook’s telling, the revolutionary struggle against the British, the establishment of the American states and state, and the eventual addition of the Second Amendment, involved militia activities by citizens of the sort referenced in the Second Amendment, which says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” But Halbrook also insists these activities enshrined, and are inseparable from, an individual right to have guns unrelated to militia service, in the way modern-day individualists choose to read the amendment.

The underlying problem with Halbrook’s analysis is three-fold: first, it tries to paste a modern concept into an historical construct; second, it leaves by the wayside any context, evidence, arguments, or complexity that does not support his point of view; and third, Halbrook pursues his task like a lawyer trying to persuade a jury rather than like a researcher trying to understand what the past actually shows. Thus, historical references to individuals and guns prove his argument, but evidence that shows the opposite also somehow proves his argument, too. In Halbrook’s view, any early American who had a gun was exercising an “individual” right, regardless of who, why, or under what circumstances. A non-falsifiable argument may sway a jury, but it is not social science.

For example, Halbrook laces his writing with references to the bearing of arms as an “individual” right, repeatedly inserting the word or its synonym next to “right to bear arms” as if to make his point solely by sheer repetition. Even though historians largely agree that the Second Amendment phrase “keep and bear arms” had an almost exclusive military meaning – historian Garry Wills, for example, concludes plainly that the phrase “refers to military service” (Wills 1999, at 257) – Halbrook misses no opportunity to claim the opposite. For example, after a lengthy quote from Samuel Adams that quotes extensively from William Blackstone and that references arms for “self-preservation and defence” and similar phrasing, Halbrook dubs this the “individual right to have arms for self-defense” (p.20), gliding over the fact that the quoted essay is Adams’ commentary on the Glorious Revolution of 1688, which had nothing whatever to do with obtaining or using guns for personal self-defense in the modern “individualist” sense. It was indeed about revolution for one form of government and against another at a crossroads moment in British history, but it had nothing to do with what Halbrook dubs “individual [*939] preservation” (p.20) in the way that term would be used in modern society.

In two chapters, Halbrook discusses early state constitutions, divining in all of them support for his individualist reading. Yet this forty page treatment studiously obscures the simple fact that, of the thirteen pre-1787 state constitutions, only five of them mentioned arms in any manner whatsoever; of those, only one – Pennsylvania’s – referenced anything even vaguely resembling an individual right. (The rest referenced exclusively military defense.) Here it is in its entirety: “That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” Even leaving aside the obvious military nature of the wording taken as a whole, the reference to “defence of themselves” sounds to modern ears as something like an individual right. Yet a recent study of this language in Pennsylvania’s Constitution of 1776 (Kozuskanich 2007) concluded that this wording resulted from the chronic inability of the state government to protect Pennsylvanians from Indian attacks. The wording was an attempt to achieve community safety by establishing and enforcing a civic duty of all militia-eligible men to participate in defense from Indian attacks, not Halbrook’s individualist right. In fact, the pre-1787 state constitutional record undercuts rather than supports Halbrook’s thesis, but that does not deter him from proclaiming the opposite.

Nowhere is Halbrook’s cut-and-paste history more evident than in his discussion of the Second Amendment’s crucial formulation during the First Congress. He must contend with the fact that all the extant recorded debate and discussion regarding the right to bear arms and what became the text of the Second Amendment was military in nature. Nowhere is there any reference to a personal or individual right to have guns, whether related to personal self-defense or hunting, and certainly not to armed revolt against the new American government. Symptomatic of the concern with military matters, the subject most extensively discussed in congressional debate on the right to bear arms was whether an exemption from militia service for those “religiously scrupulous” (what today is designated as “conscientious objector” status for those seeking to avoid the military draft on religious grounds) should have been included in the amendment, as was the case in several drafts. After quoting Elbridge Gerry, who complained that the religious exemption should be limited only to those affiliated with a recognized religious sect, such as the Quakers, Halbrook offers this explanation of the quote’s meaning: “Keeping and bearing arms was a right of ‘the people,’ none of whom should be disarmed under any pretense, such as the government’s arbitrary determination that they are religiously scrupulous” (p.267). Halbrook twists the right to opt out of military service for religious reasons into a protection against the government from disarming those with religious beliefs!

And regarding Halbrook’s (and others’) notion that the Second Amendment somehow enshrines or protects a right of [*940] citizens, whether as individuals or as members of a militia, to keep guns to deter a tyrannical American government, the text of the Constitution itself dispels that proposition. As it says in Article I, Section 8, militias are to be used to “suppress Insurrections,” not cause them. Yes, American patriots took up arms in whatever manner they could to throw off British tyranny, but they were doing so not as private individuals, but as part of a collectivity in a great patriotic revolution. Even before the oppressor was defeated, Americans moved to create their own civil government, where citizens could express themselves through speech, ballots, the jury box, and peaceful petitioning of their government. The American Revolution was not, as Halbrook would have it, a struggle to use “the right to keep, bear, and use arms to check governmental oppression” (p.123); it was a struggle to replace oppressive British rule with a just American government, although the final form of that government took a decade to hammer out.

Halbrook sidesteps these manifold problems because he chooses not to confront the prodigious scholarly writing on these and other subjects. If the first job of any earnest scholarly investigation is to take account of other writing in the same field, Halbrook fails on that count alone. In particular, he ignores the most important recent book on the historical Second Amendment, Saul Cornell’s persuasive A WELL-REGULATED MILITIA (2006), which argues that both the modern individualist and collective views are defective. The amendment was about a civic obligation or civic right, he says. And he makes a strong case. How would Halbrook deal with Cornell’s argument? We do not know, because he ignores it.

As the Supreme Court made clear this past summer, judges can change the law, although there is less than consensus, even among conservatives, that Justice Antonin Scalia succeeded in making the case for the majority in HELLER. Federal Judge Richard Posner (2008) opined recently that Scalia’s opinion, though lengthy, “is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.” But even as judges can change law, they cannot change history. As much as Halbrook would like to bend history to suit the politics of his employer, he is not entitled to his own history. As the late Senator Daniel Patrick Moynihan was fond of saying, people are entitled to their own opinions, but not to their own facts. This axiom has escaped Mr. Halbrook.

REFERENCES:
Bogus, Carl (ed). 2000. THE SECOND AMENDMENT IN LAW AND HISTORY. New York: The New Press.

Cornell, Saul. 2000. WHOSE RIGHT TO BEAR ARMS DID THE SECOND AMENDMENT PROTECT? New York: Bedford/St. Martin’s. [*941]

Cornell, Saul. 2006. A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA. New York: Oxford University Press.

DeConde, Alexander. 2001. GUN VIOLENCE IN AMERICA. Boston: Northeastern University Press.

Kennett, Lee, and James LaVerne Anderson. 1975. THE GUN IN AMERICA. Westport, CT: Greenwood Press.

Kozuskanich, Nathan. 2007. “Defending Themselves: The Original Understanding of the Right to Bear Arms.” 38 RUTGERS LAW JOURNAL 1041-70.

Posner, Richard A. 2008. “In Defense of Looseness.” THE NEW REPUBLIC, August 27.

Spitzer, Robert J. 2001. THE RIGHT TO BEAR ARMS: RIGHTS AND LIBERTIES UNDER LAW. Santa Barbara, CA: ABC-CLIO.

Uviller, H. Richard, and William G. Merkel. 2002. THE MILITIA AND THE RIGHT TO ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT. Durham, NC: Duke University Press.

Wills, Garry. 1999. A NECESSARY EVIL. New York: Simon and Schuster.

CASE REFERENCES:
D.C. v. HELLER, 554 U.S. ____ (2008).

U.S. v. MILLER, 307 U.S. 174 (1939).

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© Copyright 2008 by the author, Robert J. Spitzer.

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DEFENDING HUMANITY: WHEN FORCE IS JUSTIFIED AND WHY

by George P. Fletcher and Jens David Ohlin. New York: Oxford University Press, 2008. 288pp. Hardback. $27.95/£14.99. ISBN: 9780195183085.

Reviewed by Harold J. Krent, Dean and Professor of Law, Chicago-Kent College of Law. Hkrent [at] kentlaw.edu.

pp.933-936

George Fletcher and Jens Ohlin’s book, DEFENDING HUMANITY, presents a remarkable tour through the theoretical, historical, and cultural justifications for the use of force by one country against another. Drawing from sources as disparate as the Bible, contemporary philosophy, UN documentary history, and the domestic law of self defense, the authors present a case for why the international community should embrace the concept of “légitime defense,” namely that countries may use force both to defend other countries as well as to protect groups threatened within those other countries. The French antecedents of légitime defense support an understanding of self defense richer than our own more narrow conception of collective defense as under NATO. Although many will dispute the central arguments, all readers will benefit from grappling with their account, and all should enjoy the lively prose.

At the core, Fletcher and Ohlin assert three propositions central to the study of the use of force internationally today. First, they argue that governments may not only use force to repel overt attacks on their soil, but also may launch preemptive attacks. They caution, however, that the legitimacy of such attacks hinges on whether the threat of force is imminent, and note that the broader the concept of imminence, the less the need to define an attack as “preemptive” rather than defensive. They articulate no precise lines but suggest that imminence “must be something broader than troops crossing the border, but something narrower than mere preparations for war such as strategic planning” (p.159). As they do throughout the book, they rely on principles of self defense in domestic law in reaching their conclusions. In the domestic context, they note, there is no such thing as “preemptive” self-defense – either the threatened use of force was imminent or not. They continue that the debate over the propriety of preventive or preemptive war should be refocused on a more contextualized understanding of imminence.

In the wake of the United States’ invasion of Iraq, the authors (p.162) join others who have condemned President Bush’s policies as precipitous. To them, the domestic analogy holds: Individuals cannot take vengeance on aggressors when the threat of serious bodily harm is not imminent. Taking a life when the aggressor is sleeping is almost never justified, no matter how heinous the aggressor’s behavior while awake. Our understanding of women who kill their abusers is consistent with this paradigm because, to be eligible for self-defense, defendants must show that they reasonably believed that their abusers would imminently inflict serious bodily injury. In the international arena, [*934] Israel’s bombing of the Osirak reactor in 1981 similarly cannot be justified as defensive or “preemptive” because Iraq’s nuclear plans were at too early a stage. Fletcher and Ohlin add (pp.96-102) that any preemptive attack must also be proportionate. Argentina’s foray into the Falklands would not have justified a wide-ranging attack by Great Britain on Argentina itself.

Second, the authors argue that countries have the right to come to the defense of others. The underlying premise of NATO, in other words, is entirely consistent with their thesis. Fletcher and Ohlin persuasively argue further that the rationale for defense of others is not limited to treaties or other alliances. All sovereign countries enjoy the right to a continued existence, and thus every country legitimately could have come to Kuwait’s defense when Saddam Hussein’s armies invaded, irrespective of a treaty or formal request for help. The French tradition of légitime defense helps bolster their position, despite what some have argued is a narrower view in the UN Charter. Indeed, their novel retelling of the drafting history is informative. Similarly, under the United States’ Model Penal Code (MPC), adopted widely by the states (at least in part), individuals are justified in taking a life when coming to the aid of others who face an imminent risk of death or serious bodily harm. The domestic analogy helps gird the authors’ position.

In what might be the most provocative and innovative part of the book, Fletcher and Ohlin extend their analysis to the use of force for humanitarian purposes. Countries have the right to use force not only to help other governments that have been attacked or face imminent attack, but also to extend aid to what they term “nations” within other countries. “Nations” in their terminology, as opposed to the more cabined notion of internationally recognized states, refer to groups of peoples defined by ethnicity, religion, and/or culture. Although the authors recognize (p.138) that such peoples may lack legal personalities under international law, they are not without protection. The right of self defense, they argue (p.146), extends to all peoples or nations, and thus the right to defend others includes not just states but peoples or nations attacked within. For instance, the United States was justified, they argue (p.152), in coming to Kosovo’s aid because Albanian Kosovars constituted a distinct nation within Serbia who were at risk of annihilation. The same might be true of Kurds in Iraq during the Saddam Hussein massacres of the early 1990s.

Not all of the authors’ exegesis is seamless. For instance, they initially reject the relevance to an international system of “excuses” (as opposed to justifications) for the use of force, by which they mean the exercise of force which, while not condoned, can be pardoned by the international community. In domestic law, excuses comprise a category including some forms of duress, insanity, and necessity, which can at times either exonerate or mitigate punishment. In the international arena, what if countries are compelled by others to use force, or what if they invade another because of widespread starvation at home? Fletcher and Ohlin suggest (pp.47, 58) early in the book that there is no room for “excuse” in international law. Their rejection of such excuses arguably rests on the insight that, while domestic law [*935] and the MPC focuses on blameworthiness and punishment, the international order rather needs “to be able to make well defined charges of aggression and to respond with well-grounded claims of justification” (p.48). Countries use force, whether offensively or defensively, at the risk that the international community ex post will view their conduct as illegitimate. The authors urge that international law cannot brook legitimating acts of war by two parties at once. If the use of force is justified by Country A, then Country B cannot legitimately counter that force. In other words, Country B’s use of force to repel the attack neither can be justified nor excused in the eyes of the international community.

Later in the book, however (p.178), Fletcher and Ohlin suggest that the salience of reasonable mistake in international law, which they and others have likened to an “excuse,” should be further studied. Countries may not only misperceive when an attack is imminent, but they also may err in determining when defense of others is legitimate. For instance, should the United States escape censure or other sanctions internationally for its apparent mistake that there were weapons of mass destruction in Iraq and that the prospect of their use was imminent? Although they hedge, the authors apparently are of the view that, as long as the mistake is reasonable and based on publicly acknowledged data, a mistake should excuse the invasion even if otherwise unjustified under international law. Fletcher and Ohlin’s acknowledgment that a “reasonable mistake” may exonerate a country is difficult to reconcile with their earlier goal of achieving an international system that plainly demarcates legitimate from illegitimate behavior. They do not try to resolve the tension between the earlier argument (pp.47-48) that “strong” rights of self-defense are needed in the international arena with the subsequent recognition of a special role for “reasonable mistake.”

Moreover, the authors’ effort to expand the international understanding of self defense to include intervention to defend “nations” subject to persecution in other states enhances the likelihood of ex post second-guessing even more than their allowance of a “reasonable mistake.” Although Fletcher and Ohlin are sympathetic to the United States’ defense of Kosovo, they might not be as sympathetic to Russia’s more recent use of force ostensibly to protect individuals in South Ossetia. Arguably, residents of South Ossetia fall within the authors’ definition of “nations.” Perhaps the South Ossetians were justified in rejecting the rule of Georgians, but perhaps they constitute merely a minority that has failed to achieve its political goals through the ballot box and then unjustifiably resorted to violence. There is no accepted metric to assess when force is justified to protect “nations” within countries, whether the Uigurs in China or the Kurds in Turkey. The authors’ argument that force can be deployed to defend humanity thus makes the goal of “well defined charges of aggression” that much harder to attain. The more subjective the contexts in which the use of force is justifiable (or excused), the more difficult it is to police international behavior. Given the widely divergent views on whether the use of force for humanitarian purposes is legitimate in Darfur, Georgia, or Tibet, it is not likely that a consensus can be [*936] attained to distinguish between aggression and legitimate defense on humanitarian grounds.

In short, DEFENDING HUMANITY is an excellent book, and its probing analysis should help sharpen readers’ own views of when countries should go to war. Whatever its limitations, the book may well succeed in prodding the international community to rethink when force should be justified.

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© Copyright 2008 by the author, Harold J. Krent.

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THE NEXT JUSTICE: REPAIRING THE SUPREME COURT APPOINTMENTS PROCESS

by Christopher L. Eisgruber. Princeton, NJ: Princeton University Press, 2007. 272 pp. Cloth. $27.95/£16.95. ISBN: 9780691134970.

Reviewed by Nancy Scherer, Department of Political Science, Wellesley College. Email: nscherer [at] wellesley.edu.

pp.928-932

Former law professor and current Princeton University provost Christopher L. Eisgruber believes the Supreme Court appointment process is broken. Eisgruber is certainly not the first to argue this point (e.g., Carter 1995). But rather than focusing only on why the process is defective, the author sets out two additional goals for his book: (1) to provide a better description of how the Court works; and (2) to provide a prescription for repairing the Supreme Court appointment process (p.x). The latter goal is what makes this book interesting and worth reading, though ultimately I remain skeptical that his provocative ideas about changing the appointment process will succeed.

Chapters Two through Five provide a very basic civics lesson in what Supreme Court justices do and how the Court differs from its other coordinate branches in the federal government. For an audience of political scientists who study law and courts, the first half of the book does not really provide any new insights into the workings of the Supreme Court. To his credit, though – and unlike many of his peers in the law profession (see e.g., Posner 2008 for an interesting discussion of this point) – Eisgruber readily concedes that justices are driven by their personal ideology when making decisions (p.18). He outright rejects the notion advanced by Chief Justice Roberts at his confirmation hearings that justices are like “umpires” – actors who “don’t make the rules; they apply them” (p.17). While Roberts argued that judges are not politicians, Eisgruber argues that justices are, indeed, policy makers and most do so with a decidedly conservative or liberal bent (p.17). Unfortunately, at other points in the book, he seems to undermine this premise when he states that justices do not vote based on “partisanship” (p.61), nor do they disagree with each other because of “political loyalties” (p.62). He also makes the naïve claim that in BUSH v. GORE, “I do not believe that any of the justices consciously thought about aiding their preferred candidate” (p.65). While it may be true that justices, unlike members of Congress, do not have to toe a particular political party line, it is also true that conservative justices tend to vote in a manner consistent with the Republican Party’s views, and liberals, the Democratic Party’s views. BUSH v. GORE is perhaps the most blatant example of this, as both liberals and conservatives on the Court abandoned their traditional positions on the Equal Protection Clause in order to vote for their preferred candidate. Eisgruber’s concession that justices vote their personal policy preferences could have been made more sharply because it is one that many lawyers and legal academics – those very likely to read [*929] this book – need to hear, loudly and clearly.

One chapter in the first part of the book with which I took issue was Chapter Three, in which Eisgruber makes the case that the method of constitutional interpretation he calls “originalism” is not, as its proponents on the Court claim, a neutral (i.e., non-ideological) means of deciding controversial cases: “The problem with originalism is that it cannot work – or, more precisely, it cannot work without demanding the same kind of politically controversial judgments that it purports to avoid. Moving from the constitutional text to the framers’ intentions is like jumping from the frying pan into the fire: the framers’ intentions are no less ambiguous than the constitutional text itself” (p.35). However, the author’s understanding of originalism harkens back to arguments made decades ago by Justice Rehnquist on what was then called “original intent.” Original intent was seriously compromised following Justice Brennan’s famous speech in 1985, in which he, like Eisgruber, said it was impossible to determine the framers’ original intent because there were so many individuals involved with passage of the Constitution, each with his own understanding of the meaning of the document (Brennan 1985). Conservatives, led by the Federalist Society, in response to Brennan’s critique then re-crafted their method of constitutional interpretation and re-named it “originalism,” “textualism” or “original meaning.” As the president of the Federalist Society stated to me in a 2002 interview (Meyer 2002), originalism (in contrast to original intent) is not an inquiry into the meaning of the Constitution’s words as the Framers themselves understood them, but rather, the meaning of the words to a reasonable person at the time of the framing of the Constitution. One could thus argue that originalism is more neutral than its former iteration in which a justice could choose to cite framers who agreed with his desired interpretation and ignore those who did not. The fact that original meaning is a more neutral method of interpretation is evident in the fact that, today, several leading liberal law scholars (see e.g., Amar 2005) espouse an original meaning method of constitutional interpretation and yet reach liberal outcomes using this method. For example, Amar argues that original meaning of the Commerce Clause leads to an expansive view of congressional power under the clause. Certainly, however, the four justices on the Court currently espousing originalism as the correct method of constitutional interpretation (Roberts, Scalia, Thomas and Alito) all use it in a manner that allows them to consistently reach conservative outcomes.

As we move into the second half of the book, Eisgruber turns away from a description of the Court and towards a normative prescription aimed at improving the appointment process. He places blame for the current appointments mess on both presidents and senators; he urges these political actors to cease trying to nail down nominees’ political ideologies or views – a useless exercise as nominees have learned how to be evasive, particularly in Senate confirmation hearings – and instead, focus their attention on the nominees’ “judicial philosophies.” I think Eisgruber correctly lays blame for the current partisan battles over Supreme [*930] Court nominations on both the president and the Senate. But, his normative prescription is mainly focused on the Senate’s role in the appointment process, and specifically how this institution should re-think their strategies when questioning nominees.

A judicial philosophy – termed the “Holy Grail of Senate confirmation hearings” (p.98), is defined as a specific nominee’s balance of two interests: (1) ideological convictions and (2) procedural convictions, most importantly what the proper role of courts are within the American political system. “A judicial philosophy will thus prescribe a pattern of selective deference: it will identify one set of issues about which judges should defer to other government officials, and another set about which judges should apply and enforce their own, independent view of what the Constitution means” (p.99). Eisgruber insists, however, that a judicial philosophy is not a method of constitutional interpretation. It requires only that the Senate determine “the basic themes or values that govern the nominee’s attitude toward judicial enforcement of the Constitution” (p.100). While it may be that one’s judicial philosophy is not a method of constitutional interpretation, I would argue that questions on judicial philosophy tend to serve the same purpose as questions on a nominee’s method of constitutional interpretation. Both are backhanded ways of determining a nominee’s political ideology. Judicial philosophies are termed liberal, moderate or conservative based on the amount of deference owed the elected branches in deciding a constitutional case and thus serve as important cues on a nominees’ likely political ideology.

After outlining the judicial philosophies of Justices Brennan, Black, Breyer, Scalia and O’Connor in the remainder of Chapter Six, Eisgruber ultimately concludes that: (1) O’Connor and Breyer possess “moderate” judicial philosophies; and (2) presidents and the Senate should be seeking out nominees with similarly “moderate” judicial philosophies. Eisgruber argues that politicians should reject both liberal judicial philosophies like Brennan’s (too little deference to the elected branches) and conservative judicial philosophies like Scalia’s (too much deference). What defines Breyer’s and O’Connor’s judicial philosophies as moderate are their alleged “insist[ence] that judges should proceed cautiously when enforcing the Constitution: the effective pursuit of constitutional goals, on either of their views, requires a kind of active partnership between judges and the elected branches in which judges will usually play the subsidiary role” (p.121). In other words, the author favors justices with moderate judicial philosophies because they exhibit “flexiblility” (p.121) and “openmindedness” (p.120) about the extent of judicial power.

Chapter Nine is, perhaps, the most interesting and telling chapter in the book. Here, Eisgruber sets out specific questions that senators should use in the future in order to ascertain a nominee’s judicial philosophy and thereby avoid direct questions about ideological and political leanings that the nominee is sure to sidestep. Another interesting aspect of the proposed questions is that they shift the burden from the senator to the nominee to defend his or her judicial [*931] philosophy. For example, Eisgruber offers the following question for Senator X to pose:

I have reviewed all of your opinions. I have also spoken with many people who have worked alongside you. The pattern I have found is a troubling one. You consistently read the most [conservative or liberal][sic] political outcomes allowable by the law and the facts. I believe that the American people want a justice who is a moderate, not an extremist. In light of your record, you need to provide this panel with some evidence that you are such a moderate.” (pp.165-66)

Another proffered question reads as follows:

You have been described as a [conservative or liberal] [sic] jurist. . . The American people, though, want justices who will consider each case on its merits, not doctrinaire ideologues. Can you give me some clear examples of times in your public life when you have taken stands or made decisions that were unpopular with other [conservatives or liberals]? (p.174)

These questions, of course, assume that senators share the author’s normative preference for moderate justices, and also reinforce a point made earlier that a “judicial philosophy” is merely another way of ascertaining a nominee’s political ideology.

I would take issue with two other assumptions made by Eisgruber. First, it is not at all clear that the American people share the author’s desire for moderate justices whose future decision making behavior on the Court is unclear. A recent poll by the Annenberg Foundation found that the majority of Americans think that a nominee’s political views should be part of the consideration when a president is weighing whom to choose (Bartels and Johnston 2008). Interestingly, a separate Annenberg poll of Supreme Court lawyers found this group of legal elites opposed to the idea of weighing a potential nominee’s political views (Id.).

Second, Eisgruber never considers how interest groups or party bases would react to an appointment process free of ideological considerations. While he correctly observes that the appointment process has only in the past few decades become so partisan and ideologically-driven, he never considers the impact outside players have had in this transformation. In short, modern presidents have elevated ideological litmus tests above all other factors in choosing justices because of the influx of interest groups into the appointments process (Maltese 1995; Scherer 2005). As chief mobilizing agents for elected officials, interest groups are very powerful players in appointment politics. If a president deviates from the extreme ideological views of his base (including interest groups affiliated with his base), retaliation at the polls is sure to follow. The same is true for senators and their confirmation votes. Thus, presidents and senators aligned with the president are not likely to support a moderate nominee than they were when O'Connor
was nominated. The nomination of Harriet Miers is a perfect example. Unlike most appointment fights, Bush faced the most opposition not from the Democrats or liberal interest groups, but from Republicans and conservative interest groups. In short, interest groups do not want their presidents to choose moderate justices; moderate justices are [*932] only acceptable to the interest groups and political activists whose party does not control the White House (Scherer 2005). In fact, the Republican Party base is so opposed to appointing justices whose judicial decision making behavior is flexible and open-minded, it voted to include a clause in the party’s platform expressly prohibiting selection of “stealth” nominees by a Republican president.

In sum, I am very skeptical that Eisgruber’s innovative approach to modifying the confirmation process can be successful because of interest group capture of the appointment process. Nor am I convinced that the American public or all-important political elites want all justices to be moderate. However, if reformulating questions that focus on the amount of deference owed the elected branches allows senators to gain insights into a nominee’s likely pattern of voting once seated on the bench – and forces nominees to stop evading questions – then it seems like a worthwhile endeavor for senators to explore, particularly those senators who are not in the same party as the president.

REFERENCES:
Amar, Akhil Reed. 2005. AMERICA’S CONSTITUION: A BIOGRAPHY. New York: Random House.

Bartels, Brandon L., and Christopher D Johnston. 2008. “How Should Supreme Court Selection Processes Be Conducted.” Paper presented at the Annual Meeting of the American Political Science Association, Boston, MA.

Brennan, William J. 1985. “The Constitution of the United States: Contemporary Ratification, Address Before the Georgetown University Text and Teaching Symposium” (Oct. 12), reprinted in THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION. 1986. Washington, D.C.: The Federalist Society.

Carter, Stephen L. 1995. THE CONFIRMATION MESS: CLEANING UP THE FEDERAL APPOINTMENTS PROCESS. New York: Basic Books.

Maltese, John Anthony. 1995. THE SELLING OF SUPREME COURT NOMINEES. Baltimore, MD: Johns Hopkins University Press.

Scherer, Nancy. 2005. SCORING POINTS: POLITICIANS, ACTIVISTS AND THE LOWER FEDERAL COURT CONFIRMATION PROCESS. Palo, Alto CA: Stanford University Press.

CASE REFERENCES:
BUSH v. GORE, 531 U. S. 98 (2000).

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© Copyright 2008 by the author, Nancy Scherer.

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TAKING ON THE PLEDGE OF ALLEGIANCE: THE NEWS MEDIA AND MICHAEL NEWDOW’S CONSTITUTIONAL CHALLENGE

by Ronald Bishop. Albany, NY: State University of New York Press, 2007. 202pp. Hardcover. $68.50. ISBN: 9780791471814. Paperback. $21.95. ISBN: 9780791471821.

Reviewed by Kyle L. Kreider, Political Science Department, Wilkes University, Wilkes-Barre, PA. E-mail: Kyle.Kreider [at] wilkes.edu.

In this highly charged polemic, Communications professor Ronald Bishop seeks to resurrect the reputation and legal arguments of Michael Newdow, an avowed atheist who sued to remove the words “under God” from the recitation of the Pledge of Allegiance in public schools. Though Newdow succeeded in the Ninth Circuit Court of Appeals in 2002, the US Supreme Court dismissed his case on procedural grounds in 2004. Bishop defends Newdow against a rabid media intent on protecting the nation from a renegade atheist and a Supreme Court that allegedly does not even understand its own Establishment Clause jurisprudence.

In Chapter 1, Bishop introduces the reader to a body of literature that explains how the media constructs its stories and how the public comes to understand the “news.” In short, Bishop adopts the theoretical perspective that the media makes the news by creating narratives that comport with existing societal values. Central to this news making function is the media’s fascination with relegating strange or persistently problematic individuals into the “sphere of deviance.” Bishop also argues that the media serves as the “guard dog” of America’s beloved cultural and social institutions. Though Chapter 1 provides an interesting review of communications and media literature, it is easy to see where Bishop is headed: In order to protect our communal recognition of a deity (“under God”), the media created a narrative with defenders of the Pledge as “heroes” and Michael Newdow as the godless villain.

In Chapters 2 and 3, Bishop reviews the legal development of Newdow’s lawsuit against his daughter’s school district requirement that elementary students recite the Pledge of Allegiance before the start of each school day. Newdow also named the president and Congress as defendants. Newdow’s specific complaint was that the words “under God” in the Pledge of Allegiance, which were inserted by Congress in 1954, violated the Establishment Clause because impressionable students were “coerced into hearing religious dogma” (p.25) and could not “opt out” of the recitation without feeling like an outsider. The Ninth Circuit Court of Appeals ruled in favor of Newdow, striking the words “under God” from the Pledge of Allegiance.

It is not until Chapter 4 that Bishop takes the media to task for their biased coverage of Michael Newdow and the Pledge of Allegiance case. For starters, Bishop castigates broadcast (Chapter 4) and print journalists (Chapter 5) for taking their cues from President Bush [*925] and Congress and acting as the “sentry” or “guardian” of one of our country’s most precious institutions, the Pledge of Allegiance. Bishop recounts numerous stories of mainstream journalists who interviewed Newdow but defended the words “under God” in the Pledge of Allegiance and did not allow Newdow to venture far from the media’s “preferred reading” of the case. Bishop alleges that journalists “sprinkled” pro-Newdow quotes into their stories but refused to give credence to officials or students who believed the Pledge was a violation of the Establishment Clause. The media was so biased, Bishop alleges, that “[their conduct was] eerily similar to their conduct as they covered the Japanese-Americans during the days after Pearl Harbor” (p.76) and were quick to paint Newdow as a “quirky fanatic” (p.96).

As the lawsuit moved from the Ninth Circuit Court of Appeals to the US Supreme Court, the case took strange twists, from a custody battle between Newdow and Sandra Banning, the girl’s mother, to the procedural issue of standing. As the media took an interest in Newdow’s daughter and Sandra Banning, Newdow was ridiculed for dragging his innocent daughter, who wanted to say the Pledge of Allegiance, into this case, while Banning was portrayed as the “victimized mother looking out for her daughter’s interests” (p.115). Bishop maintains that, as the lawsuit moved to the US Supreme Court, the media continued to frame Newdow as an eccentric renegade by refusing to include any serious discussion of the Establishment Clause claims he raised and by not citing or interviewing anyone who agreed with him.

In the last three chapters, Bishop reviews Newdow’s case before the Supreme Court. According to Bishop, although the media disparaged Newdow when he announced he would be representing himself before the Court (pro se), he did far better than anyone predicted. Some members of the media wrote positive reviews of Newdow’s performance, but many others took the “he is outside the mainstream” approach (Chapter 9). Nevertheless, Bishop offers some praise for the media, noting that it was at this stage of the litigation that the media began to move the story toward the “sphere of legitimate controversy” (p.165). However, when the Supreme Court decided that Newdow lacked standing to sue on behalf of his daughter, the media reverted to defining Newdow as an embarrassing, atheistic rebel.

TAKING ON THE PLEDGE OF ALLEGIANCE offers political scientists and lawyers a fresh perspective on a controversial issue and legal case. Bishop introduces the reader to a body of communications and media literature that provides a rich context for how the media framed the issue and created “winners” and “losers.” As we approach the 2008 elections and partisans on both sides complain about media coverage, a read of Chapter 1 offers key insights on how the media operate.

Bishop also raises hard questions about the media and their role in American democracy. Bishop’s case study of the media’s treatment of Michael Newdow and his legal case should be read by journalists and journalism professors, because the evidence suggests that the media were far from objective, favoring the words “under God” and portraying Newdow as a villain seeking to destroy [*926] our beloved institutions. However, Bishop’s faulty legal analysis weakens the book’s main point. To Bishop, the words “under God” transform the Pledge of Allegiance from a “patriotic exercise” into a religious creed. Therefore, Bishop continues, when public schools commence the school day with the Pledge, the government is endorsing religion and coercing public school students to recite religious dogma with which they may not agree. Bishop praises the Ninth Circuit’s conclusion that the words “under God” in the Pledge of Allegiance violate three of the Supreme Court’s Establishment Clause tests: LEMON, endorsement, and coercion.

While Judge Goodwin of the Ninth Circuit crafted a convincing argument why the words “under God” in the Pledge violate the Establishment Clause, Bishop fails to give full weight to the fact that some Supreme Court justices do not start with the LEMON, endorsement, or coercion tests because they believe those tests impermissibly limit the ability of government to accommodate reasonable recognitions of God and his role in America’s development. For example, in the interest of accommodating our rich religious history, the Supreme Court has allowed crèches in Christmas displays on government property (LYNCH v. DONNELLY, 1984) and even permitted governments to fund chaplains (MARSH v. CHAMBERS, 1983). To the accommodationist, “under God” is a benign reference to our nation’s religious heritage and does not arise to an Establishment Clause violation because students can “opt out” of the Pledge’s recitation.

Unfortunately, if the reader is searching for a book that provides an even-handed account of Michael Newdow and the Pledge of Allegiance case, this is not the one. To Bishop’s credit, he tells the reader in the Introduction that he is a liberal atheist who agrees with Newdow that “under God” should be stricken from the Pledge. In addition, even though he “strongly believes” in objective reporting, Bishop seems to suggest that, because the media were biased in their treatment of the Newdow case, he is going to set the record straight with his own bias, but one that he also believes to be the objective truth. Furthermore, the reader is likely to grow weary of the sarcasm and unnecessary tangents that are present throughout the book.

Bishop’s argument is also hampered by far too many factual inaccuracies. For example, on page 2, Bishop first introduces the reader to the Ninth Circuit decision by writing that the court “found first that the Pledge itself was unconstitutional, and then, in an amended opinion, that the mention of God in the Pledge was an unconstitutional breach of the wall that separates church and state.” Though Bishop gets it correct later in the book (the original opinion struck the words “under God” from the Pledge), it does not help that the reader is given factually inaccurate information at the outset. In addition, on page 70, Bishop alleges that the “Millersville, Pennsylvania, School Board” expelled 12-year-old Lillian Gobitis, a Jehovah’s Witness, for refusing the say the Pledge of Allegiance. While Millersville is in Pennsylvania, it is 75 miles from Minersville, the correct town in that 1940 Supreme Court decision [*927] (MINERSVILLE SCHOOL DISTRICT v. GOBITIS).

Finally, Bishop appears confounded as to how the Supreme Court could disagree with the Ninth Circuit’s reasoning. Bishop persuasively demonstrates why the media attacked Newdow but seems to hold on to the belief that the US Supreme Court renders decisions strictly based on legal principles and logic. Not only is there conflicting Establishment Clause doctrine, but Bishop’s analysis misses the political science literature that encourages us to understand the Supreme Court in the political context in which it sits. Simply, the Supreme Court’s power is its legitimacy, and if the Court consistently renders decisions inconsistent with public opinion, the Court will lose support and, therefore its power, over time. In other words, if the Court sided with Newdow and against an overwhelming majority of Americans, especially in the religiously heightened post-9/11 era, the Court’s legitimacy and prestige might have been significantly damaged. By deciding the case on standing grounds, the justices saved the issue for another day and retained the Court’s institutional power.

In sum, TAKING ON THE PLEDGE OF ALLEGIANCE offers an analysis of the media’s treatment of Michael Newdow and the Pledge of Allegiance case from a communications perspective. While the book is valuable because it offers a literature and angle with which political and legal scholars may be unfamiliar, a legal argument that does not take into account political factors, sprinkled with unnecessary attacks and unproductive tangents, mar the book’s lasting contribution to the literature.

CASE REFERENCES:
LEMON v. KURTZMAN, 403 U.S. 602 (1971).

LYNCH v. DONNELLY, 465 U.S. 668 (1984).

MARSH v. CHAMBERS, 463 U.S. 483 (1983).

MINERSVILLE SCHOOL DISTRICT v. GOBITIS, 310 U.S. 586 (1940).

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© Copyright 2008 by the author, Kyle L. Kreider.

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POSSESSING THE PACIFIC: LAND, SETTLERS, AND INDIGENOUS PEOPLE FROM AUSTRALIA TO ALASKA

by Stuart Banner. Cambridge, MA: Harvard University Press, 2007. 400pp. Hardcover. $35.00/£22.95/€24.50. ISBN: 9780674026124.

Reviewed by Catherine Lane West-Newman, Department of Sociology, The University of Auckland, New Zealand. Email: l.westnewman [at] auckland.ac.nz.

POSSESSING THE PACIFIC undertakes a comparative historical study of colonial land policy and practice in what became Anglophone states and nations which either border on, or are located within the Pacific Ocean. Although the idea of taking the Pacific as a focal point for such an examination, once posed, seems obvious, no one to my knowledge has previously taken such an explicitly spatial orienting approach. So while there are, for example, comparative studies of land issues in Australia, New Zealand, and Canada (Haverman 1999) and many books that focus on a single nation state (see the multiple citations in this volume) all these encompass events and policies affecting the whole nation, which in the case of Canada and the United States at least tends to much generalization. In consequence the possibility of finer grained analysis through the explication and dissection of strictly local circumstances is lost. But here, rather than policy in the US or in Canada being the unit of analysis, the discussion of North America, for example, is focused on the specifics of California, Alaska, Oregon and Washington, Hawai’i and British Columbia. In addition, past descriptions of land issues in, for example, the smaller Pacific nations of Fiji and Tonga have been largely found in anthropological studies where they are not necessarily a central concern. Given the quite intensive circulation of explorers, settlers, colonial officials, and policy ideas within the regions, the present approach is illuminating and effective. For these reasons alone the book would be a most welcome addition to the literature on land, settlers, and indigenous peoples.

But there is more in the shape of a scrupulous attention to local historical accounts which allows Stuart Banner to capture a very real flavour of specificity and difference in a range of geographical spaces. I have frequently noticed with regret (and sometimes noted in this Review) that accounts of Antipodean histories which originate in the United States often seem to be filtered through a peculiarly American sensibility and set of assumptions about the nature of law, for example, that render their own histories all but unrecognizable to the subjects of such discussions. Banner, on the other hand, clearly writes from within the particular local knowledge of the places he describes, the result of scrupulous research and excellently chosen sources. Both the acknowledgements and bibliography in this book attest to an intimate knowledge of local research materials on the places examined and to consultation with local scholars and other experts. Or, as he puts it: ‘The research for this book [*921] required travel to some very nice places’ (p.i). And it is ultimately that, I think, which makes this such a satisfying book.

For all the above reasons, I found this account exciting and original in its historiography and in the political economy of colonization and land that it presents. Certain characteristics appear common to the negotiations of purpose and meaning that accompanied the alienation of indigenous land across a wide diversity of cultures and terrains. These are nicely summed up in Banner’s comments on the question of ownership and Fijian land tenure.

This was not the most edifying of debates. Every participant’s opinion of the true nature of traditional Fijian practice was colored by one ulterior motive or another – whether the self-serving desire for land or the more high-minded goal of seeing the land remain in Fijian hands. None of the men who wrote with such certitude about Fijian custom seems to have known as much about Fiji as he professed. (p.274)

The white settler project in each of the territories was to acquire land, at least some of which was already occupied by indigenous inhabitants of those places. Colonists therefore had to resolve (at least to their own satisfaction, though often to no one else’s) questions of ownership. For example, could the land be declared ownerless (terra nullius), or should it be accessed under treaty arrangements backed up by introduced systems of land purchase and legal tenure? Both sellers and buyers had to be identified and the roles of individuals and governments in such processes determined. Banner tracks the ways in which these issues were addressed in Australia, New Zealand, Hawai’i, California, British Columbia, Oregon and Washington, Fiji and Tonga, and finally Alaska – a state recently elevated by circumstances to unusual prominence in the United States, and therefore in international popular consciousness.

As well as tracing the rather astonishing range of acquisition modes produced out of various combinations of political necessity and ideological belief within the selected locations in these colonies, all of which were ‘either governed or heavily influenced by the Anglo-American legal system’ (p.3), Banner also looks at the differences in outcome and the ways in which results continue to affect indigenous-white relations in the Pacific. Most importantly, though, he seeks to explain the diversity of outcome, looking for the crucial factors in determining why Tongans still own all and Fijians much of their land, why Maori are receiving substantial Treaty settlements which include the return of some lands, while Hawaiians and aboriginal Australians and Oregonians now possess very little of theirs. In this context it is interesting to note the huge significance that European perceptions of original inhabitants and local populations have had in shaping indigenous-settler relationships. Much has rested on whether ‘the natives’ appeared to whites as hideous, savage, alien or ‘really rather like inferior versions of us and quite admirable all things considered.’ Adjectives like “degraded, worthless, and filthy” (p.290 (in this case a judgment on ‘the natives [Tlingit] around Sitka’ in Alaska) were commonly applied to the apparently alien of many places, especially the aboriginal inhabitants of Australia. It seems that there is often a link between the voicing of such contemporary [*922] judgments and refusals by the peoples in question to accommodate European desires, especially to acquire land and/or such trading goods as food and furs.

The key variables Banner identifies to explain the differences in arrangements and outcomes include political organization – especially the level of unification under a single leader, degree of military opposition to settlement, and settler perception and ranking of peoples through criteria of ‘civilization’ and technological capacity in the indigenous population. He points out that, in every case of European settlement in the Pacific, initial customs and practices in dealing with local populations tended to harden into precepts that guided the precepts of the more formal land policies that developed as time went on. Of all the territories considered in this account of colonization, only in Tonga was no land alienated to Europeans. In a highly stratified chiefly society with a single government, King George Tupou I was able to impose and sustain an absolute ban on the sale of land to foreigners. On the other hand, in New Zealand Maori tribal groups were autonomous and accustomed to intertribal warfare, which was often over the possession of land, so that there was no overarching political focus for resisting the pressures to alienation of resources under pressure from would-be settlers. Banner points out the message in this; that indigenous political organization was crucial in determining whether or how land would be sold to Europeans. It is therefore a particularly sad irony that the efforts of King Kamehameha III to reform the indigenous land tenure system as a means of preventing alienation of land to foreigners ultimately became the vehicle for an almost total annihilation of indigenous land ownership in Hawai’i.

Banner concludes that the variations in colonial land policy were produced by factors that were never directly declared or explicated in colonial policy. The presence or absence of pre-contact agriculture was strongly determinative of whether or not indigenous peoples were recognized as owners of their land or merely transients with no claim upon it. The degree of indigenous political organization and ‘the relative speed of white settlement and the establishment of imperial control’ (p.318) strongly influenced decisions whether to treat the territory in question as terra nullius or appropriate for treaty making. Whatever the modes and mechanisms, however, in every case except Tonga the end result was approximately the same – indigenous peoples were effectively separated from their land and settlers reaped the benefit of that transfer. Although, as Banner reveals, many such decisions were made ad hoc and even by default, with no real thought for the future, their effect continues to be felt more or less strongly in each of these places to the present day. In New Zealand, for example, the Treaty of Waitangi, once repudiated by settler parliaments as a legal nullity, is now a foundational instrument in the polity and in the imaging of national identity.

There is no way in a short review to do justice to the richness of detail within this book. I shall use it as a teaching resource on culture, colonization, and land, but would also recommend it as a fascinating account of a significant foundational period in the history of each of these places. Above all it is a book that enables us to understand better [*923] the interconnectedness of our geo-political world.

REFERENCES:
Haverman, Paul Ed. 1999. INDIGENOUS PEOPLES’ RIGHTS IN AUSTRALIA, CANADA, AND NEW ZEALAND. Auckland: Oxford University Press.

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© Copyright 2008 by the author, Catherine Lane West-Newman.

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CONTRACTS IN CRISES: EXCUSE DOCTRINE AND RETROSPECTIVE GOVERNMENT ACTS

by Richard E. Speidel. Durham, NC: Carolina Academic Press, 2007. 326pp. Paper. $45.00. ISBN: 9781594602696.

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

pp.916-919

America is in a financial crisis. To confirm this proposition, one need look only to the collapse of the subprime mortgage industry, the around-the-clock media commentary on the grim, short-term prospects of the stock market, and the calls for multi-billion dollar government bailouts and increased governmental regulation to alleviate these losses. While these events provide ample fodder for political and economic pundits, they also provide an opportunity to look towards legal scholarship on what happens in related crises. Richard E. Speidel’s CONTRACTS IN CRISES: EXCUSE DOCTRINE AND RETROSPECTIVE GOVERNMENT ACTS is a prescient and relevant text, which provides a unique legal perspective on contractual defenses and which has particular applicability to the contractual fallout that will inevitably occur after the proposed governmental “resolution” of the Wall Street debacle.

Given the state of the country and the economic crisis of September 2008, it is rather appropriate that Speidel’s book begins with a discussion of some of the legal analyses that took place in the wake of the terrorist disasters of September of 2001. Specifically, Speidel uses the events of and after September 11 to present the “central inquiry of this book [which] is the extent to which contract law (private law) provides relief to a promisor put in the zone of coercion by the enactment by government of retrospective public law” (p.7). The first chapter of the book then proceeds to an in-depth discussion of the excuse doctrine of contracts, examining the impracticability defense, the effect of “retrospective acts” in the creation of “zones of coercion,” and the question of relief after discharge of a contract based on justifiable excuse. Speidel utilizes his first chapter to introduce a specific terminology for the explication of his thesis; the definitions of “zone of coercion” (“that zone where because continued performance as agreed is either illegal or inconsistent with a governmental statute, regulation or order, there is a risk of sanctions against the promisor” (pp.6-7)) and “retrospective acts” (“any law that changes the legal consequences of past events” (p.8)) are especially helpful for an understanding of the remaining sections of the book.

Speidel acknowledges throughout this first chapter that he is taking a nuanced approach to “the intersection of American public law and private contract law” (p.11), which is supplemented by a brief introduction to contract theory and to the constitutional constraints on retrospective legislation (authority to act, due process, and takings clause considerations). The conclusion of the introductory chapter restates the essence of the volume as an [*917] examination of “the impracticability defense when the supervening event is a retrospective government act that is otherwise constitutional” (p.24).

Before moving to a discussion of the remainder of Speidel’s book, it is important to discuss the paradigmatic nature of his first chapter as a representative of the text as a whole. Clearly, from this initial analysis, Speidel’s perspective as a contract law scholar dominates the narrative of the text. As such, this book will provide a context for critical discourse among legal academicians. However, the author’s direct writing style, clarification of the central propositions of his thesis, and direct summarization of his arguments allow the book to be of interest to readers in the business world and public policy arena. That being said, this book is challenging and would require persistence on the part of the reader if she or he has little familiarity with the tenets of contract law that almost are prerequisites for understanding the book.

After the introduction, in Part One, Speidel focuses on the development of contractual excuse doctrine up to the Great Depression. Chapter Two begins with a fascinating discussion of English common law and its preeminent cases in this area. These cases include PARADINE v. JANE (1647), which set forth a doctrine of absolute obligation in response to a claim of contractual excuse. According to Speidel, although subsequent English courts approached this defense doctrine in contrasting ways, American common law at the start of the twentieth century provided only three limited exceptions to the PARADINE rule: “Excuse would be granted where: (1) A thing essential to performance was destroyed; (2) A person necessary for performance died or was impaired; or (3) There was legal impossibility resulting from a change in the law” (p.43). Speidel then uses a succession of cases to illustrate the courts’ applications of the contractual excuse doctrine based on the aforementioned exceptions. In this discussion, Speidel focuses on the lack of a consistent remedy where discharge was allowed due to the operation of retrospective government acts. Some courts provided that there was no available relief, while other courts stated that the appropriate measure of damages was restitution for the value of retained property (rather than specific performance or consequential damages, because there was no breach). While Speidel deems this latter rationale a “sensible and fair result where the promisee has fully performed its part of the exchange before the retrospective act” (p.51), the author posits that judicial analysis becomes more difficult when addressing issues of illegal purpose (as compared to illegal performance), which was realized in Prohibition Era cases.

In Chapter Three, Speidel focuses on World War I, which he deems a “fertile testing ground for contract excuse doctrine” (p.75). He uses this time frame and the later drafting of the Restatement (First) of Contracts, as outlined in Chapter Four, to demonstrate the tightening of this contractual doctrine by courts and commentators, who claimed that contracting parties in times of crises took on the risk of retrospective legislation: “if the act did not directly affect performance of the contract, excuse was likely to be denied even though the cost of performance was [*918] increased or the purpose of the contract was frustrated” (p.75).

Chapters Five and Six continue to interweave history and law to outline the treatment of the excuse doctrine by courts, a doctrine that Speidel designates to be in crisis during the Great Depression and World War II. Speidel argues that PARADINE’s influence was still “alive and well . . . Parties to an exchange could expect no ‘bailout’ by the law of contracts from the adverse economic effects of the depression” (p.102). Further, he uses this time frame to illustrate the continued judicial hesitance in allowing excuse based on frustration of purpose, citing public policy reasons in one case: “[w]e were at war, everyone suffered hardships of one kind or another, and compromise or adjustment were an accepted way to survive” (p.133).

Part Three argues that the post-WWII era provided a respite for the excuse doctrine in decline and served as a time for reformulation. Speidel claims that Article 2 of the Uniform Commercial Code and the Restatement (Second) of Contracts were the vehicles for this doctrinal reformulation. He states that, pursuant to Article 2 and the second Restatement, the key question in litigation revolving around contractual excuse due to retrospective legislation now is “whether performance as agreed has been made impracticable by changed circumstances” (p.178). The result is as follows: “if the promisee fails to prove that the promisor assumed the risk that the law would change, the promisor wins if there is good faith and the retrospective government makes performance as agreed impracticable” (p.179).

Yet, in spite of this reformulation, Speidel stresses that there has not been that many instances of litigation that have tested the boundaries of the excuse doctrine in the last 55 years. He takes the remaining chapter of Part Three and the chapters of Part Four to illustrate the few examples that have involved this area in contracts. Specifically, he looks at the energy and the Savings and Loans crises in explaining how the reformulated excuse doctrine has been applied. While these examples provide reinforcement of Speidel’s theories, it seems that a return to his introductory discussion of September 11 and Hurricane Katrina legislation and litigation may have been more useful to round out his overall analysis.

CONTRACTS IN CRISES concludes with Speidel’s recommendations for further refinement of the excuse doctrine in the context of retrospective government acts. He asserts that private contract law does not adequately protect the contractual parties in a “retrospective constitutional taking of contract rights” (p.282). He further claims that the foreseeability test should be eliminated from contract disputes that concern excuse doctrine in the zone of coercion. Finally, the author proposes his solution for remedies for contractual discharges based on zone of coercion excuse: “reasonable, foreseeable reliance expenditures made before or after the retrospective act” (p.293). In its entirety, the text provides an informative perspective on these concentrated issues of the intersection of private contract law and public law in times of crisis. Because the United States stands at the crossroads of this type of legal quandary, it will be of interest to note whether [*919] courts and/or legal commentators will consider or implement Speidel’s suggestions for the near future.

CASE REFERENCE:
PARADINE v. JANE, 82 ENG. REP. 897 (K.B. 1647).

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© Copyright 2008 by the author, Amanda Harmon Cooley.

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UNDERSTANDING PRIVACY

by Daniel J. Solove. Cambridge: Harvard University Press, 2008. 272pp. Hardcover. $45.00/£29.95/€31.50 ISBN: 9780674027725.

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

pp.911-915

Daniel J. Solove, an associate professor at George Washington University Law School, readily admits at the outset of his latest excursion into privacy law that the topic has “had a hold on [him]” for over a decade because of its “immense complexity, philosophical richness, and contemporary relevance” (p.ix). Solove’s book exhibits both a solid and critical command of this complexity and philosophical richness, and it succeeds in making the theoretical contribution he sets out for himself – to produce a book that is by no means the final word so much as a new, contemporary, relevant and important chapter in an ongoing conversation.

The concept of privacy has come a long way since its introduction in Warren and Brandeis’ seminal 1890 article. Over more than a century, philosophers, legal and political theorists, and jurists have sought to understand its dimensions. And the proliferation of new information technology in the 20th century – most notably the pervasive presence of the computer – has made privacy an even more pressing issue. Privacy is now an issue of global concern – at least in modern industrialized nations, all of which can point to numerous statutes, constitutional rights, and judicial decisions aimed at protecting privacy.

And yet, Solove laments, currently privacy is “a concept in disarray,” a sweeping concept encompassing “(among other things) freedom of thought, control over one’s body, solitude in one’s home, control over personal information, freedom from surveillance, protection of one’s reputation, and protection from searches and interrogations” (p.1). Even worse, courts and other policy-makers frequently have “a singular view of privacy in mind when they assess whether an activity violates privacy” (p.6). The results are either conflation of distinct privacy problems despite significant differences, or failure to recognize a problem entirely. Solove sets himself the task of bringing clarity to privacy’s current conceptual muddle.

He begins with a chapter critiquing existing attempts to conceptualize privacy by a wide array of jurists, legal scholars, philosophers, psychologists, and sociologists. His survey of the literature in each of these areas tends to focus on one or two leading contributions, surveying the criticisms of various scholars regarding each other’s conceptions of privacy, and suggesting a number of his own criticisms. Almost all of Solove’s criticisms boil down to what might be called the Goldilocks complaint: the theories are either too narrow or too broad (or sometimes too vague). More generally, Solove notes, the most prominent existing theories of privacy view it as a unitary concept with a uniform value that is unvarying across different situations. Solove contends that [*912] “with few exceptions, traditional accounts of privacy seek to conceptualize it in terms of necessary and sufficient conditions.” That is to say, most theorists attempt to define privacy by isolating a common denominator in all instances of privacy (as theorists of almost anything tend to do). But Solove argues that “the attempt to locate ‘essential’ or ‘core’ characteristics of privacy has led to failure” (p.8). He is, however, reluctant to jettison the term “privacy” altogether, finding it useful shorthand, a way to talk collectively about a web of interconnected yet distinct things – in short, “an umbrella term that refers to a wide and disparate group of related things” (p.45).

Solove devotes the remainder of the book to the development of an alternative approach to conceptualizing privacy. He describes four dimensions that characterize his approach: (1) method, (2) generality, (3) variability, and (4) focus. His “method” involves discarding the traditional way of conceptualizing privacy and embracing Ludwig Wittgenstein’s notion of “family resemblances.” As Solove understands Wittgenstein, certain concepts might not have a single common characteristic but instead draw from a common pool of similar elements. “Privacy, therefore, consists of many different yet related things” (p.9).

“Generality” means that privacy should be conceptualized from the bottom up rather than the top down, from specific contexts rather than abstractly. At the same time, Solove seeks to achieve some level of generality beyond the huge variety of specific contexts. “The appropriate degree of generality depends upon the purposes the theory aims to serve. My theory of privacy aspires to aid the crafting of law and policy” (p.40).

“Variability” involves elements of comparative law and policy along with sensitivity to culture-bound values. Solove gives a variety of historical examples demonstrating how notions about what information or matters are private have evolved throughout history. At the same time, any privacy theory “should avoid being too variable and contingent, or else it will not have lasting or widespread usefulness”(p.9). Assessment of whether a particular practice is private must look not only at the past and present, but also to a society’s future aspirations. “Privacy is a condition we create, and as such, it is dynamic and changing” (p.65).

Finally, any approach to a theory of privacy must have “focus.” In this dimension, Solove evokes John Dewey’s idea that philosophical inquiry should begin as a response to dealing with the problems and difficulties of real, everyday life. Solove also finds useful the pragmatism of William James, resisting universals and embracing specific situations – “a focus away from the notion of a priori knowledge – the view that there are objective and universal truths that exist prior to, and independently of experience” (p.47). Pragmatism, Solove argues, involves a particular relationship between theory and practice – “a view that theory should emerge from practical problems and help guide us in addressing them” (p.75). Consequently, Solove focuses [*913] on privacy problems. Because privacy invasion interferes with the integrity of certain activities and may inhibit or destroy some activities, Solove focuses on the specific type of disruption instead of attempting to identify the common denominator of these activities.

Essentially, Solove tells us, his approach to conceptualizing privacy involves understanding it pluralistically rather than as having a unitary common denominator. His focus on privacy problems seeks to be “contextual without being overly tied to specific contexts, flexible enough to accommodate changing attitudes toward privacy, yet firm enough to remain stable and useful” (p.9).

Solove agrees that a theory of privacy should articulate “why privacy is good or how it will further the good life” (p.78). Again, there have been a variety of abstract approaches, but Solove argues that privacy’s value differs depending on the type of problem it protects against. Privacy problems impede certain activities, and the value of privacy emerges from the value of preserving these activities. Thus, privacy does not have a uniform value; its value must be worked out through a balancing of opposing interests – and here legislators and jurists become particularly important. Under this pragmatic approach, the value of privacy is understood in terms of its practical consequences. Privacy should be weighed against contrasting values, and it should win when it produces the best outcome for society.

Traditional approaches see privacy as a personal right peculiar to the individual whose privacy is invaded; communitarians offer the critique that privacy cannot be viewed in purely individual terms without due consideration for the common good. For Solove, the value of privacy should be determined on the basis of its contributions to society. There is no inevitable contradiction between protecting individual privacy and safeguarding society’s interests. In fact, Solove tells us, “the value of safeguarding people’s privacy should be justified by its social benefits. . . . In direct contrast to John Locke, John Dewey noted that the individual is inextricably bound up in society: ‘We cannot think of ourselves save as to some extent social beings’” (p.91). Thus, Solove affirms Dewey’s insight that individual rights need not be justified as the immutable possessions of individuals; instead they are instrumental as judged by the contribution they make to the community’s welfare. This does not mean “that people’s injured feelings, reputations, or embarrassment are irrelevant to the value of privacy. Understanding the social value of privacy, however, requires that we demonstrate the benefits to society of remedying certain harms to individuals” (p.92).

While earlier theorists have proclaimed a particular overarching value of privacy (e.g. protecting intimacy, autonomy, freedom, self-development), Solove stresses that none of these (and many other) ends is furthered by all types of privacy. Privacy “does not possess a unitary value. Because privacy consists of a plurality of protections against different types of problems, its value is plural as well. The value of privacy emerges from the activities it protects” (p.98).

Chapter 5 introduces Solove’s own taxonomy of privacy, the explication of which covers roughly the second half of [*914] the book. In brief, Solove proposes a framework of four general types of privacy problems with sixteen subgroups. First is “information collection,” which consists of problems that arise in the gathering of information about individuals. Solove sees two distinct forms: surveillance and interrogation. A second group of problems, characterized as “information processing,” involve difficulties arising from the storage, usage, and analysis of personal data. Solove singles out five types of information processing: aggregation, identification, insecurity, secondary use, and exclusion. Third, “information dissemination” involves the transfer and publicizing of personal data; there are seven forms of information dissemination: breach of confidentiality, disclosure, exposure, increased accessibility, blackmail, appropriation, and distortion. Fourth, he identifies interference with one’s personal life, labeled “invasion,” which can take two forms: intrusion and decisional interference.

It would be well beyond the scope of this review to explain each of these. Suffice it to say that Solove does an admirable job of explicating each, identifying similarities as well as essential differences between the subgroups associated with each, and often showing how narrow conceptions held by legislators or jurists fail to address in a nuanced way the problems each creates. In the process, Solove demonstrates his solid command of the relevant source materials, from philosophical treatises to judicial opinions to statutory and constitutional sources, both domestic and international. (Incidentally, while some theorists argue that there are distinct differences between American and European or other nations’ fundamental approaches to privacy, Solove stresses that far more significant is the degree to which many countries recognize the same set of privacy problems – even while addressing them in different ways.) There is no doubt that his decade-long obsession has given him a formidable expertise in the field.

An important point that he frequently reiterates is that each of these privacy problems creates harms, and sometimes the law comprehends these harms well, but at other times the law fixates on one harm to the exclusion of others or lacks the tools to address certain harms. Protecting privacy requires careful balancing, because neither privacy nor its countervailing interests are absolute values. But because of the conceptual confusion that Solove so ably dissects, courts and legislatures often fail to recognize privacy problems, and thus no balancing ever takes place. In his concluding chapter, Solove offers several examples, and one in particular might serve as the paradigmatic illustration of the subtlety and nuance that Solove brings to discussions of privacy, and that others with similar interests might emulate.

Many cases involve a combination of several different kinds of privacy problems, and analyzing the privacy issues involves understanding the distinctions between these different problems. Solove singles out PECK v. UNITED KINGDOM, a case decided by the European Court of Human Rights (ECHR). In Great Britain, where closed-circuit television (CCTV) surveillance is widespread (and generally welcomed), a man attempted suicide by slitting his wrists with a knife on a public [*915] street – all recorded by CCTV. The police were called and the man survived. But to the man’s dismay, some short time afterward a photograph of him carrying a knife appeared in a newspaper article. The newspaper article said this man was intercepted wielding the knife and that a potentially dangerous situation was eliminated as a result of CCTV. A television station also broadcast the footage without obscuring his face, so that the man could be identified by people who knew him. A BBC show, CRIME BEAT, also broadcast the footage. Despite a BBC agreement with the government to obscure faces in CCTV footage, it failed adequately to do so, and completely failed to protect his identity in trailers for the show (the injury produced by this lapse in standards arguably was one with which the Queen herself could sympathize). The man sued the government, but the High Court in England dismissed the case, agreeing with the government that there was no violation of privacy, because the plaintiff’s actions were already in the public domain and that revealing the footage simply involved distributing a public event to a wider audience (an approach and a result with which many American courts would likely agree).

The man took his case to the ECHR, which disagreed vigorously with the English court’s opinion. The court reasoned that even if surveillance of a person in public does not invade privacy, “the recording of the data and the systemic or permanent nature of the record” (at 15, as quoted by Solove, p.195) may create a privacy problem. While the man was in public, he was not there to participate in any public event, nor was he a public figure. A few passersby could observe his actions, but public broadcast of the footage involved far more widespread viewing of his actions. The court noted that the government could have asked for the man’s consent to release the video to the media or could have obscured his face in the video images. He was awarded damages for his distress from the violation.

Solove praises the court’s opinion for its recognition that not all privacy problems are the same. The man’s actions may not have been private in the sense that they were secret or concealed; instead, the privacy problems here involved a combination of identification, secondary use, disclosure, accessibility, and perhaps even distortion.

As Solove states in his first chapter, there is a “fog of confusion that often envelops the concept of privacy. A lucid, comprehensive, and concrete understanding of privacy will aid the creation of law and policy to address privacy issues” (p.11). Solove’s book is certainly a major contribution to that understanding. One can only hope that jurists and other policy-makers give it the careful consideration it richly deserves.

REFERENCES:
Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right to Privacy.” 4 HARVARD LAW REVIEW 193-220.

CASE REFERENCES:
PECK v. UNITED KINGDOM, [2003] ECHR 44 [2003].

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© Copyright 2008 by the author, Philip A. Dynia.

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MAKING PEOPLE ILLEGAL: WHAT GLOBALIZATION MEANS FOR MIGRATION AND LAW

by Catherine Dauvergne. New York: Cambridge University Press, 2008. 232pp. Hardcover. $80.00/£45.00. ISBN: 9780521895088.

Reviewed by John SW Park, Department of Asian American Studies, University of California, Santa Barbara. Email: jswpark [at] asamst.ucsb.edu.

pp.902-910

Just as I was writing this review of Catherine Dauvergne’s book, I received by e-mail another review published by Rebecca Hamlin on Peter Spiro’s new work, BEYOND CITIZENSHIP: AMERICAN IDENTITY AFTER GLOBALIZATION (2007). Based on Hamlin’s assessment, Spiro and Dauvergne have much in common: both consider state sovereignty to be a primary impediment to effective solutions over migration, particularly undocumented migration; both are skeptical of human rights approaches to protect undocumented aliens; and both underscore a disjuncture between how law identifies certain people (as lawbreaking, undocumented social problems) and their lived reality (undocumented aliens can be thoroughly well-adjusted and “American” in most other ways, to paraphrase Spiro). Law fails to capture reality, and thus law might be making things worse. Dauvergne and Spiro have another characteristic in common: neither claims to have any definitive solution to the perplexing problems suggested in their titles. It is hard to move beyond national sovereignty or beyond citizenship when no one seems to know what lies thereafter.

Dauvergne examines the relationship between discourses about globalization and state responses to unlawful migration. While Dauvergne maintains that the United States is extremely important in examining this relationship as “the uncontested hegemon of the contemporary world,” it is certainly not the only site where issues of migration, state sovereignty, and globalization collide; many of her case studies were drawn from outside the US – Canada, Australia, the United Kingdom, and the European Union. Dauvergne is less concerned about American identity and more interested in showing how America’s problems are really global problems, or rather the problems of affluent Western societies ostensibly committed to liberal political principles. In various contexts, Dauvergne examines the “global crackdown” on illegal immigration and its separate impacts on refugee law and policy, human trafficking, national security, and patterns of citizenship. She examines each relationship as “core samples,” “drilling into each topic under consideration to extract a sample that in key ways reveals something about the whole” (p.3). Two overarching claims are central to her argument, and both are essentially descriptive: that “migration and the laws that regulate it are uniquely positioned to provoke insights about what is taking place under the banner of globalization” (p.31), and that “the contemporary crackdown on extralegal migration reveals that in the face of globalizing forces, migration is [*903] increasingly being transformed into the last bastion of sovereignty” (p.47).

Unauthorized migration is quite obviously a sign of globalization and a global problem: people in the United States might complain about their 7 or 12 million undocumented aliens, but there may be as many as 14 million undocumented migrants in Russia and over 3 million throughout Europe, including about 200,000 to 400,000 persons in France, “about 150,000” in Italy, and “about 9,000” Africans in Spain (pp. 12-13). Dauvergne tells the story of how, in 2006, public officials in London got in trouble for admitting they had not the “faintest idea” how many undocumented aliens were in Great Britain. But really, can any honest person claim more than an educated guess, a hunch, a number very likely to be totally off? To cover for the official in trouble, his colleagues said there were “approximately” 430,000 unauthorized persons and “up to” one million. Truly, they haven’t the faintest idea. It is a big number, though.

Why the utter failure to control migration, and what does the label “illegal” do for states with unwanted people? Dauvergne observes: “Although it is evident that prosperous states would like to assert complete control over those who cross their borders, it is equally evident that this is not possible. Or, at least, that states (especially democratic capitalist ones) are not willing to undertake the trade-offs (mostly economic) that would be necessary to come anywhere close to achieving this goal. The labeling of part of the population as ‘illegal’ accomplishes this exclusion when the border itself does not” (p.17). The state appears to maintain control even as it is obviously losing it. Much of Dauvergne’s work shows how “the law is a necessary site for constructing illegality, but is much less apt for remedying it” (p.27).

Dauvergne notes that wealthier states are pre-occupied with primarily poor undocumented aliens, while affluent and skilled migrants traverse the world rather easily: “Workers in the emerging IT industry servicing globalization’s technology increasingly enjoy worldwide mobility despite comparatively low levels of education and no connection to traditional wealth. Knowledge workers such as academics are included in the global elite despite often being paid little enough that they may never own their own homes. It is common in both groups to develop career patterns that span the globe” (p.18). The passage made me think of a classmate from graduate school, an Australian who did her Ph.D. in California and got her first job in Britain, and lived there for a while on a boat off a tributary of the Thames.

But because they confirm the dominant “globalization script,” the one that promises greater mobility, efficiency, and shared prosperity, impoverished academics do not pose the same political problems as, say, poor Afghani refugees stranded on “barely seaworthy boats” off of Australia in 2001. Australia never “admitted” these 433 Afghanis as refugees, and Australia eventually paid New Zealand, Papua New Guinea, and Nauru to take them away. Then, to diminish the possibility of having to deal with this kind of thing again, the Australian government re-wrote its asylum laws so that it would no longer consider certain parts of its territory as [*904] parts of its territory for people claiming refugee status. According to Dauvergne, this kind of hostility to poor persons, in effect, “making asylum illegal,” is but one of the most unfortunate results of a global crackdown against poor migrants. States bound by the Refugee Convention lose some control over admission; they simply cannot return someone who pleads for asylum. Dauvergne guesses that a number of other states who, like Australia, have also agreed to the Convention were secretly pleased that Australia behaved in this way, so as to make their own atrocious behavior seem less atrocious. When the refugees appear poor, brown, or both, states have moved to cut them off from making refugee claims in the first place.

Dauvergne argues that even when poorer migrants are clearly the victims of some very bad people, as in the case of human trafficking, states are also unwilling to give up sovereignty and control. The United States, for example, offers temporary residency to persons willing to help in the prosecution of human traffickers. Dauvergne insists that this type of law enforcement remedy is insufficient: “States are willing to tolerate, even to create, an incentive to subject oneself to gross abuse in order to gain a slim chance of becoming a permanent resident, when numbers are very low. States remain in control of this number by decisions about prosecution, because eventual permission to remain is strictly tied to assisting the state. This control gives states the sense that what they are controlling is in fact their borders, and sovereignty is saved” (p.85). In practice, the law enforcement remedies are also problematic: by using graphic images of predatory white men victimizing poor children and women, the United States contributes to a “moral panic” about the problem that in turn justifies American “hegemonic governance” over this issue. In this way, Dauvergne says, human trafficking is framed to promote more sovereignty, perhaps a hyper, transnational sovereignty, while other obvious solutions are rejected. “Another potential remedy would be to give victims of trafficking permanent migration status in destination countries. This is dismissed out of hand as an impossible surrender of sovereignty” (p.85). Even though secure, permanent residency would eliminate “the threat that comes of turning people with no secure immigration status over to the authorities, which in most cases means being sent home,” Dauvergne recognizes that the likelihood of adopting this policy is “politically remote” (p.86). States will simply not give up their right to determine lawful entry, nor surrender the right to punish “wrongdoers” as the primary response to human trafficking. Political imperatives for law enforcement tend to trump more obvious solutions.

This obsession with sovereignty is most pronounced at the intersection of national security and migration control. Dauvergne tells an effective vignette: in many public lectures, she points out that the attackers of 9/11 came to the United States lawfully, as students, tourists, or on business visas. She gets the same response as I do when I point out the same thing: some in the audience “are just certain I have my facts wrong” (p.99). They insist that the attackers were fake asylum seekers, or smuggled over from Canada or Mexico, maybe through a secret tunnel – they cannot believe that a majority of the nineteen [*905] were from Saudi Arabia and had prior clearance to enter from the United States. Dauvergne notes that this kind of “fact resistance” works the other way: three of the four perpetrators of the London bombings in 2005 were born in Great Britain, all were raised there, yet they were framed as “foreigners” both literally and figuratively. In each instance, states responded by asserting power in this “less brave new world,” and they have resorted to techniques like indefinite detention and blanket surveillance of immigrants and “foreigners.” National security and migration control are now linked as never before, perhaps irrationally so, as Dauvergne suggests: “States are seeking to assert control even as the threats and fears are increasingly not bounded by national borders. In this regard, nations are reasserting a traditional ‘nation-ness’ because other options are limited and new ways of doing security have yet to be fully imagined” (p.113). For many Americans, this argument appears absolutely correct, and especially apt in the context of George Bush’s claim that unless the United States “stabilizes Iraq” and occupies Afghanistan, bad people “there” will eventually come to attack us “here.” Taken to its logical conclusion, this kind of argument makes pre-emptive war and foreign occupation seem virtually endless. Foreign policy is domestic security.

Dauvergne’s final “core sample” turns on debates about citizenship, or rather, the way citizenship rules tend to enhance inequality and also preserve fictions of control. In the first instance, migration rules that privilege highly skilled and affluent persons will invariably select men over women; those that are designed for family reunification invariably allow men with citizenship to “import” women from abroad. “Gendered disparities on these indicators persist in the wealthy nations that are sought after immigration destinations. In migrant-sending nations, such disparities are much more pronounced. The migration provisions therefore serve to import gendered disparity” (p.128). While some countries experience this disparity much more obviously than others, Dauvergne is certainly correct to point out that the two most common, lawful ways to gain permanent residency create gendered inequalities within wealthier countries that in turn are reflected in naturalization trends. “The lofty neutrality of citizenship laws is lost when we consider how naturalization functions in tandem with migration law. The way gendered exclusions function in this pairing is paralleled in any group that is excluded by the economic focus in migration, especially poor people. Similarly, whereas our Western citizenship laws may establish formal equality, their relationship with migration regulation ensures that we import wholesale any inequality that exists around the globe” (p.131). If naturalization and citizenship rules tell us about what a nation values, then these rules would suggest either an indifference to social inequality, or an affirmative embrace of inequitable outcomes in this one area of public law, even as the state tends to reject such indifference or outcomes in other areas.

Secondly, at the other end of the spectrum, periodic grants of amnesty preserve the illusion of control and affirm equality “as an act of grace.” Referring to rules like the Immigration Reform and Control Act of 1986, Dauvergne writes: “Amnesties exist [*906] because the fiction of formal legal citizenship does not hold fast. Even as prosperous states move to close their borders more firmly, they also move to forgive this trespass.” Amnesties purge and purify the state’s population, but only for those who most resemble citizens: “law abiding and hard working” immigrants get to move beyond stories of illegality and wrongdoing. “When migrants give us, as a nation, what we most want from citizens, they confound legal attempts to keep the stories separate. In other words, the beneficiaries of an amnesty are already acting as citizens. Amnesty converts substantive citizenship to formal legal citizenship” (p.141). Fundamentally, though, as public acts of grace, amnesties preserve the idea that the nation-state retains the right to determine the terms of formal membership. The nation gives what cannot be claimed by right.

Dauvergne’s last two chapters, about globalization and migration in Europe and the United States, and about sovereignty and the rule of law, reiterate many of her central claims. While the creation of the European Union seemed to herald the best globalization – economic integration, the spread of democracy and free markets – recent developments over migration regulation and control would seem to indicate a kind of super boundary, one encompassing all of Europe. Dauvergne notes that after the Treaty of Amsterdam in 1999, free movement in Europe clearly means only free movement among Europeans, as well as those formally admitted into European states. The Treaty did allow states to maintain control over immigration and thus preserved national sovereignty. But the development of a common system for determining asylum within Europe, and separate, national developments to privilege wealthier and skilled migrants over poorer ones – these both suggest emergent European boundaries to migration. Europe is acting like the United States, and in the United States, the commitment to border fencing and border policing – both by the state and by vigilante groups – suggests similar, profound limits to globalization. In the United States, organized civil society groups like the Minutemen patrol the Southern border, and Dauvergne interprets “the strength of [this] vigilantism [as] an American form of resistance to globalization” (p.160). Americans seem unwilling to tolerate a porous border: here, Dauvergne claims, “border control is elevated over the control of an actual illegal population” (p.166). Americans seem obsessed with obstacles, barriers, fences.

Dauvergne believes that these trends affirm the general conclusion of her interesting book – that a commitment to national sovereignty is the problem. “[It] is a barrier to addressing the myriad dilemmas of illegal migration. It prevents creativity in the political realm. But its power does not stop there. The sovereign state controlling its borders is such a powerful image that it prevents from imagining a different way of organizing regulation of global migration” (p.173). Dauvergne does not so much offer a solution as point to a direction: instead of relying on a human rights norm, which does not really work when one does not have a right to be in a particular place at all, she proposes developing a “rule of law not tied to a national frame,” a rule of law “which has some degree of distance from [*907] the structure that creates, recreates, and endlessly reifies the problem of illegal migration” (p.183). Exactly how this might happen is puzzling, even for Dauvergne: “Thoroughgoing reform of migration laws, in a way that would decenter state sovereignty, appears both politically impossible and the only way to achieve changes that respect and protect individuals trapped in the overlapping cycles of illegal migration” (p.185). And again: “It is clear that decentering sovereignty is the only way forward” (p.190). And once again: “The potential of thinking differently about illegal immigration is breathtaking, even if its theoretical supports remain shaky. Nothing that we are currently doing about illegal migration holds much potential for serious change. A leap beyond what we can currently imagine is not only a risk worth taking, it is the only way forward from here” (p.190).

* * * * *
In her stimulating book, Catherine Dauvergne provides a multifaceted look at why the operations of national sovereignty and of formal state citizenship are inadequate, even irrational and often unjust. But in this important regard, her work is rather similar in scope to other recent works in the field. Books by Kevin Johnson (2007), Bill Ong Hing (2006), and Daniel Kanstroom (2007) say a great deal about how immigration law has gravitated toward the punitive, toward ugly, race-based forms of nativism and social control that are essentially brutal, violent, and even self-defeating. Also, Kanstroom’s work on “post-entry social control” and Hing’s book on the accelerated pace and enlarged scope of deportation both challenge Dauvergne’s claim that Americans are more obsessed with border control rather than the overt control of its existing illegal population; indeed, if recent, more frequent workplace raids by federal authorities are any indication, “post-entry social control,” coupled with expedited removal, might become more emblematic of an American response to illegal immigration than its gigantic new fence. Dauvergne does not touch upon these themes, though might have greatly strengthened her arguments about the relationship between globalization and migration.

In fact, the rate at which the United States now deports aliens – about 200,000 per year – suggests a globalized, forced migration that is truly unprecedented. Anyone representing a “cost” to the American taxpayer is easily removable, and speedily so. Nowhere is this more obvious than in criminal deportation. For example, the United States “sends back” over 50,000 Mexican nationals after their criminal sentences in various state and federal penitentiary systems; how Mexico or any nation will cope with this unwanted migration is hard to imagine, especially in the context of rising economic instability there, not to mention a raging drug war. (Could it be that American deportation policy is making these problems worse?) That poor Mexicans still cross illegally, although one or two die every day, and organized criminals in Mexico are fighting each other for the right to smuggle drugs into the United States at the same time – these say stark and sad things about inequality across this border. They say something damning about the willingness of the United States to shift the costs of social problems onto countries that can least afford it. Indeed, the labels “illegal” and [*908] “immigrant” might also perform a sorting function on the non-citizen population: when undocumented immigrants are productive and working in the shadows of the economy, their presence poses no political or economic problem; when any immigrant “appears” in the public sphere, when many of them need social services, or when they commit a crime, they are quickly carted off. Dauvergne did not choose to discuss “post entry social control” or deportation and removal policies as one of her “core samples,” although these are odd omissions, given the relevance of these topics to her concerns about migration, inequality, and globalization.

Of her central claim – that migration controls provoke unique insights about globalization – one might point out that, although this might be true, it certainly is not the only site where we can see anxieties about globalization or calls for more robust national sovereignty. At the campus bookstore recently, one of my students made sure I bought a “sweatshop free” sweatshirt. I also hear that soccer balls for children in this country are made by children in other countries. Some sweatshirts and soccer balls are evidence of morally revolting modes of production brought to places like Wal-Mart every day. Along other lines, a great many of my kids’ toys are made in China, and I am told those toys (maybe my kids?) have dangerous levels of lead. Infant formula from China might be very dangerous, too, and bad pet food from China has killed many beloved pets in the United States. Bird flu meant the death of millions of chickens, and lots of people in Southeast Asia wore surgical masks in public for months, and refused to eat poultry from this country or that country. Americans worry that beef from Canada may be tainted. South Koreans worry that beef from the United States may also be tainted. The French worry that beef from the United Kingdom might cause a slow, horrible brain disease.

All of these instances generated thousands of calls from worried citizens for their government to do something about the dangerous products and diseases that seem to spread so easily everywhere at once. As a student of immigration myself, I completely agree with Dauvergne that migration and immigration law reveal the limits of globalization discourse, the flaws inherent in its “stock stories” and celebratory scripts, but these other stories from the global village suggest several other important places where globalization might be in trouble, and where national sovereignty is likely to be the politically plausible answer. Perhaps it is for lack of imagination, or maybe it is a more practical matter. I am not sure to which Chinese official I can complain about my kids’ leaded Barbie, but I do know about the FDA website, as well as the contact information for all of my elected officials. My fellow citizens and I protect ourselves in this way because it is familiar and more likely to be effective, and not just because of a lack of imagination.

But the idea of a rule of law unhinged from national boundaries sounds appealing, and this is where Dauvergne’s book is most unfinished and yet potentially most generative. To classical political theorists, including Immanuel Kant, a “world government” necessarily leads to tyranny, but I do not think this is what Dauvergne has in mind. Rather, Dauvergne obviously admires those [*909] characteristics of Western legal systems that collectively entail “the rule of law” – procedural and substantive safeguards to protect a person’s rights and her dignity, processes of democratic decision-making that produce clear rules, and an independent, robust legal system whose branches check and balance one another. Dauvergne’s book reminded me of the central arguments in Brian Tamanaha’s (2006) recent work on the rule of law, which is essentially a book about the dangers of conceiving law in purely instrumental terms. At heart, for Tamanaha, a commitment to the rule of law might entail a commitment to a core set of principles about justice and fairness, about the proper limits of government, and about the dignity of persons in a balanced legal system, and not about what government or interest groups can do with this rule or that rule. It might also entail a commitment to the dignity of all persons in general, not this particular person because she is a citizen and not that particular person because he is an undocumented alien. When my government waterboards someone in the basement of a hotel in some other country, I could say that my government has violated the principles behind our core commitment to a rule of law, even though its clever attorneys (do) say that our agents did not break that particular law or that it should not apply to that specific person in that foreign place. This, I think, is what Dauvergne means by a rule of law “unhinged from the nation.” It is comforting to believe that others around the world share my disdain toward these practices, and share also my commitment to the idea that all governments should show some decency and all persons should be treated with dignity, even when my current government seems to believe in none of these things.

Catherine Dauvergne makes a wonderful effort of sorting through global migration, state membership, and the potential of a rule of law unhinged from nation. Throughout, the one scholar whose influence is so obvious in her work was also so influential in my own work, as well as in the work of many, many other younger academics. “In the twenty years since Joseph Carens wrote that birth in a prosperous state is the modern equivalent of feudal privilege, his statement has become truer than ever as it travels through time to the cusp of a postmodern world” (p.169). Professor Carens was one of the first scholars of his generation to lay out the fact that although the revolutions of the 18th century overthrew certain forms of privilege based on status and other “accidents of birth,” they also created new forms of privilege rooted in state membership that were growing powerful and obvious by the late 19th and early 20th centuries. Jus sanguinis and jus soli became common ways to confer citizenship, but as Carens noted, and now Dauvergne recalls, “Many citizens of prosperous states experience their right to enter and remain there as a morally imbued entitlement, rather than an accident of birth. Those who seek to enter can therefore be cast as ‘rorters’ seeking to unjustly exploit the system or circumvent the (just) rules that confine them to poorer states with fewer life chances” (p.17). That assigning citizenship by birth is both arbitrary and leads toward undeserved privilege should now be even more obvious in the face of globalized inequalities. And yet to revisit Caren’s original argument and to get more of our fellow citizens to see [*910] past state sovereignty, past their own citizenship, and toward that “postmodern world” where the rule of law survives even though the nation does not – that does seem the “only way.” Whatever flaws or omissions her book might have, I could not stop thinking of its central themes, nor have I been able to ignore Dauvergne’s call for a creative imagining of some other alternative to what we have now. I am uncertain where it will lead, but it is a thoughtful, hopeful, and welcome invitation worth sharing with others, and for that reason alone, her book is a worthwhile read.

REFERENCES:
Carens, Joseph H. 1987. “Aliens and Citizens: The Case for Open Borders.” 49 REVIEW OF POLITICS 251-273.

Hing, Bill Ong. 2006. DEPORTING OUR SOULS: VALUES, MORALITY, AND IMMIGRATION POLICY. New York: Cambridge University Press.

Johnson, Kevin R. 2007. OPENING THE FLOODGATES: WHY AMERICA NEEDS TO RETHINK ITS BORDERS AND IMMIGRATION LAWS. New York: New York University Press.

Kanstroom, Daniel. 2007. DEPORTATION NATION: OUTSIDERS IN AMERICAN HISTORY. Cambridge, MA: Harvard University Press.

Spiro, Peter J. 2007. BEYOND CITIZENSHIP: AMERICAN IDENTITY AFTER GLOBALIZATION. New York: Oxford University Press.

Tamanaha, Brian Z. 2006. LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW. New York: Cambridge University Press.

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© Copyright 2008 by the author, John SW Park.

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THE FOUNDING FATHERS, POP CULTURE, AND CONSTITUTIONAL LAW: WHO’S YOUR DADDY?

by Susan Burgess. Burlington, VT: Ashgate Publishing Company, 2008. 154pp. Hardback. $89.95/£50.00. ISBN: 9780754672456.

Reviewed by Margaret S. Hrezo, Associate Professor and Acting Chair, Department of Political Science, Radford University. Mhrezo [at] radford.edu.

pp.898-901

In THE FOUNDING FATHERS, POP CULTURE, AND CONSTITUTIONAL LAW: WHO’S YOUR DADDY? (hereafter referred to as WHO’S YOUR DADDY?) Susan Burgess pulls together previously published work and two new pieces to make one overall argument: The golden chord between the legitimacy of judicial review and the intent of the framers must be snapped in order to move beyond the founding period’s brutality, patriarchalism, and lack of concern for the powerless in society. Burgess proposes “narrative analysis, popular culture, parody, and queer theory” as means of (1) democratizing constitutional debate; (2) providing a “more interesting and hip way of understanding and reconstituting politics;” and (3) pointing the way to resolving the generation-long impasse between judicial activism and judicial self-restraint. She pursues her goal by re-casting the constitutional theories of Keith Whittington, Ronald Dworkin, and Derrick Bell as romance, comedy, and tragedy. In the final two chapters on BUSH v. GORE and LAWRENCE v. TEXAS, Burgess relies on queer theory to highlight what she believes to be the instability and constitutional groundlessness of contemporary Supreme Court decision making. In so doing she has produced an immensely interesting and thought-provoking book that should be read by graduate students and scholars of constitutional law as much for its weaknesses as for its strengths.

Burgess analyzes Keith Whittington’s originalism from the perspective of a romance novel. Like a romance novel, she argues that Whittington’s work reads contemporary jurisprudence as engaged in an endless quest to overcome alienation from its “true self” (intent of the framers) and return to a “simpler time characterized by more authenticity and less corruption” (p.13). Activist courts play the role of the villain placing obstacles in the path of return. She provides a close textual reading of Whittington’s work to support her argument and her use of the romantic form to unearth additional layers of meaning succeeds. In Burgess’ view, the American founding is grounded in brutality and self-interest, in particular the brutality of slavery. Why then, she asks, should we honor its views of the meaning of the Constitution (even if they are ascertainable) over all others? Why should the nation continue to privilege a perspective that denigrated, marginalized, and ostracized significant parts of its political community? This may be an impertinent question, but it is one relevant to the discussion of constitutional interpretation.

In addition, Burgess questions continued dedication to an interpretation of the document’s ambiguous passages in ways that were meaningful in 1789 but may not apply to contemporary America. This point has [*899] been made many times by multiple scholars, and Burgess does not move forward the discussion any further. Finally, she argues that Whittington’s argument takes itself far too seriously and that conversation about constitutional interpretation would benefit greatly if all parties took themselves and their theories more lightly. I could not agree with her more. However, it would be disingenuous of me not to confess immediately that I do not “get” Burgess’ sense of humor. She and some others who have read this book find it quite humorous. There are many others on whom the humor will be lost, and the biggest weakness of this book is a self-conscious sense of its own importance and a self-congratulatory praise of its hip sense of irony and humor, both of which the author refers to at least twice in every chapter. In addition, she may push the analysis too far in her section on the unresolved problems of romantic novels: (1) idealization of the beloved by disregarding faults; (2) the complications introduced as people change; and (3) lack of humor. The readings of PRIDE AND PREJUDICE and THE WIND DONE GONE tend toward the simplistic.

Burgess compares Ronald Dworkin’s work to a comedic soap opera and uses the popular ONE LIFE TO LIVE (OLTL) and the film THE PATRIOT as her points of reference. Dworkin, she maintains, seeks to legitimize judicial review by emphasizing the limits on judicial review and attempting to show the continuity between the framers of the constitution and the program of rights and toleration he supports. In her view, he is unsuccessful because, although he seeks the opposite result, his work acts as much to stabilize the originalist understanding of the founding as it does to undermine it. This chapter is not as convincing as the reading of Whittington. THE PATRIOT does not serve her argument well. OLTL does, but part of her analysis undermines its general validity. She is correct that viewers understand OLTL does not portray “real” family life. At the same time, it is not likely they see the show as ironic parody. The show’s lack of reality does not prevent viewers from identifying with characters on OLTL and taking these “stories,” as my grandmother used to call them, very seriously at an emotional level. The best part of this chapter is the section on Justice Scalia’s dissent in LAWRENCE v. TEXAS. In it she skillfully dissects Scalia’s opinion, while using it to heighten the reader’s understanding of the problems with Dworkin’s analysis.

Tragedy is the theme of her chapter on Derrick Bell and critical race theory. In tragedy, the protagonist accepts the inevitability of failure and recognizes the impossibility of changing either the past or the future. “Heroes are admirable not because they can win; they cannot. Rather, they are admirable because they are able to bear the worse that heaven and earth have to offer, and . . . they are able to make great meaning for themselves and their communities” (p.58). Thus, although Bell demonstrates the persistence of perverse and brutal power relationships within the American constitutional system, the tragic form he employs in his work precludes any possible transformation.

The chapters on BUSH v. GORE and LAWRENCE v. TEXAS are the book’s most interesting. They also are the most disturbing. In them Burgess argues that Supreme Court decisions have no grounds other than a justice’s individual [*900] political values and political power. For her, BUSH v. GORE plays like a traditional homosexual coming out narrative in which a gay or lesbian continues to maintain strenuously they are straight, while at the same time becoming more public in their homosexuality. In the same manner the Court’s decision in BUSH was an activist one based in party politics at the same time that the Court adamantly argued its attachment to self-restraint and purely legal considerations. By her account, the LAWRENCE Court deconstructs the rule of BOWERS v. HARDWICK and formulates a new one that rejects the essence of the old rule while maintaining the appearance of continuity. As in QUEER EYE FOR THE STRAIGHT GUY, the members of the Supreme Court: (1) reviewed the facts given them; (2) decided what aspects of the old rule to eliminate; (3) incorporated the ideas of family and friends in the form of amicus briefs, scholarly literature, and ideas from European law; (4) developed a new rule that they assert the founders would approve; and (5) evaluated implementation of the new rule (p.102). Burgess believes that her parody of these two cases suggests the importance for constitutional law of leaving home. Her message is that constitutional law must abandon the myth of origin that has bounded constitutional discussion, discard the old constitutional story, and choose a new narrative. This is possible, she believes, because identity is performative, a conscious choice. Her analysis of these cases does support her argument, but because these cases are such straw men, one wonders if they are the best choices for demonstrating her point. It also is important to remember that the past does shape the future and that it is not possible to completely “leave home.”

In many ways this book successfully accomplishes the author’s goal of destabilizing the debate over constitutional interpretation. Burgess demonstrates her talents as a creative scholar who reads texts both carefully and innovatively. At this point in time, any realistic student of constitutional law would be hard-pressed to deny the futility of continuing the fight to “prove” the legitimacy of either judicial activism or judicial self-restraint. Perhaps that is why a number of scholars have treated normative and interpretive minimalism/maximalism separately. However, although this move results in a more nuanced and precise understanding of what actually is happening in judicial decision making, it does not address the problem of legitimacy. What is it that makes a judicial decision a legitimate exercise of authority? Burgess seems to understand this when she writes “The problem for Scalia, and for all parodists, is that revealing the groundlessness and illegitimacy of opponents’ arguments will typically also serve to destabilize other positions – including their own – if, as is usually the case, such positions are grounded at least in part, on the stability of constituent elements of the discourse, such as law, history, liberty, paternity, and so forth” (p.52). The problem for Burgess is that those, such as herself, who attempt totally to remove any stable ground for decision making face the same problem. Human beings are their stories, and old identities cannot be sloughed off like the snake’s skin and replaced with new ones. Further, activism and self-restraint are two ends of a continuum of interpretive and normative approaches to judicial [*901] decision making rather than two totally isolated and unrelated poles.

WHO’S YOUR DADDY? leaves the reader with a sense there is no legitimate foundation for authority. In this book, politics and law are about power and nothing else. This leaves no possible grounding for the tolerance and equality Burgess advocates. About two-thirds of the way through the book Thomas More’s words from A MAN FOR ALL SEASONS came to mind. It is the place where More asks his son-in-law Roper, who has become an advocate of revolution, what he will do when all the laws are down and he must turn and face the devil alone. This question remains a problem in a book whose foundational analysis rests on the need to ensure that the American Constitution protect the marginalized and powerless as well as the mainstream and powerful. That is the double-edged sword of Burgess’ call for the use of irony and popular culture to “open up” discussion of constitutional rights because they are more democratic. Most people neither understand nor appreciate irony. Burgess and others may find ONE LIFE TO LIVE ironic and humorous in its treatment of the American family. A majority of its viewing audience would not. Can a sense of humor that appeals only to the “hip” move forward a genuine discussion of constitutional interpretation? Richard Rorty, whose theories Burgess’ argument often seems to parallel, understood that. He recommended irony for the elite and tradition for the masses, because the masses cannot live without some foundational principle and because they are not particularly sympathetic to the goals of the artist, poet, and revolutionary. Popular sovereignty often does not see the need to change systems that benefit it in order to ensure justice and equality for groups considered “Other.” The narrative arts do open up understanding of theoretical and legal concepts in important ways and make them more accessible to the understanding of both a general audience and to experts. Irony and parody point out individual and societal foibles. But irony and parody do not provide a path away from them. In the end her analysis does not lead anywhere. Just how do we go about creating the new frames of reference she argues irony and parody reveal? On what basis should we reformulate our stories about power and authority? Yes, the founding was flawed by brutality and self-interest. Yes, one can read Whittington as a romance novel, Dworkin as a comedy, and Bell as a tragedy. Yes, these readings demonstrate the flaws of the constitution and the problems facing contemporary constitutional interpretation. The reader of this book is likely to remain unconvinced we did not realize those flaws prior to WHO’S YOUR DADDY? and want to see what grounding for a system of rights adjudication Burgess’ analysis might provide.

REFERENCES:
Bolt, Robert. 1990. A MAN FOR ALL SEASONS. New York: Vintage Books.

CASE REFERENCES:
BOWERS v. HARDWICK, 478 U.S. 186 (1986).

BUSH v. GORE, 531 U.S. 98 (2000).

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

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© Copyright 2008 by the author, Margaret S. Hrezo.

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THE GLOBAL DEBATE OVER CONSTITUTIONAL PROPERTY: LESSONS FOR AMERICAN TAKINGS JURISPRUDENCE

by Gregory S. Alexander. Chicago: The University of Chicago Press, 2006. 288pp. Cloth $39.00. ISBN: 9780226012988.

Reviewed by Michael C. Evans, Department of Government and Politics, University of Maryland, College Park. Email: mevans [at] gvpt.umd.edu.

pp.884-897

To say that Gregory Alexander’s GLOBAL DEBATE OVER CONSTITUTIONAL PROPERTY: LESSONS FOR AMERICAN TAKINGS JURISPRUDENCE is an important and interesting work would be a gross understatement. The questions of whether (and how) to grant constitutional status to the right to property, and how courts ought to interpret such provisions, raise core issues in contemporary constitutionalism and political economic development, including the nature and institutional requirements of socioeconomic justice and the proper relationship between citizen autonomy and the state in a liberal democratic constitutional order. Alexander addresses these questions deftly through an interpretive-comparative study of the constitutional property regimes of three countries – the United States, Germany, and South Africa – interlaced with limited but pointed comparisons with those of other states, including Canada, India, Singapore, and the UK. There is a lot packed into this relatively short book, and its flow, clarity, and consistency can at times suffer on account of that fact. However, the breadth and depth of coverage and analysis, combined with its thoughtful and provocative arguments, render this book a highly stimulating and informative read. Two sets of scholars in particular can benefit from this book. First, those (like me) who are most familiar with the US experience may enjoy ruminating over the case made for how American Takings jurisprudence could be improved through doctrinal borrowing. They may also be interested to learn about how the US constitutional property regime is widely (mis)perceived around the world, and the impact these perceptions have had on the global debate over constitutional property. Second, those non-US-case-experts who have a particular interest or stake in the global debate may benefit from Alexander’s empirically-grounded critique of the extant debate as well as his judicious account of the real nature of the contemporary US constitutional property regime. Additionally, this book could be useful stimulus for discussing a variety of topics in upper-level undergraduate or graduate courses, including (but certainly not limited to) comparative constitutional property law; theories of distributive justice; the nature and institutional requisites of political economic development; the nature and determinants of judicial decision making; conflicts between individual rights and the public interest in liberal democratic theory and practice; theories of institutional and constitutional design; and theories of constitutional interpretation, especially with regards to the practice of constitutional borrowing. In short, whether for the above [*885] suggested purposes or simply a good read, I highly recommend this book.

At the heart of the book is the comparative study of the constitutional property regimes of the United States, Germany, and South Africa, with each receiving in-depth treatment in Chapters 2, 3, and 4, respectively. These chapters are of stand-alone value to anyone interested in the constitutional property law of those countries. However, these middle chapters also serve as evidential cases for supporting two major arguments advanced in the book and considered at length in the first and last chapters. The first chapter speaks to the normative question of “Should a country adopt a constitutional property clause?” by advancing a positive thesis about the impact such clauses actually have on the nature of constitutional property regimes. The chapter offers an interesting overview of the debate, making clear why constitutional property is such a hotly contested issue, but then argues that the debate has suffered on account of insufficient understanding by all sides of the real forces driving how property regimes actually operate. The last chapter (Chapter 5) suggests how American takings jurisprudence could improve through doctrinal borrowing. Rather than cover each chapter sequentially, this review is organized thematically, with two sections focused on the two major theses advanced in Chapters 1 and 5. In the process, however, I will cover those aspects of Chapters 2, 3, and 4 that I think will be particular interesting to political scientists.

I.
In the first chapter, Alexander offers a forceful critique of the extant debate over whether constitution makers ought to include a clause that guarantees an individual right to property ownership. Although, throughout the book, he clearly rejects the neoliberal / libertarian vision of the ideal property regime (advanced most famously by Richard Epstein) and embraces the property-affirming yet progressive aspects of the German and South African constitutions, he does not in this chapter directly address the question of what a good constitutional property regime would consist. Instead he offers a blanket criticism of the debate itself, arguing that it is misguided by the mistaken assumption that formal constitutional property clauses alone make a substantial difference to the nature and degree of a polity’s actual protection of property rights. He rejects not only the strong claim that “constitutional recognition is . . . a necessary . . . or a sufficient condition for a legal regime of robust property rights” (p.20), but also the slightly weaker claims that constitutional property provisions either increase the likelihood of achieving such a regime or that they are necessary for achieving one that is “fully functional” (pp.24-25). As he demonstrates, this assumption, which he calls the “formalist trap,” is implicitly held by all major participants in the debate. Indeed, he thinks the formalist trap has ensnared strong democrats and/or egalitarians (e.g. Michael Chaskalson, Ran Hirschl, and Jennifer Nedelsky) who oppose the inclusion of property clauses on the grounds that they impede democratic self-determination on important public issues, especially those pertaining to market regulation and distributive justice; neo-Harringtonian civic republicans (e.g. Cass Sunstein) who support them based on the belief that [*886] they contribute to the economic security and independence necessary for democratic citizenship; and those public choice / neoliberal economists (e.g. Gary Becker, James Buchanan, and Douglass North) and international financial organizations (e.g. World Bank and IMF) who view constitutional property provisions as “precommitment devices” for protecting legitimate property rights and/or efficient markets from the arbitrary factional whims (read “redistributive tendencies”) of majoritarian democratic governance (pp.24-39). The reality, Alexander argues, is that constitutional property clauses per se are “distributively indeterminate” (p.39).

While it is true that some countries with constitutional property guarantees have had strong traditions of property rights protection (e.g., the US) and exhibited strong anti-redistributive and anti-regulative tendencies (e.g., the US during the LOCHNER era and India from 1950 - 1978), and it is also true that examples abound of regimes without such constitutional provisions that have been virtually unfettered in their expropriation of property for redistributive or other purposes (e.g., India after 1978 and non-constitutional authoritarian and communist regimes), the formalist assumption does not hold-up in light of several counterexamples. That is, it cannot explain the high level of property rights protection (and thriving market economies) in certain countries without constitutional property clauses (e.g., Canada, UK, New Zealand, and Singapore) and the highly progressive character of some regimes that do have such clauses (e.g., Germany and South Africa.) Alexander stops short of saying text is irrelevant, but he does assert that “the mere presence of a clause guarding against uncompensated ‘expropriations’ . . . of ‘property’ does not commit that country to a policy against governmental redistribution of wealth” (p.39). The key, instead, is whether and how judges decide to interpret such clauses (pp.57-62).

The critical question, therefore, is this: What influences judicial interpretation of constitutional property clauses? Alexander emphasizes the “nonconstitutional context [of a country], particularly its background political and legal traditions and culture” (p.60). Although he deemphasizes the importance of constitutional text, below I will explain why I think he does not fully consider the extent to which his evidence and argument point to its relevance (properly understood.) But first it is important to consider what is certainly one of the most valuable contributions of this study, which is his identification of three aspects of a country’s nonconstitutional political-legal context that are important in influencing the actual functioning of its property regime: its private law system, its historical political ideologies, and its dominant social beliefs about the operation of ordinary democratic politics. Let us consider each in turn.

The first factor, a country’s private law system, plays a role in judicial decision making, Alexander argues, regardless of what the constitution formally mandates. As Chapter 4 makes clear, this factor is most obviously important in the case of South Africa. There, as he convincingly demonstrates, the success or failure of the constitution’s socially “transformative” aspirations (and, thus, its ability to authorize extensive [*887] regulation and redistribution of property in order to overcome the socioeconomic remnants of its Apartheid past) hinges greatly on “which of two discursive frameworks . . . prevails as the dominant discourse in all aspects of the South African legal system[:] . . . that of traditional South African private law, particularly its historic Roman-Dutch common law, [or the] constitution’s discourse, … which elevates social transformation and social justice over all other values” (pp.150-151).

Although Chapter 2, Section 39 of the constitution mandates that, in developing the common law, courts “must promote the spirit, purport and objects of the Bill of Rights” (including its positive socioeconomic rights that entail limits, and place demands, on how owners use their property), it is far from settled whether the judiciary will do so. Proponents of the traditional South African private law method (see pp.182-184 for a helpful summary of this method) argue that it must resist “colonization” by constitutional law (i.e., effectively ignore Chapter 2, Section 39) in order to perform its essential function of providing “flexibility and adaptability” in doctrinal development pertaining to the “private sphere.” Opponents counter that its predictable consequence is to undermine the protections and guarantees deliberately built into the constitution in order to address persisting gross inequities. Regardless of which side has the most convincing argument, it is clear that if the views of private law traditionalists were to prevail, the South African property regime would be affected little by the constitution’s property clause (or its socioeconomic protections and positive rights) since the courts would consider the common law (interpreted through an abstract, formalistic, and conceptualistic method), rather than the constitution and its values, to be the relevant basis of decision. This, in fact, has occurred in some lower courts (pp.182-188).

Alexander seems to mean two things by “historical political ideologies,” the second aspect of a country’s nonconstitutional political-legal background that he points to as influencing judicial treatment of constitutional property rights. At times he refers narrowly to the continued influence (through a “negative valence”) of National Socialism in Germany and the racist ideology underlying the repudiated Apartheid system in South Africa. He argues convincingly that the constitutional jurisprudence in those societies continues to be influenced by the shadow of their Nazi or Apartheid pasts. Indeed, as he observes, the “constitutions of both countries are explicit negations of those ideologies . . . . [and, thus] every term in those constitutions has to be interpreted in light of those negations” (p.60). This is most apparent in the case of South Africa, where its constitution’s preamble begins by stating “We, the people of South Africa, / Recognize the injustices of our past” and goes on to explicitly declare that the regime is founded to “[h]eal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights” (p.152). With such explicit language running throughout the South African constitution, it is not surprising that constitutional jurisprudence in that country has been largely influenced by the negative valence of its Apartheid past. [*888]

However, Alexander’s treatment of the impact of political ideology in Germany (Chapter 3) is notably different. In his very interesting account of the ideological origins of Germany’s approach to constitutional property, he barely mentions the role played by the post-war German repudiation of National Socialism. A definitive feature of Germany’s approach to constitutional property is its concomitant Basic Law Article 14 guarantee of private ownership and inheritance, on the one hand, and Article 14(2) social-obligation clause (“Property entails obligations. Its use shall also serve the public good.”), on the other. As he demonstrates, this is one example of how Germany has constitutionized the tension between Rechtsstaat, which protects negative individual rights and liberties, and Sozialstaat, which is committed to meeting the basic needs of all citizens. Importantly, this tension has its roots “not in constitutional law, formally understood, but in the country’s background legal and political traditions prior to the era of National Socialism” (p.98, emphasis added). In particular, he argues that the Sozialstaat ideal could be traced back to the Lutheran notion of mutual obligation between ruler and ruled (pp.105-106) and that the Basic Law’s distinctive approach to reconciling Sozialstaat with Rechtsstaat was highly influenced by the “ordoliberal” ideas developed in the immediate post-war years by the so-called Freiberg School. While the ordoliberals, like anyone reflecting on the human condition after World War II, were certainly informed by the lessons of the National Socialist experience, their ideas appear to have been more fundamentally the product of their attempt to synthesize classical liberalism, socialism, and Christian ethics (pp.107-110). It seems, therefore, that Alexander also has a broader meaning in mind when he speaks of the influence of “historical political ideologies” on constitution making and judicial interpretation. This important insight can perhaps be better formulated in more general terms: prevailing ideologies, regardless of their origin, exert a profound influence on how a regime will construct constitutional meaning. Of course, that is still consistent with the observation that, in the particular cases of Germany and (especially) South Africa, the influential prevailing ideologies have themselves been influenced by the structural remnants, and each society’s memory and ongoing repudiation, of National Socialism and Apartheid respectively.

The third and final non-textual political-legal factor identified as influencing the actual workings of a constitutional property regime is a society’s dominant beliefs about the operation of ordinary democratic politics. As Alexander points-out, liberal democracies vary greatly with respect to their traditional (mainstream) beliefs about the nature of normal political processes. This is important, he contends, because different prevailing beliefs on this core issue tend to produce both different constitutional texts and different characteristic manners of interpreting those texts. Indeed, he goes so far as to claim that the “best way to understand a democratic country’s interpretation of its constitutional property clause is as an expression of its dominant outlook on the functioning of ordinary political processes” (p.61). He argues, in particular, that the characteristically American “Madisonian anxiety” over factional capture of the [*889] democratic process is an important source of difference between the US property regime and that of Germany and South Africa.

Alexander’s analysis and critique of the “formalist trap” should be a wake-up call to anyone harboring the illusion that a constitutional property clause per se will materially affect the nature of a society’s property regime. However, the book does not point to clear practical conclusions for constitutional designers. I will discuss this further below, but first we should consider the other major argument advanced in this book.

II.
As the subtitle indicates, the other major purpose of this study, and the focus of Chapter 5, is to draw upon the experiences of other liberal democracies (particularly Germany and South Africa) in order to derive lessons for American takings jurisprudence. As background for considering these lessons, it is important to overview several pertinent findings/conclusions from the comparative analysis in Chapters 2-4:

(1) The constitutions of the US, Germany, and South Africa each offer protection from expropriation of property. However, these protections are far from absolute: they allow the state to take property on the condition that it is done for the benefit/use of the public and that the owner is appropriately compensated.

(2) They all recognize, either implicitly or explicitly, what Alexander calls the “social obligation of ownership.” As mentioned above, Germany’s Basic Law Article 14(2) explicitly states that “Property entails obligations. Its use shall also serve the public good.” Although the South African constitutional text does not include an explicit social obligation clause akin to Basic Law 14(2), a norm to that effect is strongly implied throughout, especially by the positive socioeconomic rights guaranteed in Chapter 2, Sections 26-29. As for the US, while its constitutional text lacks a strong explicit or implicit recognition of such a norm, Alexander argues at length in Chapters 2 and 5 that its case law implicitly does so. In fact, he argues that US constitutional property law “is not as far out of alignment with [i.e. is not significantly more libertarian than] its counterparts in other liberal democracies, including Germany and South Africa, as is commonly assumed” (p.64). However, as we shall see, he thinks its case law would be improved considerably by making its social obligation norm more explicit in its case law.

(3) None of the three countries’ constitutions provides guidance on (and, thus, they all leave to the courts to sort out) the fundamental problem of distinguishing between non-compensable regulations of property and compensable de facto expropriations (known as “regulatory takings” in the US case.)

(4) The US Supreme Court stands-out among liberal democratic constitutional courts for not using a “proportionality” principle in its individual rights decisions. For property rights cases, the proportionality approach is used extensively not only in Germany and South Africa, but also in countries such as Canada and Australia that lack property rights clauses in their constitutions/charters of rights. [*890]

(5) In the constitutions of many modern democracies, including those of Germany and South Africa, but not that of the US, “human dignity has been formally enshrined as the foundational substantive value by which the courts are to develop all other constitutional interests, including property” (p.16).

(6) In their decisions, both the German and South African constitutional courts, in contradistinction to the US Supreme Court, “explicitly identify the central purposes of property as a constitutional right and develop their constitutional property jurisprudence around this settled understanding” (pp.246-247). By implication, he argues that courts necessarily base their constitutional property decisions on normative principles, and the only real question is whether they do so transparently: “Where courts openly discuss and debate the central purpose (or purposes) that property serves as a constitutional right within the particular constitutional regime and in the particular context of the case, they are much more apt to reveal the real normative bases for their decisions” (p.247). Moreoever, when they do this “clarity and principled reasoning are enhanced” and, as a consequence, “[c]onstitutional property law is more likely to be viewed as principled and coherent” (ibid).

(7) Compensation practices in the US differ from those in both Germany and South Africa in two ways. First, the US does not allow “equalization benefits” to be used to prevent otherwise desirable regulations from being declared unconstitutional takings. Second, the US never considers payment below (or above) “fair market value” to be enough (or required) for “just compensation.”

(8) Although Alexander persuasively argues against the widely held view that a successful libertarian/conservative “revolution” in US takings jurisprudence has occurred in the last twenty years, he does assert that that jurisprudence is significantly “muddled” and thus in need of repair. In its current state, especially in comparison to other liberal democratic constitutional property regimes, it is analytically incoherent, opaque in its purposive reasoning, lacks “an expressly recognized and well-developed norm of the social obligation of ownership” (p.199), and consequently engenders unwarranted legal and normative confusion.

Based on his comparative analysis, Alexander makes four recommendations for doctrinal innovations to improve American takings jurisprudence: developing and applying a proportionality doctrine, adopting a purposive mode of judicial analysis, developing an explicit social obligation norm of ownership, and appropriating the compensation practices of “equalization benefits” and “proportional compensation.” Here I briefly summarize each recommendation.

As stated above, the constitutional courts of most liberal democracies outside the US use a proportionality principle to decide property rights cases. The proportionality principle, as applied in those countries, is the second part of a two-step test. The first step is to ask whether a statute in fact violates a constitutional (or entrenched) right. If it does, then a statute is ruled proportional and thus legitimate if it meets three conditions: (1) the means are rationally connected to achievement of a legitimate [*891] state objective; (2) the means impair the affected right as little as possible; and (3) the legislative measure is generally proportional to the ends to be achieved. The major difference between this method and the American practice of “balancing” is that with this three-pronged method “the balancing of benefits and burdens comes, if at all, only at the end of the inquiry [i.e. step 3], after the court has analyzed the purpose of the restriction and the restriction’s necessity” (p.203), whereas balancing does not involve that preliminary analysis. Moreover, whereas balancing generally takes the form of abstract, de-contextualized cost-benefit analysis, with “a pretense of scientific rigor that make the outcome appear objective” (p.204), proportionality analysis is distinct for its “contextuality, transparency of the relevant factors and reasons, breadth in the competing consideration, and overt normativity” (p.202).

In general, Alexander sees proportionality as presenting a middle course between balancing, which in practice “translates into ‘the government always wins,’” and the categorical or strict scrutiny approach, favored by libertarian property rights scholars and activists, that “in the takings context would equal ‘the owner always wins’” (p.212). Currently, takings jurisprudence relies mostly upon the former, but the intermittent use of the latter as a remedy for the perceived injustices of the former has reduced predictability in the law (p.206.) However, Alexander thinks predictability, as well as justice, can be enhanced if the proportionality approach is adopted. This move, however, while necessary, is in itself insufficient and possibly counter-productive. He thinks the Court not only must adopt it, but also must do so in a way that incorporates his other three doctrinal innovations. Otherwise, it could slip into a categorical approach and thus, from his point of view, become a cure (for balancing) that is worse than the disease (pp.207-208).

His second doctrinal innovation would lend clarity to takings jurisprudence while preventing it from slipping into a categorical approach by inviting the Court to engage in a purposive form of decision making. The purposive approach requires that courts “analyze takings cases by explicitly focusing on the core purpose of constitutional protection of property, identifying the central constitutional value that such heightened protection is intended to serve, and asking whether that value is immediately at stake under the circumstances before it” (p.215). Importantly, Alexander does not claim that there will be consensus on the purpose(s) of constitutional property. He simply argues that constitutional decisions will create less confusion if the “real normative underpinnings of opposing views” are made overt through explicit purposive reasoning (p.217). As an example, he points to the 1994 DOLAN case, in which the Court reviewed a city’s attempt to exact a public dedication for a pedestrian and bicycle pathway and flood-control greenway from a store owner in exchange for a permit to expand her store and parking lot. The Court declared the exaction an uncompensated taking, and thus unconstitutional under the Fifth Amendment. Alexander argues that under proportionality analysis conducted with purposive reasoning, the regulation would have been deemed [*892] legitimate, especially if the Court operated from the purposive theory of property that predominates in German constitutionalism. This theory holds that property claims should be hierarchically ordered according to their role in promoting human dignity, understood as “development of the human personality [that most properly] occurs within the social community” (p.221). Alexander argues that by this mode of analysis, the Court would have ranked the importance of protecting Dolan’s purely commercial economic property interest lower than other forms of property (e.g. housing) that more directly impact an owner’s “personal security or autonomy” (p.209). Alexander offers an interesting survey of other contending theories of property’s purpose(s), including negative individual liberty, economic efficiency / wealth maximization, welfare (objectively defined), and the civic-republican concern with “the creation and maintenance of . . . a social order based upon the ideals of self-governance and civic participation” (pp.219-223). Of these, he endorses the dignitarian, welfarist, and self-governance theories as needed correctives to the overemphasis upon negative liberty and economic efficiency / wealth maximization in the US context.

Alexander’s third proposed doctrinal innovation is an extension of the second. He argues that US takings decisions would improve markedly if, as the end product of purposive analyses, the Court would articulate an explicit conception of the nature of the social obligation that inheres in property ownership. His argument is premised on a rejection of the common claim “that in the American liberal tradition, constitutional protection of property is all about the individual owner’s freedom from the coercive power of the collective and that conceptions of ownership as imposing obligations on individuals . . . are squarely at odds with the most fundamental premises of our system” (p.234). To the contrary, he argues, citing Frank Michelman, that “the idea of social obligation undergirds the culture of American constitutional protection of property at its most fundamental level” (p.223). This is clearest in the case of the noxious-use doctrine, which holds that compensation is not owed for regulations intended to halt a noxious use of property (p.225). Even Justice Scalia’s revision of this doctrine, the “nuisance exception” to a categorical rule that he articulated in LUCAS (1992), acknowledges a(n) (albeit “truncated”) social-obligation norm (pp.225-228).

The real debate is about the scope of the social obligation norm, and here Alexander thinks takings decisions would improve both expressively (by publicly affirming the importance of social responsibility) and substantively (by enhancing transparency and clarity) if the Court would explicitly define its scope (pp.223-225; 234-235). There are two major contenders for how its scope ought to be defined (228-233). The minimalist (i.e. libertarian) view envisions only the negative obligation to not harm others’ property and a positive obligation limited to contributing to the provision of “public goods” (pp.228-229). The second view allows for a more robust account of positive obligations, including (but not limited to) “the redistribution of wealth done for the sake of equality of welfare” (p.228). His preference is clearly for a version of the latter approach that focuses “not on a [*893] non-owner’s [positive] right to receive” but rather on the owner’s “continuing duty to give (or at least be prepared to give, if and when the duty is activated) to the society that made their ownership possible in the first place” (p.231). However, he also argues that it is more important that the Court explicitly develop one version or the other rather than continue its current normatively “opaque” approach that does nothing but create legal and normative confusion (p.235).

Finally, Alexander recommends two improvements to US compensation practices in takings law. In his judgment, current practices exacerbate rather than alleviate the tensions between efficiency/public need and fairness that arise in many regulatory scenarios. Too often either efficient but unfair regulations are declared non-takings, thus allowing burdens to fall disproportionately on an individual or small group of owners in the community without any form of compensation, or desirable regulations are declared de facto takings and thus made prohibitively costly as a consequence of the burden placed on the public to provide “just compensation” to owners. His first proposed reform, “equalization benefits” (EBs), are widely used in Germany. EBs are (typically non-monetary) benefits that are “designed to mitigate the harmful effects of a regulation on an individual owner” and, in the process, “prevent an otherwise desirable regulation from constitutional invalidity for violating the proportionality requirement” (p.236). An example of an EB is the construction of a noise-reducing wall to ease the burden placed on homeowners by a nearby public highway project. Alexander sees this practice, which he argues was implicitly endorsed by Justice Brennan in the landmark 1978 PENN CENTRAL decision, as a flexible alternative to the current “all or nothing” US approach.

His second proposed compensation reform addresses the problem of prohibitive costliness by borrowing the German and South African practice of allowing payments less than “fair market value” to be considered “just compensation” under certain conditions. Here, he holds the German “equitable balance” standard up as a useful model. By this approach, compensation is based on weighing, on one hand, the degree of impact of a regulation on an individual’s property right in light of the fundamental purpose of that right and, on the other hand, the extent of the public interest involved in the regulation (p.240). According to Alexander, in practice this approach results in awarding individuals fair market value in “the vast majority of cases” (p.240). However, the approach is flexible enough to admit lower levels of compensation, especially in cases where “the public interest involved in the expropriation is very great and, because of the nature of the affected item of property, the expropriation did not substantially jeopardize the fundamental purpose of the constitutional property right” (p.240). It is important to note that Alexander thinks the purposive mode of analysis is indispensable in determining what just compensation requires: “The meaning of ‘just’ . . . depends upon the strength of the affected constitutional property interest and that, in turn, depends on precisely the type of purposive calculus that proportionality analysis invites” (p.242). [*894]

III.
Although I learned a lot from this book, it has its share of shortcomings. One problem is that at times Alexander is inconsistent or even contradictory. In his introduction, for example, equal weight is given to “background legal and political traditions and culture” and “institutional context” as factors influencing judicial interpretations of constitutional text (pp.17-20), but only the first is emphasized (or even explicitly mentioned) in later chapters. Similarly, in the introduction we are told that the “formalist insistence on constitutional recognition of property rights by proponents of the neoliberal agenda is a red herring” due to the empirical thesis, defended in the book, that “constitutional recognition is neither a necessary nor a sufficient condition for a legal regime of robust property rights” (pp.20-21). However, four pages later in Chapter 1 Alexander states that “no one, at least as far as I am aware, asserts that constitutional status is either a necessary or a sufficient condition for stable and secure legal property rights” (p.24). What’s more, in the first chapter he contends that a suspicion of legislative and regulatory enactments born out of “Madisonian anxiety” (i.e. fear of factional corruption of democratic processes) has led Americans to support strong reliance on judicial review as a protector of property rights from democratic abuse, whereas Germans and South Africans, out of greater democratic trust, have developed property regimes based on much greater deference to their legislative and regulatory systems (pp.60-62). As mentioned above, this is in fact held-up as one of the most important cultural factors influencing variation (across regimes) in the impact of judicial interpretation in the construction of property regimes (ibid). However, Chapters 2 and 5 emphasize that this tendency in American political-legal culture has not been present in takings jurisprudence: “Courts, especially the Supreme Court, have tended to display a more deferential attitude toward legislative decision making where property rights are concerned” (p.217).

Another problem is that the book occasionally blurs normative and empirical arguments and assertions. For example, twice Alexander asserts that the analysis of the formalist trap leads to the conclusion that constitutional designers should take into account contextual factors when deciding whether (or how) to include property provisions in a constitutional text (p.62; pp.245-246). But this really is not a compelling implication of the analysis. It is one thing to say that, as a factual matter, the actual impact of any set of property provisions is determined in part by contextual factors that have nothing to do with the constitutional text itself. That proposition is well defended in the book. But it is something else entirely to say that this entails constitutional co-authors should somehow tailor constitutional provisions in light of those factors. Indeed, especially since it is argued throughout the book that text can make a difference – either as a catalyst for legal cultural change or by making certain interpretations easier or harder than others in the event that judges choose to justify their property decisions on constitutional textual grounds – the thrust of the argument seems to lead to the opposite conclusion: a constitutional co-author has a dominant strategy to promote the adoption of constitutional language most conducive to [*895] interpretations supportive of her vision of a good property regime, regardless of how likely she thinks it is that such interpretations are to be forthcoming. So, for example, nothing in the book’s argument (as I understand it) leads one to believe that there are any conceivable circumstances in which the libertarian constitutional co-author should not try to exclude, or the social democrat should not try to include, (1) language that establishes a social obligation inherent in ownership or (2) socioeconomic protections and positive rights. One can imagine arguments supporting such conclusions, but none are offered in this book.

A similar problem arises in the course of discussing the debate over borrowing. Here, Alexander makes a connection between the role of “tradition” in his analysis, on the one hand, and Justice Scalia’s rationale for rejecting borrowing, on the other:

Among the problems with attempts to borrow legal practices, especially constitutional practices, from other countries is one of the very factors that I emphasize in this book: the central importance of a nation’s background legal and political culture and traditions to the meaning of the provisions of its constitution. . . . The importance of background legal and political traditions and culture is one reason Justice Scalia has given for resisting the idea of constitutional borrowing. (p.10)

The problem with this is that it conflates two very different reasons why background legal and political culture and traditions matter to the debate over constitutional borrowing. The first is Scalia’s normative particularist argument that the US Supreme Court should not borrow because the US should adhere to its own text and traditions (see e.g. Jacobsohn 2004.) The second is Alexander’s pragmatic-empirical argument, which is that borrowing might not work as intended because background cultures and traditions have a significant impact on whether and how provisions and rulings will be interpreted and implemented. Clearly, the two uses of “tradition” are not equivalent.

A final criticism I will make is that, despite its repeated attacks on various manifestations of “formalism” and declared commitment to “realism,” the book has little to say about the role of broader constitutional institutions and structures in influencing (1) the likelihood that judges sympathetic to a particular jurisprudential method or property rights vision will come to sit on the bench, (2) the impact their pronouncements will actually have, or (3) the propensity for normal democratic politics to result in redistributive policies. This is unfortunate since these could be relevant considerations for the constitutional designer or anyone sympathetic to Alexander’s vision for reforming American constitutional property jurisprudence.

As an example of the first consideration, a constitutional designer might want to take into account the likely consequences of alternative rules governing judicial selection on the political composition of both higher and lower level courts. Was there anything progressive constitutional co-authors could have done in South Africa, for example, to increase the likelihood that lower courts would be staffed with judges committed to affirming the [*896] subordination of common law to the Constitution?

As for the second consideration, the actual working of a property regime will necessarily be as much (if not more) a matter of execution as it is one of high court pronouncements. This study comprehends well Alexander Hamilton’s oft repeated insight that “[l]aws are a dead letter, without courts to expound and define their true meaning and operation” (1787). However, it has nothing to say about the proposition he advanced fourteen years later that without “a faithful and efficient organ for carrying [them] into execution[,] the laws [will] . . . be a dead letter” (1801). This means not only that constitutional designers should carefully consider how they decide to constitute executive power, but also that we should be skeptical about the likely efficacy of a reform proposal directed merely at the interpretive practices of the judiciary. One need look no further than Rosenberg (1991) to understand the insufficiency of judicial pronouncements to determining the real state of “law” in the US case. In order for judicial opinions to be anything other than a dead letter, they must either inspire voluntary compliance or be backed by the will to enforce by executives in the relevant jurisdictions. Here, the hegemony of mainstream public (as opposed to elite-judicial) opinion looms large in determining not only the propensity for voluntary compliance, but also the likelihood that (popularly elected and accountable) executives will be willing to enforce. Consequently, a progressive improvement to American takings law may well require tending as much, if not more, to mainstream public opinion as it does to the practices of the judiciary. As one institutionally-minded constitutional theorist has suggested,

The problem with these endless efforts to refine the jurisprudential and philosophical case for social democracy, other progressive policies, or any other political cause, may be that such scholarship reaches the point of diminished political and practical returns long before reaching the point of diminished intellectual returns (Graber 2001, at 1976)

.

Finally, the third consideration – the impact of constitutional institutions on the propensity for ordinary politics to result in redistribution – is perhaps the most important omission of this study. Particularly relevant here is the well-established finding in the comparative political economy literature that proportional representation systems are more likely to enact redistributive policies than are simple majoritarian winner-take-all systems (see e.g., Iversen and Soskice 2006). This means that the electoral rules established in constitutional texts may have a much greater causal impact on levels of redistribution than the presence or absence of constitutional property provisions, regardless of how they are stated or interpreted. If the formalist trap means overemphasizing the efficacy of parchment barriers, then this book may have avoided that trap only to become ensnared by its close cousin: legal constitutionalism’s myopic focus on courts and judges and under-emphasis of the impact of broader constitutional structures in influencing the actual nature of rights protection, and public policy more broadly, in a political regime. [*897]

Despite these limitations, I must reiterate my admiration for this book. Alexander demonstrates remarkable skill as a comparative constitutional law scholar, and points the way to a more fruitful debate over constitutional property.

REFERENCES:
Graber, Mark. 2001. “Social Democracy and Constitutional Theory: An Institutional Perspective.” 69 FORDHAM LAW REVIEW 1969-1987.

Hamilton, Alexander. 1787. FEDERALIST #22.

Hamilton, Alexander. 1801. “Examination of President Jefferson’s Message to Congress of December 7, 1801 (#5).” December 29, 1801.

Iversen, Torben, and David Soskice. 2006. “Electoral Institutions and the Politics of Coalitions: Why Some Democracies Redistribute More Than Others.” 100 AMERICAN POLITICAL SCIENCE REVIEW 165-181.

Jacobsohn, Gary Jeffrey. 2004. “The Permeability of Constitutional Borders.” 82 TEXAS LAW REVIEW 1763-1768.

Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago.

CASE REFERENCES:
DOLAN v. CITY OF TIGARD, 512 U.S. 374 (1994).

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

LUCAS v. SOUTH CAROLINA COAST COUNCIL, 505 U.S. 1003 (1992).

PENN CENTRAL TRANSPORT CO. v. NEW YORK, 438 U.S. 104 (1978).

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© Copyright 2008 by the author, Michael C. Evans.

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LAW, ANTISEMITISM AND THE HOLOCAUST

by David M. Seymour. New York and Oxford: Routledge-Cavendish, 2007. 160pp. Hardback. $150.00/£95.00. ISBN: 9781904385431. Paper. $45.95/£22.00. ISBN: 9780415420402.

Reviewed by Therese O’Donnell, The Law School, University of Strathclyde, Glasgow. Email: therese.odonnell [at] strath.ac.uk.

pp.881-883

David Seymour’s concerns in this book lie with the lack of attention given to the links between law and the emergence of anti-Semitism. He is curious about the potential for an intimate connection between the two and is doubtful about the prevailing course of study which he sees as viewing anti-Semitism as a pre-existing given, with law’s connection to it as simply being one of external application. Utilising a wide field of enquiry which stretches from the thoughts of such thinkers as Marx via Sartre to Agamben, Seymour sees linkages between the diverse thinkers in the way they make connections between legal rights as an expression of modern political emancipation and the emergence and development of anti-Semitism. His view is that even critical theory has had its shortcomings in properly theorising anti-Semitism, because although it identifies the historical connection between emancipation and anti-Semitism, it is Seymour’s view that critical theory remains in thrall to the explanatory tenets of the anti-Semitic worldview “including the naturalising of social categories and the denial of subjectivity that come with this naturalising” (p.xvii).

At the turn of the 20th century into the 21st, Seymour having thought that his work on anti-Semitism was destined to become of historical interest only, grew uncomfortable with the increasing attractiveness, at least in the West, of “Jewishness.” Indeed, similar turnarounds in the fortunes of erstwhile pariahs have been evident in the relationship modern Australians seek to re-establish with criminalised ancestors. Seymour identifies one fascination with “the Jews” as lying in their identification, notably by Lyotard, as particularly ethical. While such a phenomenon might be written off as mere kitsch fascination or a retreat to a problematic (and potentially dangerous) exoticising, Seymour goes straight to a Nietzschean ressentiment anxiety. That is, upon being discovered as less than the transcendent superior force external agents ascribe to them, Jews will suffer an unfortunate fate at the hands of the vengeful disappointed. Indeed, such projections and reflections permeate the book which opens with a “letter from Shylock” in which Shylock attacks the dishonesty of Christian criticism of usury and yet bemoans his own foolishness in acting as a Christian (by dealing “unjewishly” with Antonio). Shylock’s reflections conclude that he has been killed as a Jew but no more than Antonio has been as a Christian and he ends with the question “[W]ho now can separate the flesh from the blood?” (p.xv).

In considering the relationship of Enlightenment and emancipation to law, [*882] anti-Semitism and the Holocaust, Seymour considers Marx’s attempts to highlight the social basis of seemingly natural phenomena as championed in particular by Bruno Bauer. Marx was convinced that complex and potentially competing public and private identities attach to all members of civil society, not simply Jews. Indeed he questioned the very nature of political emancipation itself by generalising any individual’s participation in the state as an act of mere sophistry thus simultaneously “dissolving” any Jewishness in the question. This was in opposition to Bauer’s writings which suggested a perfidious aspect to Jewish citizenship which could only be cured by renunciation of faith. For Marx, property’s capacity to afford access to rights and money was less about perceptions of Jewish power than the conditions wrought by capitalism. Seymour notes that for Marx the political emancipation of the time was the end of the beginning in a process heading towards genuine emancipation. However, for Seymour the challenges to naturalism undertaken by Marx were not pursued by subsequent critical thinking.

Seymour then moves on to a discussion of the work of Theodor Adorno and Max Horkheimer, Zygmunt Bauman, and Giorgio Agamben which he sees as a trilogy of works culminating in a situation in which naturalised anti-Semitism becomes dissolved into general and generalised conceptions of domination (p.14). Seymour considers that Adorno and Horkheimer, despite their best efforts, still treat “the Jews” as a socio-economic concept thus masking or denying the “non-conceptual” Jews of everyday life (p.18). He maintains that their treatment of anti-Semitism as independent of individual human thought or action, allows it to take on the characteristic of a natural phenomenon unrelated to human responsibility and responsiveness. Bauman’s work, notably in its discussion of science and the possibilities it creates for anti-Semitism, is described as the mid-point on the trajectory from critical thinking to positivism. Seymour considers that Bauman’s work allows anti-Semitism to lose its uniqueness and to be subsumed within more generalised notions of domination, whereby extra-social naturalist science imposes itself onto society (p.23). Anti-Semitism thus ceases to become a product of social relations and critical thinking becomes infused with positivistic elements. Nevertheless Bauman’s work leaves some space for the social realm notably in his critique of the “conceptual Jew” and the social construction of it. Seymour sees that for Agamben the granting of citizenship becomes a decision dictated by biopolitics. It stops being a question of mere political membership, instead becoming more fundamentally about life itself, with Jews and their exclusion becoming the naturalised product of an absolutist positing power (p.29). Thus, for Seymour, the Jews, the Holocaust and anti-Semitism are simply reduced to paradigmatic examples of general domination and positivism’s dream of reducing the many to one is fulfilled. In his opinion, this will result in the loss both of an understanding of the particularities of anti-Semitism and the social worlds which bring it into being and the means through which it can be acknowledged and confronted.

In the mid-point of the book where Seymour examines anti-Semitism, he [*883] considers the work of Nietzsche, Sartre, Lyotard and Agamben. Among the linkages between these thinkers he sees is the tendency to treat modern emancipation as doomed to failure leading to a ressentiment, not only against the emancipated world, but against the very idea of emancipation. Among Seymour’s stronger criticisms are those levelled at Lyotard. For Lyotard, modern emancipation involved the loss of the “ethical,” a quality which he saw the Jews as embodying, and which led to their targeting as a result of ressentiment (p.67). Seymour considers this characterisation as distorting as those expressed in anti-Semitic views and in his view paradoxically inaugurates a post-Holocaust stream of ressentiment (p.68). Although acknowledging Lyotard’s evaluation of the ethical in the Jews as a positive, not a negative, Seymour is concerned that the effect of such an image can be equally dangerous (pp.73-74). Ultimately, for Seymour the theoretical trend whereby critiques of anti-Semitism and the Holocaust are submerged within generalised critiques of emancipation is worrying.

What comes to light . . . is the presentation of antisemitism as the outcome of a shortcoming of emancipation that, in itself, has little or nothing to do with the actual existence of Jews.
. . . Subsumed under universal categories, the specificity of antisemitism and the Holocaust will become the ontological loss that lies at the core of the calls for an emancipation from emancipation. The consequence of this new loss contains within it ressentiment against the acknowledgement of a specifically modern Jewish dimension to the equivocalities of emancipation. It is a ressentiment that we find nurtured within the very roots of antisemitism itself. (pp.80-81)

Seymour does not end his work on this negative note. After all he wishes to encourage theoretical vigilance regarding ressentiment not an ignoring of, or surrendering to, it. After a discussion of the jurisprudence of Nazi monumental architecture, which he considers parodied classicism in the same way that the Nazi Law of Nature parodied Natural Law, Seymour concludes by discussing Hannah Arendt’s work which he considers to avoid the pitfalls he identifies in other works. He favours her refusal to treat Jews as mere objects of history and her approach which eschews the pursuit of a chronological continuity between pre-modern anti-Jewish prejudice and modern anti-Semitism in favour of identifying the distinctions, as well as her call for a more sophisticated understanding of the concept of human rights.

This is a dense and thought-provoking work which attempts both deep and broad analysis of political thought likely to be of interest to researchers working in the fields of jurisprudence, sociology, philosophy and politics. The book builds on the author’s previously published works, and, given his cautioning regarding potential upsurges of ressentiment in matters related to the Holocaust and anti-Semitism, it will be interesting to see the progress of his ideas in the context of 21st century critical theory.

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© Copyright 2008 by the author, Therese O’Donnell.

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PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY

by Nathaniel Persily, Jack Citrin, and Patrick J. Egan (eds). Oxford and New York: Oxford University Press, 2008. 376pp. Hardback. $99.00/£60.00. ISBN: 9780195329414. Paperback. $29.95/£15.99. ISBN: 9780195329421.

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

pp.877-880

Analyzing the impact of public opinion on the Supreme Court, the counter impact of the Court on public opinion, and the reasons for support for the Court has been something of a growth industry in Political Science over the past several years. As Franklin and Kosaki (1989) note, most literature dealing with the Supreme Court and public opinion consists of studies dealing with the impact of public opinion on the Supreme Court. This literature is consistent with the broad theories propounded by Democratic theorists, and is an attempt to prove or disprove the responsiveness of the Court to majority opinion. While it is less frequently done, other scholars have written on the impact of the Court on public opinion. This book is an attempt to expand and add to the literature of this area with some discussion at the end of the impact of BUSH v. GORE and the subsequent impact of the case on support for the Court, the third area of public and opinion and court research.

Besides presenting an overview of public response to Supreme Court constitutional opinions, the editors and the authors of these articles want to add to the debate on what the editors call “popular constitutionalism.” The argument is that Supreme Court decisions should not be the dominant mode of constitutional interpretation, but instead should be one point in a debate that includes the public. Much of the data and analyses of the chapters shows that the Court decision is often just a starting point and that there is often little impact on public opinion.

In addition to the work of the editors, professors of law and political science, many of the chapters are written by U.C. Berkeley Ph.D. candidates or recent graduates of the program. After the introduction there are 14 solo authored or co-authored chapters, each covering a controversial political or social area over which the United States Supreme Court has issued opinions. The chapters sequentially cover civil liberties, including a look at the war on terror, civil rights including desegregation and affirmative action, criminal jurisprudence, federalism, the takings clause and the 2000 election controversy. Thus almost the full panoply of the bill of rights including the 10th amendment and the 5th Amendment takings clause is encompassed by the book.

Each chapter follows a similar format. First is a review of the major decision or decisions. Then the author or authors introduce data and information on public reaction to the decision and the constitutional issue. The contributors include not just public opinion data but [*878] also evidence of media attention following the Court decision. Many of the chapters then include a multivariate analysis that separates the many factors that go into support or opposition to the particular controversy or court opinion. There does not appear to be any logical order to the chapters with social issues, criminal issues and civil rights issues mixed throughout the book.

While individual author techniques and voices are evident, the book has been nicely edited to a coherent whole, with each chapter following a similar format and style. Some of the chapters, depending upon issue area, offer more of a historical than contemporary analysis particularly if the Court has not issued a ruling in the area for several years. The strength and weakness of each chapter and the interest that each may have for particular readers depends less on the content of the chapters and more on the available data for the particular issue and the particular time period of the constitutional controversy, although chapter length does not depend on available information. As one editor, Nathaniel Persily notes in the introduction, “the particular mix and order of questions on a given survey, the timing and frequency of surveys and the particular wording of the relevant questions present inescapable limitations on this book” (p.7).

For example the first several chapters deal with issues with a lot of data and research in the particular areas. The first chapter by Murakami focuses on responses to BROWN v. BOARD OF EDUCATION in the 1954 to 1961. Thus the chapter uses historical data, but plunges into a very prominent controversy over the ability of the courts to effect social change and finds limited effects on public opinion. Thus even though the chapter delves into a controversy now over 50 years old, it has relevance for the impact of courts on social policy.

Several other chapters deal with Civil Rights issues. For example Chapter Six by Mayeri, Brown, Persily and Kim examines the issue of gender equality, Chapter Seven by Le and Citrin analyzes affirmative action, and Chapter Ten by Egan, Persily and Wallsten examines gay rights. The gender equality chapter is an example of data limitations. While interesting, the public opinion polling deals with gender roles and is not directly on point with the constitutional issue of whether equal protection applies to gender discrimination. Because of this, much of the data and the analysis are more sociological than an examination of public opinion on the constitutional issue of gender and equal protection following Supreme Court holdings.

Public opinion data on affirmative action and gay rights, in contrast, are much more on point to the current constitutional controversies. The chapter on affirmative action offers some interesting data on gender, noting that support for affirmative action increases if respondents are first asked about preferences for women before being asked about racial hiring preferences. The chapter on gay rights also has the benefit of several years of data more pertinent to the relevant constitutional issues of equal protection and right to privacy. The data and analysis here show that public support appears to track changing court attitudes, with both becoming more supportive of gay rights, [*879] and the multivariate analysis offers intriguing information on public reaction to future court rulings in this area.

Several chapters are devoted to social, criminal and first amendment issues. The chapter on abortion by Luks and Salamone uses time series data to find a public and court largely in step with each other, but the underlying causal mechanisms and any change in the structure of support remain unexplained. This finding of court and public compatibility is in contrast with the findings of the school prayer chapter by Gash and Gonzales and the death penalty analysis by Hanley, both of which show a Court largely out of sync with public opinion and whose rulings did little to influence public support in favor of the right to burn American flags or the banning of mandatory prayer in public schools. Conversely, Green and Jarvis, in the chapter on the right to die, seem to find growing support by the American public for the right to die, despite Supreme Court rulings finding no constitutional right to privacy issue or equal protection issue that prevents state legislatures from banning physician assisted suicide.

Lerman’s chapter on the rights of the criminally accused shows that initial opposition to Supreme Court rulings by the Warren Court expanding rights appeared to move in the direction of greater acceptance of the rulings. Again this is a chapter where data limitations prevent firm conclusions. As the author notes, it is impossible to state whether the Supreme Court rulings changed public opinion or whether the movement over time was independent of the Court’s opinions.

Three of the remaining chapters examine current constitutional issues. The chapter on federalism by Mullin suffers from the data problems of some earlier chapters. Although extremely important, there is not a lot of public interest in the relative power of the states and the federal government, and recent court rulings on the commerce clause and the 10th and 11th Amendments. Hence the chapter focuses on determinants of public support for federal power, but those responses are not related to Supreme Court rulings in this area. On the other hand, the issue of government takings, since the Court opinion in KELO v. CITY OF NEW LONDON, has increased salience to the public, and the KELO ruling spurred significant state response in limiting the “public use” doctrine. Thus the decision galvanized opposition to government takings. The chapter on the War on Terror and Civil Liberties by Goux, Egan and Citrin shows a nuanced and erratic public response to congressional legislation, but it does not include data in response to recent Supreme Court opinions limiting executive authority in this area.

The last chapter by Mate and Wright on BUSH v. GORE and the 2000 election controversy is a bit of an outlier. Most of the chapters analyze public support for an issue after or in response to Supreme Court rulings. The focus of this chapter is on support for the Court following the decision. The chapter thus does not really examine “popular constitutionalism” but diffuse and specific support for the court in the aftermath of BUSH v. GORE. Thus, while the chapter is interesting, it is thematically different from the rest of the book and offers little new information. [*880]

This book is a welcome addition to the field and is useful both as a compendium of information in this area, and it also offers some new and insightful analyses. While not all chapters are equally strong or valuable, the book will provide a useful source to those who research in law and courts and will be a welcome addition to political science graduate courses in public opinion or judicial process when the focus turns to courts and public opinion. I think it will also help those of us who teach undergraduate courses in Civil Liberties and Civil Rights by providing important context to the cases taught to our undergraduate students.

REFERENCES:
Franklin, Charles, and Liane Kosaki. 1989. “Republican Schoolmaster: The U.S. Supreme Court, Public Opinion and Abortion.” AMERICAN POLITICAL SCIENCE REVIEW 83 (September): 751-771.

CASE REFERENCES:
KELO v. CITY OF NEW LONDON 545 U.S. 469 (2005).

BUSH v. GORE 531 U.S. 98 (2000).

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

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© Copyright 2008 by the author, Robert M. Howard.

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FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM

by Terence C. Halliday, Lucien Karpik and Malcolm M. Feeley (eds). Oxford and Portland Oregon: Hart Publishing, 2007. 520pp. Hardcover $115.00/£55.00. ISBN: 978841137674. Paper $24.00/£15.00. ISBN: 9781841137681.

Reviewed by Thomas Scheffer and Hyo-Eun Shin, Free University Berlin, Germany. Email: Scheffer [at] law-in-action.org.

pp.871-876

The book aims to demonstrate the “affinities between political liberalism and lawyers.” It endeavours to do so not just for the old European nation states and well integrated and established legal cultures. It aspires to find the lawyers’ collective orientations towards political liberalism in democratic and undemocratic states, in Western and Eastern countries, in moderate and authoritarian states, in modern and traditional legal cultures, and so on. This endeavour is clearly ambitious and truly global. As a result, the editors present a comprehensive volume of more than 500 pages and collect 16 case studies from Asia, the Middle East, the Americas and Europe.

The project derives from two sources: the initial one comprises historians and sociologists and their project on lawyers and political liberalism in France, Germany, the UK, and the US; the follow-up project, featured in FIGHTING FOR POLITICAL FREEDOM, comprises contributors from Political Science, Legal History and Sociology and covers various temporal episodes in Korea and Taiwan, China, Hong Kong, Japan, Egypt, Turkey, Israel, Venezuela, Chile, US-America, Spain, and Italy. This broad coverage is truly impressive and refreshing in itself. When are all these countries, traditions, cultures ever brought together not just in one volume, but in a comparative project?

There are more reasons, why this book is remarkable. It reminds the reader of the political relevance of sociology of law and the sociology of profession by covering issues such as Guantánamo and the role of the courts, the war against terrorism and the abolition of rights, authoritarian regimes and the force of law, the legal market and the professions’ societal responsibility. It recalls sociological classics such as Durkheim and Parsons and their ideas of societal integration by responsible and honourable professions. It recalls, moreover, debates between scholars such as Habermas, Luhmann, or Bourdieu on the – normative/deliberative, missing/self-produced, or practical/authoritarian – foundations of positive law.

Practicing law generally involves a normative accord. Lawyers seem to develop a “passion for individual rights.” This is one of the principle findings of the book, and it is considered to have a somewhat universal validity: There is indeed an affinity between advocates and political liberalism. How do the authors demonstrate this affinity despite the amount of case studies, the different [*872] historical periods involved, and the diverse continents and contexts shown? They do so, first of all, by presenting detailed accounts of exactly this broad range. They do so, secondly, by some conceptual ground work, by clarifying what they exactly mean by political liberalism and the legal profession in favour of this liberalism. They do so, thirdly, by discussing the problems and pitfalls of their general claim of affinity. However, what they do not do is present a theoretical or conceptual explanation for the affinity or passion.

The demonstration of lawyers’ affinity or passion for political liberalism runs through a number of compromises and adaptations. Firstly, the authors narrow the scope of political liberalism. The notion mobilised for comparative purposes does not cover democratic or social rights: Generally, it is purported, lawyers do not engage for the latter. Conceiving political liberalism as a legal concept means here, furthermore, to introduce the moderate state in terms of an institutionalised checks-and-balances model, and civil society as a pre-existent watchdog of governance. Secondly, the authors extend the scope of what counts as lawyer. They invent the concept of “legal complex” and allow the various case studies to fit the national professional landscape into the legal complex comprising not just lawyers of bar and bench, but clerks, civil servants, prosecutors, legal academics, and the like. Thus, the comparison gains attentiveness towards the “structural relationships of actors” (p.473) within a legal complex. Thirdly, the authors allow for exceptions. The general rule of affinity remains not just unexplained; rather, it includes exceptions as long as they are accompanied by specific regional conditions: an authoritarian state, fear, a missing civil society, a hostile common sense and press, and so on. The empirical range spans from broad mobilisation, to inconsistent or split liberal positioning, to anti-liberal reflex at certain historical episodes. The exceptions prove the rule.

Legal complex and political liberalism provide the backdrop for global comparison. The wide and narrow conceptualisation allow all thirteen countries to somehow fit the comparative schema. They allow more data to enter the comparison: more fights for freedom, more actors engaging in these fights, more organisational efforts to overcome the deprivation of rights, and so on. All 16 country episodes become (variant) cases of the same theme and pattern. All appear as comments on and versions of the claim of affinity. It is in both, the introduction and in the postscript that the volume’s organizers, Terence C. Halliday, Lucien Karpik and Malcolm M. Feeley, point towards conceptual challenges to delimit the notion of political liberalism in order to fit the variety of contexts and cases. They derive a definition that is minimal: liberalism is reduced to the bare relation of the individual to the state. Lawyers and academics alike seem to align with these first order laws only. However, this specification of political liberalism brings an extra need for explanation: why is there an affinity to “individual laws” and not, for example, to social or political rights (to eat, to work, to vote)? Why is there a passion for the first generation laws and not for the late modernist laws? Are they the closest to their professional identity? Are they simply practical preconditions for their case work and legal representation? Do [*873] lawyers ‘just’ create the basis for their own business to flourish? Or do lawyers develop a certain political consciousness that derives directly or indirectly from their legal work? The authors do not attempt to develop analytical explanations here. In passing, they refer to the belief in justice as a public good that may constitute a main resource for the political commitment of lawyers. They address, in outlines, legal training and practice as means to gain political power through the use of the judicial system, and the notion of representation as a fundamental basis for the legal profession, but do not elaborate on them. Either way, the concept of political liberalism seems to resonate with the legal profession’s idea of freedom and rights; of advocacy inside and outside the legal courts, no matter how one would account for it by means of functional, economic, or habitual explanations.

The authors do not discuss critical approaches to the legal profession. They do not spell out the implications of their assumptions and demonstrations in light of other versions of what lawyers do, or do not do. Close to the lack of engagement with opposing versions – e.g., in the critical or materialist tradition – the authors miss a theoretical dimension of liberalism. Individual rights are a good thing to be protected. This goes without further explanation especially in a political climate that ignores human rights and undermines civil society in the name of the by and large hysterical “war against terror.” It seems insufficient in a wider historical and transnational perspective, where individuals and collectives are deprived of basic rights, not in legal terms, but by economic, social, and physical exclusion. So whose liberalism is at stake here? Is it a theoretical construction, a historical fact, or an insight into a partially shared professional culture? The restricted notion of political liberalism reflects a concept that is without precedence in the sociological or political literature. The restricted notion reflects the core of historical case studies. It, more than anything else, reflects the notion of liberalism that is performed by the lawyers themselves. It seems, first of all, the notion of lawyers’ liberalism.

But how does all this correspond to the case studies? Do we find explanation in the descriptions and analyses? We briefly discuss three of the sixteen case studies without claiming that they are representative for the full range of studies. However, despite their well-researched presentation and their extraordinary rich foundation, these three studies may lead towards a general call for explanation.

Tom Ginsburg, in his sociohistorical analysis of liberal transformations in South Korea and Taiwan from the 1970s onwards (Chapter 2), construes the Northeast Asian legal complex as an ideal type on grounds of structural similarities regarding the interrelations between legal institutions in Japan, Korea and Taiwan due to their shared colonial past. It is the phenomenon of post-WWII authoritarian, administrative states imbued in illiberal capitalism, of bureaucratic law regimes with professional, semi-autonomous judiciaries and small private legal professions, developing into democracies with lawyer-presidents and growing political influence by legal actors that Ginsburg considers as [*874] paradigmatic for the proclivity of lawyers towards political liberalism. In this vein, the editors categorise these two cases as success stories in the empirical spectrum collected here: the legal complex as a whole mobilises for all the three aspects of political liberalism as defined in the book: “legal institutions, the legal rights inherent in civil citizenship, and the engagement of lawyers in civil society” (p.11). Ginsburg discusses several exogenous and endogenous factors that promoted this development: expansion of the private bar; economic growth and the emergence of a vivid civil society (despite or because of strong political repression); professional training of lawyers abroad, especially in the US, which inspired a strategy of litigation by lawyer-led NGOs and alternative bar associations; the institution of a liberal Constitutional Court in South Korea or a shift in jurisdiction of the Council of Grand Justices in Taiwan. He also carefully elaborates the different routes “liberal lawyers” have chosen: political party organisation in Taiwan versus broad civil society mobilisation outside party politics in South Korea. However, his account lacks clarification as to the special relation between lawyers and political liberalism; rather, it emerges as an ex post narrative which exemplifies how liberal-orientated lawyers achieved strong political influence under contingent circumstances. Nevertheless, the strength of his contribution lies in highlighting the role of an overarching democratisation movement in both countries which renders lawyers not as the only, but as one of various actors forming alliances for social change. Furthermore: “In a very real sense, the private legal profession emerged along with democracy in both countries” (p.61). However, this interrelation is not maintained by the editors who bracket democratisation from political liberalism. Thus, on the one hand these two cases are afforded a paradigmatic character, while on the other hand they are deemed “the two exceptions” (p.466) insofar as lawyers do engage for a far broader agenda comprising more than individual rights.

Richard L. Abel (Chapter 12) demonstrates another exception, fuelled by the aforementioned “war against terror.” Abel tracks down in detail how the legal advisers in the US government pushed the limits of what still counts as lawful in order to provide the president with all the powers necessary to respond to the terrorist threat. Fundamental rights were misrepresented by government lawyers against the broad protest from a surprisingly powerless legal complex. Abel’s case study gives an account of legal rationales that were utilized by academics, defense lawyers, and legal associations, as to why the war against terror went out of control and undermined the constitutional foundation of the United States. However, since the article was completed, and actually until today, no prisoner was released from Guantánamo, no deprivation of basic rights was corrected, no unlawful act cured. The legal complex failed in a seemingly fully developed legal culture, the prototype of legal liberalism. Abel explains failure of historic dimension with common sense and public opinion, with lack of civility and collective shock that followed the twin-tower disaster. His conclusion presents a split legal complex, or more so, an antagonist complex that perhaps never was united in the first place: “Faced with a determined executive and [*875] a complicit or complacent legislature in the world’s only superpower the rest of the legal complex – lawyers, legal academics, professional associations, judges and NGOs – could do little to protect political liberalism” (p.398). The US seemed to enter a dark period of anti-liberalism that is not over yet and that continues to haunt the world order.

Are these the only atypical cases? Gad Barzilai’s case study on the ambivalent language of lawyers in Israel (Chapter 8), for example, seems to indicate otherwise. As Lucien Karpik, in the Postscript, also quotes from Barzilai’s contribution, in Israel attorneys have indeed fought for more than just individual rights, especially through litigation: for social justice, for more transparency and against government corruption, for minority and gender rights amongst others; a belief in individual rights was the basis for a multifold engagement of lawyers as political actors. Moreover, Barzilai, after an insightful elaboration on the strong link between economic liberalism and growth of the legal profession based on quantitative data, emphasises the notion of lawyers as an ambivalent profession; in the nation state of Israel, where illiberal characteristics remain from the days of state formation and land confiscation, the various actors within the legal complex both expressively and silently reinforce the status quo, and the “liberal talk” does so as well. It is this concept of talk and silence that leads him to understand lawyers as political actors in any case, since they delimit, under conditions of decentralised and split power foci, the space of discourse open for public deliberation. While, in general, since the 1980s, lawyers in Israel seem to execute silence on issues pertaining to national security, small groups of lawyers such as Adalah break that silence in a fight for liberalism – once again, this liberalism is far more extensive than the restricted notion of political liberalism put forward by the editors. At the same time, their strategy of litigation calls on courts as embodiments of state authority, thus reinforcing the existing distribution of power and limiting the potential for a more radical social change. Barzilai’s achievement lies in his attentiveness to the ambivalent ways in which liberalism plays out among lawyers and in which lawyers may be proponents of liberalism on selected issues only.

Can this selectivity be sufficiently explained by “fear of destruction” (p.26), by a hostile public or a lack of autonomy within the legal complex, be it from the executive or senior lawyers, as the editors tentatively argue? Is the perceived immanent threat to national security inhibiting further liberal transformations for the moment? Here again, the cases of the South Korea and Taiwan – interestingly, Barzilai refers repeatedly to these two countries – seem to provide examples for an alternative scenario: as Ginsburg contends, in Taiwan and South Korea issues of national security and state sovereignty have been addressed by legal actors, despite the fact that both countries face ‘hostile’ neighbours; initially, small fractions of the legal complex have engaged themselves amidst hostility and repression, and despite a strongly hierarchical system within the bar and judiciary.

One general explanation for the ‘exceptions’ may bring us back to some careful explanations for the [*876] affinity-argument. Perhaps, both – hostility and affinity for liberal/individual rights – are two sides of the same coin. Perhaps, both positions of the legal complex are grounded in the conditions of possibility of this complex to exist in the first place. Lawyers’ ability to defend and construct cases not only requires a system of individual rights, but also a stable state in the first place. This dependency is first felt within the administration, but it is not restricted to it. To put simply: the “monopolisation of violence” (Weber) precedes governance, while governance precedes the force of law. Grounding the law in a violent act is far from being a new insight. It is just a reminder that, also seemingly anti-liberal by nature, the critical tradition encompassing Marx, Nietzsche or Foucault, provides important stimulants for an explanatory debate for both rule and exception in the lawyers’ fight for liberal rights. This also indicates a need for further explorations into the ambivalent ways of “how political liberalism and the legal complex over the longue durée mutually transform each other” (p.7). Spelling out presuppositions on the morality or practical logics of legal professions could shed additional light into remaining questions of who (why not others?) mobilises against what, to what ends and with what implications. On an epistemological or methodological level, discussions of the possibility and limitations of global comparisons involving various temporal periods could further enrich the debate over the universal applicability of the proposed findings. Another reading of the many contributions could, for example, rather than ‘find’ the restricted conception of political liberalism to be at work in various countries worldwide, elaborate on the meaning and significance of empirical variations and modifications of a theme (here: political liberalism) that look ‘the same’ only at first sight. These are careful articulations of possibilities to amplify further the highly valuable contribution of this book, which reminds us of the importance of legal actors in political fights over a whole spectrum of issues. With its comprehensive presentation of variant modes of action, both in terms of orientation and actors’ constellations within and outside the legal complex, it also reminds us of the precarious character of institutions of political liberalism. The lack of explanation is, after all, unavoidable when assembling all these countries, cultures and periods. It, moreover, invites, rather than disinvites, new research into this fascinating overlap of law and politics.

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© Copyright 2008 by the authors, Thomas Scheffer and Hyo-Eun Shin.

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AN ENTRENCHED LEGACY: HOW THE NEW DEAL CONSTITUTIONAL REVOLUTION CONTINUES TO SHAPE THE ROLE OF THE SUPREME COURT

by Patrick M. Garry. University Park, PA: The Pennsylvania State University Press, 2008. 200pp. Cloth. $35.00. ISBN: 9780271032801.

Reviewed by Bradley J. Best, Department of Political Science, Buena Vista University. E-Mail: Best [at] bvu.edu.

pp.867-870

In AN ENTRENCHED LEGACY, Patrick Garry delivers a forceful indictment of the most basic trajectories of US Supreme Court decision making in the modern period. Put simply, Garry casts the post-1936 Court’s embrace of an expansive federal regulatory power and individual rights jurisprudence as nothing less than a betrayal of sacred constitutional principles. The scale of interventionist, national government power in post-New Deal America, he argues, evinces a sustained repudiation of federalism and separation of powers principles. Furthermore, expanding zones of constitutionally protected individual liberty are, in Garry’s view, the result of the Court’s disregard of the limits of the judicial function and rejection of the Ninth and Tenth Amendments as constraints on the powers of the national government. Undergirding Garry’s thesis is the steadfast conclusion that the last seven decades of Supreme Court history reveal an institution whose powers are of unmitigated “centralizing tendency” and exert a “corrosive effect on democratic processes” (p.181).

Orbiting Garry’s thesis are secondary claims about the correctness of dual federalist, interpretivist, and judicial restraintist orientations. He is unapologetically sympathetic to nineteenth century conceptions of the federal commerce power and rejects expansive readings of the Fourteenth Amendment’s due process guarantee. Garry espouses a theory of the Constitution that denies any plausible basis for the Supreme Court’s practices of unilaterally identifying and nationalizing fundamental political and social liberties. His reading of American history leads to the claim that state legislatures are best able to discern the optimal range of personal liberty on such matters as freedom of expression, religious practice, and personal privacy. Importantly, Garry argues in favor of judicial minimalism not only as a matter of principle but in recognition of the instrumental value of decentralized democracy – i.e., federalism as conceived in the Founders’ day.

A key strength of AN ENTRENCHED LEGACY is the linearity and concision with which Garry pursues his thesis. The initial pages of the book contain a short set of prefatory statements, wherein Garry articulates his core purposes, followed by Chapter One’s treatment of the New Deal Court’s rejection of separation of powers and federalism doctrines. Here, Garry relates for the first time what he sees as the process by which the justices effectuated a dramatic expansion of the limits on Congress’ regulatory power, allowed unmitigated delegation of legislative authority to the [*868] administrative branch, and set aside the Tenth Amendment’s protection of state police power. The combined impact of these processes, as Garry insists in Chapter Two, is to deny both the Framers’ intention that national government authority extend no further than the Constitution’s grant of enumerated powers and the Tenth Amendment’s purpose of preserving the states’ role as chief authorities in defining the limits of individual freedom.

Garry is at his analytical and explanatory best in Chapter Three. Here, he outlines the most compelling claim of the book, the proposition that the uninterrupted growth of judicial power since the New Deal is a result of an indirect and little appreciated process.
The economic exigencies of the Great Depression, Garry observes, encouraged the Court to discard the enumerated powers, federalism, and nondelegation doctrines that constrained the national government’s legislative authority in the 1800s. Congress, in turn, assigned undue measures of legislative-type power to executive branch agencies. Subsequently, the Court lengthened its reach into the policy process by intensifying its review of agency rule-making processes and redrafting administrative rules. Such is the trend, Garry indicates, beginning with Franklin Roosevelt’s presidency. When added to the justices’ willingness to craft uniform, national standards for the protection of fundamental civil liberties, the Court has, Garry finds, effectuated a comprehensive undoing of the Constitution’s core structural limitations on federal power.

Chapters Four and Five contain closely linked discussions of what Garry views as the two strands of a necessary “federalism revolution.” First, he lauds the Rehnquist Court’s decade long effort to resurrect the Tenth and Eleventh Amendments as means to restore traditional preserves of state sovereignty. Next, Garry mourns the failure of the “second half of a federalism revolution – a stepping back of [judicial recognition of] substantive individual rights as the only protection of individual liberty” (p.102). As evidence of the dangers of placing individual liberties in the sole protection of the judiciary, rather than legislative bodies, Garry refers to the case of privacy rights. He explains that privacy interests, unlike the concerns of a permanent racial or religious minority, are universally shared and therefore optimally balanced by democratic processes wherein competing social interests are granted full consideration. In short, Garry argues that trading structural means – federalism and separation of powers – of protecting individual liberty for judicially dominated strategies risks a jurisprudence that miscasts personal rights as beyond the ken of the people’s elected representatives.

At 54 pages, Chapter Six is AN ENTRENCHED LEGACY’s longest and most wide-ranging. Garry extends his discussion of the Court’s refusal to allow the states primacy in the identification of the outer boundaries of individual liberty. In lengthy, case-specific examinations of religious freedom, free speech, and personal privacy, Garry repeats an abundantly familiar theme: nationalization of rights by the Supreme Court precludes states and municipalities from finding the [*869] proper balance-point between the goal of securing individual freedom and the need to hem in that freedom in ways commanded by local circumstance. What democracy requires, apparently, is individual liberty molded and customized by each community in accord with their own sense of good taste and practical necessity. In the final pages of the chapter, Garry offers a summarizing rant against substantive due process as a theory guiding judicial definitions of liberty. Here, he chastises the modern Court for employing the theory of substantive due process as a vehicle to unprincipled, politically motivated decisions about which individual rights deserve fundamental status and, thus, heightened protection by the judiciary. Inasmuch as he regards substantive due process as an invitation to arbitrariness in the judiciary’s ranking of personal freedoms, he relegates the theory to the category of predictable, anti-democratic consequences of the Court’s retreat from the separation of powers and federalism doctrines.

Political scientists are cautioned that this book is, in form and purpose, a legal argument in support of normative conclusions Garry derived, I am guessing, long prior to the completion of the work’s initial draft. Little space is dedicated to examination of competing scholarly perspectives, and Garry proceeds without mentioning or reacting to stock critiques of claims to objective knowledge of the Framers’ intentions. Supreme Court decisions running counter to Garry’s preferred brand of constitutional interpretation are tagged as acts of gross infidelity to original intention rather than plausible applications of broad principles to specific factual scenarios. Finally, that Garry proceeds more in the mode of argument than investigation contributes to the book’s most glaring weakness. Garry dedicates the final ten pages to yet another rant against the undemocratic character of the Court’s individual-rights jurisprudence.

AN ENTRENCHED LEGACY would benefit from a concluding chapter that considers the workability of the second half of the “federalism revolution” Garry prescribes. Are readers to believe that significant decentralization of individual rights – i.e., allowing each state to statutorily enforce its own conceptions of freedom of speech, religion, and privacy – is sustainable in a “flat” world? Furthermore, is it reasonable to imply, as I think Garry does in Chapter Five, that individuals disenchanted with the “climate of individual liberty” (p.124) in their state would (or could) without undue stresses move to one of the other forty-nine “laboratories of democracy” in search of more agreeable social and cultural climates? Such questions are left, for the most part, unanswered.

Although I hesitate to add this volume to the corpus of “must-reads” on constitutional theory and interpretation, Garry’s work will strike the reader as fresh and distinctive. His account of twentieth century departures from nineteenth century doctrine on the matters of federalism, separation of powers, and judicial role will add new dimensions to graduate seminars in constitutional history. Furthermore, Garry provides a brief, economical counterargument to the typically sympathetic and adulatory histories of Supreme Court decision making in civil liberties cases. Perhaps most important, [*870] Garry’s alternative claim about the link between the rise of the administrative state and the growth of judicial power since 1936 invites discussion and a more exhaustive inquiry. Nonetheless, graduate faculty teaching constitutional law and history courses are well advised to treat the Garry text as supplemental to standard works such as Abraham and Perry’s (2003) FREEDOM AND THE COURT. In addition, I firmly urge the assignment of less normatively oriented titles, such as Edward Purcell’s (2007) recent effort, whenever Garry’s presentation is required reading.

REFERENCES:
Abraham, Henry J. and Barbara A. Perry. 2003. FREEDOM AND THE COURT: CIVIL RIGHTS AND LIBERTIES IN THE UNITED STATES. Lawrence, KS: University Press of Kansas.

Purcell, Edward A, Jr. 2007. ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE: A HISTORICAL INQUIRY. New Haven: Yale University Press.

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© Copyright 2008 by the author, Bradley J. Best.

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EXPORTING AMERICAN DREAMS: THURGOOD MARSHALL’S AFRICAN JOURNEY

by Mary L. Dudziak. Oxford and New York: Oxford University Press, 2008. 272pp. Hardcover. $24.95/£13.99. ISBN: 9780195329018.

Reviewed by Julie Novkov, University at Albany, SUNY. E-mail: jnovkov [at] albany.edu.

pp.863-866

Mary Dudziak’s EXPORTING AMERICAN DREAMS: THURGOOD MARSHALL’S AFRICAN JOURNEY connects two stories – the American path from civil rights reform to the national institutional and cultural rejection of racial transformation and the Kenyan path from the boundless possibility and hope of independence to the rise to power of the repressive regime of Daniel arap Moi. The stories parallel each other loosely through their tragic arcs, particularly in the assassinations of movement visionaries Martin Luther King, Jr. on the balcony of a Memphis hotel in 1968 and Tom Mboya on the streets of Nairobi in 1969. But Dudziak puts the stories into dialogue with each other through the person of Thurgood Marshall, who bridged historic events in both nations through his own struggles to facilitate the triumph of the rule of law and the ideal of democratic governance with guarantees for full participation and protection of minority rights.

Marshall was already a prominent international figure when he made his first visit to colonial Kenya in 1960. He was sponsored by the American Committee on Africa as an American constitutional expert and potential advisor to Kenyan nationalists preparing to negotiate independence (p.33). Drawing implicitly on her earlier fine work, Dudziak carefully situates Marshall in his complicated role as a simultaneous Western expert, internationally known heroic rights advocate, and symbol of the transformation of American democracy. As an advisor, Marshall quickly surveyed the situation and identified the core constitutional dilemma as fundamentally different than that of the United States: the Kenyan black majority had to create a constitutional system that would fairly allocate rights and protections for their racial minorities, but the most problematic racial minority was the post-colonial white population, who maintained control over the best land and controlled an overwhelming share of Kenya’s financial and material resources. When a London conference was organized in 1960 to develop a constitution for Kenya and plan for the transfer of power to Africans, Marshall was the only participant who was neither Kenyan nor British (p.46). He worked with the Kenyan delegation and experienced the emerging Cold War tensions between nationalist leaders that began to structure Kenyan national politics before a nation existed. Drawing from the Universal Declaration of Human Rights, the Malayan Independence Constitution, the Nigerian Independence Constitution, and his broad knowledge of American law, Marshall developed a Bill of Rights that he proposed for consideration at the conference. (Dudziak includes this [*864] fascinating document, published for the first time in its entirety, as the book’s appendix.)

Dudziak’s narrative proceeds by deftly interweaving the historical events of the 1960s in the United States and Kenya, with Marshall as the focal point and link. In the early 1960s, the sit-in movement began to gain adherents; Dudziak describes Marshall’s ambivalence toward those who engaged in intentional lawbreaking and sought to avoid legal consequences as well as his discomfort with the role of teenagers and children in the protests (pp.82-89). As Marshall made the transition from civil rights lawyer to state actor, Kenya moved toward independence. Marshall, now a federal judge, traveled internationally to send a message of the United States’ commitment to civil rights reform despite the shocking and widely publicized violence in Birmingham. In his African travels, Marshall went to Kenya in part to reflect the United States’ commitment to a democratic and independent state, but also to check on the precarious status of his bill of rights, which was not effectively protecting the rights and security of the Indian minority. While he personally berated Kenya’s leaders for not respecting property rights (appalling his more staid white companion from the US Civil Rights Commission), he nonetheless returned to Kenya with his wife Cissy to celebrate independence in December of 1963 (pp.123-124, 128).

Dudziak chronicles Marshall’s complex response to the increasing turmoil of the late 1960s, noting that Marshall’s rejection of Black Power was not based in a simple conflation of the movement with violence. Rather, she argues, Marshall maintained faith in law’s ability to operate as a reformist and potentially transformative force, although unlike many liberal reformers, Marshall did not believe that legal progress and reform were inevitable or that American ideals of equality and liberty were destined to advance (pp.140-141). As the situation in the United States deteriorated, the Johnson administration continued to support the Kenyan regime despite growing evidence of discrimination against Asians and President Jomo Kenyatta’s tightening of political restrictions on his opponents. By the end of the decade, Marshall had ascended to the US Supreme Court, but movement leaders Martin Luther King, Jr. and Tom Mboya had been assassinated and the dream of nonviolent reform that hewed fundamentally to the rule of law seemed to have shattered.

Dudziak’s epilogue poignantly describes Marshall’s later years, as he watched his colleagues dismantle the hopeful vision of equality he had convinced the Court to adopt in BROWN and resisted acknowledging the swift slide of the Kenyan state toward authoritarianism. In 1987, the seventy-nine year old Justice and lifelong servant of the Constitution demanded that the nation acknowledge the Constitution’s original sins of accepting slavery and excluding women from civic membership. He argued that fidelity to the Constitution should be based in the contingent and always contested but fleetingly attainable moments of transformation locked within the document understood as a living connection to ideals. In the end, Dudziak explains, “Marshall held on firmly to a memory of a time when he had helped frame a constitution that [*865] made a colony a nation” (p.172), fulfilling his own highest aspirational conceptions of how the power of law could be used but refusing to accept the subsequent failure of those aspirations. Perhaps the failure he had struggled so hard to prevent in his own nation prevented him from confronting it elsewhere.

Dudziak’s book avoids telling the story as simple or one-sided. Marshall is heroic in his steadfast championing of law as the source for rights and change, but his intelligence and courage do not enable him to keep abreast of the rapid cultural changes in the United States in the late 1960s or the political and structural changes in Kenya during the same years. Nonetheless, Dudziak does not present him as a figure whom history had passed; rather she shows how his encounter with the phenomenon of Black Power can be seen as genuine engagement and disagreement rather than a rejection based in incomprehension. Her sensitive portrayal of Marshall’s struggles on the Court juxtaposed against his maintenance of an ideal vision of Kenya gives a sense of Marshall’s own complex negotiation of the relationship between the different historical legacies of racial domination and political and constitutional authority.

The book does not seek to arbitrate the contentious debate over Marshall’s relationship to the civil rights protest movements of the early and late 1960s. Nor does it draw independent conclusions about the tactical and principled choices of US civil rights leaders or the leaders of the Kenyan independence movement, relying rather on the largely separate bodies of historical work concerning each movement. The true genius, rather, is in using Marshall as both a concrete and conceptual link between the two movements. Focusing on Marshall enables Dudziak to make two sterling contributions. First, Dudziak thoughtfully addresses Marshall’s position as a symbol not only of black civil rights advancement but also as the embodiment of the American civic commitment to democracy. This analysis links American racial politics with American foreign policy at the core and opens a swath of subsidiary questions for research about how American racial policies shaped, responded to, and ultimately became integrated with American Cold War politics internally and internationally. Second, the selection of Marshall as the central figure raises painful but necessary questions about the rule of law and its capacity to foster and protect justice. Marshall confronted Black Power’s challenge to the state and its theorists’ identification of rule of law as a mere mask for racialized and politicized power relations. Yet he simultaneously closed his eyes to the Kenyan state’s conscious choice to embrace power at the expense of the rule of law and went so far as to praise Kenyatta’s continued fidelity to rights in the face of concrete repression. Does critical race theory’s analysis of law as a tool for reconfiguring power relations coupled with its pessimism about the possibilities for ever achieving racial justice provide a better framework? Or is it necessary, as Mari Matsuda once wrote (1992), to hold the view that the law is the fundamental source of both the most deeply rooted and ineradicable unjust hierarchies of power and our only realistic hope for transformation? [*866]

EXPORTING AMERICAN DREAMS is a thought provoking and painstakingly researched journey through a crucial transformational moment in two nations’ histories. In reflecting closely on Thurgood Marshall’s triumphs and failures in both nations and with both movements, we are invited to reflect on the potentials and core limits on liberalism, democracy, and law as paths to transformation and justice. The invitation seems particularly apt in an era when the United States is once again confronting its own legacy of racial subordination and grappling with questions around nation building and external threat. It is hard at the end of the book not to be frustrated on Marshall’s behalf as well as with Marshall himself. But it is much harder to know who among the contemporary American political and judicial elite might play a role similar to Marshall’s in struggling fiercely to integrate a commitment to the rule of law, to American ideals of liberty and equality, and to the dream of dismantling unjust hierarchies here and abroad.

REFERENCES:
Matsuda, Mari. 1992. “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method.” 14 WOMEN’S RIGHTS LAW REPORTER 297-306.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

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© Copyright 2008 by the author, Julie Novkov.

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THE CULTIVATION OF RESENTMENT: TREATY RIGHTS AND THE NEW RIGHT

by Jeffrey R. Dudas. Stanford, CA: Stanford University Press, 2008. 224pp. Cloth. $50.00. ISBN: 9780804758093.

Reviewed by Laura J. Hatcher, Department of Political Science and Women’s Studies Program, Southern Illinois University at Carbondale. Email: hatcher [at] siu.edu.

pp.859-862

Jeffrey Dudas has written an eloquent analysis of the politics of treaty rights as they have played out over the last few decades. His analysis develops a framework for understanding the language of “special rights” and the cultivation of resentment. His conceptual work provides a lens for grasping the complex dynamics of post-Civil Rights claims made by politically marginalized groups, while also highlighting the Right’s mobilizations against the claims made by these groups. Thus, not only is the book important for scholars interested in studying the politics of rights of Native Americans, but also for anyone who has an interest in the evolution and development of “backlash” and “counter-mobilizations;” the relationship between law and social movements; and rights discourse in the late twentieth and early twenty-first centuries. While I think the book might be challenging for undergraduates (except perhaps seniors in discussion-driven courses), it certainly can be used in graduate courses that touch on any of the topics mentioned above.

Dudas is deeply influenced by the legal mobilization literature that has so captured the imagination of law and society scholars since the publication of McCann’s RIGHTS AT WORK (1994). However, Dudas does not merely use the framework of RIGHTS AT WORK, but rather incorporates a deeper discussion of interpretive methodology and its relationship to the epistemological importance of understanding meaning-making to the social sciences. This is an argument we have seen more recently among scholars who are especially attentive to the methodological techniques as well as the epistemological arguments made in interprevist research (see for example, Fischer 2003; Yanow and Schwartz-Shea 2006; Yanow 2000). Dudas begins with the observation that the notion of “special rights,” a formulation popularized by New Right intellectuals, carries with it a sense that there is a “class of rights that are special and that, as such, they are illegitimate” (p.1). The illegitimacy of these claims also shapes the resentment underlying the condemnations of rights claims made by politically marginalized groups.

As Dudas explains with particular reference to comments made by George W. Bush during the 2000 presidential debates, “The special-rights talk employed by Mr. Bush expresses resentment over how those rights that are presumed to be special threaten the things that equal rights supposedly guarantee: that individual success should be based upon one’s merits, that communities should be places of relative calm and harmony, and that American governments should treat all people exactly the same” (pp.1-2). This observation is only the beginning of [*860] Dudas’ analysis. Employing interpretive methods to understand the meaning-making activities that occur when New Right activists use the language of special rights, he highlights the structure of these claims as they relate to cultural power. As Dudas points out, his approach focuses attention “on how shared values and practices provide us with the cognitive resources for making sense of ourselves and others” (p.12). Language becomes central to the analysis, in part because it reveals how research subjects understand themselves, but also because the language they use and the meanings they employ “inspire behavior” (ibid.). Such inspiration galvanizes action and often provides a means to bring new participants into the movement.

His theoretical perspective is clearly social constructionist. Following the dictates of good interpretive work, he has grounded his analysis by historically situating it, and building conceptually and theoretically from his data. His empirical work includes a careful content analysis of primary materials that allows him to formulate concepts with which to analyze two case studies (the Anti-Treaty Rights Movement and a mobilization of an Anti-Tribal-Casino Movement). Interpretive work requires theoretically and empirically grounded research. To that end, Dudas has combed through archives, personal papers, position papers, speeches and various other written and spoken materials in his analyses. “Winning,” in the sense of New Right activists getting their political way, is of little importance to this analysis. Rather, Dudas focuses our attention on the political practices through which, in his words, “a zealous social movement that appropriated one of the core legitimating symbols of American democracy – equal rights” was mobilized (p.93). Thus, Dudas provides us with one of the most provocative analyses of special rights discourse to date by focusing attention on language rather than outcomes. Moreover, his is not merely a description of political activism. Instead, he provides a conceptual framework for understanding activism. Further, he presents an organizational analysis that is directly linked to rights consciousness and political opportunity in his case studies. In a sense, then, this is one of the most methodologically complex and theoretically nuanced books on conservative counter-mobilizations written thus far.

One of the more intriguing moments in the book that indicates potential avenues for future research comes early as Dudas discusses the legal mobilization of marginalized groups (pp.18-22). As he begins to explain the differences between Indian mobilizations for treaty rights and other non-Indian activism, Dudas observes, “Whereas the legal mobilizations of non-Indian people have typically (though not exclusively) emphasized that they are similarly situated vis-à-vis other American citizens and that, therefore, they should be treated similarly, the legal mobilizations of Indian people tend to emphasize that Indians are differently situated vis-à-vis other American citizens and should therefore be treated differently” (p.19). He goes on to point out that this difference is often missed by their opponents: “A typical strategy is to deny or degrade the nationhood of tribes” (Ibid.). Such a tactic, Dudas tells us, “makes sense for only by such a tactic is it possible for anti-treaty-rights [*861] activists to argue that treaty rights are ‘special’ rights that deny the principle of equal treatment” (p.19). Such claims (as Dudas also notes) have some basis in law, as US courts have long seen the tribes as “quasi-sovereign.” But from an analyst’s perspective, Dudas’ larger point – that “special rights” talk requires the speaker to claim that those seeking redress for past harms or greater equality through rights talk are really already “the same” – is one of the most important insights he offers us.

If we push on this insight a little bit, it also suggests some things analysts of other legal mobilizations may want to consider as they proceed in their work. First and foremost, to what degree are counter-mobilizations always about claiming that whatever or whomever is being back-lashed against are making illegitimate claims that would cause them to become more empowered rather than merely equal? And secondly, in situations where equal protection is not invoked, one has to wonder what other practices give shape to these legal mobilizations? This seems especially important when studying activists (whether in the New Right or not) who position themselves as outside and in opposition to the status quo, but who seem by other empirical measures to be well within established power relations. Are conservative movements making use of other areas of law (for example, the First Amendment’s free speech clause in religion cases or the Fifth Amendment’s takings clause), then, going to have to draw on a different set of cultural practices in order to advance their position? If so, what are those other cultural practices, and how does the cultural power of law engage them?

Dudas has some important insights about the relationship between “special rights talk” and resentment against less politically empowered groups. There is a note of caution here, however: not all of the rights talk by New Right activists is necessarily “special rights talk.” Dudas is careful, most of the time, not to over-generalize, but it would be easy to over-state his argument or misunderstand the implications of “special rights talk” when thinking about still other conservative mobilizations. Dudas does not make any such claim; however, he also does not explicitly discuss other forms of rights talk by conservatives in much detail. We need more research to understand how the variations in rights claims interact with other cultural beliefs and ideas in order to have a fuller understanding of the cultural power of law. The contrast between the New Right movements and others is particularly instructive in this regard as they so often both make use of and react against beliefs about the power structures that are at odds with other activists. In a sense, cultural beliefs come into relief, thus enabling greater attention to them. Therefore, this careful interpretive work can be very helpful understanding the way identities are constructed and how such identities provide the imaginative possibilities and dynamic energy that gives rise to social movements.

REFERENCES:
Fischer, Frank. 2003. REFRAMING PUBLIC POLICY: DISCURSIVE POLITICS AND DELIBERATIVE PRACTICES. Oxford: Oxford University Press. [*862]

McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: the University of Chicago Press.

Yanow, Dvora. 2000. CONDUCTING INTERPRETIVE POLICY ANALYSIS. Thousand Oaks: Sage Publications.

Yanow, Dvora and Schwartz-Shea, Peregrine. 2006. INTERPRETATION AND METHOD: EMPIRICAL RESEARCH METHODS AND THE INTERPRETIVE TURN. New York: M.E. Sharpe & Company.

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© Copyright 2008 by the author, Laura Hatcher.

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