November 29, 2008

THE REALITIES OF REDISTRICTING: FOLLOWING THE RULES AND LIMITING GERRYMANDERING IN STATE LEGISLATIVE REDISTRICTING

by Jonathan Winburn. Lanham, MD: Lexington Books, 2008. 258pp. Hardcover. $65.00. ISBN: 9780739121856.

Reviewed by Gary E. Bugh, Department of Political Science, Texas A&M University-Texarkana. Email: gary.bugh [at] tamut.edu.

pp.1058-1060

Gerrymandering, one of the contemporary problems with legislative reapportionment, is the focus of Jonathan Winburn’s THE REALITIES OF REDISTRICTING. Party manipulation frames Winburn’s discussion of other districting issues, such as population equality, incumbency advantage, and racial discrimination. His evaluation of state redistricting looks beyond electoral outcomes to include rules and party control. Winburn explores multiple incentives and constraints on remappers in order to outline the conditions under which partisan influence on redistricting is most likely. While some of his findings provide few surprises, his lesson that rules help control partisan reapportionment is an important one for understanding and limiting gerrymandering.

Winburn explains that the goal of his work “is to delve into the varying rules and systems across the country to determine if the states already have constraints in place that limit political manipulation” (p.5). He reviews five main factors of a state’s redistricting environment: “control of the process, control of the government, use of traditional districting principles, potential court involvement, and the use of coterminous districts” (p.7). Regarding the first element, he presents a typology of control: unified legislative, divided legislative, partisan commission, and neutral commission. The kind of authority (legislative or commission) and level of partisanship (divided or unified) largely determine which strategy – partisan, incumbent protection, or neutral – that people charged with redistricting will follow. The body of Winburn’s work covers reapportionment processes and consequences in eight different states, two for each of his four process control types. He also details traditional districting principles: compactness, contiguity, preservation of political subunits, preservation of communities of interest, preservation of previous district cores, protection of incumbents, and compliance with the Voting Rights Act (pp.28-31).

As you can see, there is a lot going on in Winburn’s analytical framework – perhaps too much. At times, his discussion of the various types and categories is difficult to follow. Nevertheless, his approach might prove useful in evaluating a state’s redistricting processes. In each of his case studies of the various control types, Winburn alternates between two different states, allowing the reader to make connections with the book’s analytical components. While some of the state narratives may leave the reader wanting more background information, they largely [*1059] follow the framework that Winburn establishes in the first two chapters.

One theme that emerges in the state analyses is that commission redistricting is not necessarily immune from partisan influence. For example, the 2000 gerrymandering in Texas involved commission determination of districts. In order to avoid compromise, the Republican majority delayed legislative redistricting, and the responsibility fell to the Legislative Redistricting Board. The five-member board, which included the lieutenant governor, Speaker of the House, and attorney general, redrew maps that advantaged its party. Several other parts of the book are also informative. One such example is Winburn’s review of the judiciary’s actions in the area of redistricting, in which he elaborates the Supreme Court’s potential, yet hesitancy, to address the gerrymandering problem.

However, academics interested in deeper theoretical concerns or broader research agendas may not appreciate Winburn’s book. Some might be disappointed by the absence of a discussion of the theoretical nuances associated with redistricting. Winburn argues that understanding the reapportionment processes is important because it relates to “popular sovereignty.” If partisanship informs a state’s district lines, he notes, then the people do not have control over choosing their representatives; instead, representatives choose their electorates. This is certainly an important reason why remapping is an issue in representative democracy. Yet, Winburn’s consideration of popular sovereignty leaves aside the contending views of representation that have been used to justify practices and developments in district apportionment. For generations, as Stephen Ansolabehere and James M. Snyder elaborate in their compelling work, THE END OF INEQUALITY (2008), the traditional “federal” or “mixed” view of representation informed redistricting. Population shifts brought about representational inequalities between rural and urban districts. Legislators excused rural dominance because they used localities, not population equality, to determined districts. By adhering to the traditional perspective, state legislatures did not reapportion according to the popular democratic perspective of representation. It was not until after the pivotal decision of BAKER v. CARR (1962) that state legislators began to draw equally-populated districts, reapportioning on the grounds of “one person, one vote.” An analysis of contemporary political institutions or practices could use as its framework the tension between the traditional and the popular approaches to representation, perhaps using either as an evaluative standard. Partisan reapportionment may not only undermine popular sovereignty, for instance, but also democratic representation, more commonly known as political equality. Nevertheless, Winburn’s comments on popular sovereignty do not detract from the purpose of his book, namely to identify existing constraints on party influence in reapportionment.

An aspect of Winburn’s work that might trouble scholars is his measurement of party competition. His source of partisanship data is presidential election opinion polls from 2000. Winburn asserts that “[o]verall, the presidential vote serves as a good indicator of district [*1060] preference and allows for comparability across the states” (p.48). Winburn does not detail the source of his polling data, but it appears to be from national sources. Presidential election polls may indeed offer an indication of party preferences, but unless these surveys are at the state or county level, they are unlikely to capture accurately party identification within districts. Also, in today’s candidate-centered environment, many citizens vote for candidates of different parties. Nevertheless, for Winburn, since “the electorate was nearly evenly split across the country [in the 2000 presidential election] . . . , the presidential vote captures the same underlying partisanship as other down ballot races” (p.48). Winburn cites some sources to support this claim, but they are all conference papers that he has coauthored. Alternatively, some political scientists use party control of state legislatures and governorships in order to determine each state’s level of party competition.

Returning to the goals of his book, Winburn provides some suggestions that are relevant for activists working to remove partisanship from redistricting. He concludes that unified legislative control presents the greatest incentives and fewest constraints on partisan influence, while neutral commissions have the least incentives and most constraints (pp.34, 37). These findings are hardly revelations. However, through some of his state chapters, Winburn elucidates that neutral commissions, a favorite among most redistricting reformers, are susceptible to party manipulation (pp.198-199). He argues that, in addition to adopting independent commission control of the process, states need to cement redistricting rules into their constitutions. Some of these rules include complying with the Voting Rights Act and dividing a subunit only when its population exceeds other districts by 10 percent. In addressing how legislatures presently handle reapportionment, Winburn’s book adds to our knowledge of how rules may be used to restrain gerrymandering.

REFERENCES:
Ansolabehere, Stephen and James M. Snyder. 2008. THE END OF INEQUALITY: ONE PERSON, ONE VOTE AND THE TRANSFORMATION OF AMERICAN POLITICS. New York: W.W. Norton & Co.

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

© Copyright 2008 by the author, Gary Bugh.

 

The Realities of Redistricting: Following the Rules and Limiting Gerrymandering in State Legislative Redistricting

 

 

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PUBLIC FREEDOM

by Dana Villa. Princeton: Princeton University Press, 2008. 448pp. Cloth. $75.00/£44.95. ISBN: 9780691135939. Paper. $24.95/£14.95. ISBN: 9780691135946.

Reviewed by Sheila Suess Kennedy, School of Public & Environmental Affairs, Indiana University-Purdue University Indianapolis. Email: shekenne [at] iupui.edu.

pp.1055-1057

Some scholars stake out an area of inquiry that is tightly focused and contained, scholarly real estate small enough to be examined and parsed so completely as to be effectively “owned” – an academic phenomenon sometimes described as knowing everything there is to know about not very much. Dana Villa is obviously not one of these scholars. To the contrary; in this book, he has shared with his readers an ambitious, intellectually rich and often provocative effort to engage with one of the most persistent questions of political philosophy, and to make a cogent (and I believe persuasive) argument for a particular conception of civic life and the public good.

In PUBLIC FREEDOM, Villa addresses what may be the thorniest issue of governance in a free society – the persistent tension and proper balance between the individualism nurtured in and privileged by liberal democratic regimes and a civic republican tradition that he admits has “often displayed a deep-seated resistance to pluralism and anything resembling open-ended argument” (p.3). Villa’s willingness to confront the dangers of a too-enthusiastic embrace of a poorly-conceived public realm informs his careful, nuanced argument for a reinvigorated and reconfigured public square and a more robust conception of citizenship and the public good. The intellectual rigor and honesty that characterize this book serve to distinguish Villa’s arguments from those offered by advocates for a vague and idealized communitarianism.

Villa believes that the abandonment of active participation in the public sphere (as he defines both participation and the public) is transforming Americans from citizens to subjects, changing them from empowered participants in public life to relatively powerless, passive observers of governing elites. He draws upon Tocqueville, Hegel, Mill and Arendt, among others, to argue for a new balance between the universal and the particular, the common good and enlightened self-interest. At the heart of his argument is an echo of an admonition that has been attributed to both Thomas Jefferson and Patrick Henry to the effect that “eternal vigilance is the price of liberty” (Phillips 1853, at 13) – here, that sentiment is expressed as the notion that “citizens must be given something to do for the public if they [are] to become capable of exercising the ‘active and constant surveillance’ of governmental authorities that a representative system demands” (p.17).

The main focus of the book is an extended consideration of what genuine democratic participation might look like – an effort to define what Villa calls “the generalization of interests,” the [*1056] relationship between our individual interests and those of the society within which we inevitably pursue those interests. What, he asks, is the nature of the public spaces our particular governing decisions have created? How do individuals exercise power within those spaces, and how might we strengthen their ability to do so? How do we prevent both the market and the state from dominating and ultimately extinguishing the public sphere? How do we retain the capacity to exercise genuine and meaningful citizenship and how do we protect the rule of law?

In order to answer these questions, and to flesh out his conception of the public sphere, Villa traces the Tocquevillian notions of civil society and local and political associations, reminding readers that the distinctions between our governing institutions on the one hand and religion, the marketplace, and public opinion on the other are relatively modern phenomena. Tocqueville’s signal contribution, according to Villa, was to identify civil society as a mediating realm between and among these newly separated social institutions, a realm where citizens acquire and hone associational and political skills.

Villa proceeds to build upon Tocqueville’s conception of civil society and the public sphere by examining the contributions and arguments of other philosophers, primarily but not exclusively the philosophies of Hegel, Arendt, Mill, Foucalt and Heidegger. In each of these discussions, he offers penetrating insights and displays a sometimes dazzling scholarship. While the language of the book is accessible, the analysis is demanding and closely reasoned (this is not a book to be blithely assigned as undergraduate background reading). I found his analysis of Arendt particularly insightful – especially his interpretation of what Arendt means by the “Social Question” and what she suggests about the differences between the American and French Revolutions.

In his concluding chapter, Villa draws heavily on Arendt as he returns to the question of the proper balance between positive and negative freedom – or, as he frames it, “the freedom to be a ‘participator’ in government” on the one hand (positive freedom), and the “emphasis on civil rights and ‘negative’ freedom” on the other. “We move,” he says “from a civic republican understanding to a liberal (and increasingly economic) one” (p.343). In a particularly penetrating paragraph summing up what he believes to be the proper conception of the public realm, he writes that

“The idea of community that haunts the Western tradition, then, is one that repeatedly sacrifices the fact of human plurality on the altar of unity, wholeness or oneness. It is an idea of political community that is not, in Arendt’s view, political at all. A political community is precisely a ‘community without unity.’ It is an association of diverse equals whose shared care for the public world takes the form of intense and open-ended debate, deliberation and decision. What is at stake in these political discussions and decisions is the best way to ‘preserve and augment’ the space of public freedom these citizens have either constructed or inherited.” (p.352
)

This description, it seems to me, is exactly right; it captures the reality – both the promise and the challenge – of the public realm and the American [*1057 community in ways that more idealized versions do not.

Throughout the book, it is clear that Villa’s concerns about the viability of the American public realm have been exacerbated by the actions of the Bush Administration. He notes with disapproval the Administration’s use of fear (notably its ‘War on Terror’) to facilitate the accretion of executive power during the Bush Administration, and he links that phenomenon with the corresponding atrophy of the robust citizenship for which he is arguing. As he concludes,

“At a time when our public world is under attack by an array of economic, technological and ideological forces (to say nothing of the cabal of unwitting Schmittians currently occupying the executive branch), it is important to realize that ‘care for the public world’ is the furthest thing from a ‘leisure-time sport for aristocrats.’ It is, it turns out, a responsibility we all share; a responsibility that grows heavier each day as the boundaries of our public world – and the attention span of many of our fellow citizens – perpetually contracts.”


In his introduction, Villa tells us that this book was written over several years. It was published in 2008, meaning (academic publishing being what it is) that it was completed well before the recent national elections. The obvious question that arises is what Villa would think about the ability of the Obama campaign (aided by the disaster that has been the Bush Presidency) to generate massive participation in the political process. The campaign had in excess of three million discrete donors; even more astonishing, it enlisted millions of volunteers who canvassed their neighborhoods, called their friends, wrote letters to the editors of local papers, delivered absentee ballots and drove people to the polls. Is this increased political activity an anomaly, or could it be the harbinger of a return to the sort of participatory civic life that Villa believes essential?

For obvious reasons, that is a question this book cannot answer. However, in his argument for a more vital and robust public square and a more capacious conception of freedom, Villa makes a substantial contribution, both to the political theory literature and to a more textured understanding of the nature of a genuinely free society.

REFERENCES:
Phillips, Wendell. 1853. Speech in Boston, Massachusetts, January 28, 1852. – “Speeches Before the Massachusetts Anti-Slavery Society.”

© Copyright 2008 by the author, Sheila Suess Kennedy.


 

Public Freedom

 

 

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THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (2nd ed.)

by Gerald N. Rosenberg. Chicago: University of Chicago Press, 2008. 534pp. Cloth. $50.00. ISBN: 9780226726700. Paper $20.00. ISBN: 9780226726717.

Reviewed by Wayne D. Moore, Department of Political Science, Virginia Polytechnic Institute and State University. E-mail: wmoore [at] vt.edu.

pp.1045-1054

The first edition of Gerald N. Rosenberg’s book, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE?, received widespread praise and substantial criticism following its publication in 1991. As a testament to its lasting influence, this book received the 2003 Wadsworth Publishing Award from the Law and Courts Section of the American Political Science Association (the same section that sponsors this book review). That award honors books and articles at least ten years old that have had lasting impressions in the field of law and courts. THE HOLLOW HOPE truly is such a book.

The changes brought about by the second edition are primarily in the form of additions rather than revisions. The original introduction, first chapter, and chapters two through eleven, organized into three parts, are reprinted without any apparent changes. The second edition has a new two-page preface (accompanying that for the first edition), two completely new substantive chapters (12 and 13) on same-sex marriage, a lightly revised and renumbered conclusion (Chapter 14), and a new two-page epilogue. What we now get, in short, is the first edition plus Rosenberg’s analysis of cases involving same-sex marriage – including his treatment of the extent to which they support and/or require revision of the book’s original claims.

The second edition of THE HOLLOW HOPE, as with its precursor, is to be commended for what it is and what it does well. This book will remain a valuable resource for those studying roles that courts have played and may continue to play at the intersections of law and politics. The new chapters are informative and thought provoking. Most immediately, they will continue to provide useful perspectives for analyzing ongoing controversies involving rights of same-sex marriage. More generally, they will also be at the center of further analysis of relationships among constitutional and legal developments within states, across states, and at the federal level.

TThe book begins by offering a framework to explain when courts can and cannot bring about significant social change. Rosenberg emphasizes three constraints on judicial efficacy built into the structure of the American political system: the limited nature of constitutional rights, the lack of judicial independence, and the judiciary’s limited enforcement powers. In Rosenberg’s view, these constraints are seldom overcome, and thus courts are generally ineffective in producing major social change. But he allows for the possibility that these constraints may be [*1046] overcome under some conditions: when there is ample legal precedent for change, there is support for legal change from substantial numbers in Congress and from the national executive, there is strong support or weak opposition from citizens, and when conditions otherwise support compliance with the judicial decisions at issue.

The text carried forward from the first edition of THE HOLLOW HOPE draws on three sets of case studies to support this model of generally constrained judicial efficacy. Part 1 focuses on the US Supreme Court’s efforts to end racial segregation in BROWN v. BOARD OF EDUCATION (1954 and 1955) and subsequent cases. Part 2 examines the effects of ROE v. WADE (1973) and other decisions by the Supreme Court involving “women’s rights.” Part 3 is on Supreme Court cases involving the environment, reapportionment, and criminal law, with issues of criminal process receiving the most attention.

Treating BROWN and ROE as paradigmatic, Rosenberg denies that the Court in these cases (or those examined in Part 3) effectively brought about significant social reform. In the case of BROWN, he develops arguments that there was little progress toward desegregation in the South until the President and Congress became involved, especially through passage of the Civil Rights Act of 1964. Instead of having substantial positive direct or indirect effects, he argues that the Court’s rulings mainly set back the cause of racial integration. While Rosenberg finds greater compliance with ROE, he suggests that this ruling similarly did more to harm than advance “women’s rights,” and he gives more credit to extra-judicial developments, including “the tide of history,” for the progress made in this area as well.

Rosenberg offers a bold conclusion: “US courts can almost never be effective producers of significant social reform. At best, they can second the social reform acts of the other branches of government” (p.338/422 (1st/2nd ed.)). At worst, courts serve as “fly paper” for social reformers who succumb to the “lure of litigation” (p.341/427). Court rulings divert scarce resources away from more productive uses while providing only an “illusion of change” (p.341/427).

These conclusions, not surprisingly, have provoked strong reactions. While some have denied that THE HOLLOW HOPE’s main thesis is particularly novel, most reviewers have given Rosenberg credit for offering in this book an original model of judicial efficacy and for developing an impressive empirical account in support of that model. Similarly, many who have not fully embraced Rosenberg’s conclusions in this book have nevertheless appropriately credited THE HOLLOW HOPE for promoting greater understanding of the constraints on judicial powers and the conditions of judicial efficacy. I join others in commending Rosenberg in these ways – and especially for directing attention toward the significance of constitutional and legal developments outside courts, not only through judicial rulings and their direct and indirect effects.

Before turning to Rosenberg’s new analysis in the second edition, I provide here an overview of three overlapping branches of scholarly criticism of the [*1047] first edition. Stated differently, I identify three sets of issues on which reviewers have offered competing or alternative perspectives from Rosenberg’s. This overview may help to set the stage for analysis of the significance of the additions – both in relation to the first edition’s arguments and in relation to scholarly responses to them.

First, a number of scholars have challenged Rosenberg’s conclusions in THE HOLLOW HOPE while largely accepting his analytic theory and methods. Relying on some of the same sources along with independent evidence of the direct and/or indirect effects of BROWN, ROE, and other cases, individuals have argued that the first edition of THE HOLLOW HOPE understated the significance of judicial opinions involving desegregation, abortion, other “women’s rights,” rights of criminal defendants, and other matters. Among those offering empirical claims explicitly or implicitly in competition with Rosenberg’s have been Neal Devins (1992), Malcolm M. Feeley (1992), Michael W. McCann (1992), Bradley C. Canon (1998), and Roy B. Flemming, John Bohte, and B. Dan Wood (1998).

Second have been arguments that THE HOLLOW HOPE relies on an overly narrow, distorted, or otherwise inappropriate model of causation. Rosenberg generally treats the Court as a unilateral actor/agent whose influence is measured primarily by changes in the behavior of other political actors. According to David A. Schultz and Stephen E. Gottlieb (1998), “Rosenberg’s model fundamentally misstates the Court’s role in social change. It obscures how the Court exerts power and how it makes policy” (p.179). In place of Rosenberg’s “nomological model,” Schultz and Gottlieb offer a model of necessary, or “but for,” causality (pp.179, 182-84). They and others – including Devins (1992) and Susan E. Lawrence (1992) – have also suggested that judicial influence is not primarily independent from, but largely linked to, that of other institutions. McCann (1996) has similarly opposed Rosenberg’s “instrumental, linear, and unidirectional” model of causation (p.459).

Third, scholars have opposed Rosenberg’s standards of significance. Feeley (1992), for example, has emphasized that Rosenberg’s criterion of national political change is more stringent than that required by the Supreme Court opinions at issue. Feeley has noted that BROWN, for example, required only the end of de jure racial segregation, not all forms of segregation (Rosenberg’s benchmark). Kevin J. McMahon and Michael Paris (1998) and Robert Van Dyk (1998) appear similarly to have relied on standards of significance more modest than Rosenberg’s. Offering a different perspective, McCann (1992; 1996; 1998) has emphasized ways that court decisions play constitutive roles – which he regards as quite significant even though they are largely invisible to Rosenberg’s model. More specifically, McCann has directed attention to ways that a variety of political actors, acting through multiple governmental institutions and independently of them, have constructed legal norms from the bottom up, not only by complying (from the top down) with court decisions. [*1048]

Rosenberg has responded to a number of these criticisms in forums other than the second edition of THE HOLLOW HOPE. The most extensive and instructive responses are his 1992 reply to Feeley (1992) and McCann’s (1992) early reviews, his 1998 comments on the chapters in Schultz’s (1998) edited collection, and his 2008 electronically published response to critics (accompanying publication of the second edition of THE HOLLOW HOPE). These responses are helpful to the extent that they clarify and refine Rosenberg’s positions, offer additional analysis in their support, and identify areas of overlap and complementarity among the positions of Rosenberg and his critics, while also shedding further light on remaining differences. These responses are less helpful to the extent that they dismiss much of the criticism of the first edition as primarily ideological in nature.

It is beyond the scope of this review to comment more fully on Rosenberg’s responses in such forums to his prior critics. The main reason is that these responses are not included in the second edition of THE HOLLOW HOPE. One may regard this omission as regrettable to the extent that the book may have been strengthened by the inclusion of a more sustained response to critics than is contained in the new two-page epilogue. On the other hand, serious readers may readily access the electronic essay currently at the University of Chicago’s web site (assuming it remains available and unchanged), as with Rosenberg’s 1992 journal article and his 1998 book chapter. Perhaps the issues of accessibility and durability will similarly prove not to be problematic for broader readerships, including classroom use.

The second edition does offer a sustained response to one set of critics: those who have argued that the results of the litigation strategy for rights of same-sex marriage disprove or otherwise challenge Rosenberg’s arguments in the first edition of THE HOLLOW HOPE. I turn now to Rosenberg’s handling of that issue in the second edition’s new Part 4.

Rosenberg concedes that there are important differences between the new case study and those in the first edition. Thus far, litigation involving claims of the right to same-sex marriage have been primarily at the state rather then federal level. In addition, the relevant state court decisions have hinged mainly on issues of state constitutional and statutory law, not interpretation and enforcement of US constitutional guarantees.

Even so, Rosenberg claims that the litigation campaign for rights of same-sex marriage has as its aim achieving significant social reform, as defined earlier in the book. He characterizes gays as “a small minority in the United States that have suffered from, and continue to suffer from, discrimination” (pp.339-40). Litigation for same-sex marriage “is an attempt to broaden and equalize the right to marriage that is enjoyed by heterosexual adults” (p.340). Also, significantly, he emphasizes that the campaign “is an attempt to use the courts to produce change with nation-wide impact” (p.340). All three elements – a litigation campaign (1) by members of a political minority (2) seeking to vindicate “liberal” rights (3) on a national scale – are necessary to satisfy his conception of “significant social reform” (pp.xii, 4). [*1049]

Chapter 12 traces the “direct effects” of the litigation campaign for same-sex marriage through the 2004 elections. This chapter focuses in particular on the impact of three leading cases: BAEHR v. LEWIN (1993) (Hawaii), BAKER v. VERMONT (1999), and GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH (2003) (Massachusetts). Rosenberg claims that each ruling produced “positive” effects: the passage of a “reciprocal beneficiaries” law in Hawaii, the legalization of civil unions in Vermont, and the recognition of same-sex marriages in Massachusetts. He also claims that these victories were not complete: gay individuals still did not have the right to marry in Hawaii or Vermont, and the US government recognized neither the Vermont-style civil unions nor the same-sex marriages performed within Massachusetts. Nor were other states obliged to recognize such civil unions or marriages. Thus gay persons remained, nationally, “second-class citizens.” Same-sex couples “are denied over one thousand, one hundred federal rights that accompany marriage” (p.352).

Chapter 13 attempts to account for the “indirect effects” of this litigation campaign – including its effects on political mobilization both in favor of same-sex marriage and opposed to it, media coverage, and public opinion. According to Rosenberg, there has been an increase in mobilization supporting same-sex marriage that may be attributed in part to litigation. At the same time, there has been even more effective counter-mobilization by the opponents of same-sex marriage. He emphasizes that between 1990 and 2004, 42 bills to support same-sex marriage were introduced into state legislatures, while there were 394 aimed at proscribing it in some manner (p.363). Similarly, by 2004 more than a third of the states had banned same-sex marriage by constitutional amendment; and Congress in 1996 passed the “Defense of Marriage Act” (pp.364-65). Rosenberg concludes: “As a result of litigation, same-sex marriage proponents face legislative and constitutional obstacles on both the state and federal level that did not exist before they turned to litigation” (p.368). While acknowledging that some may regard the combined results as “two steps forward, one step back,” from the perspective of the litigants seeking marriage equality, according to Rosenberg, the results may be summarized more accurately as “one step forward, two steps back” (p.368). Similarly, Rosenberg argues that the GOODRIDGE decision in 2003 sparked a backlash in the 2004 elections which contributed to George Bush’s election as president: “The evidence suggests that if the GOODRIDGE case had not been brought, or had come out another way, John Kerry might well have carried Ohio and thus won the 2004 election” (p.382). Nor, in Rosenberg’s view, did litigation positively impact media coverage, which he concludes was “largely driven by opposition to same-sex marriage, not litigation in support of it” (p.393). Finally, he claims that litigation to win the right to same-sex marriage has not substantially increased public support for this right. To the extent that public opinion has become more supportive of rights of gay men and lesbians, he attributes that development to broader cultural changes rather than litigation.

Rosenberg’s overall conclusion: “[L]itigation as a means of obtaining the right to same-sex marriage has not [*1050] succeeded” (p.415). Those advocating this right, in his view, turned to the courts too soon (before they had widespread popular support) and asked for too much (same-sex marriage rather than civil unions). The more general take-away point, according to Rosenberg, is that “those who rely on the courts absent significant public and political support will fail to achieve meaningful social change, and may set their cause back” (p.419).

The tone of these new chapters is similar to that of the earlier ones. Rosenberg adheres to his primary thesis and marshals the evidence effectively. He appears not to have retreated from any of the first edition’s basic aims, methodological strategies, or conclusions. Instead of qualifying his earlier positions, the new chapters seek to reinforce and extend them.

One of the distinctive strengths of this analysis is also one of its most peculiar features: Rosenberg’s reliance on nationalistic standards as the primary measure of the significance and success or failure of a litigation strategy that most immediately has sought state-level recognition of rights of same-sex marriage. To be sure, there are good reasons to investigate the direct and indirect effects, at the national (including cross-state) level, of this effort to achieve reform through litigation in state courts. Rosenberg’s analysis of these effects has, moreover, been highly instructive.

At the same time, it seems appropriate to regard as equally significant the state-level successes and failures of this strategy. Counting only GOODRIDGE, for example, it makes sense to regard this outcome as a significant victory (from the perspective of advocates of rights of same-sex marriage) even if it has not been accompanied within a relatively short time horizon by net gains within a majority of the states or at the national level. The same would hold true if or when similar judicial victories were obtained, one at a time, in other states.

On this issue, Rosenberg claims to adopt the perspective of litigants and litigators. But surely not all of those advocating rights of same-sex marriage (or those familiar with their motivations) have adopted Rosenberg’s nationalistic criteria of significance or his dichotomous perspective toward success or failure. It is telling that Daniel R. Pinello, an author and activist cited repeatedly by Rosenberg in the second edition of his book (p.347 n.11; p.359 nn.2, 3 & 4; p.362 n.8), explicitly countered the idea that “courts are hollow hopes for significant social reform” (Pinello 2006, p.193). Pinello has described himself in his book, AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE (2006), as an activist for gay and lesbian rights as well as a political science scholar. Wearing both hats, he acknowledged Rosenberg’s arguments in the first edition of THE HOLLOW HOPE. Pinello also offered qualified support for Rosenberg’s primary thesis by taking a position that the litigation strategy for same-sex marriage resulted only in “disaster” before 2003 (p.33). But Pinello argued, contra Rosenberg, that the Massachusetts court’s decision in GOODRIDGE “brought about enormous social change” across at least three dimensions. First, “an estimated 6,000 or more lesbian and gay couples married [*1051] in Massachusetts in the first year” following the decision (p.192). Second, GOODRIDGE “had a profound inspirational effect for the marriage movement” (p.192). Third, the decision “opened a floodgate of heightened expectations” (p.193). Pinello was certainly aware of the backlash this decision and others had provoked; and he was under no misconception that it guaranteed same-sex couples rights of marriage at the federal level. Even so, he treated GOODRIDGE as a significant victory, relying on standards of success and significance closer to McCann’s (which he cited on p.31) than Rosenberg’s (cited on pp.30-31 & 33; countered on p.193).

Another author cited by Rosenberg (p.426, n.6) offers a perspective that competes in a similar way with his analysis. Michael J. Klarman has observed that “the most significant short-term consequence of GOODRIDGE, as with BROWN, may have been the political backlash that it inspired” (Klarman 2005, p.482). But Klarman takes a longer view of both cases. He maintains that the backlash against BROWN led to a “counterbacklash” that precipitated, in turn, federal responses including passage of the Civil Right Act of 1964. Klarman notes that there has not been a similar counterbacklash against state and national laws and constitutional provisions directed against same-sex marriages. Thus the current situation may seem bleak for gays and lesbians: “Marriage rights will now be harder to secure for gays and lesbians because state legislatures cannot provide them, and state courts cannot interpret state constitutions to protect them” (p.466). Even so, Klarman has not concluded that the cause of same-sex marriage has suffered a complete or final loss. For one thing, cases like GOODRIDGE “have dramatically raised the salience of gay-rights issues” (p.474). He has predicted, moreover, that “one day in the not-too-distant future a substantial majority of Americans will support same-sex marriage” (p.484).

Rosenberg does not explicitly engage Klarman’s handling of this issue. But he does take up the issue of whether the litigation campaign for rights of same-sex marriage has increased public support for legalizing such marriages. He concludes that the litigation campaign has not had a substantial effect in that direction, even while public support for civil unions has increased significantly over the past two decades or so. Rosenberg also suggests that the latter trend has been more a function of developments outside the courts than of court decisions. He may be correct.

But Klarman, Pinello, and many others have apparently had good reasons for emphasizing ways that court decisions affirming rights of same-sex marriage have both found support from, and reinforced, the positions on same-sex marriage held by key public constituencies. It remains an open question how these influences will play themselves out in specific contexts, or whether (or how or when) they will ultimately prevail at the macro level of primary concern to Rosenberg. In any event, at both the micro and macro levels (and in between), it will be no simple matter attempting to isolate judicial impact from other effects on the course of public opinion, especially from relatively long-term perspectives. Such efforts will be further complicated by the [*1052] complexities of relationships among courts and other governmental and non- governmental institutions – at the national, state, and local levels. By extension, the influence of these institutions may have been (and may continue to be) overlapping, combined, and interdependent rather than separate and independent.

Adding further complexity, the political terrain involving rights of same-sex marriage (and related issues) has shifted since the publication of the second edition of THE HOLLOW HOPE; and this terrain will doubtless continue to change in important ways in the days, months, and years to come. It is noteworthy in this connection that the major developments involving rights of same-sex marriage, since the book’s publication, have thus far largely been extensions of the pre-publication patterns that the new chapters document. In May and October of 2008, the highest courts in California (IN RE MARRIAGE CASES) and Connecticut (KERRIGAN), respectively, held that same-sex couples had the right to marry in those two states. The California court’s decision went into effect on June 16; Connecticut’s, on October 28. But the former was overturned by a ballot initiative, Proposition 8, on November 4, 2008 (after approximately 18,000 same-sex marriages were performed in that state); while a proposal to require a constitutional convention in Connecticut failed on that date. Ballot initiatives to deny rights of same-sex marriage were also approved on November 4, 2008, in Arizona and Florida; and the voters in Arkansas approved a measure banning unmarried couples from serving as adoptive or foster parents. There will doubtless be further controversies, including court cases, in these and other states. Most immediately, a number of lawsuits have been filed in California challenging the validity of Proposition 8.

The recent results of the ballot initiatives in Arizona, Florida, Arkansas, and especially California reinforce Rosenberg’s argument that litigation strategies for rights of same-sex marriage have led to significant set-backs. His theory also provides some tools to explain why litigation strategies (along with other factors) appear to have produced relatively full and lasting successes in some states but not others. Full accounts of the paths of legal and constitutional development within particular states and within the nation more generally may benefit from Rosenberg’s analysis, even if such accounts may be further enriched by supplemental perspectives as well.

REFERENCES:
Canon, Bradley C. 1998. “The Supreme Court and Policy Reform: The Hollow Hope Revisited.” In David A. Shultz (ed). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang, 215-249.

Devins, Neal. 1992. “Judicial Matters.” Review of THE HOLLOW HOPE (1st ed.), by Gerald Rosenberg. 80 CALIFORNIA LAW REVIEW 1027-69

Feeley, Malcolm M. 1992. “Hollow Hopes, Flypaper, and Metaphors.” Review of THE HOLLOW HOPE (1st ed.), by Gerald N. Rosenberg. In “Symposium: The Supreme Court and Social Change.” 17 LAW & SOCIAL INQUIRY 745-60. [*1053]

Flemming, Roy B., John Bohte, and B. Dan Wood. 1998. “One Voice Among Many: The Supreme Court’s Influence On Attentiveness to Issues in the United States, 1947-1992.” In David A. Shultz (ed.), LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 21-61.

Klarman, Michael J. 2005. “BROWN and LAWRENCE (and GOODRIDGE).” 104 MICHIGAN LAW REVIEW 431-89.

Lawrence, Susan E. 1992. Review of THE HOLLOW HOPE (1st ed.), by Gerald N. Rosenberg. 86 AMERICAN POLITICAL SCIENCE REVIEW 812-13.

McCann, Michael W. 1992. “Reform Litigation on Trial.” Review of THE HOLLOW HOPE (1st ed.), by Gerald N. Rosenberg. In “Symposium: The Supreme Court and Social Change.” 17 LAW & SOCIAL INQUIRY 715-43.

McCann, Michael W. 1996. “Causal versus Constitutive Explanations (or, On the Difficulty of Being so Positive . . .).” 21 LAW & SOCIAL INQUIRY 457-82.

McCann, Michael W. 1998. “Law and Political Struggles for Social Change: Puzzles, Paradoxes, and Promises in Future Research.” In David A. Shultz (ed.). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 319-49.

McMahon, Kevin J. and Michael Paris. 1998. “The Politics of Rights Revisited: Rosenberg, McCann, and the New Institutionalism.” In David A. Shultz (ed.). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 63-134.

Pinello, Daniel R. 2006. AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE. Cambridge: Cambridge University Press.

Rosenberg, Gerald N. 1992. “Hollow Hopes and Other Aspirations: A Reply to Feeley and McCann.” In “Symposium: The Supreme Court and Social Change.” 17 LAW & SOCIAL INQUIRY 761-78.

Rosenberg, Gerald N. 1998. “Knowledge and Desire: Thinking About Courts and Social Change.” In David A. Shultz (ed.). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 251-91.

Rosenberg, Gerald N. 2008. “Ideological Preferences and Hollow Hopes: Responding to Criticism.” http://www.press.uchicago.edu/books/rosenberg/. Last visited 14 October 2008.

Schultz, David A. (ed). 1998. LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. [*1054]

Schultz, David A., and Stephen E. Gottlieb. 1998. “Legal Functionalism and Social Change: A Reassessment of Rosenberg’s THE HOLLOW HOPE.” In David A. Shultz (ed), LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 169-213.

Van Dyk, Robert. 1998. “The Pro-Choice Legal Mobilization and Decline of Clinic Blockades.” In David A. Shultz (ed), LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 135-167.

CASE REFERENCES:
BAEHR v. LEWIN , 74 Haw. 530, 852 P.2d 44, clarified 74 Haw. 645, 852 P2d 74 (Haw. 1993).

BAKER v. VERMONT, 744 A.2d 864 (Vt. 1999).

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

BROWN v. BOARD OF EDUCATION, 349 U.S. 294 (1955).

GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH, 440 Mass. 309; 798 N.E.2d 941 (Mass. 2003).

IN RE MARRIAGE CASES, 183 P.3d 384 (CA, 2008).

KERRIGAN, ET AL. v. COMMISSIONER OF PUBLIC HEALTH, SC 17716 (CT SCt, 2008)

ROE v. WADE, 410 U.S. 113 (1973).

© Copyright 2008 by the author, Wayne D. Moore.

 

The Hollow Hope: Can Courts Bring About Social Change? Second Edition

 

 

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EXPOUNDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY

by Grant Huscroft (ed). New York: Cambridge University Press, 2008. 332pp. $85.00/ £45.00. Hardback. ISBN: 9780521887410. eBook format. $65.00. ISBN: 9780511402203.

Reviewed by Adam Shajnfeld (J.D., Columbia). Email adamshajnfeld [at] gmail.com.

pp.1039-1044

In EXPOUNDING THE CONSTITUTION, editor Grant Huscroft introduces and presents the essays of eleven scholars on constitutional issues such as morality, judicial review, and written vs. unwritten constitutionalism. An eclectic array of writing with transnational panache, the book could be titled “Expounding a Constitution,” as the essays do no share a single constitution as object of analysis. What follows are brief summaries and some criticism of these essays. I conclude with general comments about the book as a whole.

Steven D. Smith wonders what precisely people are interpreting when they claim to be interpreting the “constitution.” After all, few think they are simply interpreting the document alone, and in many countries there is no written document to interpret. Theorists generally differ on how to interpret the constitution, but fail to explain what they take as the object of interpretation. Smith believes that the “constitution” is a convenient placeholder, a “facilitative modern equivocation” like “morality” or “equality” (p.36), though for what nobody knows. Nonetheless, people blindly refer to this placeholder so as to engage in what they believe is meaningful debate and discussion.

Smith seems too skeptical of a common reference point, at least so far as the US is concerned. In the US, those engaged in constitutional interpretation are surely referring to, at a minimum, the physical document. Some say it should be interpreted in light of the intention of its framers, others in light of general principles embodied therein, but nobody believes the document irrelevant. One can view disagreement as a dispute over the way to interpret, and not what counts as, the constitution. Additionally, the fact that a significant body of constitutional law exists as judicial statements does not detract from the importance of the document. Cases interpreting the document may enter the pantheon of constitutional law, though they do so by virtue of the interpretive gloss they give to the document.

According to Larry Alexander, assuming there are real moral rights, they bind government institutions whether or not they are entrenched in a constitution. Thus, the real question is not whether to constitutionalize moral rights, or whether ordinary legal decisions made by the executive, legislative, and judicial branches must be consistent with those moral rights (they must), but which institution’s view of what those moral rights are and what they require shall prevail. Simply stating that a legislature is the most democratic branch does not answer this question, unless democratic representation is a proxy for accuracy in moral matters. Thus, Alexander raises, [*1040] but does not answer, the question of which institution is most competent to analyze and determine the requirements of morality. Jeremy Waldron believes it is the legislature.

Waldron builds on his prior scholarship that seeks to justify judicial deference to legislative decisions. According to Waldron, legislatures are arguably more institutionally competent than courts to adjudicate certain major individual rights cases involving significant moral and political issues such as abortion, affirmative action, and the rights of criminal suspects. First, while judges are constrained by statutes and precedent when engaging in moral reasoning within a case, legislatures are not. Second, legislatures are more likely to conduct society-wide, and not individual, moral reasoning. Society-wide moral reasoning is not concerned with “any particular comprehensive conception” of morality (p.57), but is instead concerned with providing moral justifications that can garner the widest social support in a community with moral dissensus.

Waldron does not pay enough attention to the perennial problem of majority rule and minority protection. A bill of rights exists, in part, to protect minorities. Majorities need no protection, as they are ensured, through voting power, control over government. Significant judicial deference to legislatures removes a bulwark against minority oppression. As a reflection of majority will, the legislature seems ill-equipped to protect minorities. A convincing argument for judicial deference must address this problem, and Waldron does not. David Dyzenhaus makes a similar point. He claims that Waldron ignores the dangers of consolidating power in a majoritarian body that can be captured by ignorant and or minority-discriminating interests. Dyzenhaus also lodges other criticism. First, Waldron is just as prone to romanticize the legislature as common law enthusiasts are to romanticize the judiciary. The legislature, he notes, often underwhelms. Second, the kind of moral debate necessary for intelligent legislating is often catalyzed by judicial decisions calling into question a law’s compatibility with the constitution. Third, legislative debates are concerned primarily with morality and policy, not legality. For Dyzenhaus, the second and third points demonstrate the necessity of a judicial role in major individual rights cases: some institution must help catalyze debate and attend to concerns of legality.

James Allan wonders how Waldron would decide constitutional issues that pit legislative decisions against individual rights if he were a justice on a nation’s highest court. Textualism, which stresses fidelity to the literal import of constitutional provisions, would confer too much power on judges, as bills of rights are often vague and sweeping. Living constitutionalism, the view that “the meaning of rights in bills of rights evolves and changes in accordance with the needs of contemporary society” (p.170), is also unacceptable, as it does not sufficiently constrain judges. Perhaps Waldron would employ the “puke test,” invalidating legislation only when it is utterly repulsive. Allan does not arrive at an ultimate answer.

Bradley W. Miller addresses an aspect of constitutional drafting, arguing that [*1041] rights provisions that have inherent within them limitations clauses are superior to those that have separate limitations clauses. In the US, a right is defined to include its own limits; in Canada, rights are conceived of expansively, while a separate clause allows what are putatively public policy concerns to outweigh the right in appropriate circumstances. Miller believes the US model is superior for two reasons. First, it avoids skewing public discourse over rights. A right that is defined expansively and without qualification becomes difficult to understand when it can be overridden by another provision. More certainty and meaning obtains when a right is viewed as extending, in itself, only so far as it does not hamper the greater rights of others. Second, a separate limitations clause conveys the false impression that one provision is concerned with rights and the other with public policy. Instead, Miller argues, a limitations clause is really about the potentially superior rights of others, and thus should not be analytically separate from a clause about rights. For instance, limiting my right to speak freely may protect others from infringement of their right to truthful information in commercial advertisements.

W.J. Waluchow’s essay, the gem of this collection, demonstrates how judicial review involving moral calculus can be democratically legitimate and truly enforce the constitution. Constitutions often include bills of rights or other provisions that refer to generalized normative concepts such as “equality.” Waluchow explicates the important distinction between mere moral opinions and moral commitments. If one thinks that homosexuality is wrong or that driving above the speed limit is bad, one is expressing mere moral opinion. Equality, on the other hand, is a general moral commitment. It is an abstract principle, ensconced in a constitution so as to secure protection from both majority and minority encroachment. It is generalized, as a constitution must be brief and widely applicable; specific instances of equality cannot be exhaustively addressed.

Individuals, majorities, or legislatures may each hold mere moral opinions on a wide variety of matters. Judges, though, need not and should not simply enforce these opinions. Judicial review in watershed rights cases involves evaluating legislation or behavior in light of moral commitments embodied in the constitution. One might think, for instance, that black men should not be able to marry white women or that Jews should not be able to marry Christians. The problem is that however popular these views are, and even if they garner majority support, they are completely inconsistent with a moral commitment reflected in the constitution – equality. The job of the judge then is to take these mere moral opinions and determine if they are or can be consistent with moral commitments made in the constitution. In this way, the judge is making a constitutionally uncontroversial moral evaluation, and may justifiably strike down a legislative decision that has the mere moral support of a democratic majority. The judge’s behavior is legitimate; he is not imposing his own morality, but a morality embodied in the constitution (which often requires a super-consensus to create and is superior to ordinary statute or moral opinion). [*1042]

Aileen Kavanagh explains the rationales that variously justify a reviewing court’s decision to (or not to) defer to the judgments of other branches of government. Noting that the decision can be rooted in concerns of institutional competence, expertise, or legitimacy, she concludes that it is too simplistic to equate “striking down with activism and failure to strike down with deference” (p.213). Courts may, for instance, uphold legislation even when only minimally deferring to the legislature, where the court believes the legislation valid. Conversely, courts may strike down legislation even while according substantial deference, where the legislation is positively and perniciously invalid.

T.R.S. Allan believes that if one takes the purpose of law to be a bulwark against arbitrary power, certain formal and substantive requirements follow that cannot be overridden by legislative or judicial decision. These are requirements of equality, fairness, and reason. First, laws must be written in general form, applicable to all and not targeting specific persons. Second, citizens must be treated equally under the generally applicable law. Third, legal rules must “embody a coherent rationale, consistent with a plausible account of the public good” (p.223). Absent such a rationale, the law becomes arbitrary. Fourth, the judiciary must be impartial. According to Allan, both individuals and courts must review legal rules to ensure compliance with this concept of law. Thus, if the legislature enacts a rule inconsistent with principles flowing from the conception of law as a bulwark against arbitrary power, and the courts uphold the rule, the citizen may refuse to obey it. Such a rule is an ultra vires act and commands no authority. Allan’s contention that the citizen who rejects an improper judicial decision is on the same moral footing as the judge who rejects an invalid act of the legislature confers great power on the individual citizen. This broad defense of civil disobedience may be troubling for those constitutional theorists who are concerned with maintaining order within a society characterized by moral dissensus.

Mark Walters advances a theory of unwritten constitutionalism that attempts to withstand charges of structuralism (unwritten law is simply interpretation of written law) and naturalism (unwritten law is a form of natural, inalienable and immutable law). Analogizing to the common law, and with Dworkinian undertones, he argues that the only significant difference between written and unwritten constitutions is that in the former, judges give specific meaning to general propositions of law, whereas in the latter, judges “articulate constitutional law by inferring general principles from a nonexhaustive and noncanonical set of specific legal propositions” (p.255). This is no resort to natural law, as the unwritten principles must be cognizable and coherent abstractions from particular specific propositions, which differ in each country’s written constitution. This is also no resort to structuralism, as the written constitution is seen as a specific embodiment of the unwritten constitution, and not vice versa.

Walters does not address how to resolve conflict between written and unwritten constitutional law. He does not even acknowledge it as a possibility. Surely, an imperfectly drafted constitution could [*1043] contain a provision incompatible with any overarching unwritten principle abstracted from the written constitution’s remainder. I also wonder how Walters would view a written constitution containing a clause disavowing the existence of an unwritten constitution.

Jeffrey Goldsworthy criticizes claims that there exist unwritten constitutional principles. He analyzes three arguments typically offered to explain the legitimacy of such principles. First, some argue that implicit in our concept of law is a moral content that exists in the form of unwritten constitutional principles. For Goldsworthy, the problem with this argument is that it muddles the distinction between legal validity and moral soundness. He thinks, for instance, that there is a general moral obligation to obey the law, and when a law is particularly evil, a competing moral obligation may require disobedience. Thus, legal validity is determined independent of moral value, though morality may affect the force given to law. Second, some argue that unwritten principles form a common law constitutionalism. In its strong form, the claim is that “the common law is the ultimate source of the authority of statute law, and perhaps written constitutions as well, and that therefore, either the common law already limits legislative authority, or it could be developed by the judiciary to do so” (p.289). Goldsworthy finds this argument lacking in historical and philosophical support. In particular, common law constitutionalists who claim that a legislature’s ultimate lawmaking authority cannot, on pains of circularity, derive from itself fail to explain how a judiciary, the repository of the common law, can derive its power if not circularly by its own decree. In its weak form, the common law claim is that judges may refer to unwritten principles of statutory interpretation when interpreting constitutional provisions, though these unwritten principles seek only to enforce unspoken legislative intent, not to supplant it. Third, some argue that unwritten constitutional principles simply embody background assumptions implicit in written constitutional provisions. This is a familiar linguistic concept (e.g., when I ask a doorman how I can reach the fifth floor of his building, we both understand, though I have not stated it, that I would only use the stairs or elevator, and not a crane, ladder, or helicopter).

Goldsworthy seems willing to grant the existence of an unwritten weak form common law or “implicit assumptions” constitutionalism, so long as it is understood that legislative authority and decree is supreme, that unwritten principles must be consistent with legislative intent, and that any implicit assumptions must be uncontroversial.

Huscroft has done a fine job of collecting interesting and timely essays. The book presents a politically and philosophically balanced view of constitutional theory, though it is by no means comprehensive. The essays are fairly accessible, though some, such as Goldsworthy’s, require more background than others. A few of the essays address areas that remain neglected within traditional theoretical discourse, such as Miller’s article on rights clauses, while others, such as Waldron’s, re-present familiar, though nonetheless important, views. [*1044]

While the book is divided into three sections, I found that the essays could not be so neatly categorized. In this review, I have re-ordered some of them. Huscroft’s introduction helps weave the patchwork of essays together, though in some cases I felt that the introduction parroted an essayist’s poorly-organized train of thought instead of repackaging it.

Altogether, the book is a good read, and is recommended for those interested in constitutional theory and interpretation, judicial review, and legal philosophy.

© Copyright 2008 by the author, Adam Shajnfeld.

 

Expounding the Constitution: Essays in Constitutional Theory

 

 

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THE BILL OF RIGHTS TODAY: CONSTITUTIONAL LIMITS ON THE POWERS OF GOVERNMENT

by Joseph Dillon Davey. Lanham, MD: University Press of America, 2008. 300pp. Paper $38.00/£26.00/€40.95. ISBN: 9780761840756.

Reviewed by Jeremy A. Janow, Department of Government & Politics, University of Maryland. Email: jjanow [at] gvpt.umd.edu.

pp.1034-1038

Joseph Dillon Davey’s introduction to the current state of rights in the United States is intended for an undergraduate audience, and it is from the viewpoint of a prospective teacher that it is rightfully assessed. The preface states that the text was written for courses in political science, law, criminal justice, as well as those in political philosophy or the philosophy of law, and it contains reference to and discussion of a wide range of topics that are relevant to those areas of study. The goal of the book is to “examine the theories of law and government that under gird the most important cases the High Court has heard in the past half century” (p.xv). As implied by the title, the cases here are limited to those dealing with individual rights and not the structure of government, certainly another important means of constraining power and protecting rights. As is almost de rigueur for an introductory work on rights in the United States, Davey largely assumes the necessity of a written bill of rights, and looks to how the individual rights amendments to the Constitution have been protected in practice, as seen through key cases that have come before the Supreme Court. The cases highlighted in the book are relatively recent, as would be expected given the rise in rights jurisprudence in the second half of the twentieth century forward and the book’s focus on current practice. Little reference is made, however, to the relative paucity of rights talk and jurisprudence in the early history of the United States, leaving the impression of a nearly seamless theoretical and legal progression from the Bill of Rights to its contemporary instantiation in case law. This may not be entirely an oversight, as Davey’s primary focus is to emphasize the changing conception of individual rights from a highpoint largely set by the Warren Court to regressive interpretations by the Rehnquist and Roberts Courts, and to confirm the view of the Supreme Court as the proper locus of rights protection in America.

THE BILL OF RIGHTS TODAY is divided into four parts, each with a very short introduction that references a broad range of notable political thinkers to situate the topic in a philosophical context, followed by chapters that detail specific areas of rights protection and conclude with excerpts from relevant cases. Part One sets up the book much in the way that the introductions set up each part, with a theoretical discussion of the idea of human rights and its historical development. Davey points to Plato’s REPUBLIC as the seedbed for what would later become the theory of human rights and then moves on in the first chapter to discuss briefly the important philosophical antecedents that culminated with the creation of the Bill of Rights, including Cicero, Locke, Rousseau, Paine, and Blackstone. The [*1035] philosophical sections here, and throughout the book, tend towards sweeping generalizations rather than careful analysis. For example, Davey writes that Aristotle “actually believed the ‘Royal Lie’” described in Plato’s REPUBLIC, but only takes a further two paragraphs to justify such a claim (p.5). For classes that take political philosophy seriously this will be an inadequate treatment of the subject, and likely more confusing to students than explanatory. While spurring interest in the connection between the history of political thought and the jurisprudence of the Supreme Court is surely laudable, any professor would need to add significantly to the philosophical discussions to give students more than a theoretical sound bite. Done right, this would make the philosophy in the book largely unnecessary or possibly counterproductive. Alternatively, for classes less philosophically inclined, such references may be an unnecessary diversion from the analysis of individual rights today in their legal context. Additionally, readers may be surprised that there is more discussion of the Ancient Greeks than of the debates by the founders on whether to have a bill of rights at all.

Chapter Two takes up the role of the courts and the critique that judicial review is counter-majoritarian and undemocratic. Davey discusses Robert Bork and Alexander Bickel as staking out the primary arguments against and for judicial review, and highlights BROWN v. BOARD OF EDUCATION (1954) as the exemplar of judicial prevention of majority tyranny. While Davey argues the commonly held view that elected legislatures could not have achieved similar goals as the Supreme Court in those circumstances, he fails to mention recent scholarship that challenges the Court’s effectiveness in achieving social change, such as Gerald Rosenberg’s HOLLOW HOPE thesis or Michael Klarman’s study of the political backlash against the civil rights movement that Brown helped spur. Additionally, while Davey notes that there likely is some politics behind the Court’s decisions, there is no discussion of the political foundations of judicial review and judicial supremacy, or that the increased judicialization of politics in the United States is part of a global trend. The chapter moves on to brief treatments of strict construction and originalism, followed by a consideration of the justices’ varying positions on authority. The basis for the divergence in opinions of the justices, Davey concludes, is their formative experiences as children, and “the best person to question about the dramatically different reasoning of a Hobbesian or Lockean Supreme Court justice would be the Justice’s psychoanalyst” (p.27). Davey’s choices here are critical, as the chapter covers a lot of ground in a casual and unsystematic manner, leaving readers with the confusing notion of the Court as both a bulwark of principle against democratic tyranny and an institution whose decisions hinge on the justices’ psychic intricacies.

Part Two begins the analysis of categories of individual rights and their protection, starting with the right to fundamental fairness, including chapters on due process as well as cruel and unusual punishment. Incorporation is discussed, with particular attention given to the increased protection of criminal suspects by the Warren Court followed by a narrowing of the due process clause [*1036] under subsequent Courts. The chapter concludes by staking out the high water mark of the liberal interpretation of due process with GOSS v. LOPEZ (1975) and points to BENNIS v. MICHIGAN (1996) and LOCKYER v. ANDRADE (2003) as primary examples of the trend towards narrowing it. Chapter Four provides a legal history of the death penalty in the United States, including a discussion of the punishment of juveniles, and excerpted opinions from GREGG v. GEORGIA (1976) and ROPER v. SIMMONS (2005).

The strongest part of the book is the third, which discusses equal justice under the law, including chapters on the rights of minorities, women, and affirmative action. In Chapter Five Davey is engaging as he describes the unequal treatment of African Americans as seen in PLESSY v. FERGUSON (1896), and the transformation of constitutional law made through landmark cases such as BROWN and LOVING v. VIRGINIA (1967). He discusses the difference between de jure and de facto discrimination, and here briefly acknowledges that BROWN has not led to widespread integration in education in practice. The chapter on the rights of women provides the venue for a valuable discussion of the development of the levels of judicial scrutiny, as well as of cases specific to the protection of women’s rights, in particular UNITED STATES v. VIRGINIA MILITARY INSTITUTE (1996). The chapter on affirmative action offers brief but useful discussions of the case law surrounding both employment and educational affirmative action, followed by case excerpts including MCCLESKY v. KEMP (1987) and GRUTTER v. BOLLINGER (2003).

The final substantive part treats basic rights of a free society such as the freedom of expression, the separation of government from religion, and rights of privacy. The protection of speech is quickly but broadly covered in Chapter Eight, including discussions of obscenity and hate speech, and offers contextual details for DENNIS v. UNITED STATES (1951), and BRANDENBURG v. OHIO (1969), as well as excerpts from TEXAS v. JOHNSON (1989), and WISCONSIN v. MITCHELL (1993). Curiously for a book on individual rights, Chapter Nine focuses its discussion on the establishment clause of the first amendment and on cases regarding school prayer, rather than on a treatment, or even mention, of the free exercise clause and related cases. Davey’s decision here may be that students relate more directly to religion in the context of education, but some additional work will be necessary for an instructor concerned with both religion clauses. The history and explanation of the establishment clause is fairly detailed, however, and includes the development and application of the LEMON test to subsequent cases.

Chapter Ten takes up what Davey terms the ‘right to be left alone by government,’ which contains an analysis of and extensive quotation from ROE v. WADE (1973) and touches upon other important privacy cases such as GRISWOLD v. CONNECTICUT (1965), and LAWRENCE v. TEXAS (2003). Interestingly the chapter ends with an excerpt from KELO v. CITY OF NEW LONDON (2005), but does not provide any further discussion of the case or any stated connection to the chapter as a whole. Chapter Eleven continues the treatment of privacy rights [*1037] in relation to searches and seizures. Here Davey argues from a libertarian perspective, hinting that the Fourth Amendment is on its deathbed and that the United States is moving towards an Orwellian state, with BOARD OF EDUCATION v. EARLS (2002) serving as key evidence. Davey concludes his book with a brief section on the protection of rights in an international context, offering that the discussion of rights in the American case can serve as a guide to a global understanding of what individual rights entail.

This review must conclude with a discussion of the potential place of THE BILL OF RIGHTS TODAY in the syllabus of a course today. On the whole, Davey’s work reads as a series of lectures to an introductory course on American constitutional law, plus excerpts of related Court opinions. Its scope is simultaneously too broad and too narrow, as it tries to place specific decisions in philosophical context but ends up giving neither case law nor theory a sufficiently careful treatment. This may be due in part to the limitations of a book of its size serving as an adequate introduction to the protection of rights in America. However, it is likely also due to the approach the book utilizes, one that eschews close analysis of topics and cases and instead makes use of an informal, conversational style followed by case excerpts, often unanalyzed. While a casual presentation and organization may have the benefit of making introductory material more easily accessible to undergraduates, the philosophical and interpretive laxity undercuts the substance of what might be gained, and does not provide the tools for teachers to put the case law in useful theoretical or political context for students.

The book may provide the groundwork upon which an ambitious teacher might build, who could supplement the brief philosophical and historical information that lead up to the cases as well as providing more in depth analysis of the cases themselves. Davey’s work could then serve as a first pass, with each chapter furnishing the touchstone from which more detailed theoretical and legal material is offered to fill in where it left off. Of course, any teacher willing to put together such additional texts may find the introduction provided here to be unnecessary, and possibly encumbering. Those who wish to teach the narrative of the Court as prime and proper protector of individual rights, with the Warren Court as archetype, will find a like-minded resource in this book. Instructors who question the prevalence of rights talk or who consider the political rather than legal protection of rights as an important topic of study, will find Davey’s treatment lacking. An introductory class is likely the only time most students, with the exception of those headed to law school, will think seriously about the protection of individual rights in the United States. Accordingly, any introductory text to the subject ought to provide the basics of what any citizen should know about rights and their role in protecting them. This book largely leaves readers with the general impression that the protection of rights in America is best left to the Supreme Court. In the end, it simply confirms the view that many students likely hold before taking any introductory class at all. [*1038]

REFERENCES:
Klarman, Michael J. (2007). BROWN v. BOARD OF EDUCATION AND THE CIVIL RIGHTS MOVEMENT. New York, NY: Oxford University Press.

Plato (1956). THE REPUBLIC. Trans: Francis Cornford, Kurt Hildebrandt, and Eric Voegelin. Oxford and Cambridge: Oxford University Press.

Rosenberg, Gerald N. (2008). HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

CASE REFERENCES:
BENNIS v. MICHIGAN, 517 U.S. 1163 (1996).

BOARD OF EDUCATION v. EARLS, 536 U.S. 822 (2002).

BRANDENBURG v. OHIO, 395 U.S. 444 (1969).

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

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

GOSS v. LOPEZ, 419 U.S. 565 (1975).

GREGG v. GEORGIA, 428 U.S. 153 (1976).

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

GRUTTER v. BOLLINGER, 539 U.S. 306 (2003).

KELO v. CITY OF NEW LONDON, 545 U.S. 469 (2005).

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

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

LOCKYER v. ANDRADE, 538 U.S. 63 (2003).

LOVING v. VIRGINIA, 388 U.S. 1 (1967).

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

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

ROE v. WADE, 410 U.S. 113 (1973).

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

TEXAS v. JOHNSON, 491 U.S. 397 (1989).

UNITED STATES v. VIRGINIA MILITARY INSTITUTE, 518 U.S. 515 (1996).

WISCONSIN v. MITCHELL, 508 U.S. 476 (1993).

© Copyright 2008 by the author, Jeremy A. Janow.

 


The Bill of Rights Today: Constitutional Limits on the Powers of Government

 

 

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November 23, 2008

RELIGIOUS FREEDOM, RELIGIOUS DISCRIMINATION, AND THE WORKPLACE

by Lucy Vickers. Hart Publishing: Oxford, England, and Portland, Oregon, 2008, 244 pp. Paper. $74.00/£35.00. ISBN: 9781841136875.

Reviewed by Gloria C. Cox, Department of Political Science, University of North Texas. Email: Gloria.Cox [at] unt.edu.

pp.1029-1033

Last year in Great Britain, Amina Azmi, a teacher’s aide, was directed to remove her full-face veil while teaching. She refused, on the basis that some of the teachers with whom she worked were male. After she was dismissed from her job, she brought legal action against the school, claiming religious discrimination in the workplace. In response, school officials argued that students benefit from seeing the facial expressions of teachers and that learning is hindered without such informal clues. Courts decided for the school and against Azmi, although it would be a mistake to view this case as having settled the issue of veils and headscarves in the workplace. As British Attorney Audrey Williams pointed out, “. . . employers should note that the circumstances in this case are quite specific – relating to the classroom setting, the nature of the teacher/pupil relationship, and the impact that wearing a full-face veil would have on a teacher’s ability to do their job” (Berry 2007).

It is just such situations that give contemporary relevance to RELIGIOUS FREEDOM, RELIGIOUS DISCRIMINATION AND THE WORKPLACE, by Lucy Vickers. In this relatively short but important book, Vickers tackles a complex set of issues related to equality and religious freedom in the United Kingdom (UK), and, peripherally, the United States, Canada, and the European Union. The author does a fine job of introducing and explaining the major legal issues of this important topic. In her words, “The purpose of this book is to examine the interaction of the rules on religious discrimination with the right to religious freedom and to contribute to the debate over the proper limits on religious freedom in the workplace” (p.1). Overall, her effort is scholarly, informative, interesting, and thought-provoking.

Vickers begins with the European Commission’s Directive on Equality at Work, explaining that the Directive provides general guidelines for the domestic legislation that member countries are supposed to enact. The United Kingdom has passed such legislation, the implementation of which has given rise to some interesting and complex questions. Among the most frequent complaints against employers are the following: 1) refusal to allow employees time off for religious observances; 2) denial of permission to wear symbols of religious faith; and 3) discrimination in hiring, [*1030] training, and promoting members of certain religions or beliefs.

A less obvious consequence of the anti-discriminatory legislation has been opposition from religious groups who want to be able to restrict their hiring, promoting, and firing to members of their own faith, excluding all others. Additionally, some religious groups want to discriminate, as when they refuse to hire homosexuals, divorced women, or others who are not in compliance with church rules. Laws in the United Kingdom, in fact, accommodate some of these preferences, although sex and racial equality rules may trump religious preferences.

Add to those problems the issues that surface in the workplace just because employees of different religions, no religion at all, or differing levels of commitment toward religion work together. While the religious person may assert the right to proselytize, the nonreligious person may believe that his or her religious freedom is violated by having to listen to religious messages from the devout. Other practices also have the potential to make fellow workers uncomfortable, including the wearing of religious symbols. Take, for example, the Muslim woman who wears a headscarf. She may be upset about the Muslim woman who does not, and vice versa. In another example, a person who opposes abortion on account of her religious beliefs may want to let others know of her opposition, but it surely cannot be permitted to take the form of a badge she wears that displays the picture of an aborted fetus (WILSON v. US WEST COMMUNICATIONS 1995). And what about the male worker who refuses to work around women? Can he insist on male-only colleagues?

Additionally, the image of the business itself may be relevant, if owners have worked to build and maintain a secular presence for it. That carefully crafted vision may be affected if the employer is required to accommodate the religious practices of one or more employees. Add to that mix government agencies that are required to display a secular image for clientele in a society that legally separates church and state, and also pays close attention to equality issues. Vickers clearly establishes the complexity of the subject with which she is dealing.

One of the first questions Vickers tackles is the origin of human rights. She notes that Westerners are quick to say that human rights derive from human beings having been created in the image of God, but that does not serve the issue very well in the context of religious diversity and with those who do not believe in or practice any religion. Vickers provides a particularly interesting discussion on this key point, offering several non-religious justifications for human rights. As she notes, “Since the Enlightenment there has been a search for a human rights theory which is not predicated on the existence of God” (p.36). The result has been a focus on human dignity, including the idea of human equality. She notes that, “for individuals to flourish they need to enjoy the freedom to choose their own concept of good” (p.38).

There is a logical progression from concepts of human rights to efforts to define religion, in that the European Convention on Human Rights (ECHR) recognizes protections for practice of a religion or belief. While the term religion tends to be difficult to define, there are certain key characteristics associated with religion, including for many a belief in God or some other supreme being. Religion is also characterized by consideration of matters [*1031] of “ultimate concern” (p.15). Articles 9 and 14 of the ECHR provide for forum internum, which is “the right to have inner thoughts and beliefs” (p.41). Related is the concept of forum externum, which is the right to practice, or manifest one’s beliefs including worship, teaching, practice, and observance (p.94). There is both an individual and a collective dimension to this freedom, although it is not absolute and may be restricted based on numerous considerations.

At this point, the author begins her analysis of specific religious rights in the workplace, pointing out that the workplace is a site of competing relationships and rights that must be balanced in search of a sense of proportionality. As Vickers moves through one topic after another, we recognize the difficulty of sorting out the issues. If one person’s faith contains the view that homosexuality is wrong, is that person’s religious freedom violated by a diversity policy that insists on equal treatment for homosexual applicants and employees? If women are accorded lesser or different status in a religion, must an employer overlook his personal religious beliefs in awarding promotions in the workplace? Vickers emphasizes that there is a solution for every violation of religious rights – resignation from the job. After all, no one is required to take and keep a certain job, and quitting relieves the oppressed individual of the oppression (p.45). However, that is hardly any protection in a world that values work so greatly. For most people, work serves many benefits, including the obvious economic one. Still, religious rights cannot overshadow other fundamental rights and be permitted to take priority. Society values equality, for example, and therefore cannot allow religious interests to trump such an important secular interest.

According to Vickers, “The right to freedom of religion is granted extensive protection within international law, demonstrated by its inclusion in the Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights” (p.84). The ECHR has taken a narrow view of religious protections under Article 9, making a distinction between religiously motivated conduct (which is not protected) and the manifestation of religion (which is protected). One example Vickers provides is that of a Christian wearing a cross as a necklace or pin. In fact, there is no requirement for Christians to identify themselves by the wearing of a cross, so the act is not a manifestation of religion but merely religiously motivated behavior (p.98). Vickers makes clear her opposition to this distinction (p.218).

One of the most interesting parts of the book is the author’s attention to common complaints in the workplace, such as denial of requests for time off for worship or prayer, the refusal of employees to carry out assigned tasks to which they object, and lifestyle issues. She does a fine job of capturing the nuances of court rulings in her exploration of each of these areas, enabling the reader to gain insight into legal perspectives. Lifestyle issues, for example, tend to arise in religious organizations that expect employees to maintain the values of the faith. It is not uncommon, then, to come across employees who have been dismissed for marrying outside the church, divorcing [*1032] their spouse, or having an extramarital affair. Courts generally respect the organization’s rights over the individuals in such instances, though not without exceptions.

Finally, Vickers provides a brief comparative perspective by analyzing some aspects of religious discrimination law in the United States, Europe and Canada. In the United States, protection comes primarily from Title VII of the Civil Rights Act of 1964, as amended. She notes that US courts tend to take an expansive view of what constitutes a religion, but draws the line on occasion, refusing, for example, the Ku Klux Klan’s claims of protection as a religious organization and a single individual’s right to eat cat food as a protected religious practice. Beginning in 1972 with amendments to require reasonable accommodation for religious issues, there appeared to be much greater protection for individuals, although Vickers suggests that not much is required of employers to demonstrate hardship, which allows them to avoid making accommodations.

Religious harassment is also an issue, and follows the well-known hostile environment and quid pro quo guidelines. Proselytizing in the workplace is the most common form of harassment, as an employee tries to convert others, even in the face of objections that the messages are unwelcome. Such activities take on added dimensions when the person making the effort to convert another is in a position of authority over the audience (p.192). The legal question is where to draw the line between practice of one’s religion and the right to work without the presence of unwelcome proselytizing.

In Canada, discrimination on the basis of religion is illegal, and religion is broadly defined, usually by the individual making a claim to protection. In fact, a person’s views are typically accepted, even if they deviate from those of other adherents of the same faith (p.196). Just as in the ECHR, Canadian law distinguishes between required manifestations of religion, which are protected, and religiously-motivated behavior, which is not protected (p.197). The author draws the conclusion that Canadian law places a heavier burden on employers to accommodate employees than US law (p.199), although courts expect parties on both sides to compromise on these matters (p.205). Vickers includes a brief discussion of cases dealing with employment within religious organizations, including whether a Catholic can be dismissed for violating tenets of the faith, such as marrying a divorced man or having an extramarital affair. In such cases, the answer has generally been in the affirmative.

Within the member countries of the European Union, religious discrimination in the workplace comes under Employment Equality Directive 2000/78 (p.206), although, as one would expect, there are important differences in implementation and enforcement across the membership. Vickers provides examples of definitions of religion and court rulings to illustrate these variations, which is thought-provoking.

In sum, Vickers has written a highly informative book that provides great detail about the subject. She offers the [*1033] reader nuanced and dense discussions of the issues, and while some readers may find the legal arguments and explanations complex, the informed reader with an interest in the subject will welcome the elucidation and clarification of many fine points. I found RELIGIOUS FREEDOM, RELIGIOUS DISCRIMINATION AND THE WORKPLACE to be an informative and welcome addition to the literature on this important subject.

REFERENCES:

Berry, Mike. April 2, 2007. “Teacher At Centre Of Veil Row Loses Dismissal Appeal Against Former Employer Kirklees Council.” Retrieved on October 31, 2008, from www. PersonnelToday.com.

CASE REFERENCE:
WILSON v. US WEST COMMUNICATIONS, 58 F 3d 1337 (1995).

© Copyright 2008 by the author, Gloria C. Cox.

Religious Freedom, Religious Discrimination at the Workplace

 

 

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THE SUPREME COURT ON TRIAL: HOW THE AMERICAN JUSTICE SYSTEM SACRIFICES INNOCENT DEFENDANTS

by George C. Thomas III. Ann Arbor: University of Michigan Press, 2008. 320pp.. Cloth. $29.95. ISBN: 9780472116188.

Reviewed by Caryl Lynn Segal, University of Texas at Arlington. Email:csegal [at] uta.edu.

pp.1025-1028

As exonerations increase in criminal cases, legal scholars, political scientists, and attorneys seek preventative steps required to avert victimizing the innocent. In his introduction George C. Thomas asserts that the system is broken and in need of major reform: “The problem is not a discrete set of erroneous inputs, but a ‘systemic failure in criminal justice.’” Thomas looks to Supreme Court rulings that place procedural requirements above substantive justice as but one culprit.

Buttressing his argument is this quote from HERRERA v. COLLINS (1993, at 400): “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal . . . relief absent an independent [procedural] constitutional violation occurring in the underlying state criminal proceedings.”

CONE v. BELL will be heard during the 2008 Term and raises procedural obstacles to a habeas petition involving the withholding of BRADY information that could have resulted in a different verdict. The CONE opinion will clarify whether the procedural barriers currently in place will be lowered to any degree.

Angela Davis posits in ARBITRARY JUSTICE that innocent defendants are sacrificed because of prosecutorial misconduct, but she too believes the system needs major reform. Thomas also considers the heavy caseloads of both prosecutors and public defenders in the state system as factors in the number of wrongful convictions. He points out that the Cardozo Innocence Project found no wrongful convictions in the federal system with its lower caseloads for both prosecutors and defense counsel.

Thomas cogently dissects the problems occurring in the adversarial system in contrast to the European civil system. He avers that asking prosecutors to serve justice while being advocates creates tensions. Because prosecutorial career rewards focus primarily upon conviction rates, prosecutors who pursue justice are competitively disadvantaged.

Devoting two early chapters of the book to the history of the jury system, Thomas lays the foundation for the cultural importance of the right to trial by jury. He also illustrates its downsides with cases wherein racism and anti-Semitism created unjustified guilty verdicts.

The theme that underlies the entire book appears in Chapter Seven, when Thomas discusses the Court’s intervention in state criminal justice and the case that led the way. Although the Court would support the defendant’s claim of innocence in a racial case, it refused to [*1026] do likewise when presented with a final appeal in the Leo Frank case in 1914.

He next examines state’s rights and how they played a major role in criminal justice. The Warren Court’s MIRANDA (1966) decision illustrates one example of major procedural changes in criminal cases.

The Burger Court deliberated on the issue of ineffective assistance of counsel in WASHINGTON v STRICTLAND (1984). Thomas avers that the STRICTLAND Court’s reliance on procedure symbolizes the nearly insurmountable barriers faced by innocent defendants.

Although the Court indicates that a sufficiently high showing of actual innocence would make an execution unconstitutional, it has done nothing to make the threshold for establishing innocence less onerous. As a result of procedural barriers, appeals that cast considerable doubt on the guilt of a petitioner prove insufficient to support the claim of innocence.

Craig Bradley, author of THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION, is quoted at the end of Chapter Seven (p.166) as positing that the failure of the Court’s criminal procedure doctrine cannot solely be blamed on the Court: “[B]ecause of the nature of the judicial process, no Supreme Court, no matter how competent and regardless of its political leanings, could have done much better.” Thomas concurs with Bradley but points out that creating better criminal procedure rules rests with state and federal legislatures who consistently evade the task.

Congress created the American Uniform Code of Military Justice with the goal of a search for truth. Both federal and state systems are currently patchwork quilts of constitutional law, statutes and rules lacking a pattern for truth seeking.

Thomas does not absolve the Court of its obligation to be a friend of the innocent when he explains the Court’s failure to focus upon the substantive issues involving guilt as opposed to police misbehavior. Thomas uses HOUSE v. BELL (2006) and HERRERA (1993) to demonstrate his point forcefully.

Chapter Eight illustrates in detail how the French and the American military justice systems, with truth as their goal, are more likely to protect the innocent. Thomas takes the reader step by step into the criminal process, comparing the procedures. In multiple places Thomas stresses that convincing the jury and getting a victory overshadows discovering the truth in the American system.

In 1949 Jerome Frank observed that if a witness gives testimony that opposing counsel believes to be truthful but harmful to his/her client, the attorney will do anything and everything possible to destroy the witness’s credibility. In 1999 William Pizzi in his book, TRIALS WITHOUT TRUTH, wrote “our adversary system turns witnesses into weapons to be used against the other side.”

In the Civil law system, witnesses do not answer questions but rather narrate their story. The judge has the leading [*1027] role in a Civil trial, and both the prosecutor and the defense counsel are minor characters. Thomas contrasts this with the leading role played by prosecutors and defense counsel at an American trial.

Thomas’ concluding chapter represents 20% of the book and is page after page of suggested changes in our system to enable a goal of truth. What is noteworthy is that as he dissects each idea, Thomas discusses its value and the problems that would have to be overcome in order to make the point a reality. Both political scientists and legal professors will find this section worthy of study and consideration. Each and every point is a potential debate topic.

My personal favorite suggestion originates with the role of barrister in the British system. Thomas proposes that a pool of “criminal law specialists” be created. From this pool would be selected both prosecutors and defense counsel. Each specialist would at different times in different cases serve in both roles. Salaries for both would be equal, and they would be able to utilize the same expert witnesses. When the public defender is serving as prosecutor, it is decidedly more likely that discovery will be shared in a timely fashion. Thomas lists the many advantages because counsel are familiar with each side from past experience.

Since there are cases involving conspiracies, organized crime, and terrorism, requiring specialized knowledge and skill, Thomas suggests a Criminal Enterprise Task Force which would work exclusively in these discrete case categories. Again members of the task force would be called upon to work both sides of a case. Thomas believes that this is not a pipedream but could come into being at some future date.

As he did in Chapter Eight, where the entire process is broken down into component parts, Thomas suggests changes for all aspects of a criminal case. This legal scholar has created an insightful look at the system’s failures to protect the innocent in a relatively brief but highly engrossing book. THE SUPREME COURT ON TRIAL offers widespread appeal to those who recognize injustices but are stymied in finding a solution.

REFERENCES:
Bradley, Craig M. 1993. THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION. Philadelphia: University of Pennsylvania Press.

Davis, Angela J. 2007. ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR. New York: Oxford University Press.

Frank, Jerome. 1949. COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE. Princeton: Princeton University Press.

Pizzi, William. 1999. TRIALS WITHOUT TRUTH: WHY OUR SYSTEM OF CRIMINAL TRIALS HAS BECOME AN EXPENSIVE FAILURE AND WHAT WE NEED TO DO TO REBUILD IT. New York: NYU Press.

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

CONE v. BELL, 492 F3d 743 (6th Cir. 2007); cert. granted 6/23/2008. [*1028]

HERRERA v. COLLINS, 506 U.S. 390 (1993).

HOUSE v. BELL, 547 U.S. 518 (2006).

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

WASHINGTON v STRICTLAND, 466 U.S. 668 (1984).

© Copyright 2008 by the author, Caryl Lynn Segal.

 

The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants

 

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HOLDING BISHOPS ACCOUNTABLE: HOW LAWSUITS HELPED THE CATHOLIC CHURCH CONFRONT CLERGY SEXUAL ABUSE

by Timothy D. Lytton. Cambridge, MA: Harvard University Press, 2008. 304pp. Hardcover. $35.00/£22.95/€24.50. ISBN: 9780674028104.

Reviewed by John C. Blakeman, Department of Political Science, University of Wisconsin at Stevens Point. Email: John.Blakeman [at] uwsp.edu.

pp.1020-1024

Although academic book reviews do not normally start with a discussion of the book jacket of the work under review, with Timothy D. Lytton’s new book, HOLDING BISHOPS ACCOUNTABLE, the cover is indicative of the content. On the jacket is a photograph of Cardinal Bernard Law, former Catholic Archbishop of Boston, departing a news conference during the 2002 annual meeting of the US Conference of Catholic Bishops. The Conference is one of the main policymaking arms of the American Catholic Church, and in this instance it was the primary institution responsible for formulating the American church’s response to the rising tide of lawsuits brought by victims of sexual abuse committed by Catholic priests. By 2002, as Lytton’s account makes clear, the church’s institutional failure to deal with clergy abuse was becoming abundantly clear. In the photo, Cardinal Law is holding a sheaf papers and folders as if he is on his way to court, and he is somewhat hunched over, with a very stern, glaring look on his face. His right fist is clenched. He looks as if he has just been grilled by the press about something especially unpleasant, and he is very angry about it. He looks embattled.

Timothy Litton’s book is a detailed view of how litigants used tort law to sue the Roman Catholic Church in America over clergy sexual abuse of children. It adds to the literature on tort law, and law and society in general, and provides a critical, meticulous look at how tort law overtook the Catholic Church’s self-regulation of clergy misconduct and forced the church and government policymakers to confront a larger, more national problem. For Lytton, tort litigation against the church was “essential in bringing the scandal to light . . . focusing attention on the need for institutional reform, and spurring church leaders and public officials into action” (p.4). Lytton situates his analysis within the context of showing how tort litigation against “one of the largest, richest, and most powerful institutions in America” was more than just about dispute resolution between injured parties and the church. Tort cases served to bring about policy reform by enhancing “the efforts of church officials, law enforcement, and state governments to develop and enforce polices aimed at reducing clergy sexual abuse” (p.7).

Lytton presents a short history of clergy abuse litigation to frame the rest of his discussion. He discusses a few high profile abuse cases, beginning in the 1980s, and shows that the course of litigation over several years was “a time of learning” for both sides. “Bishops [*1021] were developing a better understanding of the problem . . .,” and “victims and attorneys were uncovering the role of church officials in facilitating child sexual abuse by clergy” (p.16). As he notes in detail later in the book, understanding how clergy abuse litigation progressed is important to understanding how victims’ attorneys and church officials altered their litigation strategies as each side became more experienced. Plaintiffs’ attorneys, for example, got much better at using discovery methods in civil litigation to compel more, and damaging, information from the church. The church developed several defense strategies as well – some successful, some not – to protect itself from an increasing number of lawsuits. The history is important, as it shows not only that the church was often aware of abusive priests, but it often sought to cover up clergy abuse by transferring priests to other parishes, and it buried incriminating evidence in secret diocesan files in keeping with an entrenched culture of secrecy in the church that sought to hide as much information about clergy abuse as possible. Interestingly, Lytton even exposes a church discussion to transfer some clergy files to the Vatican where they would be beyond the reach of civil discovery.

Lytton discusses several statistical measures of clergy abuse litigation too. He notes that the United States Conference of Catholic Bishops commissioned a study in 2002, researched by scholars at the John Jay School of Criminal Justice, that revealed thousands of allegations of abuse against priests between 1950 and 2002. As well, Lytton surveys insurances companies that paid out abuse claims, and he also surveys plaintiffs’ attorneys that filed lawsuits against the church. Even though Lytton notes that an accurate accounting of the number of lawsuits against the church is not possible, he strings together several sources of data to show that not only was there a very rapid increase in litigation in the 1980s and 1990s, but that thousand of lawsuits were ultimately filed.

The author follows his history and statistical discussion with an in-depth analysis of the legal issues involved. Here Lytton examines the diverse legal issues raised in lawsuits against Catholic diocese, from the many different types of plaintiffs’ claims to the various defenses the diocese raised. For instance, plaintiffs raised typical tort claims in an effort to hold the church vicariously liable for the actions of its servants (priests), along with various negligence claims for the inability of diocese to exercise reasonable care over their subordinates. It is noteworthy that many lawsuits were settled by the church prior to trial; thus there are no reliable statistics about the success negligence and vicarious liability claims in court. Of special importance in this section, especially for scholars of religion and politics and church-state relations, are the various defenses that the Catholic Church raised. One easy defense was based on state statutes of limitations, since many sexual abuse claims were filed years after the alleged conduct occurred. As Lytton notes, the church employed statute of limitation defenses, not necessarily to avoid liability altogether, but to limit it. However, such a strategy is a mixed blessing for the church; although it protected diocese “from potentially devastating liability,” [*1022] it also “opened up the Church to charges that it [used] a legal technicality to avoid liability in cases where it is clear that abuse occurred” (p.61). Other defenses raised by the church were predicated on First Amendment Free Exercise Clause concerns (for courts to impose liability on the church would violate the church’s free exercise of religion), comparative negligence (victims of sexual abuse and their parents were negligent in allowing unsupervised visits between their children and priests), charitable immunity, and clergy-communicant privilege. Lytton’s discussion of the how diocese attempted to defend themselves is thorough and offers insight into how the church sought to protect its resources and status and limit the damages it would have to pay. Importantly, Lytton points out that some defenses were more successful than others, and by and large courts in different jurisdictions often viewed defenses differently. That is, sometimes a diocese’s defense would work in one jurisdiction; in other courts, and at other times, it would not.

In the next section Lytton turns his attention to two important issues. First, he discusses how plaintiffs framed their legal narratives both in terms of the “problem of child exploitation by individual clergy members,” and in the context of the Catholic Church’s institutional failure to come to grips with clergy sexual abuse early and take steps to stop it. The story, or frame, of the church’s institutional failure became the dominant frame by which the news media presented the story nationally. The impact, as Lytton details, was that the “filing of numerous claims against the Church created and sustained a news theme,” which also led to even more clergy abuse cases filed against Catholic diocese” (p.100). Lytton’s analysis linking how plaintiffs theorized their torts cases – or framed them – to how the media reported on clergy abuse is interesting, in that he shows how court documents (plaintiffs’ filings) generated information that the media then used for reporting purposes.

Lytton next analyzes how institutions, from the church itself to state legislatures and local prosecutors, placed clergy sexual abuse on their own policy agendas in response to ongoing tort litigation. The Catholic Church, for example, began to devote more resources to discovering and dealing with abuse on its own, from the diocesan level to the US Conference of Catholic Bishops to the Vatican. More importantly, at least in terms of the impact of tort law, is how government institutions began to respond to the increasing number of lawsuits. Prior to high profile abuse cases, local and state law enforcement agencies had typically been reluctant to prosecute priests and deferred to diocesan disciplinary measures. However, Lytton shows that deference to the church was often a political liability for local prosecutors after only a few years of clergy abuse lawsuits. As well, many state legislatures by 2002 were debating changes to statutes of limitations on child sexual abuse, in part as a response to ongoing litigation raised by adults who had been abused by clergy as children.

The church raised several affirmative defenses, as noted above, and it also stonewalled plaintiffs’ attempts to garner information from church sources. In a very informative analysis, Lytton shows how the church used various means at its [*1023] disposal to conceal information from discovery during litigation. Indeed, the church’s very culture encouraged it to cover up clergy abuse. For example, the church hierarchy with its top down management style did not encourage accountability among priests and others, and there was a “firm commitment” to keeping the government – and courts – out of the church’s affairs, which led many bishops to handle abuse allegations internally without involving local or state law enforcement. In addition, church doctrine in some ways supported reticence too, as many bishops viewed their role as protecting the church and the “mystical body of Christ” from defilement, and thus refused to be completely open and responsive to abuse allegations (p.142). And, as Lytton notes, canon law also dictates that each diocese should have a secret archive that are only accessible by that diocese’s presiding bishop. Lytton’s analysis shows how plaintiffs’ attorneys gradually chipped away at church secrecy through the discovery phases of litigation, and over time judges also loosened discovery rules to make it easier for plaintiffs to access church documents that not only supported tort claims against individual priests but also showed more broadly the institutional failures of the church hierarchy. Lytton here tells an important story about how in early cases information from the church was hard to come by. Over time, and as more abuse cases were filed and plaintiffs’ attorneys became more skilled at suing the church, discovery processes shifted from being essentially pro-defendant to pro-plaintiff. The church’s ability to frustrate discovery waned, and attorneys and judges began to seek and compel more information from it.

The final section in HOLDING BISHOPS ACCOUNTABLE assesses the overall impact of clergy abuse litigation on the church and other institutions. By amassing several different and diverse types of data, such as contributions to the church, donations to and expenditures by Catholic charities, and public opinion polls, Lytton notes that the church has been damaged in some respects, but not in others. The institutional prestige of the church has suffered, and the litigation and scandal “has seriously eroded the bishops’ credibility among both Catholics and the general public” (p.181). As Lytton correctly notes, Catholic Bishops’ statements on pressing social issues, from nuclear disarmament to welfare reform have historically been taken seriously by American Catholics and the general public. However, in the wake of the abuse scandals, as Lytton quotes one bishop, catholic leaders realized that their ability to be a moral voice “had been severely compromised” (p.182). Yet, charitable giving to catholic charities did not appreciably diminish, nor did the church’s provision of social services, even given the more than $2 billion in damages that the church has had to pay.

Finally Lytton focuses on how “tort litigation played a complementary role” to the manner in which other policymaking institutions addressed clergy sexual abuse. As he notes, tort lawsuits “reframed the problem and placed it on the agendas of other policymaking institutions, and generated new information for addressing it” (p.202). Civil litigation is public, as Lytton points out, thus clergy abuse litigation added transparency to an often closed process by which the church [*1024] resolved abuse allegations. Such transparency has implications for policymaking by giving tort claimants “the potential to frame issues, gain agenda access, and disseminate information” (p.210). Thus, through a very public accounting of clergy abuse claims, the church was forced to confront its own institutional failures, and other political actors, from local prosecutors to state legislators had to devise policy responses to address a growing crisis.

HOLDING BISHOPS ACCOUNTABLE is a thoroughly researched, readable, engaging account of how tort law brings about changes in public policy and in institutions. It is appropriate for several different types of political science courses. For example, it could be used in undergraduate and graduate courses on religion and politics, since Lytton deftly shows how Catholic Church doctrine and institutional practice affected the church’s conduct as a defendant in tort litigation. Lytton also places the church in the context of larger political and legal relationships with plaintiffs’ attorneys, local and state prosecutors, and other government actors and institutions, and thus provides interesting insight into the political choices that the church made when confronted with clergy sexual abuse, and how other political actors and institutions responded to those choices. The book is also useful for upper level undergraduate and graduate courses on the judicial process and law and society. Its detail on how plaintiffs structured, or framed, their arguments, how plaintiffs used civil discovery to seek information, and the church’s various attempts to safeguard that information, provides a fascinating window on the tort litigation process. Students and scholars of the judicial process, law and society, and law, religion, and politics, will find Lytton’s research very interesting and insightful.

© Copyright 2008 by the author, John C. Blakeman.

Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse

 

 

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THE FALL AND RISE OF THE ISLAMIC STATE

by Noah Feldman. Princeton and Oxford, Princeton University Press, 2008. 200pp. Cloth. $22.95/£13.50. ISBN: 9780691120454. eBook format. $22.95. ISBN: 9781400824076.

Reviewed by Shadi Mokhtari, JD, PhD, Managing Editor, Muslim World Journal of Human Rights. Email: mokhtari [at] yorku.ca.

pp.1016-1019

In his book, THE FALL AND RISE OF THE ISLAMIC STATE, Noah Feldman attempts to lend important historical context to the often dehistoricized and decontexualized debates surrounding modern Islamist movements and their calls for the institution of Islamic Law. The book provides a broad discussion of three relevant periods: (1) the golden age of the Islamic state, roughly the time of the Caliphate and strong Ottoman rule, (2) the fall of the Islamic state, coinciding with the implementation of the tanzimat reforms in the Ottoman empire as it neared its decline, and (3) the modern era which has witnessed renewed calls for the reinstatement of the Islamic state. A central thesis of the book is that the contemporary calls for an Islamic state are closely tied to the generally successful historical precedent.

In Part I, Feldman lays out the contours of the classical Islamic constitutional order. As he explains, the Muslim rulers’ legitimacy was traditionally derived from a commitment to upholding the Shari’a. This legitimacy was in large part conferred by Islamic scholars who had the final say on Shari’a dictates, and served the law in the name of God, not the state. The institutional arrangement created a balance of power which checked the executive power of the ruler. The scholars’ power within the arrangement was largely normative, not material. Rulers were compelled to obey scholars’ rulings because not doing so risked being viewed as going against God’s will. Scholars in turn also displayed a willingness to occasionally deploy flexible interpretations to advance rulers’ agendas. Supplemental administrative and criminal laws were permitted as a concession to rulers, as long as they were not deemed to directly contradict Shari’a.

In Part II, Feldman links the decline of the Islamic state to the tanzimat reforms which encompassed both constitutional and legal changes, including codification of Islamic law. Codification transformed Shari’a from the product of perpetual (and thus by definition dynamic) processes of interpretation to a more static and delineated set of rules. It also moved authority over the law from the scholars to the state. Scholars were “relegated to the role of the minor religious functionaries” (p.8) with the purview of family law as their only “consolation prize.” Instead, judges not rigorously trained as Islamic scholars were appointed by the state to administer the law. The fact that law now emanated from the state and not God, translated into judges’ “reluctance to treat organs of the state as subordinate to the law” (p.69).

The collapse of the tanzimat reform process following Saltan Abdulhamid’s dismissal of the legislative body put in [*1017] place by the 1876 Constitution gave way to unchecked executive power – a model Feldman submits has been replicated throughout the region following the disintegration of the Ottoman Empire. No social or political class has ever emerged to successfully fill the vacuum of the scholars as counterweights to executive power since. Further, Feldman argues, while within the traditional Islamic state the rule of law prevailed, the fall of the Islamic state resulted in the demise of the rule of law in the region. The one exception to these trends Feldman cites is Saudi Arabia where scholars retained their pivotal position as interpreters of the Shari’a and there is no written constitution, although the balance of power relationship between scholar and ruler is often compromised by the distorting effects of the Saudi state’s tremendous oil wealth.

Part III considers the continuities and divergences of the classical model and present-day Islamist designs. Feldman argues that the appeal of Islamist movements today is linked to Muslim populations’ desire to return to the past glories of the Islamic state where the rule of law and justice was thought to have prevailed. The most compelling articulation of the argument comes in the following passage:

By invoking the Islamic state governed by the Shari’a, the Islamists tap into the nostalgic and in some ways accurate idea that the classical Islamic state was just – or at least much more just than the autocratic states that the modern era has brought to most majority-Muslim countries. Calling for a return to Islamic law conjures the possibility of repairing the political corruption of the past century and returning to a pure order in which the Shari’a governed social and governmental relations. (pp.112-113).


Elsewhere Feldman states, “The call for an Islamic state is therefore first and foremost a call for law – for a legal state that would be justified by law and governed through it” (p.9).

Yet as Feldman explains, the Islamic state championed by Islamists today is very different from the old Islamic state. There are two primary reasons he cites for this. First, scholars play virtually no material role in contemporary Islamist movements. Islamists largely disregarded the science built around Islamic jurisprudence and instead rely more heavily on the Koran. The egalitarian worldview they adopt holds that anyone can search the Islamic texts and ascertain what Islam decrees. Thus, most contemporary Islamic constitutional arrangements vest the power to determine whether legislation is or is not consistent with Sharia in the hands of non-clerics within the judiciary. Further, while implementing Islamic law is central to their platform, Islamists frequently also emphasize achieving social, political and legal justice by adhering to more flexible (and amorphous) notions of Islamic principles and values.

Second, Feldman argues that mainstream Islamists have in large part accepted the compatibility of democracy and Shari’a. The infusion of democratic principles into their platforms means that Islamists’ endeavors such as the restoration of “just government” become “at once divine and worldly.” This “Democratized Shari’a” in turn faces the challenge of reconciling notions of divine sovereignty with popular sovereignty in order to justify its existence and authority. [*1018]

Feldman maintains that despite the debates in the West, Islamism is now a reality of Muslim world politics. Yet he views Islamic scholars’ role as crucial to the movement’s success: “To restore Islamic law without restoring scholars to their place is to ensure the failure of the project by cutting off the organism from the soul that inhabits it.” In discussing the Iranian experience, Feldman suggests that it was the lack of balance of power between government forces, and not the mere presence of the scholarly class which resulted in the failures of the Islamic Republic. There was in effect what he refers to as an “unfettered, supreme scholarly executive” and no force to check it. Elsewhere Islamists have never been able to demonstrate their ability to succeed or fail because they are frequently undermined as soon as they reach power. Consequently they remain largely untested and as long as that is the case, populations will continue to vote for them.

In the book’s conclusion, Feldman takes up the role of the United States. First, he warns against American support for undermining Islamists, arguing “if the United States acquiesces to the executive’s efforts to repress [Islamists], it sends the message that the United States does not care about the rule of law. By contrast, the Islamists continue to promise justice and the rule of law via the Shari’a.” Yet as anyone familiar with his earlier books as well as his role as an advisor to the United States government in the drafting of the Iraqi constitution may expect, Feldman does not call for the United States to take a hands off approach. He does see an active role for the United States which includes supporting further development of institutions and pressure on regional governments:

Our best efforts must be devoted to building institutions that perceive themselves and are perceived by the public as committed to the rule of law. Aid can be made contingent on respect for the roles of courts and legislatures. Executives can be pressured to adhere to the laws and judgments of coordinate branches of government even (or especially) when no direct foreign interests is at stake. (p.149)


Thus, in the final analysis, Feldman’s prescription is for the United States to continue its nation-building initiatives in the region, but without such an allergic reaction to Islamist movements and their calls for the institution of Islamic law.

Following the historical trajectory presented by Feldman sheds light on the present composition of Islamist movements, particularly the marginalized role of scholars. However, one of the book’s central arguments – that the region’s Islamic constitutional past gives rise to current calls for Islamic states – is not highly compelling. While there is no doubt that at some level, a sense of the need to regain the past glories of the Islamic state exists in the present-day Muslim imagination, it is debatable whether it is as central a force behind the rise and resonance of Islamism and calls for an Islamic state as Feldman argues.

The author does discuss other related elements of the modern-day turn to Islamism, particularly the failure of autocratic regimes and existence of social and political injustice within many Muslim countries; however, he contends that the populations Islamists target seek [*1019] to achieve justice through law. The case for this assertion is not fully made. Aspirations for political and social justice are often divorced from the law in the Muslim Middle East, perhaps due to the culture bred by years of the absence of rule of law. While many in the Muslim world are looking to curb executive abuses and authoritarianism, aspirations for “the rule of law” often fall behind more general aspirations for social justice or a less morally corrupt, economically just political alternative.

Moreover, despite references to colonialisms of the 18th, 19th and 20th centuries, virtually missing from Feldman’s discussion of the rise of Islamism and accompanying calls for justice is of role of international dynamics and the convergence of Islamist and anti-imperialist discourses today. The contemporary Islamist project whether it is one in which scholars play a significant role or not, is inextricably linked to political and cultural resistance to what are understood as modern day imperialisms. This is especially true in the cases of Iraq and Afghanistan which receive surprisingly limited coverage in the work. In his brief references to the two cases, Feldman implies that with their new constitutions providing for judicial review of legislation to determine whether it violates the Shari’a, Iraq and Afghanistan serve as limited examples of Islamic constitutional orders. Yet the imperial backdrop to the constitution-drafting processes is largely overlooked. Local rulers’ need to refute internal challengers’ (including Islamists’) assertions of being imperial subjects and assert their independence of action and identity will undoubtedly add another layer to the character of the two constitutions.

Despite some of these shortcomings, THE FALL AND RISE OF THE ISLAMIC STATE does provide an accessible and engaging account of the institutional struggles and changes which befall Islamic constitutionalism from the Ottoman era to the present. The brief case studies presented (of Iran, Saudi Arabia and Somalia with its break down of the state) are fascinating in light of the book’s broader focus. Finally, Feldman takes every opportunity to present a dynamic, complex and contexualized picture of Islamic law and those who champion it. This is apparent in his brief discussion of the internal and international risks and liabilities for Islamists of placing Islamic law so centrally within their platforms, as well as several references to the universal attributes and challenges of Islamic constitutional formulations, including parallels with American constitution dilemmas or the way the English common law deals with questions of its origins. Consequently, the book intended for both academic and non-academic audiences makes a valuable contribution to the existing literature on Islamic law and constitutionalism.

© Copyright 2008 by the author, Shadi Mokhtari.


The Fall and Rise of the Islamic State (Council on Foreign Relations)

 

 

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November 16, 2008

DECONSTRUCTING THE REPUBLIC: VOTING RIGHTS, THE SUPREME COURT, AND THE FOUNDERS’ REPUBLICANISM RECONSIDERED

y Anthony A. Peacock. Washington: The AEI Press, 2008. 218pp. Paper. $25.00. ISBN: 9780844742632.

Reviewed by George R. La Noue, Professor of Political Science and Public Policy, University of Maryland Baltimore County. Email: Glanoue [at] umbc.org.

pp.1012-1015

In this book, Anthony Peacock, who teaches political science at Utah State University, explores political and legal interpretations of the Voting Rights Acts (VRA) which encourage a kind of multiculturalism or identity politics that he considers destructive to the Founders’ constitutional vision. Thus, the book functions at two levels. First, it is a very useful overview of the implementation of the VRA which was extended by Congress in 2006 for another 25 years. Second, it is a provocative argument about the kind of voting arrangements Peacock believes are consistent with Madisonian Republicanism and the role of the VRA in undermining them. He concludes: “The Founders hoped that the various institutional processes of the national government would involve reasoning on the merits of legislative proposals with a view to protecting individual rights and promoting the general welfare. . . The current VRA – the VRA of second-generation voting rights – requires legislators, judges, and administrators to think in racial terms, to count in racial terms, and to allocate political power in racial terms” (p.152-153).

The 1965 VRA was created as part of the great 1960s civil rights movement. By then, it had become apparent that attempting to enforce the 15th Amendment’s prohibition against denying or abridging the right to vote on the basis of race or color through district by district litigation was not working. The Amendment gives Congress the specific right to enforce this prohibition, but even at the outset there was substantial controversy over the mechanisms embodied in the VRA.

The VRA was distinctive legislation in two respects. The most stringent requirements applied only to those states or counties that employed specific discriminatory devices in 1964 and had fewer than 40 percent of their voters registered or voting in the 1964 presidential and general elections. In the “covered” states or counties, local changes in any voting procedure had to be approved by the United States Attorney General’s Office or the United States District Court for the District of Columbia. There were sound historical reasons for this alteration of traditional federalism, but the issue of what standards should be applied to local voting procedures became highly controversial and ultimately changed the partisan make up in much of the South.

After a time, there was little public debate about the goal of prohibiting any overt denial of the right to vote, but the concept of abridgement was more complicated. The American political [*1013] process is full of devices which abridge or decrease the weight of some citizen’s vote at least sometimes in some places (e.g., the electoral college, Senate representation, partisan and other forms of gerrymandering, winner take all elections, to name a few examples.) When does a particular form of abridgement as it affects a racial or ethnic group violate the VRA?

Peacock’s concern is mostly with equal protection issues. Properly, he focuses attention on UNITED JEWISH ORGANIZATIONS (UJO) OF WILLIAMSBURG, INC. v. CAREY (1977). In 1973, in WHITE v. REGESTER, the Supreme Court held that the fact, “that the racial group allegedly discriminated against [had] not had the legislative seats in proportion to its voting potential” was not enough to prevail in a constitutional claim. But gradually VRA cases found that some minorities were statutorily entitled to proportional representation. In UJO, upon the urging of the NAACP, the Department of Justice required New York State to reapportion some City districts to create 65% nonwhite state legislative districts, thus virtually guaranteeing either black or Puerto Rican representatives. In Brooklyn, that had the effect of splitting the Hasidic Jewish community that previously controlled one assembly and senate seat. The Supreme Court rejected UJO’s claim because New York State was seeking “a fair allocation of power between white and non-white voters” in Brooklyn. From that perspective, Hasidic Jews were just a part of the larger white majority. Chief Justice Burger dissented, pointing out that in Brooklyn, “The ‘white’ category consists of a veritable galaxy of national origins, ethnic backgrounds, and religious denominations” and that blacks and Puerto Ricans did not share the same views on many issues.

Twenty years later, in SHAW v. RENO (1993) and MILLER v. JOHNSON (1995), the Court confronted the implementation of the proportional representation theory in Congressional districting. Democratic Departments of Justice seeking to maximize black representation and their Republican counterparts seeking safe white seats had forced states to engage in overt racial gerrymandering. The result was a move in the South to a pattern of conservative white Republican representatives that began to reshape that party and an increased black caucus whose members were rarely competitive in other than virtually all black districts. SHAW and MILLER in 5/4 decisions appeared to halt the most egregious gerrymandering, by holding as constitutionally suspect districts in which race was the predominant factor in drawing boundaries. But Section 5 of the 2006 VRA now requires, inconsistently with those decisions’ philosophy, that covered districts not diminish the opportunity of minorities “to elect their preferred candidates of choice” for the next twenty five years. The complexity of judicial intervention was illustrated in LEAGUE OF UNITED LATIN AMERICAN CITIZENS v. PERRY (2006) when the Court invalidated a district drawn to protect Hispanic Republican Henry Bonilla because most local Hispanics preferred a Democratic Hispanic.

Peacock argues that not only is race-based apportionment dysfunctional for practical reasons, but that it is [*1014] inconsistent with basic Madisonian constitutional principles. He criticizes current interpretations and implementation of the VRA’s abridgment provisions in six ways: (1) the VRA encourages representatives to act on behalf of specific racial interests; (2) the VRA prefers corporate or group rights over private or individual rights; (3) the VRA undermines separation of powers: (4) the VRA undermines federalism; (5) the VRA promotes race-related pork barreling; and (6) the VRA incites not merely faction, but racial factions.

All theses charges can be summarized as the promotion of identity politics. Such politics or voting on the basis of shared characteristics, rather than similar issue orientations, with a candidate is not a new phenomena, but may be more open and aggressive than previously. From the early days of the Republic, when all Presidential candidates were white Protestant males, regional identifications were highly significant. In the post Civil-War era, white southerners entrenched their political control using multiple devices to disenfranchise black voters until the Supreme Court ended those practices in a series of decisions from 1924 to 1965. In 1928 (Al Smith) and 1960 (Jack Kennedy) when Catholics first ran for President, those elections produced identity voting for and against that religion. But it was not until the 2008 presidential contest, that the effects of identity voting seemed so visible. There were not many substantive differences between Barack Obama and Hilary Clinton. But she thought she had a claim on the allegiance of black voters who later deserted her candidacy in droves, while he found older white woman infertile ground for his appeals. The surprise nomination of Sarah Palin for Vice President awakened interest among Republican women as well as among evangelicals. The VRA probably had little influence on any of these emotional tides, except in preparing the ground for campaigns where candidates or their surrogates had few inhibitions in appealing for identity based votes.

The racial and ethnic identifications of candidates, however, are often significant factors in elections that depend on districting, and here the VRA may reinforce, even require these outcomes. The VRA’s central purpose of access to voting, except in rare instances, is no longer a critical problem, so the legislation’s principal impact is instead where and how those votes are counted. The 2006 extension of the VRA and some judicial decisions require that covered jurisdictions take no actions that would diminish the opportunity of racial and ethnic minorities included in the standard affirmative action categories “to elect their preferred candidates of choice.” There are no similar guarantees for religious, cultural, economic, or non-affirmative action minority groups. The guarantees given to some groups, but not others, of course, raises equal protection issues and create some unintended political consequences.

Whatever one thinks of the legal developments that provide special representation protections to some designated racial and ethnic groups, Peacock’s succinct treatise is a valuable introduction and analysis of these trends. [*1015]

CASE REFERENCES:
LEAGUE OF UNITED LATIN AMERICAN CITIZENS v. PERRY, 548 U. S. 399 (2006).

MILLER v. JOHNSON, 515 U.S. 900 (1995).

SHAW v. RENO, 509 U.S. 630 (1993).

UNITED JEWISH ORGANIZATIONS (UJO) OF WILLIAMSBURG, INC. v. CAREY, 430. U.S. 144 (1977).
WHITE v. REGISTER, 422 U.S. 935 (1975).

© Copyright 2008 by the author, George R. La Noue.


Deconstructing the Republic: Voting Rights, the Supreme Court, and the Founders' Republicanism Reconsidered

 

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THE CONSTITUTION AS TREATY: THE INTERNATIONAL LEGAL CONSTRUCTIONIST APPROACH TO THE U.S. CONSTITUTION

by Francisco Forrest Martin. NY: Cambridge University Press, 2007. 228pp. Hardback. $80.00. ISBN: 9780521881937. eBook format. $64.00. ISBN: 9780511353017.

Reviewed by Sanford R. Silverburg, Department of History and Politics, Catawba College. Email: ssilver [at] catawba.edu.

pp.1007-1011

The current US Constitution is, of course, the second constitution that created the second American republic in North America. To this document Francisco Martin attributes, through a strongly argued thesis, the character of a treaty. At first blush it would seem that the two formats represent dissimilar, functional albeit related, concepts. Historically for certain, and prior to the Constitutional Convention, treaties cemented relations between recognized political entities. The US Constitution, one of the oldest if not the oldest written constitution in the political world, prioritized control over domestic policies in its Article I, which serves to establish with a legislative body the authority to deal with internal affairs, whereas Article II created a separate executive authority to serve as head of state and head of government, thus creating a governmental link to external states.

Martin tweaks the interest of the reader in the Prologue by noting the first Executive Department established was responsible for Foreign Affairs, but then extends the idea with an exaggeration that: “Congress” was given “custody and charge of the US Constitution” to this Department (p.xi). The meat of the argument, presented now in book-length form, is an expansion of the author’s initial presentation in a law journal (2004) that the US Constitution is a treaty, thus creating an obligation for the national government to adhere to contemporary international legal instruments and international human rights agreements in particular. A similar argument was previously advanced by Martin Flaherty (1999) who claimed that it was the Founders’ intent to reassure the civilized world of the ability of the new nation to engage seriously with them. The theory here is argued from the perspective of international legal constructivism. It is the explication of this theory that becomes the framework of his major thesis that the US Constitution is a treaty and has wide implications for the notion that some set of international law should be a part of federal legislation by virtue of jurisdiction.

Martin’s theory can be described thusly: He begins with a major argument that is debatable. For Martin, the Constitution, as originally intended, was to be “a treaty between the thirteen states” (p.4). But his reference is to the correction made by the Framers as a result of the violations committed by some states under the Articles of Confederation, engaging in foreign relations as individual states. Thus, a federal system was created with greater centralized authority. The argument is that the Founders understood the meaning of the word “states,” as it was commonly used [*1008] in the Law of Nations at the time of the constitution’s creation, was synonymous to sub-units of a federal union. In this regard, Martin’s thesis has already been held up to criticism because: 1) it was ratified by the People, and 2) Madison, himself, declared the constitution not a treaty, to which Martin replies that the Constitution was ratified by state ratifying conventions, although as a republican practice. Madison, according to Martin, clearly pointed to the use of treaty as a league, a clear indicator of intent of the Articles of Confederation. Nineteenth century American jurists also refused to admit the similarity, since as states’ rights advocates, if the constitution was a treaty, state authority would be further diminished because there would be no way in which a state could abjure from a commitment. To this, Martin replies that SCOTUS was given the authority to mediate inter-state conflicts. Curiously, there is no mention here of MISSOURI v. HOLLAND (1920), which specifically speaks to the issue of states and federally-initiated treaties. Moreover, Martin boldly asserts: “Given that the Constitution is a treaty, the conception of our constitutional law changes” (p.13).

We can parse language as attorneys frequently do in an attempt at sophistry, but there are times when clarity is important. One such instance occurs when Martin claims that the Constitution “created” the SCOTUS, rather than “established” an institution that was subsequently operationalized by the Judiciary Act of 1789. Martin then adds an important qualification, claiming the Court sits as an international court when it serves as a prize court, except within its original jurisdiction. But he also conflates and equates nation-states with sub-units of a federal union.

The substance of the book is divided into three parts. Martin initially argues that the federal court system, as a corporate body, represents an international tribunal whose jurisdiction is governed by international law as an extra-Article III source. He then moves in the next section to describe the components of international law and its relationship to American domestic legislation. The third part then assesses Article III of the Constitution and its supposed international legal origins.

The argument presented is understood to be reflective of the United States at the time of ratification of the Constitution. Language and its substantive meaning evolves along with the legal instruments that develop through its employment. Hence the US Constitution is not the Articles of Confederation, and the sovereign states under the league of friendship of the Articles are not the states as sub-units of the current federal union. Nor, can states in the United States be construed as sovereign entitites recognized by the Treaties of Westphalia. Martin places strong emphasis on the etymological origins of “federal,” whose Latin origin is “foedus,” which in turn is a type of treaty. Historical debate would make mention that Madison, during the ratification period employed “federal” as treaty – a nice historical argument, but little else.

The Constitution, in fact, does speak to treaties under a separate governing principle. In fact, the Supremacy Clause, Article VI, §2, as interpreted by the Supreme Court is superior to any [*1009] state constitution or state statute (BALDWIN v. FRANKS 1887) and recognized by states courts in MISSOURI v. ARNOLD (1941). I would add that, with regard to federal statutes, lex posterior (giving precedence to newer law) applies (COOK v. U.S. 1933). Treaty nullification can, therefore, be effected by statute, if one follows LEM MOON SING v. U.S., (1895). Following this line, would Martin say that Congress can nullify the Constitution (which of course it can via the amending process found in Article V)? The Court also noted in DOE v. BRADEN (1853) that the Constitution is superior to treaties, but federal courts can not nullify treaties even if there is a conflict between the two agents as found in FELLOW v. BLACKSMITH (1857). Perhaps the strongest Court statement is found in REID v. COVERT (1957), with the decision that no treaty can override the Constitution.

When assuming the Constitution is a treaty, Martin applies the principle of the prohibition on non liquet (inventing law when no source is applicable), thus denying federal courts the ability to rule outside the explicit confines of the so called International Bill of Rights, the Universal Declaration of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights (1966), and the International Covenant on Civil and Political Rights (1966). But Martin does not establish whether these norms rise to the level of jus cogens (peremptory norm that cannot be ignored). Nor is there opinio juris (prevailing opinion) or state practice in evidence to give rise to customary international law, which leads to what I believe to be Martin’s ultimate goal to have the US behave as an agressive participant in activating human rights. As America was to operate in a geopolitical vacuum, Article III does set out a structure to deal with the then known world. The argument that the US Constitution is a treaty is, understandably, a difficult sale to make. Martin’s effort seems insufficient. Part of the hesitancy may result from the potential for intrusion of foreign decisions and international public opinion on state authority, as, for example, in capital punishment cases. There might be room for debate in an historical arena, but in the area of international law, supporting evidence is lacking.

Part II presents an elementary outline of the sources of international law, with a discussion of the primary and secondary sources as stated in Article 38 of the Statute of the International Court of Justice. There is nothing found here extraordinary or noteworthy to anyone but the novice to international law. Martin does make a mark in his discussion of subsidiary sources when introducing more contemporary examples of the acceptance of stare decisis in international law, as supported by instruments creating the Caribbean Court of Justice and the European Charter (p.97). Martin treads in dangerous waters, however, when he introduces the current role of natural law in international law, which he considers only briefly.

Part III represents the heart of Martin’s treatment, as he delves into an interpretation of US federal law as international law. The argument begins with the federal courts’ authority under Article III of the Constitution, reprising what Martin had noted earlier as the [*1010] etymologically important origins of “federal” – foedus, which translates as “treaty.” In a circuitous line of reasoning, he follows with an interpretation of Article III that lays out the authority of federal courts to employ three sources of international law: 1. The Constitution, which he claims to be a treaty, and ipso facto an international legal source; 2. Treaties to which the US is a party, and federal statutes that implement the Constitution; and 3. “other US treaties, and the law of nations” (p.107). In this manner, the reader is led into the theoretical framework of International Legal Constructionism, which in turn – and here is the key as convoluted as it might appear to some – “requires that the Constitution’s text be construed in conformity with the United States’ international legal obligations because the Constitution is a treaty that per the conventional law of nations must be construed in conformity with the states-parties’ other international legal obligations” (p.108). So says the Bellman’s rule-of-three (from Lewis Carroll’s nonsense poem, “The Hunting of the Snark”), so be it, but only if it were so, then all else is correct. The International Law Commission also incorporates the various interpretive methods of reading the Constitution which then fits easily into an international legal mould. Martin’s argument continues to consider how treaties operate and how they are to be interpreted by the High Court. Again and again, Martin reviews the relationship of SCOTUS’ rulings as they relate to or involve international legal principles or norms for which there is no dispute, but why then are they equivalent?

I could nit pick a bit with some specific factoids Martin offers, such as referring to Westphalia as the “Treaty” rather than the Treaties or the Peace of Westphalia (p.27), or when he claims that “The only federal case before MARBURY that invalidated a federal statute was HAYBURN’S CASE (1792)” (p.43), which is not exactly accurate. Two years after HAYBURN, the High Court declared U.S. v. YALE TODD (1794), although it was not reported until it appeared in a footnote in U.S. v. FERREIRA (1851). Other cases that should be considered are HYTON v. U.S., (1795), WARE v. HYLTON (1796), and CLERKE v. HARWOOD (1797). Martin’s error in criticizing CJ Marshal’s lack of support for citing precedent in MARBURY in the establishment of “judicial review” (p.43, fn.79) is thus a bit weak. It becomes important only because Martin argues that the International Legal Constructivism is a superior theory or approach. Martin connects international law as precedent for establishing rules by which the state, epitomized by federal law, is obliged to follow.

If nothing else, Martin has taken a bold new approach to place the US Constitution in a position for alternative interpretations, thus applying a distinctive theory. For this, alone, he should be applauded and credited. I found the strength of his argument wanting until he demonstrates that the values undergirding the language of the Founders has remained constant. If, indeed, this conclusion has survived, where can the justification for new subsidiary sources of international law be found? Criticism aside, there is enough here in this brief treatise with which many others may grapple. [*1011]

REFERENCES:
Flaherty, Martin S. 1999. “History Right?: Historical Scholarship, Original Understanding, and Treaties as ‘Supreme Law of the Land.’” 99 COLUMBIA LAW REVIEW 2095.

Martin, Francisco Forrest. 2004. “Our Constitution as Federal Treaty.” 31 HASTINGS CONSTITUTIONAL LAW QUARTERLY 269.

CASE REFERENCES:
BALDWIN v. FRANKS, 120 US 678 (1887).
CLERKE v. HARWOOD, 3 Dall. 342 (1797).
COOK v. U.S., 288 US 102 (1933).
DOE v. BRADEN, 57 US 635 (1853)
FELLOW v. BLACKSMITH, 60 U.S. 366 (1857)
HAYBURN’S CASE, 2 Dall. 409 (1792).
HYLTON v. U.S., 3 Dall. 171 (1795).
LEM MOON SING v. U.S., 158 US 538 (1895).
MARBURY v. MADISON, 1 Cranch 137 (1803).
MISSOURI v. ARNOLD, 347 No. 413, 147 S.W.2d 644 (1941), cert. den. 313 US 589).
MISSOURI v. HOLLAND, 252 U.S. 416 (1920).
REID v. COVERT, 354 U.S. 1 (1957)
U.S. v. FERREIRA, 13 How. 40 (1851).
U.S. v. YALE TODD (1794), in U.S. v. FERREIRA, 13 How. 40 (1851).
WARE v. HYLTON, 3 Dall. 199 (1796).

© Copyright 2008 by the author, Sanford R. Silverburg.


The Constitution as Treaty: The International Legal Constructionalist Approach to the U.S. Constitution

 

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ISLAMIC LAW IN CONTEMPORARY INDONESIA: IDEAS AND INSTITUTIONS

by R. Michael Feener and Mark E. Cammack (eds). Boston: Harvard University Press, 2007. 325pp. Cloth $34.95/£22.95/€24.50. ISBN: 9780674025080.

Reviewed by Jeremy Menchik, Department of Political Science, University of Wisconsin-Madison. Email: menchik [at] wisc.edu.

pp.1001-1006

ISLAMIC LAW IN CONTEMPORARY INDONESIA, edited by Michael Feener and Mark Cammack, is a publication of Harvard Law School’s Islamic Legal Studies Program, as part of its series in Islamic Law. The chapters are based on papers presented at a conference in April 2004, by a group of authors as diverse as the subject matter. They include scholars of history, theology, anthropology, law, and sociology as well as political activists and a sitting judge on the Indonesian Supreme Court. They come from Indonesia, Australia, the United States, and the Netherlands. Their field sites include the traditional arena for studies of law: the courts, positive law, legal theory, and state institutions. Yet, they also include sites that reflect the role of Islamic law in the lived experience of Indonesians: within social movements, mass organizations, public education, and in family life beyond the courtroom.

At first glance, the shortcoming of the volume might appear to be the diversity of its approaches to Islamic law. This heterogeneity contributes to the lack of engagement with any specific social science debate, empirical or theoretical. Readers looking for a unified argument or a discrete set of findings will be disappointed.

Such a critique, however, misses the value-added of the text. The book is a collection of well-written chapters analyzing Islamic law and society in the world’s most populous Muslim state. In addition to contributing to Islamic legal studies, the volume includes highly accessible chapters that could be incorporated into undergraduate or graduate syllabi addressing law and society, law and social movements, gender and law, legal culture, and comparative legal institutions. Given the current popular interest in Islam and politics (and paucity of empirically-motivated material), a number of chapters deserve wide circulation.

The chapters are divided into three sections. The first section addresses legal thought, education, and the production of fatwas (a judicial opinion issued by a religious leader in response to a specific question or issue of dogma). The second focuses on formal legal institutions. The third section, an appendix, provides a descriptive overview of Islamic legal education.

Feener and Cammack open with an analytical framework. They conceptualize Islamic law as a discursive practice organized around social norms and oriented toward a particular area of social life. They contrast this approach against both the essentialist view of [*1002] Islamic law, which privileges one “authentic” tradition over others, and against a disintegrative approach, which claims all interpretations are equally valid (pp.1-5). In their approach, Islamic law is a discursive tradition made up of norms, information, and a capacity for change.

In the Indonesian context, Islamic law is a site for conflict and exchange between multiple legal traditions. This includes the “indigenous” legal tradition embodied by adat, local customary law formalized by the Dutch colonial government, the “imported” legal structures from the West, and the Islamic legal tradition itself (p.5). Curiously, the editors neglect to discuss the implications of the internal diversity in the Indonesian Islamic legal tradition. As the chapters by Laffan, Doorn-Harder, and Feener make clear, the “Islamic” tradition is composed of modernists, Islamists, traditionalists, and various hybrids therein.

Feener (Chapter One) picks up on this diversity in his overview of twentieth century religious discourse. He argues that social, economic, cultural, and intellectual changes at the turn of the century had two key effects on Muslim legal thought. First, legal thought came to be organized around the institutions of the school, the voluntary association, and the print media. Second, newly emergent Muslim intellectuals broke the “monopoly on religious discourse previously maintained by the ulama” (p.14). Feener argues that the emergence of these intellectuals had epistemological implications for the Islamic traditions in Indonesia, namely that new sources of information began to influence the traditional corpus of Muslim discussion and debate.

Feener illustrates these claims by using vignettes of prominent Muslim activists and their institutions: A. Hassan and the organization Persatuan Islam; Nurcholish Madjid and the emergence of Islamic Neo-Modernism; Sahal Mahfudh, Masdar Masudi, and the “new” traditionalists of Nahdlatul Ulama. Likewise, he provides an overview of key intellectuals and the development of new strains of Islamic thought; Moenawar Chalil and changes in the sources of religious authority; Hasbi Ash Shiddieqy and the development of Islamic education; Hazairin and the modernization of reformist rhetoric; M. Natsir and Anwar Harjono’s struggle to synthesize natural law with Islamic jurisprudence. These portraits provide a vivid picture of the country’s intellectual heritage and bolster the volume’s claim that Indonesia merits greater attention within the world of Islamic legal studies.

Nelly van Doorn-Harder’s chapter (Two) portrays the efforts of scholars and activists to strengthen women’s position within Islamic legal structures by identifying, critiquing, reinterpreting, and promoting progressive fiqh texts about women. Fiqh is traditional Islamic jurisprudence. By re-reading fiqh texts concerning women, scholars sought to reinterpret religious texts using a system of “social ethics that uses philosophical methodologies to analyze social and cultural problems” (p.33). In other words, political activists and scholars used a method-centered approach to advance progressive understandings of religious texts. They used this new legal scholarship to empower Muslim women [*1003] and men, help advance a democratic society, and combat hierarchical gender structures in Indonesia (pp.35-36).

Skipping ahead, Mulia and Cammack’s chapter (Seven) provides a similar example of an effort to promote human rights and to eradicate gender discrimination while maintaining respect for classical scholarship. In her capacity as Special Assistant to the Minister of Religion, Mulia led a committee of Islamic legal scholars in drafting an Islamic marriage code titled the Counter Legal Draft (CLD). The CLD was rooted in Islamic first principles, namely tawhid (the central Islamic doctrine of the oneness of God). The principle of the oneness of God was then interpreted as implying the principle of the equality of all human beings, including men and women (pp.135-136). The CLD went on to promote interpretations of Islamic law on marriage that were more egalitarian than the present legal code on marriage. While the draft was shelved due to popular controversy, it continues to generate conversations among contemporary Muslim thinkers and activists.

Both the Van Doorn-Harder and the Mulia and Cammack chapters would be useful texts for courses addressing law and social movements, or law and gender. Van Doorn-Harder provides an illustration of how activists can advance social change by appropriating the legal symbols and discourse of more conservative Muslim groups. Both chapters provide a corrective to the common refrain that Islamic law impedes social change by preserving male-dominated gender structures (Fish 2002; Ross 2008; Warrick 2005). Instead, the authors show that Islamic law can provide the foundation for strengthening the position of women within Islam and a tool for combating misogynist policies (p.42).

Moving backwards, Chapters Three, Four, and Five are likely to be of most interest to scholars of Indonesia. Van Dijk (Chapter Three) provides a descriptive overview of a prominent fatwa-issuing institution, the Majelis Ulama Indonesia (Indonesian Council of Religious Scholars, MUI). He argues that the diversity of religious organizations in Indonesia, as well as the internal diversity in the MUI, means that no single organization can provide authoritative decisions on religious matters. Van Dijk contrasts Indonesia with Malaysia, which has incorporated religious opinions into binding state law. He concludes by sketching tentative hypotheses about religious versus political authority, but refrains from fleshing out his theories. In doing so, he misses an opportunity to help scholars better understand the MUI, which has become one of the most important, yet-understudied, organizations in the world of Indonesian Islam.

Laffan (Four) provides a more systematic analysis of the Jam’iyah Ahlith Thoriqoh al-Mu’tabaroh (JATM), a little-known Indonesian Sufi organization. Drawing on two compilations of fatwas, Laffan traces the history of ideas and political alliances of the JATM including factions within the organization and their political behavior. He locates JATM within the traditionalist sphere of the Nahdlatul Ulama (NU), although he shows how JATMN (a splinter group from the original JATM) privileges the link between teacher and student over [*1004] political alliances. Laffan’s strength is his narrow focus, and his chapter could be of use to other scholars of Sufi jurisprudence.

Ka’bah (Five) describes the practice of law-making in two fora: the religious courts (Pengadilan Agama) and the fatwa boards of Muhammadiyah and NU, both prominent social organizations. He outlines the basic functions of the courts and echoes Van Dijk’s (Chapter Three) contrast between fatwa bodies that are and are not authorized state institutions. Ka’bah provides an overview of Muhammadiyah’s fatwa-issuing institution, Lajnah Tarjih, and suggests that the lack of Arabic literacy among Muhammadiyah youth may create problems in the future. His discussion of NU’s fatwa-body, Lajinah Bahth al-Masa’il, likewise emphasizes the method of issuing fatwas and the social context in which Islamic law is made.

Chapters Six, Eight, Nine, and Twelve focus on more familiar terrain for legal scholars: formal legal institutions and education. Cammack, Donovan and Heaton (Six) explore the social, political and institutional tensions behind Islamic divorce law and practice. They begin with an overview of Islamic law doctrine on divorce and the Marriage Act of 1974. The Marriage Act reflected an uneasy bargain between groups that wanted traditional divorce doctrines to remain in place and government reformers bent on making divorce more difficult. That tension has played out in the Islamic courts and and Supreme Court’s administration of the Act as well as informing marriage practices in society.

Cammack et al.’s chapter embodies the best research practice in the law and society tradition. Rather than taking the law as a static indicator of the Islamic divorce regulations, they show how the religious court’s administration of the law relied heavily on prior practice. Rather than assuming that laws are implemented uniformly across institutions, they show how the Supreme Court applied a distinctly different understanding of the Marriage Act than the religious courts. Rather than assuming institutional arrangements put in place in the 1974 Act remain static, they show how institutions expanded their jurisdiction into the religious sphere by assimilating statutory grounds for divorce and Islamic divorce procedures (pp.107-117). In the final ten pages, they go outside the institutions, situating legal changes within society where divorces have been steadily declining since the early 1970s. Using panel data from the Indonesian Family Life Survey, they note that an enormous proportion, around one-half of all divorces, occur outside the courts. They conclude by sketching out possible reasons for such widespread non-compliance and by reminding the reader of the potential gap between legal institutions and law in society.

Cammack’s solo chapter (Eight) is another excellent contribution to law and society research although the substance also suits discussions of comparative legal institutions. He traces the history of the Islamic judiciary from the colonial period to the present, pinpointing major causal forces that shape the Islamic courts. This includes the legacy of the Dutch colonial period (pp.147-148), the influence of political alliances after independence (pp.148-150), major laws [*1005] (pp.150-154, 157-160), the power of administrative regulations (pp.151-154) and the professionalization of the staff (pp.160-164).

Bowen’s chapter (Nine) provides a good companion piece to Cammack’s. Although some of the author’s previous work (2003) is too theoretically sophisticated for an undergraduate course, this chapter could be integrated into courses addressing law and society, comparative law, and legal culture. Bowen combines rich ethnographic data with careful tracing of cases over time. He argues that judges in an Islamic court in Central Aceh draw on social norms in justifying their decisions in inheritance cases. He differentiates between two types of fairness norms, the ones that judges hold regarding fairness and equality, and those that judges believe to be held by legal disputants (p.190).

In his 2003 work, Bowen argued that social norms underpin the legal reasoning employed by judges. Here he focuses on role of norms in the language of justification, drawing a subtle distinction between norms as guides and norms as rhetorical tools for rationalizing decisions made on other grounds. The distinction is hard to delineate empirically and requires the author to have an intimate understanding of Indonesian Islamic law, the judicial process, local adat (tradition or custom) law, and what Bowen calls “everyday principles” (p.191). Bowen pulls it off admirably, and the result is a model of how to combine theoretical and empirical work on legal culture.

Azra’s concluding appendix (Twelve) is a description of changes in the Indonesian Islamic higher education institutions from independence to the present. It is a comprehensive empirical piece and fills a notable gap in the state of knowledge about Islamic higher education. Future scholars of Indonesian Islamic education will undoubtedly find it a useful starting point for their research.

The remaining chapters (Ten and Eleven) address the resurgence of Islamic law in Aceh. Ichwan provides an analysis of “Shari’a discourse” and power relations between the regional government, central government, and the religious establishment. He claims that Shari’a has become the “master signifier” in Aceh and demonstrates how discussions of religion permeate discussions about regional autonomy, the religious courts, the newly named Shari’a courts, local legislation regulating moral issues like gambling and alcohol, and women’s head-coverings. While he convincingly shows that Shari’a is a heavily debated issue within Acehnese religious life, longitudinal data from historically non-religious spheres such as business, agriculture or fishing, would have made his claim significantly more compelling.

Lindsey, Hooker, Clarke and Kingsley’s chapter argues that the Shari’a revival in Aceh stems from a regional form of conservativism heavily rooted in an idealized past. They note that, for proponents of Shari’a, “the seventeenth to mid-twentieth centuries are imagined as Aceh’s “golden age,” a period when it was an independent power in the region, excelling, in relative terms, in the fields of science, law, economics and politics” (p.217). They then detail how proponents struggle to implement their ideals within the context of pressure [*1006] from Jakarta, competition between political institutions, changes in the jurisdiction of course, the staffing of the religious courts, and the vexing problem of overlapping authority. They note the competition between the legislature’s Qanuns (Islamic legal code or statute) and the bureaucratized version of Islamic law enforced by the religious courts, predicting further competition and confusion under the watchful eye of Jakarta. The chapter covers a wide territory and could be used to discuss comparative legal institutions, comparative Islamic law, and law and society.

Overall, the volume is a welcome contribution to scholarship on Islamic law and society as well as political science. Scholars of Islamic law will appreciate the volume’s solid empirical grounding. From these foundations, future scholars will be able to branch out beyond the study of the religious courts and Acehnese Shari’a into hitherto overlooked areas such as the Islamic food certification industry, Islamic banking, the recent campaign against apostasy, Islamic advertising (now ubiquitous in Jakarta), and the role of Islamic law in the lives of the pious middle class. Political scientists should appreciate the accessibility of the chapters, which can be easily integrated into courses on law and politics. While there is no single theoretical take-away, the methodological and empirical diversity of the text make it an asset to a discipline searching for ways to talk and teach about Islam and politics.

REFERENCES:
Bowen, John Richard. 2003. ISLAM, LAW, AND EQUALITY IN INDONESIA: ANTHROPOLOGY OF PUBLIC REASONING. Cambridge, UK: Cambridge University Press.

Fish, M. Steven. 2002. “Islam and Authoritarianism.” 55 WORLD POLITICS 4-37.

Ross, Michael. 2008. “Oil, Islam, and Women.” 102 AMERICAN POLITICAL SCIENCE REVIEW 107-123.

Warrick, Catherine. 2005. “The Vanishing Victim: Criminal Law and Gender in Jordan.” 39 LAW & SOCIETY REVIEW 315-348.

© Copyright 2008 by the author, Jeremy Menchik.


Islamic Law in Contemporary Indonesia: Ideas and Institutions (Harvard Series in Islamic Law)

 

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SOCIOLOGY OF LAW: VISIONS OF A SCHOLARLY TRADITION

by Mathieu Deflem. Cambridge, UK: Cambridge University Press, 2008. 358 pp. Hardback. £55.00/ $99.00. ISBN: 9780521857253. Paper. £19.99/$39.99. ISBN: 9780521673921. eBook format. $32.00. ISBN: 9780511380112.

Reviewed by Dante Gatmaytan-Magno, University of the Philippines, College of Law. Email: dante.gatmaytan [at] up.edu.ph.

pp.998-1000

Mathieu Deflem, an Associate Professor at the University of South Carolina’s Department of Sociology, has written not only a valuable contribution to the literature on the sociology of law, he crafted a comprehensive and compelling guide on the subject. Deflem’s SOCIOLOGY OF LAW presents a discussion – not an exposition – of important theoretical problems and concerns that define the boundaries of this field of specialization. In this effort, Deflem applies his expertise and meticulous research to construct a thorough treatise on the sociology of law.

The book sets itself apart from existing works by providing a “comprehensive discussion of important theoretical and institutional history of the sociology of law” (p.14). Deflem reviews historical developments to contextualize the manner in which sociologists study the structures and processes of law and law-related phenomena. The book examines classic works in the sociology of law, modern and contemporary theoretical perspectives, the place and role of law in relation to other important social institutions, including economy, politics, culture, and social structure, and selected problems in relation to enforcement of law and its globalization.

The book goes beyond a list of theories and themes in the sociology of law to present “an integrated discussion in order to reconstruct a model of the sociology of law that takes into account the more or less fruitful paths that sociologists have taken since the origins of the discipline” (p.14). Deflem does not take sides in the debates within the discipline, but he points out how these issues and dilemmas contributed to the development of the sociology of law.

The book both considers the trajectory of law and sociology as a specialized discipline and examines the complex nature of this journey while making pointed comments to provide readers with a better understanding of the way the field developed. The journey begins by paying tribute to the minds that helped build the foundation for the field. Deflem dedicates two chapters to the works of Max Weber and Emile Durkheim – pillars of the sociology of law – and addresses the various responses and criticisms that their works generated, presenting a picture of contested views and open debates. Deflem also identifies the differences in the contributions made by both Weber and Durkheim: Weber’s work focused on “the interplay between a mixture of political, economic, cultural, and other societal forces,” while Durkheim gave primacy to cultural influences. These [*999] approaches explain the inconsistency in their views on the role of the law.

In the next chapters, Deflem contrasts the development of sociology in Europe and the United States. In Chapter 4, he observes that “the early days of sociological thinking on law outside the classics was essentially marked by a theoretical move towards the development of the sociology of law as a specialty area from within scientifically inclined currents in jurisprudence” (p.93). In Chapter 5, he reports that the sociology of law grew out of the professional law schools, not directly out of classical sociology. The author speaks at length on how Oliver Wendell Holmes triggered a turn in legal scholarship towards sociological jurisprudence, which was later systematized by Roscoe Pound (p.115).

The book then presents an overview of the main theoretical perspectives in the modern sociology of law and applies them to a series of substantive social issues. Deflem explains, for example, how sociological perspectives – such as institutionalism – can be used to explain the regulation of the market. He also points out how sociological research – by drawing on the works of Jürgen Habermas and Niklas Luhmann – addresses issues of democracy and law.

Deflem’s study also examines the evolution of the legal profession, citing literature that addresses initial attempts to organize the profession and its preoccupation with occupational autonomy. He also discusses the emergence of the Critical Legal Studies movement, through which members of the profession criticize and attempt to shape the profession.

In the study of law, Deflem discusses how postmodernism and deconstruction have influenced scholarship on law by exposing inequalities in class, gender and race relations. These perspectives have triggered assessment of “discrimination and inequality in and through law” (p.210). He discusses the literature on laws that regulate intimate aspects of life, particularly euthanasia, same-sex marriages, and abortion (pp.217-222).

Sociology has also contributed significantly to the study of social control. Here Deflem discussed how Foucault inspired revisionist approaches to social control that go beyond law to focus on technologies of control. Indeed, recent research makes significant contributions to the literature on policing, surveillance, and sentencing and punishment.

The book ends by showing how the sociology of law has kept pace with new social, political, and economic developments. Deflem cites a growing literature on the globalization of law that addresses “the entire range of legal processes, extending from the creation of global norms over their administration in the courts and through other means of resolution, including the activities of legal professionals, to the global dimensions of enforcement and social control” (p.255). Deflem also notes recent literature on the creation and enforcement of global norms for issues such as female genital mutilation, legal bankruptcy reform, international lawyering, and the creation of international criminal courts. [*1000]

Deflem makes two key observations in his work. The first is that the institutionalization of the sociology of law was brought about in part through the efforts of leading figures, such as Max Weber. The second is that the sociology of law typically evolved from outside sociology – from the legal sciences. This peculiar development continues to plague the sociology of law with questions about its legitimacy as an academic discipline.

SOCIOLOGY OF LAW is not an easy read; the language is heavily academic, and it assumes some level of familiarity with the literature and scholars with whom many readers are unlikely to be familiar. But Mathieu Deflem’s book, as explained earlier, is not a textbook, but a single-volume reference on everything regarding law and sociology. There is a massive number of references that is thankfully clustered in footnotes and the bibliography that helps make this book accessible to both novice and expert.

© Copyright 2008 by the author, Dante Gatmaytan-Magno.


Sociology of Law: Visions of a Scholarly Tradition

 

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LAMENT FOR A FIRST NATION: THE WILLIAMS TREATIES OF SOUTHERN ONTARIO

by Peggy J. Blair. Vancouver: University of British Columbia Press, 2008. 352pp. Cloth: CDN$85.00/US$98.00. ISBN: 9780774815123. Paper: CDN$32.95/US$36.95. ISBN: 9780774815130.

Reviewed by Greg Marquis, Department of History and Politics, University of New Brunswick Saint John. Email: gmarquis [at] unbsj.ca.

pp.994-997

In 1994 the Supreme Court of Canada, in R. v. HOWARD, decided that seven First Nations had knowingly surrendered their traditional right to fish for food when they had agreed to the Williams Treaties several decades earlier. The major result of the Supreme Court ruling was that members of the Hiawatha First Nation, and six other First Nations covered by the 1923 treaties, lost the right to hunt and fish outside of reserve lands.

Peggy J. Blair, a lawyer specializing in aboriginal law, has produced an important study of the historical context surrounding both the treaties and what she sees as a misguided response by the Canadian courts. The monograph is part of the University of British Columbia’s growing Law and Society series, edited by W. Wesley Pue. It is highly recommended not only for students of Canadian and First Nations history, but also anyone involved in litigation and advocacy on First Nations issues. Blair argues that the courts’ reasoning was based on a tradition of “assimilationist pressures and dominant cultural biases” (p.ix) and that there is little evidence to suggest that the bands involved had given up their traditional rights to fish and hunt outside of reserve territory. This interpretation, given the force of law as of 1994, makes the Williams Treaties First Nations’ experience unique in Canada.

The Williams Treaties of 1923 covered a 10,000 square mile section of south-central Ontario (equivalent in size to Massachusetts) and included territory containing the Ontario communities of North Bay, Barrie, Gravenhurst, Orillia, Parry Sound, Petawawa Markham, Pickering and Coburg. The southern limits of the treaty area were the north shore of Lake Ontario between Brampton and Trenton; the northern limits were the Ottawa and French rivers. This was the last major treaty negotiation between the federal government and Indian nations in the post-Confederation period. At present this area contains a wide variety of economic activity and land uses, ranging from central cities, manufacturing and suburbs to farms, ‘cottage country, ’Algonquin Provincial Park and Lake Simcoe.

The act that triggered the Supreme Court case was the prosecution of a member of the Mississauga First Nation at Rice Lake for catching pickerel on the Otanabee River outside of fishing season. An appeal to the Ontario Court of Appeal confirmed the Crown’s argument that the Rice Lake band in 1923 had surrendered their right to fish outside of reserve lands for a monetary payment. The dispute centred on two opposing views of native land use; that of First Nations and of governments and [*995] many courts As the author details, after the mid 19th century the Ontario government moved away from a focus on protecting the traditional aboriginal lifestyle to limiting First Nations hunting, trapping and fishing in order to expedite white settlement. Over the decades, the provincial authorities, who regulate hunting and fishing, tried with mixed success to limit aboriginal harvesting outside of the boundaries of reserves (many of which themselves are a fraction of their original size, owing to federal government decisions).

Blair provides considerable detail on the history of the Mississauga (who were part of the Anishnabe) and Chippewa, particularly the importance of fishing to their subsistence and culture. Of central importance were ‘fishing islands’ located on rivers and lakes. The author marshals evidence from land surrender agreements in other parts of the province to suggest that protection of traditional fishing areas was an expected part of any transfer. Yet, the new policy of ‘legalized encroachment’ starting in the 1850s involved attempts to limit native access to resources in the interest of ‘civilization. A discourse of ‘laziness’ and ‘waste’ was used by supporters of sport and commercial fishing to justify the criminalization of Indian harvesting methods, such as netting and spearing. James Cockburn, the acting attorney general of Canada West (Ontario) in the 1860s, offered a legal opinion that would prove influential: the Royal Proclamation of 1763 applied only to land, not waterways, and the Indians of Ontario, treaties notwithstanding, possessed no special fishing rights.

In Chapter 4, which covers the first thirty years after Confederation, Blair discusses the federal-provincial jurisdictional disputes surrounding native fishing in Ontario. Although the policy was unconstitutional, the federal government permitted Ontario to control First Nations’ fishing and hunting. In the late 1890s and early 1900s, provincial fish and game regulations grew stricter, although aboriginal people continued to defy the law and oral tradition held that hunting and fishing rights had never been surrendered. Legal advocacy, in Ontario and beyond, was hampered by changes to the federal Indian Act in 1910 which made it difficult to engage lawyers.

In 1921 the federal government approached the provincial authorities on the matter of unextinguished aboriginal title involving several southern Ontario Mississauga and Chippewa bands remaining outside of the treaty process. The treaty commissioners explained to the residents of reserves at Georgina Island, Rama, Christian Island, Rice Lake, Scugog, Mud Lake and Alnwick that “the territory in question was formerly the Hunting Ground of this tribe” (p.130). Blair speculates that the hasty manner by which the 1923 treaties were signed may have been related to efforts on the part of Canadian Indians that year to take their case to the League of Nations in Geneva and to British officials in London. No transcripts of the treaty talks exist; thus the issue of whether the negotiations actually proposed taking away fishing and hunting rights beyond reserve lands is unresolved. The commission was authorized to spend roughly $25 per capita to extinguish aboriginal title.

Years later, the government of Ontario used the so-called ‘basket clause’ of the [*996] treaties, which appeared to give the province wide jurisdiction over “all other lands” (p.155) with which the bands had been involved, to advance the claim that hunting and fishing, starting in 1923, were restricted to reserves. Yet as the book discusses, Indians in the treaty areas not only continued to harvest game and fish but also claimed a treaty right to do so. This attitude continued among northern Ontario First Nations when they adhered to Treaty Number 9 in 1929. During the 1930s the Ontario courts backed provincial policy prohibiting aboriginal fishing in waters adjacent to reserves. As Blair points out, six of the seven reserves in question have no bodies of water in their territory, which meant that fishing could only take place off reserve, in the Otonabee River.

The province continued to charge Williams Treaties band members for hunting and fishing illegally, despite the latter’s protest that they were protected by treaty rights. By the 1970s and 1980s, however, courts were becoming more sophisticated and sympathetic in their treatment of native issues. A provincial court of appeal case in 1981 involving the Mud lake Chippewa ruled that oral promises by the Crown could be considered party of a treaty. A year later, the ‘existing’ aboriginal and treaty rights of Canada’s aboriginal peoples were recognized in the new Constitution Act. Yet, advances in aboriginal rights were accompanied by setbacks.

Despite the more liberal climate of the 1980s, the Ontario Ministry of Natural Resources tested the Williams Treaties by charging George Henry Howard of Rice Lake, Peterborough County, in 1984. The expert witness for the defence testified that the Mississauga and Chippewa of 1923 would have never willingly ceded their traditional rights. A key witness for the Crown was a Hiawatha band member who had been born in 1913 and who personally remembered seven of the treaty signatories. All of them were literate, three or four were businessmen, and one was a civil servant. This evidence suggested that band leaders in the 1920s would have been fully aware of what was at stake in the negotiations. The judge ruled against the defendant – but not on the basis of the treaty. Instead, he held that federal fisheries regulations had extinguished the right to fish beyond reserve boundaries. After two unsuccessful appeals, Howard took his case to the Supreme Court of Canada. Following their defeat there, the bands were forced to enter into narrowly-defined harvesting agreements with the Ontario government, which would have permitted some fishing in waters adjacent to reserves. The agreements were cancelled in 1995 by the newly-elected provincial government of Mike Harris (Harris was premier during the protest at Ipperwash Provincial Park which resulted in the death of Native protestor Dudley George).

In recent years, Canada’s First Nations organizations, including those of off-reserve and non-Status Indians, have attempted to assert claims to traditional hunting territories. In recent decades, the courts have sided with aboriginal defendants who claim a right to hunt off reserve lands (Manore 2000: 209). Land claims settlements have also recognized traditional rights to hunt and fish for food both within traditional territories, and the territories of neighbouring First Nations, where permission is granted. The inconsistent nature of the Canadian [*997] courts towards issues of vital interest to aboriginals is the focus of Blair’s final chapter, which will be of most interest to legal scholars. She highlights the often contradictory principles enunciated through Supreme Court rulings, such as recognition of “the cultural significance of a land base to contemporary First Nations (p.201), on one hand, and failure to recognize this lack of appreciation by judges in past decisions on the other. Under the common law approach, Blair suggests, the ambiguities and ‘grey areas’ of the historical record are often ignored or misunderstood, or made to serve the interests of the Crown. Key evidence here is the failure of the 1923 treaty commissioners to appreciate the reliance of aboriginals on hunting, trapping and fishing. The book concludes with an interesting discussion of how American ‘Indian law’ differs from Canada’s on the issue of treaty rights, using the example of the Mille Lacs band of Chippewa in Minnesota. In the United States, aboriginal rights are not viewed as granted through treaties from the sovereign power. The Supreme Court has ruled that a treaty is a grant of rights from Native Americans. Thus any rights not enumerated in a treaty remain unextinguished. In contrast to the HOWARD case where the Canadian government chose not to intervene, the Mille Lacs case that proceeded to the United States Supreme Court in the 1990s involved intervention by the American federal government in defence of Chippewa treaty rights. Blair criticizes not only a particularly “aggressive” provincial government, but also a long-standing policy of Canada’s federal government in maintaining ‘selective memories’ of past negotiations and treaties, and deliberately attempting to escape its responsibilities to aboriginal people. She also faults the Supreme Court’s unwillingness or inability to appreciate fully the culture and history of Canada’s First Nations.

REFERENCES:
Manore, Jean L. 2000. “Indian Reserves v. Indian Lands: Reserves, Crown Lands and Natural Resource Use in Northwestern Ontario.” In Edgar-André Montigny and Anne Lorene Chambers (eds). ONTARIO SINCE CONFEDERATION: A READER. Toronto: University of Toronto Press, 195-213.

CASE REFERENCE:
R v. HOWARD [1994] 2 S.C.R. 2999.

© Copyright 2008 by the author, Greg Marquis.


Lament For a First Nation: The Williams Treaties of Southern Ontario (Law and Society)

 

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November 9, 2008

THE POLITICS OF THE VEIL

by Joan Wallach Scott. Princeton: Princeton University Press, 2007. Cloth. 208pp. $24.95/£14.95. ISBN: 9780691125435.

Reviewed by Hootan Shambayati. Department of Political Science, University of Missouri–Kansas City. Email: hootan2 [at] sbcglobal.net.

pp.990-993

In this book, one of the foremost students of France asks why has the head covering worn by millions of Muslim women across the world attracted so much controversy in recent French politics. Even in the Middle East and other parts of the Muslim world, where the veil is worn by large segments of the population, it has become a potent political issue with different societies and political regimes adopting very different approaches in dealing with it. The constitutional court in secular Turkey recently rejected a constitutional amendment because it could have potentially eased the ban on female university students wearing a headscarf, while neighboring Iran legally requires all women to cover their hair in public. Although, this book deals only with the French case, it has implications beyond the borders of that country.

As Joan Wallach Scott recognizes, there are many different styles of veil, from the full body covering and face masks to the more relaxed version that only covers the hair and the neck. In addition, each has a different meaning for both those who wear them and those who are concerned about them. Nevertheless, for the sake of brevity and to reflect how the term was used during the actual debates in France, she uses the generic term veil to refer to all forms of headscarves worn by Muslim women (p.16). Scott is also quick to warn the readers that “this is not a book about French Muslims; it is about the dominant French view of them.” She is “interested in the way in which the veil became a screen onto which were projected images of strangeness and danger – danger to the fabric of French society and to the future of the republican nation” (p.10). She pursues her quest by examining the circumstances that led to the adoption of a 2004 law that banned the display of “conspicuous” religious symbols in French public schools. As is well known, although legally the ban applied equally to all religions, its true targets were a small number of female Muslim students who insisted on wearing the veil to school. The question then is why did the veil become such a controversial political issue in French politics (p.3)?

Chapter One, under the title “headscarf controversies,” discusses three historical moments when the veil erupted into the national political scene in 1989, 1994, and 2003. As Scott points out, these controversies did not reflect an increase in the number of students with headscarves in public schools or in the society at large. Nevertheless, as the chapter clearly demonstrates, each historical moment led to the hardening of the government’s position from leaving the decision on the admissibility of religious symbols, including veils in schools, to local officials who, based on a 1989 decision of the Conseil d’Etat, had to decide whether they constituted [*991] “acts of pressure, provocation, proselytism or propaganda” to the 2004 adoption of an outright ban on the display of all religious symbols in pre-college public schools. Although Scott recognizes the intervening events that might have led to the hardening of the government’s position, she rejects the notion that the decision to ban headscarves “was a reaction to an objective worsening of . . . circumstances” and instead argues in favor of an argument based on changes in both the domestic and international climate in explaining the timing of the controversies (p.36).

For Scott the French reaction to the veil is deeply rooted in France’s colonial and the French society’s approach to secularism, individualism, and sexuality. These themes are discussed in the next three chapters and dominate the bulk of the book. Chapter Two discusses racism and how it continues to be the dominant force in the French approach to immigrants, particularly those from its former Muslim colonies in North Africa. In fact, as Scott argues, the term “immigrant” is reserved only for North (and sometimes West) Africans, but not for those originating from European lands (p.88). France’s approach to the Muslim/Arab population is a continuation of the colonial attitude of seeing Arabs as an inferior race in need of civilizing. According to Scott, like their colonial predecessors, French politicians attributed the problems of poverty and marginalization among North African immigrants to their cultural inferiority caused by Islam. Consequently, they not only blamed the victims for the racism to which they were subjected but also concluded that the immigrants can only become French if they abandon Islam (pp.80-81). As Scott notes, “the civilizing process, once the justification for colonialism was now to be applied to immigrants” (p.81). Thus, the veil came to be seen as the symbol of the inferiority of the Muslims and its elimination from the public sphere became a state objective in its attempts to “civilize” the immigrants, much in the same way that the colons had tried to do in Algeria.

This racist attitude, still prevalent in parts of the French society, is often hidden behind the veil of secularism. The French laicite, or secularism, is, of course, very different from its American counterpart. In the US, “the separation between church and state was meant to protect religions from unwarranted government intervention . . . In France [or Turkey], separation was intended to secure the allegiance of the individuals to the republic” (p.91). As Scott shows in Chapter Three, the extreme form of laicite advocated by the proponents of the ban has historically been in tension with other versions that see more room for accommodating religious practices and beliefs under the republic. Nevertheless, the supporters of the ban see the presence of headscarf wearing students in public schools as a challenge to the very essence of the republic. This perception of a growing threat is further strengthened by the memory of the country’s colonial experience where the veil had emerged as a symbol of the humiliation of France in the wars of liberation that brought about the end of the empire (p.66). In the fight to protect the republic, the schools are seen as particularly important battlegrounds where lines had to be drawn, since they “are considered key to disseminating and stabilizing republicanism, to creating [*992] France as a nation one and indivisible” (p.107). However, as Scott notes, “it is not religion but the republican model that, by taking religious and the secular to be absolute opposites, poses the most dangerous obstacle to democracy” (p.123).

The next two chapters deal with the concepts of individualism and sexuality in France. Once again, the careful analysis of these two concepts shows the underlying racist causes of the attempts to exclude headscarves and those who wear them from public schools. As Scott argues, convinced of the superiority of their philosophy, the advocates of the ban did not see a contradiction between the justification for the ban that it would free Muslim women from the yokes of traditional society and the consequences of the ban that led to the expulsion of the headscarf wearing women from schools (p.125). Nor did they see a contradiction between the prevalent practice before 2004 of allowing the followers of other religions to wear religious attires such as Yarmulkes and Sikh turbans in the classroom. Instead they argued, that Islam was a special case where “the girls in headscarves were captives in a culture that held them against their will” (p.127). Consequently, “the headscarf could only be an imposition of that culture; its removal a sign that liberty and equality had prevailed” (p.129). From the perspective of the supporters of the ban “a decision to wear the veil could never be seen as reasonable choice” (p.129).

The fifth chapter picks up the French understanding of sexuality and how it has shaped the debate on the veil. Scott argues that the French, or at least those among them who supported the ban, equated sexual emancipation with social equality and saw Muslim modesty as both sexually and socially aberrant and unacceptable (pp.153, 156). Sexual equality has become a primordial value on par with laicite. “Those who do not share the French value are not only different but inferior – less evolved, if capable at all of evolution” (p.173). This belief in the superiority of the French understanding of sexual equality, however, masks an inherent contradiction in the “abstract individualism that is the basis for French republicanism: if we are all the same, why has sexual difference been such an obstacle to real equality” (p.154)? Consequently, the veil as the symbol of “Islam’s insistence on recognizing difficulties posed by sexuality revealed more than what republicans wanted to see about the limits of their own system (p.154).

In this short commentary on the “politics of the veil,” Joan Scott authoritatively rejects many of the arguments that are often used in favor of totally excluding Islam from the public sphere. In doing so she has provided much food for thought and has written a book that is equally valuable to scholars and to students in a graduate or upper level undergraduate course. The findings and arguments are not only applicable to France and other European countries that have sizable Muslim communities but also to Muslim majority countries like Turkey where the veil continues to generate controversy. In both settings, as former Turkish Prime Minister Ecevit put it, the veil poses a “challenge to the authority of the state” (Turkish Daily News, 4 May 1999). Scott rejects the seriousness of this challenge in the [*993] French case but the secularists are not the only ones who see the veil as “enemy flags” (p.176). Many Islamists also wave the veil as a flag. The larger problem is that both extremes see the state as a “civilizing agent.”

© Copyright 2008 by the author, Hootan Shambayati.


The Politics of the Veil (The Public Square)

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THE CONSTITUTION OF THE UNITED KINGDOM: A CONTEXTUAL ANALYSIS

by Peter Leyland. Oxford and Portland, Oregon: Hart Publishing, 2007. 240pp. Paper. £12.95/$28.00. ISBN: 9781841136660.

Reviewed by Andrew McDonald, University College, London. Email: andrew.mcdonald [at] cabinet-office.x.gsi.gov.uk.

pp.987-989

How best to start an overview of the British constitution? That must have been one of the bigger questions facing Peter Leyland when he contemplated writing this primer on the UK’s constitutional arrangements. How should one frame a study of a constitution which is uncodified and is popularly, if mistakenly, understood not simply to be unwritten but not to exist at all? Leyland’s sensible answer to these questions is to guide the reader – at a brisk pace – through Britain’s constitutional history, the sources of its constitution and its governing principles. He then settles down to work through some of the country’s defining institutional and legal characteristics. The reader is left in no doubt that Britain has a constitution – and a constitution which has much in common with its codified counterparts. But the same reader might be left uncertain as to where that constitution stops. What are the boundaries of a constitution which does not arise from one core text? Others have, of course, wrestled with this question before. The Westminster Parliament itself has a bespoke process for handling legislation of ‘first class’ constitutional significance. All well and good, but it is a matter for debate as to which bills qualify for this treatment. Leyland’s own answer to the question is equally debatable: the starting point of his study may be uncontentious, but its coverage will not command universal assent, a point to which I will return.

THE CONSTITUTION OF THE UNITED KINGDOM is the first in a series of overviews of constitutional systems: others on the stocks include Mark Tushnet on the USA and Cheryl Saunders on Australia. We are promised contextual analyses, situating constitutions in their national history and explaining their underlying principles. The idea is at once admirable and innovative: it is difficult to think of any other recent series with the same ambition. Particularly stretching – and questionable – is the intention to meet the needs of ‘scholars and students’ (my emphasis). This is a tall order for any enterprise.

Leyland, one of the series editors, is first off the blocks in meeting the challenge. If there was any doubt as to whose needs would come first, it is soon clear that he is focused particularly on the needs of the student. He sets out to provide an accessible, concise survey of Britain’s constitutional history and of its present constitutional arrangements. The book is not intended, it seems, to be read from cover to cover: key principles are repeated, it seems, so that those dipping into the text should not be deprived of them. Signposting is clear and helpful. Bibliographies are to the point. The reader is never patronised but it is [*988] assumed that he or she has no prior knowledge of the country or of its constitution. One might imagine that Leyland had an American college student market in mind when he was writing.

If that is the task he has set himself, how well does he do? For the most part, the report card must be positive. The prose is clear and authoritative. The reader’s tour of Britain’s constitutional history is efficient. The parliamentary process, including the passage of bills through Westminster, is described accessibly and with concision. The classic texts of constitutional analysis – Dicey, Bagehot, Jennings and the like – are introduced and their contribution summarised. And the radical reforms of the Blair administrations are recounted effectively. There is much that is good here.

Leyland is a reliable guide: he makes few slips. More questionable, though, is his selection of topics. He is evidently happier describing developments in public law, and his analysis here is self-confident and assured (see, for example, his account of the Human Rights Act). Indeed, some might consider his accounts of recent public law cases a little too full for a survey of this sort. He is less at home in describing institutional arrangements or in his discussions of policy debates. For example, his account of the centre of government focuses on the hinge between Number 10 and the Cabinet Office. The relationship between the Cabinet Office and HM Treasury – a defining feature of British government since 1916 – is neglected. He also launches into excursions which, at best, explore the margins of the constitution – and quite often he chooses to go off piste altogether. Hence we learn about his views on the dominance of the Oxbridge elite, on e-voting, on the digital divide and on the Public Accounts Committee’s report on the Passport Agency. The uninitiated but discriminatory reader may wonder whether even the British constitution – amorphous and elusive as it is – is sufficiently capacious to take in all of these topics. But more problematic is the unevenness in Leyland’s tone: he interlaces his account with opinions – each of them plausible, but many contentious – which might be absorbed by the unsuspecting as though they were received wisdom. His treatment of the Blair reforms is illustrative here. Many of the statutes are summarised in straightforward, prosaic style: for example the Constitutional Reform Act 2005 and the Government of Scotland Act 1998 are recited efficiently and without commentary. Not very exciting for some, but helpful for the newcomer. But the same newcomer will have to be alert to spot the change in tone when Leyland goes on to opine that devolution to the English regions (rejected at a referendum in the North East) must be addressed, that the Westminster Parliament will develop a procedure whereby English MPs alone will decide on ‘English’ issues, that the financial controls on local government must be loosened, that the parliamentary system is akin to ‘elective dictatorship’ and that the Blair Governments passed ‘repressive legislation’ in the wake of the Human Rights Act. Each of these may – or may not – be an arguable proposition, but Leyland does not help those less familiar with the British system to spot when he is mounting one of his personal hobby horses. Confusion [*989] in undergraduate essays is bound to follow.

There is also some room for debate over those topics which Leyland has chosen to omit or downplay. He addresses himself to the constitution of the UK, and yet he has little to say about arrangements in Northern Ireland, which has (by force of circumstance) been a remarkable source of constitutional innovation in the last decade. If the Northern Irish story is seen by some as sui generis, the same cannot be said for Europe’s impact on the British constitution. The UK’s accession to the (then) European Community in 1973 is probably the most significant constitutional development in the second half of the twentieth century. And yet Leyland’s treatment of it is surprisingly brief: for the most part he focuses on the constitutional architecture which the British have chosen to construct for themselves. He does not dwell long on the European Union’s influence on those arrangements.

These questions notwithstanding, this remains a valuable introductory survey. It is perhaps less challenging for the newcomer than recent works by Jowell, Oliver and Hazell but those more familiar with the UK, its law and institutions will find him less rewarding and exacting than these other authors. Nobody has yet to find an entirely satisfactory way of defining the scope of the British constitution and even codification would not resolve the problem definitively: consider the penumbra of texts and cases which are associated with the understanding of codified constitutions. But the task is particularly difficult at present. No sooner has the job been attempted but the constitution has been reformed. The pace of change under the Blair/Brown administrations has been intense, and it shows no sign of slacking. Leyland’s work was completed in 2006 and published last year. And so it is silent on the new wave of reforms announced by Gordon Brown when he became prime minister, and it cannot comment on the election in 2007 of a nationalist administration in Scotland. Already, there is a case for a second edition, marking out the boundaries of the constitution once more.

REFERENCES:
Jowell, Jeffrey, and Dawn Oliver (eds). 2007. THE CHANGING CONSTITUTION. Oxford: Oxford University Press.

Hazell, Robert. 2005. DEVOLUTION, LAW MAKING AND THE CONSTITUTION. Exeter: Imprint Academic.

© Copyright 2008 by the author, Andrew McDonald.


The Constitution of the United Kingdom: A Contextual Analysis (Constitutional Systems of the World)

 

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UNDER COVER OF SCIENCE: AMERICAN LEGAL-ECONOMIC THEORY AND THE QUEST FOR OBJECTIVITY

by James R. Hackney, Jr. Durham, NC : Duke University Press, 2007. 264pp. Cloth. $79.95. ISBN: 9780822339816. Paper. $22.95. ISBN: 9780822339984.

Reviewed by Clifford Angel Bates, Jr. American Studies Center, Institute of the Americas and Europe, Uniwersytet Warszawski. c.a.bates [at] uw.edu.pl.

pp.985-986

If one would sum this book up in a sentence it would be, this book is Thomas Kuhn’s STRUCTURE OF SCIENTIFIC REVOLUTIONS tackling the history of American legal theory. I argue that James R. Hackney offers a first and foremost a work of intellectual history on the origins and development of American legal-economic theory in the context of the impact of the post-modernist historicist critique of scientific objectivity on legal thinking. As such, this book would appeal more to intellectual historians and students of the philosophy of social sciences than to lawyers or those generally interested in legal theory.

One of the major weaknesses of Hackney’s book is that he takes for granted that everyone will agree about the history of sciences in light of applying the historicist genealogy to the history of scientific reasoning simply, as well as to the application of scientific reasoning to the law. In fact, Hackney has to spend a lot of time flushing out the development of the history of scientific reasoning as expressed genealogically and then trying to show how later developments in legal reasoning followed along similar paths. He also tries to make the argument that the whole law and economic movement is to be seen as one last hurrah to achieve a level of scientific objectivity within the realm of legal knowledge that cannot be achieved given the problematic character of all attempts of scientific objectivity, as revealed by the early 20th century trends in the philosophy of science. Again this makes for tough reading.

Another weakness of Hackney’s book is that he interjects unnecessary judgments that all too often do not bear up to closer scrutiny or would require greater flushing out and better evidence than he provides. Hackney also in too many places makes sweeping claims about the connection of certain concepts to specific understanding of nature and man that are highly problematic at best, if not outright nonsense at the worst. One of the most outrageous of such interjections is his discussion of Blackstone and the view that Blackstone’s whole understanding of property rests upon ‘divine interpretation’ (cf, pp.24-25). Hackney pulls one quote of Blackstone which is clearly connecting how nature and the interaction of the parts of nature suggest a level of harmonization that support a conclusion of divine intervention or providence working behind the scene. To then use this one quote as proof that Blackstone’s legal theory wholly rests on creationist assumptions, that we smart educated people all know to be laughable and merely a product of [*986] ignorance [by the way I am being sarcastic here], would probably mean that Locke (by whom Blackstone and his whole understanding of rights and the way law responds to rights is influenced) and Locke’s thought would be likewise caricatured. What results here is not a serious confrontation with Blackstone, but a superficial characterization that is not only misleading, it is also makes no real attempt to understand Blackstone (or the other sources of law Hackney addresses this book) on their own terms so one could see how they do in fact shape the framework of law.

This leads me to my major problem with Hackney’s book. Although he says we need to apply a genealogical and historicist hermeneutic to better understand the limits of scientific rationality on legal theory’s ability to arm the study of law with a level of scientific objectivity that is not possible, his use of the same hermeneutic is so lamely employed on the various thinkers he considers to be critical to the development of legal theory. Again his treatment of Blackstone screams out for our attention. Here he takes no consideration of any rhetorical design or context of the quote he uses to prove his point. Out of the best tradition of text proofing of biblical literalists, no attention is at all paid to the general context or the logographic context of the pulled quote that is used to prove Blackstone’s biblical worldview. Strangely, Hackney argues that we need to apply genealogical and historicist methods to understand why the claims of objectivity made by proponents of law and economics are problematic, but then utterly fails to properly use those same methods in reading the various key thinkers he uses to support his general argument, instead simply relying on generalized and sweeping claims about those thinkers, pulling a quote or two from them without any care as to how those quotes are used or to be understood within the general framework of the given text (key to the very hermeneutic approach he espouses). This leaves the reader scratching his head to understand where the author is going.

In fact, the reader is likely to scratch his head and cry foul at too many sections. There are two ways one can understand what is going on in this book. Perhaps Hackney’s book is a big prank by a critic of post-modern approach to scientific reasoning akin to Alan Sokal’s spoofing of SOCIAL TEXT (a likewise Duke University Press publication) by getting them to publish his parody of post-modern approaches to physics. Alternatively, this is a piece of scholarship plagued by contradictions and errors in application of the scholarly approaches that Hackney promotes. As a spoof this is priceless; as a piece of serious scholarship, the best that can be said is that it should have been sent back for major revisions.

REFERENCES:
Kuhn, Thomas S. 1962. THE STRUCTURE OF SCIENTIFIC REVOLUTIONS. Chicago: University of Chicago Press.

Sokal, Alan D. 1996. “Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity.” 46/47 SOCIAL TEXT 217-252.

© Copyright 2008 by the author, Clifford Angel Bates, Jr.

 


Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity

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AGGRESSIVE NATIONALISM: MCCULLOCH v. MARYLAND AND THE FOUNDATION OF FEDERAL AUTHORITY IN THE YOUNG REPUBLIC

by Richard E. Ellis. New York: Oxford University Press, 2007. 280pp. Hardback. $29.95/£17.99. ISBN: 9780195323566.

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

pp.981-984

Richard E. Ellis, a history professor at the State University of New York at Buffalo, justifies his book based on the importance of the topic and the dearth of similar texts. He holds that the Supreme Court’s decision in MCCULLOCH v. MARYLAND “provides an enduring nationalist interpretation of the origins and nature of the Constitution . . . [i]t also contains an explicit narrowing of the meaning of the Tenth Amendment, the bulwark of states’ rights thought” (p.4). Ellis claims that no in-depth study of the latter case or its ramifications for the losers exists. He taps US Supreme Court cases, archival papers, and secondary sources to accomplish that task.

In the Introduction, Ellis identifies positive and negative features of the economic changes which swept the United States following the War of 1812. While the market revolution ushered in development of a national economy, an increase in the standard of living, and the development of a middle class, it also contributed to the expansion of slavery and fostered unequal distribution of wealth. Americans reacted inconsistently to these conditions as the economy alternated between boom and bust.

Chapter 1 probes the maturation of the US Supreme Court prior to 1816. Though a source of “political and ideological controversy” since its founding, the Supreme Court “spearheaded the movement toward nationalism,” according to Ellis (p.15). As early as the WARE v. HYLTON ruling in 1796, the Court struck down state laws which impeded payment of debts to British creditors by Americans. Though the presidential administration of Thomas Jefferson took a hostile view of the federal judiciary, the ensuing fifteen years saw the Court enter its most nationalist phase. This trend was due in part to the leadership of Supreme Court Chief Justice John Marshall and to expanded use of Section 25 of the Judiciary Act of 1789, which permitted the Court to overturn state laws inconsistent with the Constitution or federal treaties. Chapter 2 reviews the history of the Bank of the United States from its establishment in 1791 to its re-chartering in 1816. Ellis observes that President George Washington supported the constitutionality of the First Bank of the United States on the advice of his Treasury Secretary, Alexander Hamilton. The First Bank of the United States operated as a conservative lending institution. Although its service was mainly used by the financial and mercantile community, the national bank “helped to keep the more disreputable banks in check by refusing to accept their notes or by sharply discounting [*982] their value” (p.37). However, states’ rights advocates and local banking interests successfully fought against the First Bank of the United States, and its charter expired in 1811. Problems with fiscal policy during the War of 1812 together with the appointment of a new Secretary of Treasury led the James Madison administration to support creation of the Second Bank of the United States, which was approved by law in April 1816. Several criticisms of the Second Bank of the United States soon surfaced, including the negative view of the institution’s first president and board of directors, the view that the national bank was beyond the control of states and local communities, and the perception that the bank failed to obtain an adequate amount of specie for purchase of its stock.

Chapter 3 details the circumstances which led to judicial scrutiny of the Second Bank of the United States and why Maryland ended up as one of the primary litigants in the case. Fair or unfair, the national bank was blamed for the Panic of 1819, which featured “economic stagflation, deflation, unemployment, ruin, and widespread distress and misery” (p.62). Further, Congress appointed a special committee in November 1819 to investigate the operation of the Second National Bank. But court invention into the controversy was caused by the decision by several states to tax branches of the national bank which operated within their borders. Maryland’s case against the Second National Bank was selected because the state was one of the first to tax it, because Maryland was willing to have the case decided as soon as possible at the federal level, and because Maryland recognized the Supreme Court’s jurisdiction in the case. In Chapter 4, the oral arguments in the McCulloch v. Maryland case are examined, and the content of Chief Justice John Marshall’s opinion on behalf of a unanimous seven-justice Supreme Court is assessed. While Marshall’s opinion clearly backed Congress’ authority to create the national bank and rejected the premise that states have a right to tax its branches, Ellis holds that the inadequacy of the ruling in addressing vital questions associated with the controversy and the lukewarm acceptance of the decision by the James Monroe administration precipitated protests and further legal challenges.

Chapters 5 through 7 delineate the manner by which three states challenged the MCCULLOCH v. MARYLAND ruling. In Virginia, state banks did well during the War of 1812 but not during the business expansion period which followed. After MCCULLOCH, Virginians Judge William Brockenbrough and Spencer Roane wrote essays opposing the decision in the Richmond Enquirer under the pseudonyms “Amphictyon” and “Hampden,” respectively. Supreme Court Chief Justice John Marshall countered with articles of his own in the Philadelphia Union and Gazette and Alexandria Daily Advertiser newspapers. In Ohio, the legislature passed a series of states’ rights resolutions aimed at both forcing the Second National Bank to withdraw branches there and at establishing the right to tax the bank. A legal case ensued when, just six months after the March 1819 MCCULLOCH decision, Ohio officials forcibly removed over $120,000 in bank specie and notes from the Chillicothe branch [*983] of the national bank as a tax. Five years later, the Supreme Court affirmed a federal circuit court ruling against Ohio in OSBORN ET AL. v. BANK OF THE UNITED STATES with just one dissenting vote. In Georgia, a dispute between the Savannah branch of the Second National Bank and state-chartered banks led to a law which prevented the use of state courts against local banks. After the national bank sued over Georgia’s refusal to turn over payments, a federal circuit court split on the issue. The Supreme Court’s 1824 decision in BANK OF THE UNITED STATES v. PLANTERS BANK OF GEORGIA “narrowed the meaning of the Eleventh Amendment by rejecting the Planters’ Bank claim of sovereign immunity” (p.190).

Chapter 8 concludes the text and covers three distinct areas. First, Ellis notes how several other states reacted to MCCULLOCH. Although serious hostility to the Supreme Court’s ruling ensued in Pennsylvania, Kentucky, and North Carolina, “in the end their opposition never went beyond failed resolutions and proposals in their legislatures and a spate of bitter denunciations in speeches, the press, and private letters” (p.194). Second, Ellis recounts the epochal battle between the Andrew Jackson administration and the national bank. President Jackson vetoed a bill re-chartering the bank in July 1832, effectively turning the controversy into a campaign issue. Jackson’s reelection ensured that no more government funds would be deposited in the national bank. That, together with the Panic of 1837, led the bank to cease business in 1841. Third, Ellis discusses the ramifications of MCCULLOCH v. MARYLAND for contemporary America. The Federal Reserve Bank was created in 1913, though unlike the previous national banks it is not under private control and does not sell stock. Further, “Marshall’s attempt to limit the meaning of the Eleventh Amendment by limiting it only to states if they were part of the record has also been overturned” (p.215). Finally, Ellis opines that the pendulum of power between the national government and states’ rights has swung in the latter direction on the Supreme Court, especially during the tenure of Chief Justices Warren Burger and William Rehnquist.

Ellis’s contention that his book is the first comprehensive assessment of all facets of the McCulloch v. Maryland case may be accurate. For the most part, pre-21st century texts covered the case as part of a chapter or section on John Marshall’s leadership, such as in Chief Justice William Rehnquist’s 1987 tome on the history of the high court. Starting in 2001, a series of books were published which highlight the case singularly, but without detailed post-ruling reactions. These include R. Kent Newmyer’s 2001 text, a 2004 book by Bonnie Pettifor and Charles E. Petit, and 2007 books by Susan Dudley Gold and Samuel Willard Crompton, respectively. Ellis’ book is significantly longer and contains more diverse sources than all of the aforementioned offerings released in the current decade.

The Ellis text offers insightful analysis of how individual states fared before, during, and after the national bank controversy. It is apparent that there were different degrees of opposition to the Supreme Court’s ruling in MCCULLOCH among states and between divergent factions within states, [*984] which was conditioned by existing political and economic circumstances. The book’s organization could have been improved by meshing the first section of the final chapter into the previous chapter, so that the material on state reactions could be presented together rather than spread out over four chapters. As convincing as the author is in the portrayal of the Jackson administration’s fight against the national bank, he forgets to identify the 1834 protest message released by President Jackson on the issue. That message came in response to a US Senate resolution condemning the administration’s actions.

Though Ellis did not predict the financial crisis currently facing the United States and the rest of the world, it is apparent that the federal government supersedes state institutions in responding to such a dilemma. That may force the Supreme Court to push the pendulum back toward national authority, further ensuring the legacy of both MCCULLOCH and the chief justice who penned the unanimous opinion in the case.

REFERENCES:
Crompton, Samuel Willard. 2007. McCULLOCH v. MARYLAND: IMPLIED POWERS OF THE FEDERAL GOVERNMENT. New York: Chelsea House Publications.

Gold, Susan Dudley. 2007. McCULLOCH v. MARYLAND: STATE v. FEDERAL POWER. New York: Benchmark Books.

Newmyer, R. Kent. 2001. McCULLOCH v. MARYLAND. Baton Rouge: Louisiana State University Press.

Pettifor, Bonnie, and Charles E. Petit. 2004. McCULLOCH v. MARYLAND: WHEN STATE AND FEDERAL POWERS CONFLICT. Berkeley Heights, NJ: Enslow Publishers.

Rehnquist, William. 1987. THE SUPREME COURT: HOW IT WAS, HOW IT IS. New York: William Morrow and Company.

CASE REFERENCES:
BANK OF THE UNITED STATES v. PLANTERS BANK OF GEORGIA, 9 Wheat. 910 (1824).

MCCULLOCH v. MARYLAND, 4 Wheat 316 (1819).

OSBORN v. BANK OF THE UNITED STATES, 9 Wheat. 738 (1824).

WARE v. HYLTON, 3 Dall. 199 (1796).

© Copyright 2008 by the author, Samuel B. Hoff.


Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic

 

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THE CLASSICAL FOUNDATIONS OF THE AMERICAN CONSTITUTION: PREVAILING WISDOM

by David J. Bederman. Cambridge, England, and New York: Cambridge University Press, 2008. 352pp. Hardback. $85.00/£55.00. ISBN: 9780521885362. eBook format. $68.00. ISBN: 9780511389245.

pp.976-980

Reviewed by R. B. Bernstein, Distinguished Adjunct Professor of Law, New York Law School. Rbernstein [at] nyls.edu.

This book’s title crystallizes its case. Professor David J. Bederman of Emory University argues that the framing, adoption, and implementation of the United States Constitution was grounded in a thorough, thoughtful, and well-considered adoption and adaptation of political thought and history from the ancient world, rather than representing a radical break with the past. Bederman has previously examined the influences of the classical world on other spheres of legal and constitutional history (Bederman 2001a; 2001b); the book now under review is the latest – and perhaps the one best suited to a wider audience. Bederman’s fine book stands beside notable earlier works on the subject by Douglass Adair (Adair 1974; 2000), Richard J. Gummere (1965; 1967), Meyer Reinhold (1984), and Carl J. Richard (1994; 2008), while at the same time going beyond these precursors in rigor of scholarship, lucidity of presentation, and modesty of rhetoric.

Bederman lays out his argument in five learned, clearly-written chapters:

Chapter I, “The Framers’ Classical Education and World View” (pp.1-49), demonstrates the familiarity of many of the founding fathers with classical history and literature, as a result of their educational experiences, which stressed the primacy of Greek and Roman literature, and their own intellectual inclinations. Even a largely self-taught figure such as George Washington made sure to familiarize himself with translated versions of the Greek and Roman classics, and adaptations of that literature by such contemporary writers as the English essayist and playwright Joseph Addison (whose play “Cato” was a favorite with Washington).

Chapter II, “Classical Political Models and the Founders” (pp.50-94), examines the general intellectual context in which the ancient world influenced American statesmen’s views of the general problems and principles of human nature, society, politics, and government. In Bederman’s reading, constitutionalism had deep, abiding ancient roots, whatever other bodies of ideas or experience the founding fathers could bring to bear on the subject.

Chapter III, “Constitution-Making and Ancient History” (pp.95-175), examines five subjects – confederations and leagues as models for American federalism; bicameralism as it figured in the framers’ design of the U.S. Senate; executive power; judicial functions; and issues of war and peace refracted through the lens of republican governments in the ancient past. Here Bederman traces the influences and resonances of classical history, thought, [*977] and literature on the American experiments in constitutional design, specifically the process that led to the framing and adoption of the Constitution of the United States in 1787-1788.

Chapter IV, “Modern Resonances” (pp.176-221), turns from history to constitutional theory, seeking to show that the work of the founders might have relevance to and resonances with modern disputes about constitutional interpretation. The focal points of Bederman’s analysis here are sovereign immunity and federalism; executive privilege and accountability; line-item vetoes; the electoral college as a means of choosing the president; and the general question of the nature of republican government in modern American constitutionalism. Here, Bederman does not present a mechanical original-intent interpretation of the Constitution in general or of key constitutional provisions. Rather, he offers a sensitive, nuanced, and persuasive approach to understanding the work of the founders in its wider intellectual context and how that understanding can be of value to modern interpreters of the Constitution. In this way, Bederman offers a valuable modification of the “weak originalism” often associated with Jack N. Rakove of Stanford University, who has long argued that we should accord great persuasive value to the Constitution’s framers and ratifiers because they were “present at the creation,” so to speak, and because they were perhaps the wisest and most learned collection of constitutional and political thinkers in the nation’s history (Rakove 1996; 1990).

Chapter V, “The Classical Constitution” (pp.222-239), sums up the book’s case and once more restates Bederman’s disagreement with the conventional wisdom that the framing and adoption of the U.S. Constitution represented a radical break with the past. Instead, Bederman insists, drawing on his previous chapters, that the architects of the Constitution recognized and sought to maintain continuities between past and present, hoping to learn from Greek and Roman history enduring lessons about constitutional design and the workings of politics and republican governance applicable to their situation in the late 1780s.

Bederman’s book notes where the founding fathers got things wrong as well as where they got them right. His careful sifting of instances when they were misled by faulty texts, or flawed translations, or where their quest for applicable historical precedents and analogies led them to minimize the differences between past and present is one of the most important and enlightening features of his book.

Throughout, Bederman’s work has resonances with Paul A. Rahe’s massive study, REPUBLICS ANCIENT AND MODERN: CLASSICAL REPUBLICANISM AND THE AMERICAN REVOLUTION (Rahe 1992; 1994). Readers will note, however, the difference between Bederman’s even-handed approach to his subject and Rahe’s iconoclastic, contentious interpretation. Rahe first demonstrates with formidable scholarship an array of gaps or clashes between ancient history as modern scholars grasp it and that history as early modern political thinkers or American [*978] constitution-makers understood it, and then demolishes on that basis the case for classical republicanism as a historical factor. By contrast, Bederman highlights the importance that his historical actors give to the ancient past while at the same time acknowledging their deliberate or inadvertent distortions of that past in seeking to make use of it

I have only one qualm about Bederman’s valuable study. I tripped on the book’s threshold, Bederman’s courteous but combative preface (pp.ix-xii). Bederman is convinced, and seeks to convince his readers, that the political thought and history of the classical world were the primary influences on the work of the Constitution’s framers and ratifiers and those who gave it effect – more so than Enlightenment rationalism or English common-law constitutionalism or the experience of the American revolutionaries under their colonial and state constitutions and the Articles of Confederation. Bederman is the latest, and one of the best, in a long and honorable tradition of scholarship seeking to identify a core or root body of ideas and experience as the leading or principal influence on American constitutionalism. Although at various points in his book (pp.xii, 175-176, 220-231) he takes pains to limit or qualify this claim, he still gives the inadvertent impression that he is trying to prove too much; in the process, he risks pawky resistance from some readers. The balance of this review sketches a fallback position for his argument to persuade those readers of the value and importance of Bederman’s enterprise.

Various scholars of the American Enlightenment, including Henry Steele Commager (1975; 1977), Henry F. May (1976), Robert A. Ferguson (1977; 2004), and the present writer (Bernstein with Rice 1987), have sketched a more nuanced vision of the American Enlightenment and the role it played in the origins of the American constitutional system. Rather than seeking to privilege one body of thought and experience over all others, these historians suggest that each of the key figures among the Constitution’s framers, adopters, and interpreters had a different constellation of bodies of ideas and experience in his mind, all of them held in ever-shifting position, tenuous by the epistemological theories of the American Enlightenment. Americans in this era believed, as did their European forebears and contemporaries, that all knowledge was coming together in a great confluence, from which human beings could distill general principles of human nature, society, government, and politics; they believed further that such general principles would guide their experiments in government, possibility to the greater benefit of humanity as a whole.

Instead of denigrating the power and persuasiveness of Bederman’s book, this reading ratifies a slightly more modest claim for the case he makes, a claim that he seems to endorse in the pages noted above – that classical political thought and classical history were vital components of the various syntheses that a range of founding fathers proposed and sought to effectuate, rather than the governing components of a collective synthesis by the founding fathers as a group. That said, this fine book is essential reading for anyone concerned with the origins of the Constitution or the intellectual world that produced it. [*979]

REFERENCES:
Adair, Douglass J. 1974. (Trevor Colbourn, editor), FAME AND THE FOUNDING FATHERS: ESSAYS OF DOUGLASS ADAIR. New York: W. W. Norton for the Institute of Early American History and Culture.

Adair, Douglass J. 2000. (Mark Yellin, editor/introduction), THE INTELLECTUAL ORIGINS OF JEFFERSONIAN DEMOCRACY: REPUBLICANISM, THE CLASS STRUGGLE, AND THE VIRTUOUS FARMER. Lanham, Maryland: Lexington Books.

Bederman, David J. 2001a. INTERNATIONAL LAW IN ANTIQUITY. Cambridge, Eng.: Cambridge University Press.

Bederman, David J. 2001b. CLASSICAL CANONS: CLASSICISM, RHETORIC AND TREATY INTERPRETATION. London: Ashgate Publishing.

Bernstein, Richard B., with Kym S. Rice. 1987. ARE WE TO BE A NATION? THE MAKING OF THE CONSTITUTION. Cambridge, Mass.: Harvard University Press.

Commager, Henry Steele. 1975. JEFFERSON, NATIONALISM, AND THE ENLIGHTENMENT. New York: George Braziller.

Commager, Henry Steele. 1977. THE EMPIRE OF REASON: HOW EUROPE IMAGINED AND AMERICA REALIZED THE ENLIGHTENMENT. Garden City, New York: Anchor Press/Doubleday.

Ferguson, Robert A. 1997. THE AMERICAN ENLIGHTENMENT, 1750-1820. Cambridge, Mass.: Harvard University Press.

Ferguson, Robert A. 2004. READING THE EARLY REPUBLIC. Cambridge, Mass.: Harvard University Press.

Gummere, Richard M. 1963. THE AMERICAN COLONIAL MIND AND THE CLASSICAL TRADITION: ESSAYS IN COMPARATIVE CULTURE. Cambridge, Massachusetts: Harvard University Press.

Gummere, Richard M. 1967. SEVEN WISE MEN OF COLONIAL AMERICA. Cambridge, Massachusetts: Harvard University Press, 1967.

May, Henry F. 1976. THE ENLIGHTENMENT IN AMERICA. New York: Oxford University Press.

Rahe, Paul A. 1992. REPUBLICS ANCIENT AND MODERN: CLASSICAL REPUBLICANISM AND THE AMERICAN REVOLUTION. Chapel Hill, NC: University of North Carolina Press.

Rahe, Paul A. 1994. REPUBLICS ANCIENT AND MODERN: CLASSICAL REPUBLICANISM AND THE AMERICAN REVOLUTION. Vol. 1: THE ANCIENT REGIME IN CLASSICAL GREECE; Vol. 2: NEW MODES AND ORDERS IN EARLY MODERN POLITICAL THOUGHT; Vol. 3: INVENTIONS OF PRUDENCE: CONSTITUTING THE AMERICAN REGIME. Chapel Hill, NC: University of North Carolina Press. [*980]

Rakove, Jack N. (ed). 1990. INTERPRETING THE CONSTITUTION: THE DEBATE OVER ORIGINAL INTENT. Boston: Northeastern University Press.

Rakove, Jack N. 1996. ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION. New York: Alfred A. Knopf.

Reinhold, Meyer. 1984. CLASSICA AMERICANA: THE GREEK AND ROMAN HERITAGE IN THE UNITED STATES. Cleveland, Ohio: Wayne State University Press.

Richard, Carl J. 1994. THE FOUNDERS AND THE CLASSICS: GREECE, ROME, AND THE AMERICAN ENLIGHTENMENT. Cambridge, Mass.: Harvard University Press.

Richard, Carl J. 2008. GREEKS AND ROMANS BEARING GIFTS: HOW THE ANCIENTS INSPIRED THE FOUNDING FATHERS. Lanham, MD: Rowman & Littlefield.

© Copyright 2008 by the author, R. B. Bernstein.


 


The Classical Foundations of the American Constitution: Prevailing Wisdom

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