HUMAN SECURITY AND INTERNATIONAL LAW: PROSPECTS AND PROBLEMS (Español)

por Barbara von Tigerstrom. Oxford y Portland: Hart Publishing, 2007. 256pp. £40.00/$84.00. ISBN: 9781841136103.

Reseñado por Aparicio Caicedo, analista académico del Gertrude Ryan Law Observatory e investigador de la Cátedra Garrigues de Derecho Global de la Universidad de Navarra. Pamplona, España. Email: acaicedo [at] alumni.unav.es.

(Disponible en Inglés también)

pp.681-683

El periodista chino, Shi Tao, se encuentra cumpliendo una condena de diez años por el sólo hecho enviar por correo electrónico unos documentos del Partido Comunista sobre la masacre de Tianamen a un grupo de activistas en Estados Unidos. En Cuba, de acuerdo con Amnistía Internacional, 62 presos de conciencia siguen cautivos por expresar sus opiniones políticas sin violencia. Meses atrás, el ejército colombiano mató a 17 miembros de las FARC (Fuerzas Armadas Revolucionarias de Colombia), bombardeando su campamento situado en territorio del Ecuador, muy cerca de la frontera con Colombia. Durante los años setentas y ochentas, Augusto Pinochet, llevó a cabo una operación internacional conocida como Plan Cóndor. Esa estrategia tuvo como resultado la muerte de cientos de personas que se oponían y denunciaban los abusos cometidos por las dictaduras militares latinoamericanas. ¿Qué tienen en común todos estos actos y hechos? Que fueron realizados en nombre de la “seguridad de la nación”. La “supervivencia del Estado” fue fuente de legitimidad supuesta para todos estos crueles abusos. Casi todos los países del mundo han invocado la “seguridad nacional, en algún momento de su historia, para matar, capturar o silenciar a sus ciudadanos. En la mayoría de veces que esto ha sucedido, ninguna vida humana ha sido directamente amenazada por las actividades que los gobiernos han reprimido. Y, probablemente, la peor parte es que el Derecho internacional y nacional ha sido concebido de tal forma que permita que esto suceda. Es precisamente la necesidad imperiosa de cambiar el paradigma de la seguridad lo que ha motivado el libro HUMAN SECURITY AND INTERNATIONAL LAW, escrito por Barbara von Tigerstrom. La obra presenta un desafío al concepto tradicional de “seguridad nacional”, brinda el sustento académico para desarraigar la figura del Estado-nación como astro rey del debate de la seguridad en el Derecho internacional.

El libro profundiza inmediatamente en criticar fundamentos filosóficos de las posturas estatalistas (state-centered) que han monopolizado el discurso académico y político sobre la seguridad nacional. La idea que se propone es centrar la discusión y, por ende, el marco institucional del orden internacional, en un “paradigma centrado en las personas” (p.7). La autora señala “Human security was developed in reaction to views of security dominated by realist and neorealist perspectives, which, . . . focus on states as the primary actors in the international system and define interests of states in terms of power, especially military power” (p.50). Von Tigerstrom añade, esta postura ha sido criticada ampliamente porque toma a la seguridad [*682] del Estado-nación “as an end in itself rather than merely an instrument for the protections of the individual” (p.50). No puede tener mayor razón la autora. La concepción realista de la seguridad nacional, al estar tan incrustada en nuestro imaginario la mayor parte del tiempo, es tomada por supuesta. ¿La seguridad de quién fue defendida cuando el ejército colombiano bombardeó el campamento de las FARC en territorio ecuatoriano y mató a 17 miembros del grupo terrorista? La mayoría de las personas que defienden ese acto señalan que fue una maniobra de defensa propia para el gobierno colombiano. No obstante, si preguntas si alguna vida humana estaba en peligro eminente en ese momento te responden que era el Estado colombiano cuya supervivencia estaba en peligro y que, por ello, debía actuar para defenderse. De esa manera, la muerte de 17 personas, fuera de combate, se justifica para salvar a una abstracción. Algo anda mal con este razonamiento.

Von Tigerstrom define el concepto de seguridad humana basándose en el Reporte de Desarrollo Humano de 1994. Ese documento, del Programa de Desarrollo Humano de las Naciones Unidas, busca introducirnos un nuevo concepto “which equates security with people rather than territories, with development rather than arms,”. El documento examina la seguridad nacional desde la óptica nacional e internacional. El reporte define la seguridad humana como el estado de estar “safety from such chronic threats as hunger, disease and repression and protection from sudden and hurtful disruptions in the patterns of daily life.” La propuesta fue entregada ante la Conferencia Mundial de Desarrollo Social de 1995, y resalta tres categorías fundamentales de la seguridad humana: económica, alimenticia, sanitaria, ambiental, personal, comunitaria y política. El libro propone la aplicación de este nuevo concepto diferentes áreas del Derecho internacional como la defensa de los derechos humanos y la sanidad mundial.

Von Tigerstrom nos advierte, no obstante, de la posibilidad de que algunos operadores jurídicas apliquen esta nueva categoría normativa de forma oportunista, expandiendo deliberada e indebidamente su ámbito de aplicación: “Part of the rationale for introducing the concept of human security was that it would shift attention and resources away from military concerns toward other areas important to human survival and well-being. To designate something as a security issue lent it a degree of importance and urgency that may be useful from an advocate´s perspective. . . . The term ‘securitisation’ has been coined to refer to this process . . . Securitisation presents an issue ‘as so important that it should be dealt with decisively by top leaders prior to other issues’. . . . However, it has also negative connotations and consequence [if it] justify emergency actions. . . such things as secrecy, rights violations, and a lack of democratic accountability” (p.43).

HUMAN SECURITY AND INTERNATIONAL LAW constituye una sólida argumentación para acabar con el paradigma del [*683] Estado-nación. Tal como los diversos académicos de las relaciones y el Derecho internacional podrán descubrir en el libro, se trata de un intento por relativizar, en la medida de los justo y razonable, el papel del Estado en el diseño institucional del orden mundial. Como ha señalado, con mucho acierto, el profesor Rafael Domingo: el Derecho internacional, tal como lo conocemos, se basa en el consolidado principio de la auto-determinación concebido como un derecho exclusivo de los Estados-nación. En este contexto, los seres humanos reciben el status de meros actores secundarios. (¿Qué es el Derecho Global?, 2008) La seguridad, como muchas otras áreas de la actividad humana, necesita de aproximaciones analíticas más sofisticadas, nuevas respuestas que el actual sistema no puede dar.

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© Copyright 2008 del autor, Aparicio Caicedo.

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HUMAN SECURITY AND INTERNATIONAL LAW: PROSPECTS AND PROBLEMS (English)

by Barbara von Tigerstrom. Oxford and Portland: Hart Publishing, 2007. 256pp. Hardback. £40.00/$84.00. ISBN: 9781841136103.

Reviewed by Aparicio Caicedo, Research Fellow at the Gertrude Ryan Law Observatory and Academic Researcher at the Garrigues Chair on Global Law of the University of Navarra. Pamplona, Spain. Email: acaicedo [at] alumni.unav.es.

(Also available en Español)

pp.679-680

The Chinese journalist, Shi Tao, is serving a 10-year prison sentence for e-mailing a Communist Party document about the Tiananmen Square massacre to a pro-democracy group in the United States. According to Amnesty International, 62 prisoners of conscience continued to be held in Cuba for their non-violent political views or activities. The Colombian army killed, a few months ago, 17 members of the terrorist group FARC (Fuerzas Armadas Revolucionarias de Colombia), bombing their camp while they were sleeping in Ecuadorian territory, a few meters from the international border. During the seventies, several military dictatorships of Latin America, led by the Chilean dictator, Augusto Pinochet, implemented the international operation known as “Plan Condor.” That strategy resulted in the killing of hundreds of persons who opposed and denounced the abuses perpetrated by their governments. What do all these acts and incidents have in common? They were executed in the name of “national security.” The survival of the state was the supposed source of legitimacy for all these abuses. Virtually every country in the world has invoked “national security,” in some moment of their history, to kill, capture or silence its citizens. On the great majority of these opportunities, no real human lives were directly threatened by the activities targeted by the governments involved. And, maybe, the worst part is that the law, both international and domestic, has been shaped to let this happen. An incredible need to change the security paradigm, that is the leif motif behind HUMAN SECURITY AND INTERNATIONAL LAW by Barbara von Tigerstrom. The work presents a challenge to the traditional “national security” concept, an academic backgrounder to undercut the nation-state as the center of the security universe in international law.

The book soon engages in attacking the philosophical foundations of the state-centered approach that characterizes the national security issue on both the political and academic debate. The idea is to focus the discussion and, hence, the institutional frameworks of the international order, on a “people-centered paradigm:” (p.7). “Human security was developed in reaction to views of security dominated by realist and neorealist perspectives, which, . . . focus on states as the primary actors in the international system and define interests of states in terms of power, especially military power” (p.50). As von Tigerstrom states, this approach has been criticized because it takes national security “as an end in itself rather than merely an instrument for the protections of the individual” (p.50). That is completely true. The realist conception [*680] of national security, as deeply embedded in our mind most of the time, is taken for granted. Whose security was defended on the bombing of 17 FARC members in the middle of the night by the Colombian army across the border in Ecuador? Most of the people say it was a matter of self-defense for the Colombian state. So, when you ask if any real person was at direct threat of been killed that night, they will tell you that it was state security what was at immediate risk and had to be defended. So, the killing of 17 persons, not in combat, is justified to save a non-existent being, the state, rather than to save real human beings. Something is missing here.

Von Tigerstrom defines the concept of human security based on the Human Development Report of 1994. That document, from the United Nations Human Development Program, seeks to introduce a new concept of human security, “which equates security with people rather than territories, with development rather than arms,” according to its own text. It examines both the national and the global concerns of human security. The report defines human security as “safety from such chronic threats as hunger, disease and repression and protection from sudden and hurtful disruptions in the patterns of daily life.” The document delivered to the World Conference of Social Development in 1995, outlines seven main categories of human security: economic, food, health, environmental, personal, community and political. The book analyzes the potential of the new concept on many areas of international law such as human rights and health.

Von Tigerstrom warns about the possibility of legal opportunism in over-expanding the concept of human security: “Part of the rationale for introducing the concept of human security was that it would shift attention and resources away from military concerns toward other areas important to human survival and well-being. To designate something as a security issue lent it a degree of importance and urgency that may be useful from an advocate´s perspective. . . . The term ‘securitisation’ has been coined to refer to this process . . . Securitisation presents an issue ‘as so important that it should be dealt with decisively by top leaders prior to other issues’. . . . However, it has also negative connotations and consequence [if it] justify emergency actions, . . . such things as secrecy, rights violations, and a lack of democratic accountability” (p.43).

HUMAN SECURITY AND INTERNATIONAL LAW elaborates a strong theoretical argument to change the state-centered approach. As many scholars of international relations will find, it is an attempt that seeks to ameliorate the role of the state on the institutional design of the world order. There is a lot of road to travel yet. Like Professor Rafael Domingo, the academic pioneer of Global Law, has stated: the International law, as we know it, is based on the consolidated principle of self-determination conceived as an exclusive right of nation-states. In this context, human beings are given the status of secondary actors. Security, as many other fields of human activity, needs a more sophisticated approach, new answers which the actual international regime cannot find anymore.

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© Copyright 2008 by the author, Aparicio Caicedo.

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CONFLICT OF INTEREST AND PUBLIC LIFE: CROSS-NATIONAL PERSPECTIVES

by Christine Trost and Alison L. Gash (eds). New York and Cambridge: Cambridge University Press, 2008. 276pp. Hardback. $80.00/£50.00. ISBN: 9780521881425. eBook format. $64.00. ISBN: 9780511380990.

Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: Whitley_Kaufman [at] uml.edu.

pp.677-678

Plato in his REPUBLIC famously declared that, in a well-governed state, the rulers must be philosophers. Though he is often mocked for believing that only people like him should be allowed to rule, in fact Plato was addressing the problem of conflict of interest in public life. For only the philosopher, Plato believed, was capable of transcending self-interest and acting purely with regard to justice. In this new book from Cambridge University Press, we are treated to an excellent overview of this problem as it is handled in modern democracies. This book helps demonstrate how difficult a problem this is, and how much more work needs to be done.

CONFLICT OF INTEREST AND PUBLIC LIFE is a welcome contribution to this neglected debate. The book, edited by Christine Trost and Alison Gash, is intelligently organized around a series of different approaches by its contributors; some take an empirical approach in examining what sort of techniques are used in regulating conflicts, others a normative ethical outlook attempting to derive a general moral theory of conflicts. The collection also provides a welcome and informative comparative international focus, with case studies of the United States, Canada, Britain, and Italy. The focus on Europe and North America is presumably because it is only in the advanced democracies that we see substantial conflict of interest regulation (although it would have been interesting to see a little more discussion of this issue, or more mention of the problem as it appears in other cultures, such as Africa or Asia). The contributions to this volume are of uniformly high quality. Most of them are in the field of political science or law (it would perhaps also have been helpful to have an economist analyze conflict of interest in terms of the distortion of incentives and the resulting loss of economic efficiency). The commentators do not always respond to each others’ entries; for instance Colin Macleod analyzes conflicts in terms of an ideal of deliberative democracy, neglecting Karen Getman and Pamela Karlan’s observation that one might also adopt a pluralist, interest-group model of democracy. As with any collected volume, the approach can be somewhat scattershot, but on the whole the book presents an outstanding overview of the many difficult issues associated with conflict of interest. Especially wise is the decision to present a final chapter which attempts a summary and overview of the issues.

Conflict of interest is a perplexing idea. We lack a clear definition of [*678] conflict of interest or a clear theory of what sorts of conflict are wrong, let alone how best to regulate it without compromising democratic values. Consider the apparently simple problem of distinguishing private interest from public interest. If a politician pursues legislation that would benefit himself or his family at the cost of the public interest, that would seem to be a clear conflict. But what if the legislation benefits his constituents at the cost of the public interest (say a pork barrel project)? On the pluralist model, that is what politicians are expected to do. On the deliberative democracy model, it would seem to be a clear example of a conflict, even though it is unlikely that it would ever be treated as one. Or what if a politician supports a bill that he thinks is bad for the country simply because he wants to be reelected? On its face, this seems to be a conflict of interest, yet it is unlikely it would ever be treated as such. And what is to count as a “private interest”? Does it mean the interests of oneself, close friends, and family members? What about a broader group with which one is associated (say, Greek-Americans)? And does private interest encompass more than financial gain? Things can get quite bizarre when a very broad view of private interest is taken; as Gillian Peele reports, in a British case it was ruled that one has a private interest whenever one’s well-being is enhanced by the outcome of a decision (p.184). Taken to its extreme, this would mean that a politician with strong environmentalist leanings would have to recuse himself from any decision that might affect the environment one way or another, because his personal well-being will be affected by it. This is clearly the reductio ad absurdam of the idea of private interest, and yet it is difficult to come up with a clear definition of “private interest” that would avoid this result. Further, as some of the contributors note, the very notion of a “public interest” is itself deeply contested and extremely difficult to define.

And then there is the problem of the relation between conflict of interest regulation and democracy. If the voters have chosen a particular representative, to force that representative to recuse herself from an important decision is to restrict the sovereignty of the popular choice. Things are even worse when the voters seem to have chosen their representative even knowing of the conflict of interest. Moreover, as one of the commentators points out, conflict of interest seems to be far more of a concern among the elites than among the common populace. Further, conflict of interest issues regularly become politicized, as politicians use ethics charges as means to discredit their political opponents (this raises the problem of a conflict of interest in conflict of interest regulations!).

The reader may well finish this book feeling more confused than ever about the topic of conflict of interest (at least, that is how this reader felt). But that is by no means a criticism of the book, but rather an indication of the deeply contested and problematic nature of the issue, as well as the embryonic stage of debate. This book is a welcome contribution to the literature and will no doubt stimulate much more work in this extremely important and surprisingly neglected field.

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© Copyright 2008 by the author, Whitley Kaufman.

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TERRORISM AND THE LIMITATION OF RIGHTS: THE ECHR AND THE US CONSTITUTION

by Stefan Sottiaux. Oxford, UK: Hart Publishing, 2008. 472pp. Cloth. £55.00/$115.00.. ISBN: 9781841137636.

Reviewed by Mathieu Deflem, Department of Sociology, University of South Carolina. Email: Deflem [at] sc.edu.

pp.673-676

In this timely book, Belgian legal scholar Stefan Sottiaux analyzes constitutional issues involved with terrorism-related legal measures on the basis of considerations of human rights. In order for governments to properly balance rights while also providing adequate security, Sottiaux particularly examines how the European Convention for the Protection of Human Rights and Fundamental Freedoms and the US Constitution can be relied upon to enforce certain provisions to limit important rights, while still safeguarding the basic intent and purpose of human-rights protections, in view of the threat of terrorism and the counter-terrorism measures that are being developed and implemented. It requires little if any explicit justification to argue for the relevance of these constitutional questions in the post-9/11 era. Terrorism and human rights, also, are closely related matters. Terrorist activities pose a serious set of risks to the enjoyment of the most basic rights of freedom, life, and public safety. At the same time, however, counter-terrorism measures may in turn also affect, and pose restrictions on, individual freedoms and rights. In modern democratic societies, counter-terrorism measures need to abide by the dual standard of offering effective protections against terrorism and of not violating fundamental rights while doing so. These human rights considerations pertain particularly in democracies when they are faced with extreme or sudden disturbances of social life, such as during times of war or under conditions of more or less enduring threats of terrorist violence. Under these circumstances, states need to respond to terrorism by neither over-reacting nor under-reacting in offering a proper balance between providing effective tools of counter-terrorism and securing guarantees of human rights.

Sottiaux’s study primarily considers the limitations of rights in relation to the effects counter-terrorism measures may have on human rights as they are constitutionally protected by the European Convention and the US Constitution. The comparative perspective of this study takes into account the global nature of the debate on human rights. The very notion of human rights, after all, is by definition not restricted to any one nation state. Further, the problem of terrorism as it exists today essentially defies the boundaries of historically more readily disconnected national jurisdictions. Additionally, the comparative nature of Sottiaux’s study serves to tease out the similarities and differences that exist between the two important documents seeking to respect rights on both sides of the Atlantic. The European Convention and the US Constitution are not of the same order, as one pertains to the international level and the other is a [*674] national instrument. The documents are also written in a different language, whereby, most essentially, the European Convention contains affirmative statements of rights and is more community-oriented, whereas the Constitution of the United States relies on a negative language to forbid government from interfering with basic rights from an individualistic viewpoint. Relatedly, the European Convention contains explicit clauses that specify when the human rights protections do not apply, whereas the US Constitution has no such provisions. As such, the European document has a more ‘militant’ orientation in detailing the limits of its provisions, whereas the US Constitution abides by a ‘tolerant’ conception of the exercise of rights.

Constitutional law is made up not only of the articles and amendments included in constitutional documents, but also of the decisions that are made by the relevant (higher) courts. Thus, it is important to consider the judgments rendered by the European Court of Human Rights in Strasbourg and the US Supreme Court. The role of the courts is amplified in Sottiaux’s study, as the author argues in favor of a flexible approach to human rights interpretation and application, whereby the courts can in their evaluations independently exercise judicial review in estimating the scope and applicability of human rights. This flexible method comprises a balancing perspective to human rights, whereby all relevant acts are considered in weighing the damage that results from infringements on human rights, on the one hand, and the specific threat from terrorism and other pressing problems which government conduct seeks to respond to, on the other. Unlike the bright-line rules of categorical methods to limit rights, the standards of limitations suggested in a flexible approach allow for more judicial discretion to respond appropriately to specific situations.

Generally, the flexible approach is better accommodated under the European Convention, in part because of its explicit derogation provisions, whereas the US Constitution tends to favor strategies of avoidance to leave final decisions to the political branch of government. The European Convention indeed contains a umber of specific limitation clauses that detail when human rights protections do not imply, such as restrictions imposed by (national) laws, the necessity to protect democratic society, and interests that serve national security, public safety, and economic well-being. The European Convention also contains certain implied limitations (except in cases where specific limitations pertain) in stressing that no right is absolute and must always be balanced with other rights and interests. Further, an emergency derogation specifies that governments may deviate from human rights protections under condition of war or other public emergencies that threaten the state. Finally, the European Convention implies a limitation by allowing for a margin of appreciation for individual states to interpret and apply specific laws within the general human rights framework, thus again demonstrating the Convention’s commitment to a flexible approach in specifying limitations of rights.

The United States Constitution does not explicitly specify conditions when its rights do not apply, yet the courts have [*675] drawn certain limits to its provisions by estimating the scope of certain rights and defining their contents. Further, certain standards or tests have been formulated to examine a right relative to a government interest that is meant to be served by restricting that right and to estimate the fit between a government interest and the means with which it is meant to be achieved. No emergency derogations are included in the Constitution except in the case of the privilege of the writ of habeas corpus, which can be suspended in the interest of public safety during a rebellion or invasion. As such, the US Constitution is more geared towards a categorical rather than a flexible approach in limiting rights.

From the above specified framework, Sottiaux proceeds to analyze the freedoms of expression and association and the rights of personal liberty, privacy, and a fair trail, devoting a chapter to each constitutional right and examining it comparatively under the provisions of the European Convention and the US Constitution. Summarizing the findings from this analysis, Sottiaux first contends that terrorism cannot be constitutionally protected as an expressive activity because of the violence involved. The situation is different for terrorism-related speech, in which case both the European and US constitutional courts have tests in place to determine whether speech is allowed or not. Similar to the restrictions in other areas, the European approach allows more room for ad hoc interpretations, while the US Constitution rules in a categorically-oriented manner. The freedom to associate has a specific relation to terrorist activities because they are typically planned and conducted by organizations, rather than individuals. The European Court leaves ample leeway for Europe’s states to outlaw certain organizations, while the US Court has been less willing to deal with an individual’s association with a group, while being more tolerant of the criminalization of providing material support to terrorist-designated groups. The judicial rulings in Europe and the United States with respect to the rights of personal liberty and privacy reveal the same basic pattern, whereby the European Convention is judged to allow for more flexibility, while the US Constitution is interpreted in categorical terms on the basis of fixed rules.

In view of the concerns over terrorism and the preoccupation with human rights protections in the contemporary world, Sottiaux’s study on the limitations of rights is a most welcome contribution to the legal scholarship. The debate on counter-terrorism and (human) rights, moreover, has generally been addressed in the by now too familiar terms of a need to balance rights and security. However, as Sottiaux aptly argues, in legislating counter-terrorism and other security measures, states need both to negatively respect rights of freedom and non-interference and positively protect those rights when they are under attack. Although Sottiaux does not always terminologically respect the consequences of this reformulation, preferring to hold on to the search for a balance between rights and security, the debate on counter-terrorism (and other) measures of law and policy thus needs to be approached as a struggle between (different) rights, rather than between rights and security. [*676]

There is little doubt that Sottiaux’s book provides ample evidence to sustain the notion that the flexible approach adopted in the judicial review of the European Convention has advantages over the US judicial framework that allows for an all-or-nothing approach to counter-terrorism measures and thereby differentiates categorically between situations (and people) when rights have to be protected or, conversely, can be suspended. However, because of its juristic (law-internal) rather than socio-legal perspective, this book has less to say about why this is the case. Most importantly, Sottiaux does not consider the characteristics of the societal contexts in Europe and the United States in which the differing judicial frameworks and their respective constitutional bases are applied and to which extent and how variable outcomes are produced. This societal contextualization also affects the interpretation and application of the two considered documents, which themselves are different in important respects. As Sottiaux realizes, the European Convention applies to the international level of the European Union, while the US Constitution pertains to the federal level of government. But this difference has important contextualized consequences. While a high premium is placed in the United States on the sovereign powers of the individual states, the principle of sovereignty is less at stake in the case of counter-terrorism because most of the provisions under the banner of the war on terror operate at the federal level. Thus, the comparison between the European Convention and the US Constitution proceeds from a distinct imbalance, which a broader socio-legal perspective could lay bare. Having said that, however, Sottiaux provides a useful analysis of the judicial review of contemporary strategies of counter-terrorism on the basis of human rights considerations. Especially the European dimension that is explained in this work will be useful to American scholars in order to be better get acquainted with, and possibly learn from, the principles that can, and perhaps better would be, be at work in judging counter-terrorism measures.

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© Copyright 2008 by the author, Mathieu Deflem.

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THE PRESIDENT SHALL NOMINATE: HOW CONGRESS TRUMPS EXECUTIVE POWER

by Mitchel A. Sollenberger. Lawrence, KS: University Press of Kansas, 2008. 320pp. Cloth $39.95 ISBN: 9780700615766.

Reviewed by Richard L. Vining, Jr., Department of Political Science, University of Georgia. E-mail: rvining [at] uga.edu.

pp.668-672

In THE PRESIDENT SHALL NOMINATE, Mitchel A. Sollenberger provides an informative, comprehensive, and timely historical study of the selection of nominees for appointed federal offices. The book addresses the powers shared by the legislative and executive branches in the selection process, and how their roles have developed over time. At a moment when the press and politicians scrutinize or criticize inexperienced appointees (e.g., FEMA director Michael A. Brown), the role of politics in their removal (e.g., seven United States Attorneys), and controversial appointments to the federal courts (e.g., Charles Pickering, Janice Rogers Brown, Harriet E. Miers), Sollenberger provides much-needed perspective.

Research examining nominations and appointments tends to focus on (1) confirmation votes and (2) federal judges. Sollenberger goes beyond each of these, turning a critical eye to the “pre-nomination process” (p.3) and the broader pool of nominees, including federal judges, cabinet members, ambassadors, US Attorneys, Customs Bureau officials, postal service employees, and other positions. This is largely unexplored territory. Scholars, including Michael J. Gerhardt (2003) and G. Calvin MacKenzie (2001), have also studied the federal appointments process, but neither matches Sollenberger’s attention to institutional interaction at the selection stage. The scarcity of studies on this topic alone makes this a welcome contribution.

As Sollenberger correctly explains, the Constitution speaks to the structure of the appointments process in Article II, Section 2. It states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” THE PRESIDENT SHALL NOMINATE illustrates that how this translates into practice has been the subject of controversy and compromise since the Founding.

The book, based on Sollenberger’s dissertation research, is organized chronologically. He culls historical detail from both existing studies and private records, with evidence from correspondence and manuscripts providing new insight into formal and informal aspects of the nomination process. Chapters 1-8 each focus on a particular period of American political history, from the colonial period through the tenure of George W. Bush. [*669]

Chapter 1 explains the historical roots of the appointment power in America. Sollenberger provides a novel and informative exploration of the selection of government officers prior to 1789 in both the state and national governments, arguing that contemporaneous practice informed the Framers.

The author posits that originalism and textualism are of little value in interpreting the Appointments Clause. Despite Alexander Hamilton’s argument for executive dominance in Federalist No. 66, often cited as evidence for the Founders’ intent, Sollenberger shows that there was dissent on the issue among the authors of the Constitution (pp.20-21). In fact, he explains that mistrust of a dominant executive led both the Continental Congress and delegates to the Constitutional Convention to establish legislative participation in appointments.

Chapters 2 through 4 describe the relationship between legislators and the president in the pre-nomination process from 1789 through 1869. These chapters include the period from the establishment of the appointment process after ratification of the Constitution through the birth of civil service reform.

Sollenberger depicts the period before Andrew Jackson’s presidency (prior to 1829) as one of adjustment, with both presidents and members of Congress finding their place in the appointments process. Presidents deferred to senators and representatives, particularly from their own political faction, because the latter had more information about the quality of potential nominees. Concurrent developments led to the association of appointments with the advancement of electoral and political goals. These chapters explain that, while not all early presidents exploited patronage appointments (John Quincy Adams did not, for example), events in this period established the custom that presidents rely on legislators to suggest and evaluate job candidates.

The period from 1829-1869 is labeled the “The Spoils Era.” Sollenberger says that it began with the introduction of the “rotation principle” by President Andrew Jackson, after which appointees were routinely removed as the new executive distributed jobs to his supporters (pp.47-55). Sollenberger carefully delineates how and why some presidents (e.g., Presidents Tyler and Polk) sought to alter the balance of appointment power in their favor but failed in the face of legislative opposition. By the Lincoln administration (1861-1865) Congress is described as dominant in the appointments process, in part because Lincoln sought congressional cooperation with the war effort. Attempts to reverse this trend by Andrew Johnson after Lincoln’s assassination only added to his political problems. Johnson, like Tyler before him, is characterized as trying to restructure the pre-nomination process in his favor only to face backlash from Congress.

In Chapters 5 through 7, Sollenberger discusses the period from 1869-1977. He explains that during this time the process by which nominees were selected was reformed in a slow but meaningful way. Legislation such as the Pendleton Act (1882), the Ramspeck-O’Mahoney Act (1938), and the Postal Reorganization and Salary Adjustment [*670] Act (1970) professionalized components of the civil service and altered the relationship between the executive and legislative branches.

The existing pre-nomination process was challenged repeatedly from 1869 into the 1880s, with Sollenberger describing efforts by Senator Lyman Trumbull (R-IL), President Rutherford B. Hayes, and others to encourage reform. The event identified as the tipping point in this effort is the 1881 assassination of President Garfield by a disappointed office-seeker, Charles Guiteau. The resulting Pendleton Act (1882) limited congressional influence by requiring that some appointments be awarded on the basis of performance on civil service exams. Presidents continued to remove and replace officials not protected by the Pendleton Act, but incrementally increased the proportion of federal workers removed from the traditional pre-nomination process.

Despite these reforms, Sollenberger describes a system resistant to change and presidents who continued to mind (if not welcome) congressional advice. The Ramspeck-O’Mahoney Act (1938) took the radical step of placing postal appointments under civil service protection; Sollenberger rightly points out that this happened while the New Deal created about 100,000 additional positions to be distributed as patronage (pp.136-137). Subsequent presidents (with the exception of Lyndon Johnson) are described as initially resisting Congress from the 1940s through mid-1970s, but mostly falling in line with past practice after objections were raised. Major formal and informal reforms to the pre-nomination process came during the Nixon and Ford administrations, as the former reorganized the Postal Service as a government corporation and the latter (hobbled by political circumstances after Nixon’s resignation) allowed greater input from the party out of power in the selection of nominees. As explained in the final historical chapter, these efforts to increase professionalization and solicit minority input had consequences.

Sollenberger describes the last three decades, from 1977 through 2007, in Chapter 8. The strength of this chapter is its description of the modern pre-nomination process as it has incorporated elements of both its partisan past and legacy of reform. Presidents in the last 30 years are depicted as approaching the pre-nomination process differently, but in each case working with the Senate or other officials as necessary. President Carter sought to enhance the role of merit in judicial appointments by establishing merit commissions, but largely failed. President Reagan abandoned Carter’s attempt at merit-based reforms and increased White House control of nominations relative to Congress, a practice continued by President George H.W. Bush (pp.150-156).

The pendulum swung back toward the legislature during the Clinton administration, with the president seeking advice from Republicans in some cases. Sollenberger discusses in some detail President Clinton’s consultation with Senator Orrin Hatch (R-UT) with regard to his Supreme Court nominees, emblematic of the president’s willingness to cooperate with both the Senate and partisan opponents (pp.158-159). This may surprise some [*671] readers given Clinton’s difficulty achieving the confirmation of several high-profile cabinet and judicial nominees. Sollenberger places President George W. Bush somewhere between Clinton and his immediate Republican predecessors, in his eagerness to increase White House authority in appointments but also aware of political realities demanding that Democrats be recognized. Within this discussion is an examination of the “Gang of Fourteen” compromise and its consequences, an event that may be idiosyncratic or represent a shift toward increased bipartisan cooperation (pp.166-167).

Unfortunately, Chapter 8 is generally limited to a discussion of judicial selection. More attention to cabinet and bureaucratic posts would have been appreciated, as they receive far less attention from scholars than the federal courts. Sollenberger does, however, provide a valuable early examination of the use of recess appointments by George W. Bush to bypass legislative dissent. The fact that this tactic has usually been successful may show future presidents its utility in bolstering executive power in the pre-nomination process.

The author presents his analyses and conclusions in Chapter 9, revisiting many themes introduced in the introduction and Chapter 1. Sollenberger asserts that presidents favor compromise to conflict, and that the pre-nomination process is influenced by both the chief executive and legislative input as the two reach a mutually beneficial arrangement. The role of legislators varies with the strength of that chamber’s dominant personalities. Presidents behave in accordance with their goals – nominees are chosen to secure power, favor, or legislative accomplishments depending on the circumstances. Congress, however, uniformly reacts negatively when ignored.

Sollenberger concludes the book by discussing the modern pre-nomination process in relation to historical norms, republicanism, and the system of checks and balances established by the Constitution. He describes a system created through practice, with the relationship between the involved parties changing with their political and practical circumstances. He argues that efforts by the House and the Senate to maintain prominence in the pre-nomination process are justified as preserving minority rights and defends the use of holds, blue slips, filibusters, and specification of qualifications as means to accomplish that end. This, he claims, is consistent with republican principles because it assures the people’s representatives a voice in the selection of government officials. Sollenberger rejects a merit system as at odds with “democratic impulses” and civil service reformers as distrusting of “anyone or anything outside the executive branch” (p.182). Not surprisingly, Sollenberger rejects the unitary executive theory and dismisses its proponents’ argument that history is on their side. Indeed, there is little evidence in this text to support the notion that presidents do or should dominate the pre-nomination process.

Despite its many strengths, THE PRESIDENT SHALL NOMINATE will vary in the extent to which it satisfies particular audiences. It excels as a work of political history, and is obviously the product of meticulous and admirable [*672] research. However, social scientists may be dissatisfied by its lack of general explanation. Description is emphasized more than analysis with the exception of Chapter 9. There is only limited discussion of the circumstances, goals, or personal attributes (of the president or prominent legislators) associated with particular brands of appointment politics. Legal scholars may be interested in Sollenberger’s discussion of the Appointments Clause but find it to be less than novel. Including the argument against originalism, that there was dissent among the Founders, remains justified for the benefit of readers new to the debate. It is probably unfair to condemn Sollenberger for these omissions, as his is a historical study rather than a test of theoretical expectations or exercise in legal argument.

Sollenberger introduces several topics that may be of interest to scholars. The removal of appointees, obviously related to the availability of appointed positions, is given attention throughout the text but merits further exploration. The role of policy entrepreneurs in institutional reform is also invoked, though not discussed at length, as are the sources and consequences of institutional innovation. This text also serves as an informative study of attempted and successful civil service reforms, each of which altered the relationship between the executive and legislative branches. Overall, THE PRESIDENT SHALL NOMINATE is a welcome addition to scholarship on Congress, the Presidency, and the appointments process. It is a valuable resource for scholars of appointment politics throughout American history, particularly those whose interests are not limited to the federal courts.

REFERENCES:
Gerhardt, Michael J. 2003. THE FEDERAL APPOINTMENTS PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS. Duke University Press: Durham, NC.

MacKenzie, G. Calvin. 2001. INNOCENT UNTIL NOMINATED: THE BREAKDOWN OF THE PRESIDENTIAL APPOINTMENTS PROCESS. Brookings Institution Press: Washington, DC.

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© Copyright 2008 by the author, Richard L. Vining.

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GLOBAL JUSTICE: THE POLITICS OF WAR CRIMES TRIALS

by Kingsley Chiedu Moghalu. Stanford CA: Stanford University Press, 2008. 240pp. Paperback. $24.95. ISBN: 9780804759717.

Reviewed by Mark A. Drumbl, School of Law, Washington and Lee University. Email: drumblm [at] wlu.edu.

pp.663-667

In GLOBAL JUSTICE: THE POLITICS OF WAR CRIMES TRIALS, Kingsley Chiedu Moghalu posits that international criminal courts and tribunals “are more instruments of political engineering than impartial justice for war crimes” (p.75). Moghalu draws from his legal experience with the International Criminal Tribunal for Rwanda (ICTR) and with the United Nations generally. He links his experience to the theoretical framework of the English School of international relations in support of his conclusion that “[t]he politics of war crimes trials are all around us. And it is major league” (p.2). In a concise and well-written forward, Pierre-Richard Prosper, a former ICTR lawyer who subsequently served as the US Ambassador-at-Large for War Crimes Issues in the Bush Administration, lauds Moghalu’s “realist perspective” and the “provocative conclusions” he draws therefrom (p.x).

GLOBAL JUSTICE: THE POLITICS OF WAR CRIMES TRIALS begins with a survey of the English School, in particular the work of Hedley Bull. Moghalu questions the scope of liberalism’s influence in the creation of international war crimes tribunals. He recognizes that “liberal ethics” play some role, but underscores how states’ unpredictable primordial self-interest, as posited by Hedley Bull in THE ANARCHICAL SOCIETY, is a major catalyst (pp.8-10). Chapter 2 follows with an assessment of the thorny question whether to prosecute or pardon serious human rights abusers. This Chapter unpacks the legacy of the Tokyo and Nuremberg trials and heralds the Nuremberg trials as “perhaps the most important postwar factor that shaped a democratic and prosperous [West] Germany” (p.39). Chapter 3 picks up the Balkans as a regional case study and focuses on Slobodan Milošević’s indictment by the International Criminal Tribunal for the Former Yugoslavia (ICTY). Moghalu concludes that “[i]n his death, Milošević snatched himself from the jaws of justice” (p.75). Chapter 4 turns to the phenomenon of universal jurisdiction, namely when national courts claim jurisdiction over core international crimes committed abroad owing to the fact these crimes constitute violations of peremptory international norms that any court anywhere can redress. GLOBAL JUSTICE then returns to the case-study approach, with Chapter 5 devoted to Sierra Leone. This Chapter criticizes the work of the Special Court for Sierra Leone (SCSL), an internationalized tribunal created by treaty between the United Nations and the government of Sierra Leone. Chapter 6 addresses the politics of the International Criminal Court (ICC), including US opposition to the ICC and the quest to develop a definition of the crime of aggression. Chapter 7 explores [*664] another national case-study: Iraq. The Iraqi High Tribunal is not an international institution, and hence differs from the ICC, ICTR, ICTY, and SCSL. Chapter 8 concludes with the observation that international justice does not represent the “end of history” (a phrase which Moghalu properly attributes to Francis Fukuyama (1992) and transplants from the different context in which Fukuyama was writing).

GLOBAL JUSTICE’s greatest strength is its impressive “insider’s” account of the background and politics of the prosecutions at the international criminal tribunals. The book sets out the gritty hydraulics of the process of institution-building, the generation of indictments, and the volatile task of bringing suspects into custody. Moghalu’s integration of the theoretical insights of the English School complements the work of US public choice/rational choice academic lawyers, such as Eric Posner and Jack Goldsmith, who examine the role of state self-interest in the formation of international law generally, including international criminal law. Another of the book’s strengths is its dissection of “legalism” as a “Western ideal that those countries have sought to impose on countries of other political or historical cultures” (p.14). In underscoring the importance of the local to the actuation of justice, Moghalu reminds us of the limits of international criminal law and the reality that powerful states may evade its grasp, meaning that only tragedies occurring in weak states or committed by nationals of weak states become the subject-matter of international judicialization. In this regard, GLOBAL JUSTICE clarifies that the internationalization of justice for war crimes differs from the globalization of justice, both as a matter of procedure and as a matter of substance (p.172). Finally, Moghalu’s work charts the tension between the promotion of order in international society and the pursuit of justice. Insofar as foreign national courts acting unilaterally through claims of universality are more disruptive to international order than the ICC, Moghalu is more skeptical of the former than the latter.

The scholarship of the English School is complex. As such, its application to contemporary international justice institutions is far from straight-forward. On the one hand, international criminal prosecutions may upend the idea of a sovereign society of states with immune state representatives and thereby threaten disorder. On the other hand, with the creation of the ICC (along with ad hoc tribunals through Security Council resolutions), the international society of states apparently has reasoned that impunity for serious human rights abuses itself constitutes a threat to order. In light of the anemic actuation of prevention in international politics, the most realistic response to this perceived disorder may be retributive criminal sanction. International criminal prosecutions, however flawed, may be intended to serve the interests of international order.

Granted, in some of their actions international criminal tribunals bend the law at the behest of politics. The ICTY Chief Prosecutor’s decision not to pursue charges of war crimes against the NATO states that bombed the Federal Republic of Yugoslavia could be read, as Moghalu does, to represent the politics of international justice (p.75). The ICTR [*665] Appeals Chamber’s decision to reconsider and reverse the dismissal of charges against Jean-Bosco Barayagwiza clearly was animated by pressure from the Rwandan government. Yet, there are also plenty of situations where legalistic renditions of due process trump the enormous political pressure to prosecute and convict. For example, in June 2008, ICC Trial Chamber I stayed the trial of Congolese militia leader Thomas Lubanga, who is accused of the conscription, recruitment, or use of child soldiers, because of the Prosecutor’s failure to disclose confidential, and potentially exculpatory, evidence to the defense and to the bench. Trial Chamber I held: “This is an international criminal court, with the sole purpose of trying those charged with the ‘most serious crimes of concern to the international community as a whole’ and the judges are enjoined, in discharging this important role, to ensure that the accused receives a fair trial” (at paragraph 91 of the judgment). Trial Chamber I has ordered Lubanga’s release, although this order is suspended until the Prosecutor’s appeal is adjudicated. What is more, international courts have not shied away from acquitting suspects in the face of significant political pressure to the contrary.

Moghalu’s experience is personal, anecdotal, or acquired from a perusal of secondary sources. Accordingly, although Moghalu describes his work as “an empirical review” (p.171), GLOBAL JUSTICE lacks the rigor, original qualitative research, or quantitative method that other political scientists, such as Victor Peskin (2008), Lara Nettelfield (2008), or Scott Straus (2006) fruitfully bring to the table in their recent scholarship.

There is good reason to express skepticism about international criminal law’s ability to attain the ambitious objectives it has ascribed to itself (Drumbl 2007). These objectives include deterrence, retribution, reconciliation, truth-telling, and narration of historical tragedy. In this regard, the arguments advanced in GLOBAL JUSTICE are appealing. To some degree, the shortfall between judicial output and justificatory aspiration arises from the fact that international criminal lawyers may have oversold the quality of the product they are delivering. That said, to claim – as GLOBAL JUSTICE does – that international criminal lawyers ever viewed international courts and tribunals, in particular the ICC, as the “end of history” is a strawman (pp.xii-xiii, 126).

Moghalu writes: “I set out in this book to interpret the phenomenon of war crimes trials and tribunals in international law and politics from the perspective not of liberal legalism, which is the conventional wisdom, but through that of a pluralist international society of states” (p.171). Any thorough understanding of the coming into force of contemporary international criminal tribunals and courts, however, also must include the role of non-governmental organizations, interest groups, victims, and networks of expert activists. Non-governmental organizations were extremely active in the creation of the ICC. They catalyzed the criminalization of certain conduct, such as sexual violence during armed conflict, and in the practice of the ad hocs successfully encouraged international prosecutors to file charges and international judges to issue convictions. [*666]

Moreover, international courts are not unitary actors. Not only are there differences among the various courts and tribunals inter se, there are also major tensions within each institution. Judges do not necessarily share the same interests as the prosecutors, for example, and often find themselves on different sides of issues. This intra-institutional tension reflects the interplay between the application of law and the force of realpolitik. For example, a fracture line emerges within the ICC regarding the role that victims should play in the administration of justice in the Democratic Republic of the Congo, with the judges preferring a more robust interpretation of the Rome Statute’s provision of victim involvement than the Office of the Prosecutor.

A state-centric analysis rooted in sovereignty does not fully assess the influence of non-state actors in the cascading process of law-making, nor of internal actors within institutions. Furthermore, binary analysis that views international law and state sovereignty in opposition one to the other in a zero-sum game fails to recognize the synergistic, transnational, constructivist, and expressive manner in which politics and law can conspire to establish norms.

Notwithstanding these limitations, GLOBAL JUSTICE: THE POLITICS OF WAR CRIMES TRIALS is a valuable book that reminds us of the importance of politics in the creation and implementation of international criminal law. GLOBAL JUSTICE also helpfully elucidates the need to incorporate the local into the justice matrix. As international criminal courts continue with their work and become a permanent part of the fabric of international relations, questions of how to improve their effectiveness become increasingly important. Meaningfully anchoring international proscriptions into local contexts is a daunting challenge.

REFERENCES:
Bull, Hedley. 1977. THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS. New York: Palgrave McMillan.

Drumbl, Mark. 2007. ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW. Cambridge: Cambridge University Press.

Fukuyama, Francis. 1992. THE END OF HISTORY AND THE LAST MAN. New York: Free Press.

Nettlefield, Lara. 2008 (forthcoming). COURTING DEMOCRACY: THE HAGUE TRIBUNAL’S EFFECTS (unpublished manuscript, under consideration with publishers).

Peskin, Victor. 2008. INTERNATIONAL JUSTICE IN RWANDA AND THE BALKANS: VIRTUAL TRIALS AND THE STRUGGLE FOR STATE COOPERATION. Cambridge: Cambridge University Press.

Straus, Scott. 2006. THE ORDER OF GENOCIDE: RACE, POWER, AND WAR IN RWANDA. Ithica: Cornell University Press. [*667]

CASE REFERENCE:
PROSECUTOR v. LUBANGA, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008 (Trial Chamber I, June 16, 2008), available at http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1401-ENG.pdf

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© Copyright 2008 by the author, Mark A. Drumbl.

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SEED WARS: CONTROVERSIES AND CASES ON PLANT GENETIC RESOURCES AND INTELLECTUAL PROPERTY

by Keith Aoki. NC: Durham: Carolina Academic Press, 2008. 280pp. Paper $40.00. ISBN: 9781594600500.

Reviewed by Krishna Ravi Srinivas, Research Information System for Developing Countries, New Delhi, India. Email: krsriniv [at] gmail.com.

pp.659-662

Plant Genetic Resources (PGRs) have played a crucial role in the global agriculture and food production system. For centuries they were treated as part of the common heritage of (hu)mankind, which meant that it was free for all and might was right in dealing with PGRS. With the industrialization of agriculture and development of modern plant breeding based on genetics, commodification of seeds was made possible. Availability of intellectual property protection for plant varieties and seeds gave rise to many issues, because until then seeds were considered products of nature and were not covered by intellectual property protection. Globally, the North-South divide in the late seventies and early eighties regarding access to germplasm, and the signing of TRIPS in 1994, changed the rules of the game in transactions involving PGRs. The International Treaty on Plant Genetic Resources for Food & Agriculture (ITPGFRA) was an initiative that sought to combine conservation and access to PGRs with benefit sharing mechanism and recognition of Farmers’ Rights. Still the global regime of PGRs is far from clear, as at least three treaties/conventions have considerable overlap among them, i.e. ITPGFRA, TRIPS and CBD (Convention on Biological Diversity). Keith Aoki in SEED WARS, gives an overview of the developments in the past, the current trends, and discusses future directions in this acrimonious issue of intellectual property rights (IPRs) on plant genetic resources.

Chapter One introduces the reader to the global transfer of PGRS, the technological progress and developments in agriculture and their impact on PGRS, and the important role played by PGRs from other countries in development of agriculture in the US. Aoki shows how hybridization brought in changes in seed supply and use and transformation of the seed industry. This process was a major step in commodification of germplasm. One of the effects of this commodification was the move to apply intellectual property protection to plants.

Chapter Two deals with developments in applying IP rights over plant varieties and the advent of technology in which prompted new questions, and the outcome of the technological revolution in agriculture. Within seven decades, the extension of IP rights resulted in ever stronger protection. The decision in DIAMOND v. CHAKRABARTY (1980) paved the way for patenting of genetically modified organisms, and subsequent decisions affirmed the availability of patent protection for plants. With the availability of Plant Variety protection under PVPA and patents under Patent Act, the industry sought and obtained the elimination of [*660] farmers’ exemption that enabled their reuse of saved seed. The industry underwent a major transformation during the last two decades of the twentieth century. Consolidations and mergers created firms that not only dominated the agro-chemical industry but also became major players in seeds and agricultural biotechnology as well. Thus the commodification process was complete. Decisions in ASGROW (1995) and SCHMEISER (2004) confirmed that patent law was applicable to seeds and use of patented seed was like use of any other patented product. In SCHMEISER, the Supreme Court of Canada expanded the meaning of patent law and held that unauthorized use of patented seed material was an infringement of patent rights. The dual protection was affirmed by the US Supreme Court in J.E.M.AG SUPPLY (2001). Thus the farmer was reduced to the role of a mere consumer of seeds who had no right to reuse, sell or exchange the output as seed material.

Chapter Four discusses developments at the international level and the transformation of the discourse on ownership and control over PGRS. PGRS were no longer considered as Common Heritage of (Hu)mankind but as resources that were subject to sovereign rights of countries. The Convention on Biological Diversity linked conservation, and access with sovereign rights of nations over genetic resources. It established norms for access and benefit sharing. It was a compromise solution for North-South conflict over access and use of PGRS. The TRIPS (Trade Related Intellectual Property Rights) Agreement of the WTO sought to harmonize the rules for a global intellectual property regime. Article 27.3(b) of TRIPS extended IP protection to plant varieties, but whether it mandated patent protection was a controversial issue. Developing countries took advantage of the sui generis option and tried to craft a regime that balanced IP protection with farmers’ rights.

The International Treaty on Plant Genetic Resources for Food & Agriculture complicated matters further as it brought in a Multi-Lateral System for PGRs and recognized farmers’ rights, while also giving shape a to benefit sharing regime. Aoki discusses the regime shifting and the consequences for global management of plant genetic resources. He addresses the breakdown of ‘common heritage’ system through multiple international conventions/treaties and suggests the consequent possibility of the tragedy of anti-commons. He rightly states, “While it is important not to overstate the argument, at times it seems that the expansion of intellectual property has taken on a strange but dynamic life of its own” (p.97).

In the final chapter Aoki examines the alternatives that have been suggested as a solution to the problems created by expansion of intellectual property rights as well alternative regimes/models based on notions on ‘commons’ and Open Source models. He discusses ideas like ‘Limited Commons’ and the applicability and limitations of Open Source models, and the issue of Open Access to plant genetic resources. He concludes, “If we do not take into account the distributive effects of intellectual property law and practices regarding PGRs, the question is this : Do we control our institutions and inventions or do they, like [*661] Frankenstein’s monster control us?” (p.129). The appendix provides the excerpts from relevant international agreements and treaties and laws of the US and Canada, as well as important US and Canadian court cases.

To sum up, SEED WARS provides an excellent overview of the issues and suggests a range of options to overcome the ill effects of expanding intellectual property rights on access to plant genetic resources, seeds and plant varieties. Aoki does a nice job of drawing the linkage between IPRs and PGRs, without suggesting a return to the old Common Heritage system or arguing for a revision in the current IP regime. He thus suggests a solution by favoring alternative IP regimes based on Open Source models and treating plant genetic resources as a sort of ‘commons.’ This is the strength of the book, as it goes beyond merely discussing the problem.

A substantial portion of the book is devoted to excerpts from treaties and case law. This could have been avoided, as most of this material is available in the public domain, and a simple reference to the sources would have been sufficient. Those pages could have been devoted to more analysis and discussion.

Aoki does provide an excellent analysis of the issues, but his focus is more on case law in the US and Canada, and the development of an IP regime for plants and seeds in the US. Thus the formation of the International Union for the Protection of New Varieties of Plants (UPOV) and developments elsewhere do not get the attention they deserve. Similarly, Aoki could have explored the literature on issues like deskilling and hybrids and the consequences of colonialism for plant genetic resources. Many developing countries have developed sui generis systems that attempt to strike a balance between the norms of TRIPS and the need to affirm Farmers’ Rights, in addition to providing for Plant Breeders’ Rights. The discussion on this and on the linkage between TRIPS, the Convention on Biological Diversity, and ITPGFRA is not adequate given the focus of the book. Similarly the analysis on commons and Open Source models also misses examples like the SNP consortium (a scientific group which assesses DNA sequence variations) or the International HapMap project (whose goal is to develop a haplotype map of the human genome) and fails to have an in depth discussion of debates on applying the Common Heritage Principle to the Human Genome. Nor does he consider the relevance of similar debates regarding the United Nations Convention on the Law of the Sea for understanding the problems and merits in applying the Common Heritage Principle. Another significant omission is the discussion on the relationship between the Principle of Permanent National Sovereignty over Natural Resources and obligations under the conventions and treaties. Although Aoki addresses the issue of Farmers’ Rights, the discussion does not take into account shifts in the discourse on Farmers’ Rights and related developments at the global and national level. In fact, in many places, Aoki could have explored the issues in depth and could have connected to the extensive literature to buttress his observations and arguments. In that sense, 120 and odd pages of text are not sufficient to discuss complex issues like plant genetic resources and intellectual property rights, to map the [*662] trends, and suggest some alternatives. One hopes that Aoki will explore these themes more in detail elsewhere in the future.

Notwithstanding these shortcomings, the book is an excellent source for understanding this important set of issues. As there are not many books that deal comprehensively with these questions, particularly regarding the impact of expansion of intellectual property rights for access to and use of plant genetic resources, this book is a welcome addition to the literature.

CASE REFERENCES:
ASGROW SEED CO. v. WINTERBOER, 513 U.S. 179 (1995).

DIAMOND v. CHAKRABARTY, 447 U.S. 303 (1980).

J.E.M. AG SUPPLY, INC. v. PIONEER HI-BRED INTERNATIONAL, 534 U.S. 124 (2001).

MONSANTO CANADA INC. v. SCHMEISER [2004] 1 S.C.R. 902.

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© Copyright 2008 by the author, Krishna Ravi Srinivas.

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REBUILDING NATIVE NATIONS: STRATEGIES FOR GOVERNANCE AND DEVELOPMENT

by Miriam Jorgensen (ed). Tuscon: University of Arizona Press 2007. 384pp. Cloth. $40.00. ISBN: 9780816524211. Paper. $20.00. 9780816524235.

Reviewed by Ronald Steiner, Department of Political Science, Chapman University. Email: Steiner [at] chapman.edu.

pp.656-658

The chapters in REBUILDING NATIVE NATIONS are a product of the Native Nations Institute for Leadership, Management, and Policy (NNI) at the University of Arizona and the Harvard Project on American Indian Economic Development. These collaborating programs study and promote self-determination, self-governance, and development for Native nations. The Harvard Project conducts research and provides advisory services and executive education, with the goal of understanding the conditions under which self-determined development is achieved among American Indian nations. NNI’s particular focus is on nation building, or “nation re-building” and involves comprehensive, professional training and development programs, including tribal executive education, entrepreneur training, policy analysis and accessible research on governance and development in Indian Country, and work with Indigenous groups on strategic and organizational development. As reflected throughout this edited volume, NNI believes that re-building Native nations through the construction of effective institutions of self-government that meet their unique needs and priorities is the only path to successful and sustainable development in Indian Country.

REBUILDING NATIVE NATIONS is something of a companion volume to THE STATE OF THE NATIVE NATIONS: CONDITIONS UNDER U.S. POLICIES OF SELF-DETERMINATION, published by Oxford University Press for the Harvard Project, which is also a multi-author volume featuring some of the same experts. Both books offer comprehensive, interdisciplinary examinations on current conditions and trends in Indian Country. THE STATE OF NATIVE NATIONS featured short summaries of the current state of knowledge regarding tribal governance, land and natural resources, and economic and social development, to arts and culture, the large off-reservation Native population, and federal Indian policy. Unlike the current volume, the earlier book also contained first-person companion essays so as to more fully include the personal perspectives of noted native figures.

Based on their experience studying and working with native nations, Miriam Jorgenson and her NNI colleagues believe that five elements are critical in successful nation building:

1. Sovereignty. Native nations which seize and exercise self-governing power show significantly increased prospects for sustainable economic development.
   
2. Capable governing institutions. Sustainable development therefore requires native nations to put in place effective dispute-resolution mechanisms and build capable bureaucracies, which necessitate [*657] insulation from the internal politics of the nation.
   
3. Cultural match. Effective institutions tend to be respectful of indigenous conceptions of authority, even where they include some degree of innovation.
   
4. A strategic orientation. Success in developing governing institutions and economic development programs will come when native nations approach these tasks with a long-term commitment to building a society that works, rather than as a quick fix based on funding that happens to be available.
   
5. Leadership. Successful native nations tend to rely, at least initially, on a group of individuals who recognize the need for fundamental change in the way things are done and can bring the community along with them in building that future.

The introductory chapters provide a theoretically rich academic overview, while the core of the book is a series of discrete how-to guides for specific strategies for governance and community and economic development. These substantive chapters provide guidelines for governance structures and constitutional reform, plans for building justice systems and promoting both nation-owned enterprises and citizen entrepreneurs, as well as outlines for developing better and more mutually respectful relationships with non-Native governments.

The substantive discussion of nuts-and-bolts reform begins with a call for “rebuilding the foundations” of native governments, initiated by Stephen Cornell’s explorations of how colonial legacies continue to infect the standard approach to governance, and how indigenous solutions that draw from the past can point the way forward. This will often mean, according to an article by the Harvard Project’s Joseph P, Kalt, re-writing tribal constitutions as a first step in rejecting the faux sovereignty imposed on tribes in favor of new provisions that reflect a better cultural match, and which draw from recent learning gleaned from successful tribes. Critical to that constitutional restructuring is an independent and politically insulated system of courts and dispute resolution mechanisms, discussed in a chapter by Joseph Thomas Flies-Away and others, and, as discussed by Cornell and Jorgenson, a re-constructed tribal bureaucracy that focuses on “getting things done for the nation” rather than serving the narrower interests of the faction in power.

The book gets even more hands-on when it turns its attention to economic development issues. Kenneth Grant and Jonathan Taylor discuss successful and less successful strategies for improving the prospects of tribally-owned enterprises, with the key strategy being to monitor carefully the boundary between business and politics. When a tribal council member’s brother-in-law gets fired for poor performance from a job with a tribally-owned business, is the business sufficiently insulated from the politics of personality that the dismissal will stick? If not, experience suggests trouble ahead. Another economic development strategy is discussed by Cornell, Jorgenson, and others in a chapter on encouraging entrepreneurship among tribal members, both on and off the reservation. Thus, the NNI has partnered with the First Nations Development Institute and others in seeking to implement matched saving [*658] account programs in native communities, supported by financial education, credit counseling, and home buyer education programs, in an attempt to extend the benefits of wealth building to low-income individuals and families.

A chapter by Alyce S. Adams, Andrew J. Lee, and Michael Lipsky, and one by Sarah L. Hicks discuss specific features of successful governance, including the establishment of internal services and programs that really meet the needs of tribal members and reservation residents, as well as external, intergovernmental relations in which the native nations unequivocally project expressions of tribal sovereignty. For example, NNI has substantial research and experience with the various forms intergovernmental co-management agreements into which tribes in North America have entered to improve resource stewardship, so native nations can learn what models exist, and which are best suited to their own circumstances.

The book ends with another set of more theoretical chapters that explore the examples of individual successful leaders and ask why some nations manage to “seize the future” while others do not. In these chapters, Begay, Cornell, Jorgenson, Kalt, and others explore the themes for which the NNI and Harvard Project were initiated: what has research and experience taught us that can be of immediate and specific application to native people trying to survive and thrive among dominant settler societies that do not always have the tribes’ best interests at heart.

This book is a must-have for any scholar or teacher serious about really understanding the prospects for political and economic development among native nations. Few people are better situated than its contributors to discuss with both theoretical sophistication and practical experience the real situation of indigenous peoples.

A small caveat: like many who work in Indian Country, NNI walks a precarious political line in its work, and this difficult situation is reflected in the examples used in the text. Many of the success stories are drawn from the current experience of indigenous nations with representation on its advisory council. Perhaps that is not surprising; NNI would want to have successful indigenous leaders on its board. Its examples of failure and bad models, however, are presented with pseudonyms or drawn from the safe reaches of the past. Thus, while many indigenous leaders are duly celebrated for successful innovations, few current native leaders will suffer any embarrassment from this otherwise concrete and specific book. To its credit, NNI is in the trenches getting itself deeply involved in the daily lives of native nations – and it may be a telling commentary on the state of Native America that even they have to pull their punches.

REFERENCES:
Henson, Eric C., Jonathan B. Taylor, Catherine E.A. Curtis, Stephen Cornell, Kenneth W. Grant, Miriam R. Jorgensen, Joseph P. Kalt, and Andrew J. Lee. 2007. THE STATE OF THE NATIVE NATIONS: CONDITIONS UNDER U.S. POLICIES OF SELF-DETERMINATION, Harvard Project on American Indian Economic Development. New York: Oxford University Press.

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© Copyright 2008 by the author, Ronald Steiner.

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BLEACHED FAITH: THE TRAGIC COST WHEN RELIGION IS FORCED INTO THE PUBLIC SQUARE

by Steven Goldberg. Stanford, California Stanford University Press, 2008. 176pp. Cloth. $24.95. ISBN: 9780804758611.

Reviewed by Caren Dubnoff, Department of Political Science, College of the Holy Cross. Email: cdubnoff [at] holycross.edu.

pp.651-655

In her much acclaimed book about the Declaration of Independence, Pauline Maier observed that “separation of church and state was one of the most radical innovations of the American Revolution.” (Maier 1997). But if much current legal commentary is correct, separation may have been a historical innovation whose day has now passed.

According to many observers, the Supreme Court has moved from reading the Establishment Clause as requiring separation of church and state toward seeing it instead as requiring only neutrality – not favoring one religion over another, and not favoring religion over irreligion. And even if the Court’s retreat from separation has not been complete, support for the principle has clearly eroded. These changes are moreover increasingly welcomed by many commentators. Some support neutrality because they believe it to be a more accurate reading of the Establishment Clause command. Others do so because they believe that neutrality will provide more principled decision-making than has occurred under the separation principle. Neutrality would add clarity and consistency to an area of law that they argue is now confused and incoherent. Some argue that separation weakens religion, and with it the moral values upon which the development of the civic virtue essential to a good functioning democracy depends. Others argue that the conditions that supported separation have changed, and a new doctrine is needed to promote either the Clause’s most fundamental concern, the promotion of religious liberty,
or other constitutional values such as equality.

In this brief volume Steven Goldberg writes in opposition to this approving trend. He challenges the argument that because religion has a positive effect on moral values and civic virtue, it merits government support. He also responds to the argument that barring religion from the public square violates the free exercise rights of the religious. With respect to outcomes, it is Goldberg’s contention that government sponsorship actually harms religion. According to Goldberg when religion enlists government support in putting forth its message, it compromises its ability to be a positive force in society. “[I]n American culture public religion is inevitably watered down religion.” But if religion is to be “a source of moral values in a materialistic, scientific culture it must have real content” (p3). Real content “arises in hearts, homes, houses of worship, and in the private sector, not in government bureaucracies” (p.2). Goldberg thus does not challenge the importance of religion to the formation of moral citizens, but rather contends that government hinders this process.

Furthermore, Goldberg points out that the limitations on government sponsorship of religion have not created [*652] a secular society. Religion in the United States is much more vibrant and its free exercise is more protected than in other Western societies where limits on state sponsorship are absent. This religious vitality “flows from restricting the embrace of government while protecting free exercise. The real danger to religion comes “not from its failure to be recognized in the public square but from the costs that come with that recognition . . . . [Its] true power . . . . flows from restricting the embrace of government while protecting free exercise” (p.5). This is of course the core separationist position. Goldberg goes on to argue that the Court has been more solicitous of free exercise in crafting doctrines supportive of private individual choice than have other government actors and the public.

Goldberg builds his argument around three cases: the controversy over the posting of the Ten Commandments; the argument over the introduction of Intelligent Design in school biology classes; and the argument over holiday displays. He later focuses on the constitutional protections of free exercise, including, but not confined to, the free exercise clause. Along the way he provides some doctrinal background.

Chapters 2-4 form the heart of the book. Chapter 2 takes up the controversies surrounding the display of the Ten Commandments. No doubt most readers probably believe they know what these are. But, as Goldberg makes clear, there are several versions of the Ten Commandments. Different Bibles and the religions that use them count, order and define the Commandments differently, and so the actual content of the Ten Commandments is variable, depending on which Bible (Hebrew, King James, or New American) one uses and which Biblical passage (Exodus or Deuteronomy) one invokes. Further while the Ten Commandments in whatever form do contain much that is important to the regulation of human behavior, much of what they say is clearly about man’s obligations to God. The Ten Commandments are therefore undeniably religious and their different versions are sectarian.

It follows that since most Justices of the Supreme Court hold that the Establishment Clause forbids at least the permanent advantaging of one religion over another, displays of the Ten Commandments can be made acceptable only by stripping them of their religious meaning. According to Goldberg, this is exactly what has happened, with defenders asserting it represents only an acknowledgement of a religious history or by characterizing it as one among many sources of law. There are in fact three Supreme Court decisions that are directly on point: STONE v. GRAHAM, where the Court in a 5-4 decision struck down a Kentucky statute that required the posting of the Ten Commandments in all classrooms in the state; MCCREARY COUNTY v. ACLU, another 5-4 decision striking down a Ten Commandment display in a Kentucky Courthouse because the recent placement of secular objects did not suffice to transform a display that had originally been religious into one that was now secular; and VAN ORDEN v. PERRY, a 5-4 decision finding no constitutional violation of a display in a sculpture garden along with secular objects, because in that setting it showed no religious purpose. Goldberg builds a convincing case that the moral teachings of the Ten Commandments get lost in these displays. [*653]

The argument that government support for a display of the Ten Commandments does not really strengthen its religious force assumes that the primary purpose of the display is its actual religious teachings. But what if the display’s actual purpose is symbolic, a statement of who we are as citizens, a measure of acceptability? If so, and in the end Goldberg acknowledges that this may indeed be so, then the criticism that the result is watered-down religion is unlikely to persuade supporters that they are pursuing a false goal. Having identified the symbolism in these displays, Goldberg then fails to pursue an important implication of that finding, that they then violate the constitutional principle of equality embodied in the religion clauses. As Justice O’Connor stated in LYNCH v. DONNELLY, religion cannot be made a basis of “a person’s standing in the political community” (LYNCH, at 687).

Goldberg’s next example is the controversy over including Intelligent Design in the biology curriculum. These efforts are the latest iteration in the debate over the teaching of evolution. Goldberg begins with a brief history that traces the controversy from the Scopes trial to an Arkansas law prohibiting the teaching of evolution, then to a Louisiana law requiring that if evolution is taught, equal time must be afforded creation-science. More recently, there have been efforts to require that Intelligent Design be taught as an alternative to evolution. Such cases have not yet come before the Supreme Court. For a brief period of time, it appeared that such a test was in the offing when a federal district judge held that inclusion of Intelligent Design in the curriculum in Dover, Pennsylvania, violated the Establishment Clause. But before the city could appeal, the election of a new school board on that issue led to its removal from the biology curriculum, thus mooting the issue.

Goldberg is less interested in the particulars of the Dover controversy than in the broader questions raised by the movement to include Intelligent Design in the biology curricula. Goldberg argues that Intelligent Design is as objectionable in a biology class as was creationism and so-called “creation-science,” because like these it is not science. None of these teachings can be disproved by empiric evidence, and the potential for refutation is a hallmark of true science. But the more important issue for Goldberg is what would happen to religion if proponents of Intelligent Design succeed in persuading the public and the courts. In his view, religion would actually be weakened, because the Intelligent Designer described by these teachings is little more than a tinkerer, a force that fills in the blanks that evolution has yet to explain. It is not the God that some scientists have in mind when they speak of Intelligent Design – that God is of cosmic magnitude, a God that created the laws and the very order of the universe, without which the fabric of space would not exist. The classroom Intelligent Designer is also not the God of traditional religion, the God who gives us our souls and teaches us how to live. In Goldberg’s view, “intelligent design . . . . empties religion of everything that makes it important. God is no longer the creator of the universe, a source of ethical teachings or the inspiration for a sense of awe and humility. God is instead a second-rate engineer” who fills in the gaps left in evolution’s account of creation. The better remedy for religious parents is [*654] subsidized private religious education, a solution that Goldberg supports.

Does Goldberg answer the concerns of fundamentalist parents? I doubt it. The problem here is that there can be a real conflict between religious and secular views of how our world came to be. In this case these positions may be irreconcilable, and the private school opt-out, even if partially funded by government as Goldberg suggests it should be in Chapter 5, is only a partial answer because of the other benefits that may accrue from a public school education. He further overlooks the possibility that for proponents of Intelligent Design a fundamental objective is satisfied just by casting doubt on evolution, part of a strategy to get religion a “foot in the door.” That said, Goldberg is clearly correct that Intelligent Design does not belong in a science class. It is not science, and as Goldberg correctly notes, its proponents also distort the meaning of a “theory” as it is used in science. Whatever one’s position on the constitutional issue, this chapter is worth reading because it provides the nonscientist a window on how scientists who accept the theory of evolution can also believe in God.

The disputes surrounding holiday displays, or more precisely Christmas and Chanukah displays, provide the third case. For Chanukah, the result has been its elevation from a once minor Jewish holiday to one that gets great attention. Its religious message as a celebration of a distinctly Jewish event has been distorted by its more recent identification as a symbol of Jewish participation in a larger American culture. From a religious standpoint, the prominence of the Chanukah menorah in public displays has distorted traditional teaching by causing many Jews to consider it the most important menorah, losing sight of the more important and different Temple menorah. If the religious importance of Chanukah has been magnified, that of Christmas has been diminished by commercializing it. For both holidays, “the display must be devoid of any meaningful religious content” (p.67). Goldberg acknowledges that some of these costs are the consequence of constitutional requirements but contends the religious message would in any event have had to accommodate a very diverse nation with the same general result. Here again Goldberg discounts the possibility that a display may be more important as an expressions of one’s position in a broad community of believers than as a promoter of strong religious content.

Despite many concerns that separation of church and state would harm religion, America is a more religious country than many others with direct ties between government and a church. Chapter 5 proposes that the reason is the privatization of religion in America that separation’s critics so often criticize. Whatever limitations are imposed on religion by the Establishment Clause are more than compensated by the strong protection afforded free exercise rights by the Constitution and the political culture. The Supreme Court has reached a broad understanding under free exercise that the state may not target religion for adverse treatment, may not regulate religious beliefs and may not judge the truth of religious doctrines. There have been holdings that the due process clause protects parental control over upbringing and schooling and that religious speech must be treated on a par with other speech. Not surprisingly Goldberg favors a robust understanding of free exercise rights, including [*655] granting religious exemptions to generally applicable law. He characterizes such actions as equalizing rather than advantaging religion, and therefore not in conflict with the earlier argument against government support for religion.

This chapter is of a different order than the others. The doctrines that Goldberg describes certainly do provide an environment within which religion can thrive, but it does not follow from this that this environment is actually responsible for such religious vitality. There may well be other, more important factors.

I would conclude with the following observations. Goldberg takes the law as it is when he argues that government support for religion weakens its religious message. But were the Court to adopt the position of Justices Scalia and Thomas that the Establishment Clause bars only the establishment of a state church, the law would then permit much more religious content in government-supported endeavors. It remains to be seen whether the diversity of American society would then serve as a similar check via the political process.

In the end, I liked this book despite the reservations I have expressed. Though the broad argument it advances is not new, some of the evidence presented is based on very current issues, such as the discussion of Intelligent Design. The Court’s jurisprudence in this area remains highly contested, and I think this book provides a useful counterweight to those who oppose the separation principle. For this reason, I believe Goldberg’s book would be particularly useful in a course such as Religion and Law. Similarly, it would work very nicely in a basic American Government course that includes a section on civil liberties.

REFERENCES:
Maier, Pauline. 1997. AMERICAN SCRIPTURE: MAKING THE DECLARATION OF INDEPENDENCE. New York, NY: Alfred A. Knopf, Inc.

CASE REFERENCES:
COUNTY OF ALLEGHENY v. AMERICAN CIVIL LIBERTIES UNION GREATER PITTSBURGH CHAPTER, 492 U.S. 573 (1987).

EDWARDS v. AGUILLARD, 442 U.S. 578 (1989).

EPPERSON v. ARKANSAS, 393 U.S. 97 (1968).

KITZMILLER v. DOVER AREA SCHOOL DISTRI COURTS, 400 F. Supp. 2d 707; 2005 U.S. Dist. LEXIS 33647.

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

MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, 545 U.S. 844 (2005).

STONE v. GRAHAM, 449 U.S. 39 (1980).

VAN ORDEN v. PERRY, 545 U.S. 677 (2005).

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© Copyright 2008 by the author, Caren Dubnoff.

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COMPLEX JUSTICE: THE CASE OF MISSOURI v. JENKINS

by Joshua M. Dunn. Chapel Hill, NC: The University of North Carolina Press, 2008. 240pp. Cloth $37.50. ISBN: 9780807831397.

Reviewed by Barry N. Sweet, Department of Political Science, Sociology, and Philosophy, Clarion University of Pennsylvania. Email: bsweet [at] clarion.edu.

pp.645-650

Joshua Dunn has written an enlightening book on MISSOURI v. JENKINS, one of the most controversial desegregation cases. When many people think of this case they envision a federal district court judge gone amok. Judge Russell Clark more than doubled property taxes and even attempted to implement new taxes. He ordered salary increases and the construction of cutting-edge facilities. By the time his mandates had run their course, in about a ten-year period, he had ordered the spending of $2 billion. There was little to show for all the spending. The district remained predominantly African-American, and test scores barely budged. How could a judge do something that seems so excessive and irrational? Joshua Dunn’s book, with clarity and simplicity, makes Judge Clark’s actions almost understandable.

Dunn starts by explaining how the judge had to operate within a judicial straightjacket established by Supreme Court precedents and an activist Eighth Circuit Court of Appeals. In GREEN v. NEW KENT COUNTY SCHOOL BOARD (1968), the Court imposed an affirmative duty to desegregate; simply ending legally imposed segregation was not enough. Furthermore, desegregation efforts would be “judged by their results – how effectively they eliminated racially identifiable schools” (p.18). The Court wanted to see the vestiges of discrimination eliminated. In SWANN v. CHARLOTTE-MECKLENBERG SCHOOL BOARD (1971), the Supreme Court held that any school system that had a history of legally imposed segregation and still had racial disparities in its schools was presumed to be unconstitutionally segregated. As Dunn points out, school systems in the South, and in border states like Missouri, had to overcome this presumption of unconstitutionality.

The Supreme Court seemed to be moving in the direction of blurring the distinction between de facto and de jure segregation. This distinction appeared to be nearly eliminated in KEYES v. DENVER SCHOOL DISTRICT NO. 1 (1973). The KEYES case placed the burden on school boards to prove that they did not contribute in any way to segregated housing patterns that led to racially imbalanced schools. Because this negative would be difficult to prove, school boards essentially had an affirmative duty to integrate. Some school districts thus faced an insurmountable task. How do you integrate schools when an overwhelming number of available students are minority? One suggested solution was to impose an interdistrict remedy. A proposal was made to integrate the Detroit schools by merging the city and suburban schools to create a massive metropolitan school district. [*646] The non-minority students would be found in the suburbs. This remedy was rejected by the Supreme Court in MILLIKEN v. BRADLEY I (1974). Dunn suggests that this decision made both constitutional and educational sense. The suburban schools never practiced de jure segregation, and busing students great distances becomes educationally counterproductive.

If you cannot force non-minority students to participate in an integration plan, could they be encouraged to volunteer? This was the question asked and answered in MILLIKEN v. BRADLEY II (1977). It might be possible to lure some non-minority students from the suburbs, if the urban schools were perceived to be particularly attractive. This idea led to the development of magnet schools. However, magnet programs have a very serious flaw; they frequently create isolated schools that attract gifted minority and non-minority students. The majority of minority students remain in underperforming racially isolated schools. In order to prevent this problem, the entire school system would have to be elevated to magnet school quality. This solution would obviously be a very expensive endeavor, but this is exactly what Judge Russell Clark set out to do.

In Chapters Two through Four Dunn discusses the history of educational segregation in Missouri and the ensuing legal battle in Kansas City in particular. The political and social milieu of Missouri was a composite of the South and Midwest; therefore, blacks tended to fare a little better than in many parts of the South, at least after the Civil War. Before the war it was illegal to educate blacks. Immediately after the Civil War, it was optional to establish separate schools for blacks. Not long after the Civil War it became first a legal requirement, then a state constitutional requirement, that separate schools be established for blacks. The 1945 state constitution required equal funding for white and black schools and allowed the possibility of nonsegregated schools. Despite the improvements in Missouri’s constitutional provisions, “black schools statewide were substantially inferior to white schools” (p.33). Shortly after BROWN v. BOARD OF EDUCATION was handed down in 1954, Missouri indicated that it would comply, and, in fact, the state’s early desegregation efforts were noted for their promptness and relatively smooth implementation.

Ending desegregation is very different from integrating schools. The latter is much more difficult, especially with the demographic changes that urban America experienced in the post-World War II period, that only accelerated in the 1960s. Kansas City was not an exception to these demographic changes. After BROWN, the Kansas City Missouri School District (KCMSD) created “race-neutral neighborhood attendance zones.” However, racial housing patterns, white flight to the suburbs and black migration to the city meant that most schools were predominantly of one race. The schools in Kansas City became increasingly racially isolated, leading to a call for action.

Judicial intervention was perceived to be the only plausible course of action. A complex array of actors either jumped or were dragged into the legal fray. Some of the litigants included the KCMSD, the Departments of Health, Education, and [*647] Welfare (HEW), Transportation (DOT), Housing and Urban Development (HUD), the State of Missouri, suburban school districts in Missouri and Kansas, and children attending KCMSD schools. The general argument was that governmental policies at the federal, state, and local levels, even if unintentional, left KCMSD racially isolated. Dunn does an excellent job of explicating the complexity of this virtual legal free-for-all. When the dust settled, the only remaining defendants were KCMSD and the State of Missouri. With suburban schools released from the litigation, it became increasingly unclear how a racial balance could be achieved. Interestingly, for some of the parties, racial balancing was not a priority.

This latter point was particularly true for many black parents whose priority was simply better schools. This reviewer found Dunn’s description of the social conflict and political infighting particularly informative. The lead plaintiff’s counsel, Arthur Benson, was a white activist lawyer, who was obviously sincere about wanting to help black children, but he was not in synch with their parents and black leaders in the community as to how to achieve an appropriate result. Benson’s dream was integration, the parents and the KCMSD wanted resources to improve the schools.

Chapters Five and Six describe the near total failure of the desegregation plan, ensuing finger pointing, and resentment within the African American community. In terms of assessing the success of the desegregation plan, Dunn discusses the three primary objectives of capital improvements, desegregation, and student achievement. The first objective was accomplished, despite evidence of waste and likely corruption. The KCMSD did build a number of impressive cutting-edge facilities. Dunn credits this success to the hiring of a Project Management Team (PMT), a group of respected local architects and contractors who were able to bring competency to the construction projects. Despite the PMT, the KCMSD still allowed an excessive number of change orders, leading to delays, cost overruns, and no-bid situations. Nonetheless, the showpiece Central High School was completed on time, albeit at twice the original projected cost. The building is so extravagant that some have called it the “Taj Mahal” (p.116).

Dunn describes the desegregation effort as a total failure. In fact, “data from 1987-95 show the plan to be a costly exercise in futility” (p.117). Overall, the percentage of minority students actually rose. The number of black students increased, while their percentage held fairly constant because the number of Hispanic students also went up. The number and percentage of white students went down. KCMSD spent millions of dollars advertising and recruiting white students, but to no avail.

Dunn provides a number of reasons for the failure to attract white students. First and foremost, white parents where satisfied with the quality of education their children were receiving in the suburbs. Additionally, students wanted to attend schools in their neighborhoods and did not want to be transported long distances. There were also safety concerns. The final two reasons given were the complexity of the magnet program and the constant criticism of the KCMSD, which confirmed the belief that it was incompetent. [*648]

The effort to improve student achievement was also a total failure. In some instances, student performance declined after implementation of the magnet school plan. More embarrassingly, some of elementary schools, although not converted to magnet schools and showered with additional resources, performed very well. Additionally, the non-magnet Lincoln Academy provided the best high school education in the district. Some educational experts argued that magnet schools actually hurt black student achievement because they need to master basic skills before specializing.

Dunn presents a number of other explanations for the plan’s failure to improve student performance, including KCMSD administration’s inability to implement the magnet programs. It was also suggested that parental involvement was a problem. Many of the KSMSD parents were described at being educationally inattentive or disadvantaged. Parental involvement and supervision is a key factor in a child’s educational success. Sometimes parental involvement was encouraged at the wrong time, for instance with KCMSD’s waiver policy. Parents could sign a waiver to allow their failing middle school student to move into the next grade. In fact, at one point, 20% of middle school students were advancing on waivers.

Another explanation is the boogeyman of standardized testing. The argument against standardized testing seemed to fit the pattern of student performance in the KCMSD. Students drilled on taking standardized tests do better in the early grades but do not develop the more complex skills necessary for later grades. The KCMSD students performed well through about grade four, but then began to fall desperately behind. Finally, some of the blame for poor student performance can be attributed to the quality of teaching. Arthur Benson estimated “that at least 20 percent of the teaching staff was completely incompetent” (p.131).

One of the most interesting parts of the book covers the reaction of the African American community to the magnet school plan. Blacks seemed to be initially indifferent to the plan but then grew increasing hostile to it. Dunn provides three “reasons for black ambivalence and hostility” (p.139). One, black community leaders were not included in the planning decisions for the magnets. Two, many blacks were not too keen about magnet schools to begin with. Three, implementation of the plan was described as “racially insensitive.”

The racial insensitivity charge basically had two components. First, the plan set up quotas for the magnet schools because the goal was integration. Each magnet school was supposed to enroll six black students for every four white students. However, because the schools failed to attract white students, the number of black students was severely limited to maintain the 60/40 ratio. Thousands of black students remained on waiting lists to get into magnet schools that had thousands of empty seats. Adding to black parent frustration was the multimillion dollar ad campaign aimed at white students boasting the superior quality of the magnet schools.

The second component of the racial insensitivity charge was the selection of [*649] magnet themes. The proposed Asian studies magnet school became a flashpoint. However, other themes also angered black parents, like Slavic studies. In response to these themes, the black community requested an Afrocentric magnet school. Arthur Benson resisted this proposal because it would not facilitate his goal of integration. Afrocentric studies were not deemed likely to attract white students. However, the resistance to Afrocentric studies was perceived as racist. Once again the different objectives became painfully obvious. Benson wanted integration; black parents want a better education for their children.

One positive outcome of black frustration with the desegregation plan was that it sparked a political movement. Blacks became motivated to participate in the political process in order to wrest control of their children’s education from the then current school board, Arthur Benson, and Judge Clark. Dunn indicates “[t]he unintended consequence . . . was the creation of a new black political force that mobilized black parents, established coalitions across political and racial lines, and reasserted common sense against the far-fetched theories of educational experts” (p.157). By 1995 the political movement achieved control of the school board.

Chapter Seven wraps up the saga with a discussion of the Supreme Court decisions that sounded the death knell for the magnet school plan. The Oklahoma City School District was struggling with the same demographic changes experienced in Kansas City. Busing was becoming increasingly counterproductive, and the district wanted to return to neighborhood schools. The issue was whether the school district had achieved unitary status. In BOARD OF EDUCATION OF OKLAHOMA CITY v. DOWELL (1991), the Court signaled that judicial supervision could be withdrawn with a finding that a school district was within constitutional compliance. Additionally, the decision marked the resurrection of the de jure and de facto distinction. FREEMAN v. PITTS (1993) also involved the issue of removing judicial supervision and de facto segregation. The Dekalb County schools in Georgia had experienced demographic changes which made maintaining integrated schools difficult. Justice Kennedy’s opinion stated that racial balancing is not an end in itself; it is a goal when a racial imbalance is the result of a violation of the Constitution. Dunn indicates that the Court sent “a clear warning to district judges that segregation itself was not unconstitutional and that they should not attempt to undo segregation that is only tenuously related to past discrimination” (p.162).

The above two cases laid the groundwork for the demise of Judge Clark’s supervision of the KSMSD. In the face of these decisions, Judge Clark ordered pay raises, with commensurate tax increases, and extended the magnet school program for two more years. These actions triggered litigation that brought the case to the Supreme Court again in 1995. In a 5-4 decision, the Court found that the District Court was imposing an interdistrict remedy for an intradistrict violation. It was inappropriate to attempt to lure teachers and students away from districts that had not violated the Constitution. The Court again emphasized the distinction between de facto and de jure segregation. Moreover, the Court reminded Judge Clark that it was important to restore the schools to local [*650] control as soon as there was no constitutional violation. Given that de facto segregation was no longer a violation, this meant as soon as possible.

The State of Missouri responded quickly to the Supreme Court decision and moved for a grant of unitary status. However, Judge Clark would not go quietly. In 1997, he issued a caustic opinion, denying most of the state’s motion. He then proceeded to criticize the Supreme Court’s legal reasoning and to lambast the KCMSD. Perhaps in frustration and disgust, Judge Clark then stepped down from the case, and it was reassigned to another judge to complete. The case was finally ended in 2003.

Dunn concludes his book with a brief discussion of the limits judicial policymaking and other education policy proposals to deal with KCMSD’s problems. It is relatively easy for a judge to strike down laws and policies that lead to segregation. It is much more difficult for a judge to formulate solutions for an underperforming school system. The latter requires public support and cooperation, which was clearly lacking in the Kansas City case. The educational policy lesson from the case was that money alone cannot solve the problem. Other proposed solutions include an expansion of charter schools, changes in how the school board is elected, eliminating the KCMSD and absorbing it into the suburban districts, vouchers, and finally a state takeover. Dunn suggests that the latter option is the most likely and that the state could put in its own administration, or contract it out like Pennsylvania did in Philadelphia.

In conclusion, Joshua Dunn has written a highly informative and readable book that nicely blends legal and policy analysis. COMPLEX JUSTICE provides the reader with a comprehensive understanding of the historical, political, and social issues involved in MISSOURI v. JENKINS. The book would make excellent assigned reading in courses on civil liberties/civil rights or judicial policymaking.

REFERENCES:
BOARD OF EDUCATION OF OKLAHOMA CITY v. DOWELL, 498 U.S. 237 (1991).

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

FREEMAN v. PITTS, 503 U.S. 467(1993).

GREEN v. NEW KENT COUNTY SCHOOL BOARD, 391 U.S. 430 (1968).

KEYES v. DENVER SCHOOL DISTRICT NO. 1, 413 US. 189 (1973).

MILLIKEN v. BRADLEY, 418 U.S. 717 (1974).

MISSOURI v. JENKINS, 495 U.S. 33 (1990), 515 U.S. 70 (1995).

SWANN v. CHARLOTTE-MECKLENBERG SCHOOL BOARD, 402 U.S. 1 (1971).

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© Copyright 2008 by the author, Barry N. Sweet.

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REGULATION AND PUBLIC INTERESTS: THE POSSIBILITY OF GOOD REGULATORY GOVERNANCE

by Steven P. Croley. Princeton, NJ: Princeton University Press, 2008. 392pp. Cloth. $65.00/£38.95 ISBN: 9780691130859.
Paper. $27.95£16.95. ISBN: 9780691134642.

Reviewed by Robert A. Kagan, Department of Political Science and School of Law, University of California, Berkeley. Rak [at] berkeley.edu.

pp.640-644

Steven Croley, a professor of administrative law at University of Michigan Law School, has written an ambitious and valuable book. It offers a strong defense of the American regulatory state and the role of administrative procedure in encouraging good regulatory governance. The book should be illuminating and useful for political scientists and legal scholars interested in regulatory policy, the politics of regulation, public administration, and administrative law. REGULATION AND PUBLIC INTERESTS would be an excellent book for graduate courses in any of those fields.

The central assertion of REGULATION AND PUBLIC INTERESTS is that the influential, interest-group-domination picture of regulation and the regulatory state that has been painted by “public choice” theorists is conceptually and empirically flawed. The regulatory process in the United States, Croley argues, and argues well, quite often serves the public interest rather than private interests. The public interest often is vindicated, Croley claims, because of the pluralistic, transparent, evidence-based administrative rule-making process that is mandated by the rules and principles of American administrative law.

Nowadays, Croley laments, “confidence in public regulatory institutions . . . is widely dismissed as [unrealistically] idealistic” (p.9). That cynical view of regulation, he suggests, stems from what he claims is the near hegemony of the public choice theory, originally put forth by University of Chicago economist George Stigler (1971, 1975) and cited by many legal scholars, political scientists, and critics of regulation from both the political left and political right. Croley summarizes that “cynical view” as follows (p.9):

The combination of elected legislators who require economic resources to maintain their positions, on the one hand, and regulatory agencies that . . . depend on the legislature for political and budgetary resources, on the other, provides a recipe for a regulatory state that works to advantage well-organized yet narrowly focused political interest groups – ‘special interests’ . . . . Such groups exchange economic and political resources for what are essentially regulatory rents. Regulatory institutions deliver those rents [because they are dominated by the legislative interests that oversee and fund them].

Part I of REGULATION AND PUBLIC INTERESTS offers a lucid exposition of this public choice theory, outlining its basic assumptions and claims. But Croley also makes a strong argument that those assumptions – ranging from [*641] the invariably lopsided array of interests that contend over regulatory policy to the motivations of legislators and agency officials – are empirically implausible as general propositions, obviously contradicted by many significant regulatory policies and rules.

Against the public choice theory, Croley pits what he calls “administrative process theory.” Most regulatory statutes, he points out, delegate a wide swath of policymaking choice to a specified administrative agency. And one key step in the public choice theory is that “agencies advance the interests of potentially powerful interest groups” – not only because those groups’ organizational advantages allow them to exert influence on legislatures” but also because “legislatures in turn are able to influence regulatory agencies” to further those narrow group interests. Legislatures control agencies, according to public choice theory, first, via direct oversight plus budgetary rewards and punishments. Second, as developed in the widely-cited works of McCubbins, Noll, and Weingast (McNollgast, 1987, 1989, 1990), legislatures structure the rules of the regulatory policymaking process to enable legislators and the interest groups they favor to monitor and influence agency actions. Croley sharply disagrees with this view of the regulatory policy-making process.

The institutionalized rules of administrative procedure, Croley argues, (a) give regulatory agencies considerable independence from Congressional control; (b) guarantee transparency, openness, and at least some level of responsiveness to the views of a pluralistic array of interested groups; (c) ensure a prominent role for science and rational policy analysis, as opposed to political favoritism, in shaping regulations; and hence (d) push agencies toward public-regarding, welfare-enhancing regulatory policies whose social benefits exceed their social costs. In spelling out the details of this administrative process model, Croley provides a clear, useful tour of the law flowing from the Administrative Procedure Act and of the legally-structured relationships between agencies and other branches of government in the rule-making process. In the course of this tour, Croley also offers a powerful critique of the McNollgast position.

American regulatory government, REGULATION AND PUBLIC INTERESTS proclaims, is administrative government. And the “administrative decision process to some degree levels the field of interest group competition by providing less powerful interests the means to compete with more powerful interests” (p.74). Moreover, administrative processes, it is contended, “generate information that reveals the costs and benefits of alternative regulatory outcomes and thereby allow agencies . . . to choose socially beneficial outcomes” (id). That does not always happen, Croley repeatedly acknowledges, but he claims it happens often enough to rebut the essential premises of the cynical public choice view of regulation.

How often? Croley’s analysis in the first two parts of the book rests for the most part on common-sense armchair analysis, rather than on empirical evidence, although he does a reasonably good job of identifying the relatively limited body of empirical studies that do [*642] bear on the issues. Providing empirical support for his argument (or the public choice position) Croley acknowledges, is not easy:

Unfortunately, questions concerning issues such as what motivates administrative decision-makers, how the administrative process limits congressional control over agencies, and the extent to which judicial review reinforces congressional control or instead liberates agencies to pursue general interests are issues difficult to tackle, much less resolve as a matter of theory (p. 159).

In Part III of REGULATION AND PUBLIC INTERESTS, Croley takes a useful step toward addressing those questions by offering three chapter-length case studies of regulatory policymaking – the Environmental Protection Administration’s 1997 decision to tighten air quality standards governing ozone and particulate matter, the Food and Drug Administration’s 1996 decision to regulate tobacco products (later struck down by the Supreme Court), and the Forest Service’s 2001 decision to limit road-construction in national forests – plus three shorter case studies. This handful of process-tracing studies, Croley notes, cannot resolve the empirical issues, “but,” he cheerfully writes “it sure helps” (p.160).

At a minimum, as Croley intended, his case studies rebut the sweeping generalities of the public choice model. In the course of providing detailed illustrations of how the administrative process model actually works in some high-stakes regulatory disputes, Croley shows precisely how and why Congressional-control-of-administrative-processes theory did not hold, and why his “administrative process” account did. In two of the cases, pro-regulation groups used legal procedures (rights to petition and to sue agencies to commence rule-making) to put the regulatory initiative on the agency’s agenda in the first place (p.259). In all the cases examined, regulatory officials sought to, and to considerable extent did, advance broad-based interests in the face of opposition from mobilized, concentrated business interests. The concentrated interests failed to derail the proposed regulations either at the agency level or via appeal to Congress. They failed at least partly because agency officials followed the administrative rules. They gathered and publicized information that preempted much, if not all, criticism of regulatory proposals for being ill-considered or scientifically unjustified. In the course of the notice and comment process, agency officials refined initial proposals in response to claims of both supporters and opponents. They relied on established administrative procedures to “inoculate themselves from interest-group criticisms and congressional sanctions” (p.282). Croley thus concludes, “The administrative process constrains agencies with poor regulatory proposals, as well as empowers agencies seeking to do what is socially beneficial” (p.267).

Croley successfully, in my view, rebuts the pure Stiglerian public choice view of the regulatory policymaking process. One might complain, however, that he has rebutted only an extreme straw man version of the theory. Croley anticipates and rejects that complaint, emphasizing its author’s own insistence that the theory fails if it is not applicable to all cases. That may be a permissible move [*643] in academic combat, but it does fail to take into account the growing recognition, even among public choice analysts, that policy outputs in the modern regulatory state vary – diffuse interests sometimes prevail and concentrated interests sometimes lose. The Stigler view was forged in the context of New Deal-era economic regulatory programs, such as trucking, airline, and dairy products regulation. As Croley acknowledges (in his lucid review and analysis of alternative theories) the rise of the “new social regulation” in the 1960s, the proliferation of public interest advocacy groups, and their empowerment by “the reformation of American administrative law” (Stewart 1975) in the 1960s and ‘70s all have compelled scholars to recognize that in many cases, political entrepreneurs and advocacy groups successfully balance the pressures exerted, both in Congress and in agencies, by concentrated industry groups (Wilson 1980); that concentrated group influence tends to wane when high levels of media attention to a regulatory issue give politicians little “slack” to make back-room deals with industry (Levine, 2006); and that regulatory agencies themselves, deliberately or as a result of their structures, shape regulation in ways that depart from the clash of interest group pressures (Schepsle 1981; Moe 1989; Rothenberg 1994).

Croley cannot and does not claim that his alternative “administrative process theory” always ensures that the narrow interests of well-organized industry groups will not prevail. His case studies, all drawn from the Clinton administration, are chosen to point in one direction. Perhaps for that reason, Croley pays little attention to the frequency with which a presidency that, for ideological or interest-group reasons, is hostile to regulation can use appointments (Mashaw 2006) or the regulatory analysis office of the Office for Management and Budget (Bressman and Vandenberg 2006 ; Vladeck 2006) to squelch or dilute the carefully-wrought regulatory proposals and analyses that Croley celebrates. Nor does REGULATION AND PUBLIC INTERESTS – because of its focus on rule-making – pay any attention to the various ways in which regulated interest groups and their political allies, even if they lose at the rule-making stage, can undermine regulatory programs by cutting the budgets of monitoring and enforcement offices or by pushing agencies to change targeting strategies.

What Croley has done – and it is an important contribution – is to remind us that the regulatory state quite often does act much more in accordance with public interest theories of regulation than many scholars assume, and to show us how and why. REGULATION AND PUBLIC INTERESTS does not answer the “how often” question or the “under what conditions” question. But it does a very fine job in highlighting one important variable – the legally-structured regulatory rule-making process – in a still-inchoate multi-variate understanding of regulatory policymaking.

REFERENCES:
Bressman, Lisa Schultz, and Michael P. Vandenberg. 2006. “Inside the Administrative State: A Critical Look at the Practice of Presidential Control.” 105 MICHIGAN LAW REVIEW 47-99. [*644]

Levine, Michael R. 2006. “Regulation, The Market, and Interest Group Cohesion: Why Airlines Were Not Reregulated.” in Marc Landy, Martin A. Levin, and Martin Shapiro, (eds), CREATING COMPETITIVE MARKETS: THE POLITICS OF REGULATORY REFORM. Washington, DC: Brookings Institution Press.

Mashaw, Jerry. 2006. “Motor Vehicle Mfgrs. Assn v. State Farm Mutual Auto Insurance.” in Peter Strauss (ed), ADMINISTRATIVE LAW STORIES. New York: Foundation Press, pp. 334-397.

McCubbins, Mathew D, Roger G. Noll, and Barry R. Weingast. 1990. “Positive and Normative Models of Procedural Rights: An Integrative Approach to Administrative Procedures” 6 JOURNAL OF LAW, ECONOMICS, AND ORGANIZATION 307-332.

McCubbins, Mathew D, Roger G. Noll, and Barry R. Weingast. 1989. “Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies.” 75 VIRGINIA LAW REVIEW 431-482.

McCubbins, Mathew D, Roger G. Noll, and Barry R. Weingast. 1987. “Administrative Procedures as Instruments of Political Control.” 3 JOURNAL OF LAW, ECONOMICS & ORGANIZATION 243-277.

Moe, Terry M. 1989. “The Politics of the Bureaucratic State.” in John E. Chubb and Paul E. Peterson, (eds), CAN THE GOVERNMENT GOVERN? Washington, D.C.: Brookings Institution.

Rothenberg, Lawrence S. 1994. REGULATION, ORGANIZATIONS AND POLITICS: MOTOR FREIGHT POLICY AT THE INTERSTATE COMMERCE COMMISSION. Ann Arbor: University of Michigan Press

Schepsle, Kenneth. 1981. “Review of Wilson’s The Politics of Regulation.” 90 JOURNAL OF POLITICAL ECONOMY 216-221.

Stewart, Richard B. 1975. “The Reformation of American Administrative Law.” 88 HARVARD LAW REVIEW 1669-1813.

Stigler, George J. 1975. THE CITIZEN AND THE STATE: ESSAYS ON REGULATION. Chicago: University of Chicago Press.

Stigler, George J. 1971. “The Theory of Economic Regulation.” 2 BELL JOURNAL OF ECONOMICS AND MANAGEMENT SCIENCE 3–21.

Vladeck, David. 2006. “Unreasonable Delay, Unreasonable Intervention: The Battle to Force Regulation of Ethylene Oxide.” in Peter Strauss (ed), ADMINISTRATIVE LAW STORIES. New York: Foundation Press, pp.190-226.

Wilson, James Q. 1980. THE POLITICS OF REGULATION. New York: Basic Books.

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© Copyright 2008 by the author, Robert A. Kagan.

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THE DECLINE OF THE DEATH PENALTY AND THE DISCOVERY OF INNOCENCE

by Frank R. Baumgartner, Suzanna L. DeBoef and Amber E. Boydstun. New York and Cambridge: Cambridge University Press, 2008. 292pp. Hardback. $75.00/£45.00. ISBN: 9780521887342. Paperback. $23.99/£17.99 ISBN: 9780521715249. eBook format. $19.00. ISBN: 9780511373299.

Reviewed by Priscilla H. M. Zotti, Department of Political Science, The United States Naval Academy. Email: zotti [at] usna.edu.

pp.637-639

Although a number of writers have discussed the problem and consequences of convicting the innocent and sentencing them to death, the authors of THE DECLINE OF THE DEATH PENALTY AND THE DISCOVERY OF INNOCENCE take an interesting and decisively different approach in explaining the current state of the death penalty in the United States. Frank R. Baumgartner, Suzanna L. DeBoef and Amber E. Boydstun explore the death penalty in terms of public policy and public opinion and the collective response over time to the death penalty as a form of punishment in the United States. The focus is not on the legal development of the death penalty and provides the reader little case analysis. Instead the authors focus on the impact of innocence and how the concept of wrongful convictions has changed public opinion about the death penalty and in turn affects public policy. The book is about the media and the coverage of the death penalty rather than the legality of the punishment and its constitutional status.

The authors assert that the reason for this “reworking” of the death penalty in the public conscientiousness is due to framing. The process of framing, defining an issue along a particular dimension, has not only changed thinking about the death penalty but completely overhauled the issue. Of course any bureaucratic system run by humans will inevitably suffer mistakes, but why the current focus on innocence?

Today the concept of innocence pervades public and official discussion of the death penalty more so than in any period in history. The authors provide a thorough and interesting historical analysis of the public discussion of the death penalty. This discussion has widened and refocused due to the growth of innocence commissions and innocence projects in journalism and law schools, increased public commentary about error, and the scientific reliability of DNA as an investigatory tool. Collectively a shift in attention by legal scholars, judges, and journalists has contributed to the ‘reframing” of public discourse of death penalty policy. This in term has led to a growing divide between the theoretical discussion of the death penalty and the more practical one of its usage.

Baumgartner, DeBoef and Boydstun make the case that historical arguments of capital punishment are morality centered. An “eye for an eye” has long been justification for state sponsored executions. Legal and crime fighting arguments have also had a moral [*638] foundation of protecting the law abiders from the law breakers. The shift to a focus on innocence and the consequences of wrongful convictions is a monumental change in policy focus, rarely achieved in discussing complex social issues. The issue of the death penalty has been completely transformed. One goal of the authors is to demonstrate and explain to the reader why the new innocence argument has been so effective in changing public opinion and public policy. They argue that the death penalty as a social issue has reached a “tipping point.” Change of understanding gives way to change of policy which in turn continues to further our understanding of the issue. The core focus of the authors is the nuances of change of public opinion about the death penalty and the resulting effect on public policy. The book offers the reader a refreshing vantage point from which to consider capital punishment.

The core of the authors’ presentations is framing. The data used to develop their thesis are based on 3,939 death penalty articles published in the NEW YORK TIMES since 1960. The authors track the major arguments of capital punishment, distilling them into major categories of focus: innocence, humanizing the defendant, constitutionality – pro, constitutionality – con, popular support, and eye for an eye from 1964 to 2005. Further analysis includes other media resources which support the initial findings. Methodologically, the authors use evolutionary factor analysis, and standard factor analysis used on successive moving windows of time. These new measures demonstrate the impact of framing issues on collective public opinion and on policy outcomes.

The framing and reframing of capital punishment begins with a historical and legal discussion of the status quo, from FURMAN v. GEORGIA and the brief moratorium that lasted from 1972-1976. The 1976 litigation, which reinstated the death penalty in the United States, is the beginning of the modern era. The focus is not on the legal aspect of the death penalty as punishment but the correlation of the death penalty to public opinion. The authors note the geographic and racial differences in the use of the death penalty and relate it to public support. The death penalty is put in aggregate perspective. Less than one percent of homicides result in a sentence of death.

Quickly the authors turn to the change in status quo brought about by the emergence of innocence as a frame for the issue. They document the sudden rise of the dialogue of innocence resulting in familiarity of the issue by the average American. A number of various threads of events and knowledge converge to make the issue persistently part of the death penalty discussion. Despite the fact that academicians have researched and written about the fallibility of the death penalty for years, the issue has taken hold and risen to prominence in the American psyche in the past two decades. The authors make a convincing case when focusing on the changes in Illinois in the past decade, culminating with the moratorium on executions and the blanket clemency granted by then Governor Ryan in 2003.

Innocence projects in law schools and journalism schools became more common. Furthermore, their impact was local, awakening a sense by many that the problem of injustice was not a distant [*639] or abstract one. Other states quickly followed suit and began exploring the use of DNA, considering innocence safeguards and even issuing moratoriums until some were put in place.

Baumgartner, DeBoef and Boydstun conclude that the innocence frame is the strongest in modern history, rising sharply in the late 1990s and transforming the death penalty debate. This transformation is supported by a changing media tone that has led to a slow but steady decline in support for the death penalty. This in turn impacts public policy.

The authors conclude with a discussion of the implications of an anti death penalty trend in media attention and public opinion. No doubt the focus of the book is on the innocence dimension rather than on the long standing public support for the use of capital punishment. Still the authors conclude that the future will bring a more restricted use of the death penalty. The US Supreme Court ruled in ATKINS v. VIRGINIA in 2002 that it is unconstitutional to execute the mentally retarded, and in 2005 in ROPER v. SIMMONS that it is unconstitutional for states to execute juveniles. The evolving standard of decency, which permeates death penalty discussion, includes the fallibility argument of wrongful conviction and executions. Just recently a de facto nationwide moratorium was created by the Supreme Court as it considered the legality of lethal injection in BAZE v. REES. The Court ultimately ruled that lethal injection was not a cruel and unusual method of execution. However in its next breath the Court found that executing convicted rapists violates the Eighth Amendment, leaving homicide as the only crime that is death penalty eligible (KENNEDY v. LOUISIANA).

Still today a majority of Americans support capital punishment. The book focuses on the affect the discussion of innocence has on subsequent support for the death penalty by policy makers, courts and the public. From 1973 to 2006, 123 individuals were wrongly convicted and sentenced to death. A bureaucratic institution that is managed by humans, making it fallible, may diminish its use in part due to the “discovery” of innocence. THE DECLINE OF THE DEATH PENALTY AND THE DISCOVERY OF INNOCENCE is a fascinating and refreshing look at capital punishment. I highly recommend it to any scholar versed in the case law. This scholarly work provides the reader an additional dimension in understanding the use of capital punishment in the United States.

CASE REFERENCES:
ATKINS v. VIRGINIA, 534 U.S. 304 (2002).

BAZE v. REES, 07-5439, decided April 18, 2008.

KENNEDY v. LOUISIANA, 07- 343, decided June 25, 2008.

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

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

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© Copyright 2008 by the author, Priscilla H. M. Zotti.

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THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW

by Steven M. Teles. Princeton: Princeton University Press, 2008. 385pp. Cloth. $35.00/£19.95. ISBN: 9780691122083.

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University. Email: roy [at] politics.tamu.edu.

pp.632-636

Sure, it was a coincidence but the timing could not have been better. The morning before I sat down to write this review, I received a solicitation letter from the Federalist Society asking me for a donation. The letter signed by Eugene B. Meyer, the organization’s president, pointedly quoted Steven Teles’ comment from his book that the “Federalist Society represents, without a doubt, the most vigorous, durable, and well-ordered organization to emerge from . . . modern conservatism’s political strategy.”

When Teles set out to document the stumbles, turning points, and successes of the conservative counter-mobilization against legal liberalism, his “first real breakthrough” came after Meyer let him loose to rummage through the Society’s internal documents. Other entrepreneurs in the conservative legal movement like Henry Manne, William “Chip” Mellor, and Clint Bolick fully cooperated with Teles, answering his questions and providing him with background documents. Equally important, pivotal financial patrons of the movement, like the Olin Foundation, followed suit. Finally, Teles decided to organize his research around the themes of strategy and entrepreneurship which he credits to conversations with Stuart Butler of the Heritage Foundation. No published study about the conservative legal movement of which I am aware can compete with the information, detail, perspectives, and stories that Teles has packed into his book.

Teles’ major stories pivot around the formation and evolution of the Federalist Society, the emergence and institutionalization of law and economics as part of law school curriculums, the Center for Individual Rights, and the Institute for Justice. Nested within these narratives are vignettes of other players and organizations that illustrate how patrons and entrepreneurs learned from their mistakes and redirected their strategies. Teles quickly alerts his readers that he not concerned with organizations like the American Center for Law and Justice that have been involved in religious or social conservative litigation. Nor is he interested in the thicket of conservative think tanks that sprouted up during the past three decades or in the proliferation of litigating groups with traditional pro-business agendas or interests in tort reform. The price of Teles’ tight focus, however, is easily off-set by the many benefits generated by his in-depth discussions.

The idea for a conservative legal counter-mobilization first surfaced in Lewis Powell’s confidential memorandum to the US Chamber of Commerce in 1971 shortly before Nixon nominated him to the Supreme Court. (Powell’s memo can be found at [*633] www.pbs.org/wnet/supremecourt/personality/print/sources_document13.html). Entitled “Attack of [sic] the American Free Enterprise System,” Powell argued America’s economic system was under “broad attack.” The “most disquieting” attacks were not those made by the usual left-wing or socialist suspects but those from “the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.” Powell urged the Chamber to confront the criticism especially in universities and colleges (including a “balancing of faculties”) and redirect the public agenda by creating incentives for “independent scholars who believe in the system” to publish more often and more widely. In a very real sense, Powell’s ideas foreshadowed Manne’s campaign to create law and economics centers in law schools and the Olin Foundation’s initiatives aimed at the elite schools as well as the network of conservative faculty and students created by the Federalist Society.

In a section called a “Neglected Opportunity in the Courts,” Powell cautioned that liberal and far left groups had been “far more astute” in recognizing the “judiciary may be the most important instrument for social, economic, and political change.” This could be a “vast area of opportunity” for the Chamber and the soon-to-be associate justice recommended that it hire “highly competent” staff attorneys to file amicus briefs in the Supreme Court or under special circumstances retain “lawyers of national standing and reputation” to participate in Chamber-sponsored law suits. The American Civil Liberties Union, civil rights groups, and liberal public interest law outfits like those created by Ralph Nader, offered off-the-shelf templates that conservatives could use to organize their counter-mobilization. As Teles explains, Powell implied that the fundamental problem was an imbalance in the interests appearing in courtrooms and that it could be righted by recruiting pro-business if not conservative “repeat players” and by a revival of “judicial restraint” on the bench.

Things did not play out as simply as Powell intimated. Following the formation of the Pacific Legal Foundation in 1973 with the support from the California Chamber of Commerce, several other regional foundations were soon created under the auspices of the National Legal Center for the Public Interest (NLCPI). This network was organized geographically, not functionally, and held together by interlocking directorships. The result was “organizational turmoil” because as one insider told Teles “NLCPI had all the structural flaws of the Articles of Confederation” (p.63). Equally telling, the emphasis on filing amicus briefs displaced coherent litigation strategies and put the foundations on fund-raising treadmills. Most damning of all for Powell’s business-led strategy were unexpected tensions between business interests and conservative ideology. As Adam Smith cautioned long ago, business interests are not synonymous with the public interest however it is defined.

Teles’ cameo study of the Mountain States Legal Foundation illustrates the point. With reliable funding from Joseph Coors, a long-time patron of right-wing causes, effective leadership in the early years by James Watts who later became President Reagan’s Interior [*634] Secretary, and a shared sense of grievance arising from the “Sagebrush Rebellion” in the Western states over the control of federal lands, the Mountain States Legal Foundation had several built-in advantages. Nevertheless it faltered because its business allies expected returns on their “investments” and the foundation often filed amicus briefs in response to particular contributions or to encourage new ones. Matters came to a head when the foundation challenged on First Amendment grounds Denver’s grant of an exclusive cable television franchise to a local businessman, a grant widely supported by the Mile High City’s business community. As an insider explained to Teles, the foundation’s suit “gored very powerful interests there, well connected to the Republican Party . . . Joe Coors resigned from our board [saying] . . . ’I founded MSLF . . . to take on the Sierra Club, not to do this sort of thing’” (p.65).

Soul-searching about the strategy behind the first generation of public interest firms began in the late 1970s when Michael Horowitz (subsequently chief counsel of the Office of Management and Budget during the first Reagan administration) submitted a highly critical report to the Scaife Foundation. The Horowitz Report redefined the goals of the legal counter-mobilization. Litigation alone could not dislodge legal liberalism. Ties to business interests tethered conservative public interest firms and held them back from taking the moral high ground. Amicus briefs were “pufferies intended for naïve audiences of donors and not truly doing meaningful work” (p.71). The aversion to basing organizations in Washington, D.C. had to be jettisoned in order to confront liberalism on its own turf. Most important of all, the movement needed to redefine itself along clear, consistent libertarian lines with long-term strategies that would appeal to underdogs caught up in unresponsive legal institutions like black beauticians struggling under state regulations or lower middle class whites whose houses were threatened by eminent domain. Conservatives had to become idealistic “good guys” limiting government and empowering civil society.

The Horowitz Report doused cold water on patron enthusiasm for funding conservative public interest law firms but in time the foundations used the report to restructure how these firms operated Two of these second generation firms are the subject of a separate chapter in which Teles compares the Center for Individual Rights (CIR), best known for its battles against affirmative action policies at the University of Texas and University of Michigan, and the Institute for Justice (IJ) whose fame soared after it turned defeat in KELO v. CITY OF NEW LONDON into a public policy success. While the two firms differ significantly in many ways, they share important similarities. For one thing, judicial activism no longer is a dirty word. Instead both firms see judicial activism as a means of reviving old rights to protect the conservative goal of limited government; property rights and eminent domain offer just one example. Clint Bolick (2007), co-founder of the Institute for Justice, recently argued in favor of judicial activism in a new book published by the libertarian Cato Institute. The firms, seeing the value in an activist bench, are accordingly more strategic in the cases they select and [*635] keep a steady eye on whether a case has the potential to change the public policy agenda or the law.

Horowitz, like Powell, stressed that a “key site” to contest legal liberalism was the university. In three chapters, Teles traces the winding, upward path of the law and economics movement and the seemingly inexorable growth of the Federalist Society. The law and economics story has two parts. The first deals with constructing the “mother ship” at the University of Chicago and the travails of Henry Manne to build law and economic centers at other universities and his final success at George Mason University.

Chicago legitimized law and economics. The JOURNAL OF LAW AND ECONOMICS, the sub-field’s first journal, started there and was later edited by Ronald Coase who won a Nobel Prize for his work. Chicago’s highly influential Anti-Trust Project provided fellowships supported by the Volker Fund, attracted law professors like Robert Bork, and revolutionized the field. Richard Posner with impeccable establishment credentials (Harvard Law and former Supreme Court clerk for Justice William Brennan) wrote ECONOMIC ANALYSIS OF LAW (published in 1973 and now in its seventh edition) in which he challenged myriad shibboleths in traditional legal research. In the meantime, Manne spread the gospel by pushing for new centers at other universities, aggressively marketed law and economics with help from the Liberty Fund by holding regular conferences that identified ambitious scholars and brought them into the conservative fold, and through the Economics Institute for Federal Judges introduced numerous judges to the fundamentals of micro-economics.

The second part of the story focuses on the Olin Foundation’s strategic deployment of its largesse aimed directly at faculty and students in elite law schools (most of Manne’s centers were at lesser-ranked schools) which solidified the stature of the law and economics sub-field and raised its status as a distinctive alternative to traditional and contemporary legal scholarship. Law and economics was not Olin’s first choice, however. As an official explained to Teles: “I would have preferred to do something in constitutional law but . . . [i]f you said to a dean that you wanted to fund conservative constitutional law, he would reject the idea out of hand . . . Law and economics is neutral, but it has a philosophical thrust in the direction of free markets and limited government. That is, like many disciplines, it seems neutral but it isn’t in fact” (p.189). Olin’s gamble on law and economics paid off handsomely in ways that Lewis Powell would have applauded. At Harvard, Olin’s support for law and economics provided money, academic panache, and camouflage for Harvard’s president who wanted to stymie the critical legal studies movement and mollify angry alumni in corporate law firms upset by the havoc they felt the “crits” were creating within the profession. Law and economics raised the research bar for hiring and tenure decisions and offered alternatives to law schools that altered the balance of power in their faculties.

The Federalist Society rang repeated alarms within the legal profession that Harvard Law was “out of control” and [*636] from its beginning the Society has been concerned generally about the placement of conservatives in law schools and out of them. Teles maintains in his chapter on the Society, however, that over the course of its twenty-five year history the Federalist Society has carved out an influential niche for itself by limiting its attention to creating and fostering complex networks of lawyers, faculty, law students, and foundation patrons that are held together by an emphasis on serious debate and discourse over ideas that challenge legal liberalism while avoiding right-wing factionalism. Eschewing the establishment of an in-house litigation center early on, the Society also decided not turn itself into a conservative clone of the American Bar Association despite earlier feelings that perhaps it should and despite its persistent criticisms of the ABA. These strategic choices (there were others at critical moments) were made by a stable, self-perpetuating cadre of long-serving leaders, including Eugene Meyer, who were present at the Society’s founding and are aligned with foundation executives and senior figures from the legal community.

Teles neither constructs a theory of the rise of the conservative legal movement nor tests one. Conceptual references are employed at various times but largely to locate the study within the existing literature. This by no means diminishes Teles’ accomplishment. Each of his multiple interlocking stories of the pas de trois between different conservative entrepreneurs, their patrons and financiers, and the institutions they either created or tried to change took place over several years and demanded clear precise detailing, which they duly received. Teles’ book is an important reference and the chief departure point for anybody seriously wanting to understand one of the most important transformations in contemporary legal history and politics.

REFERENCES:
Bolick, Clint. 2007. DAVID’S HAMMER: THE CASE FOR AN ACTIVIST JUDICIARY. Washington, D.C.: Cato Institute.

Posner, Richard. 1973. ECONOMICS OF LAW. Boston: Little Brown and Company.

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

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© Copyright 2008 by the author, Roy B. Flemming.

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WELFARE REFORM AND SEXUAL REGULATION

by Anna Marie Smith. New York and Cambridge: Cambridge University Press, 2007. 310pp. Hardcover. $85.00/£45.00. ISBN: 9780521820950. 288pp. Paperback. $29.99/£16.99. ISBN: 9780521527842. eBook format. $24.00. ISBN: 9780511292798.

Reviewed by Alice Hearst, Department of Government, Smith College, Northampton, MA. E-mail: ahearst [at] smith.edu.

pp.629-631

In the mid-1990s, Bill Clinton set out to alter “the culture of welfare.” Under his administration’s guidance, Congress abolished the Aid to Families with Dependent Children program and instituted a new series of programs under the Personal Responsibility and Work Opportunity Reconciliation Act, replacing AFDC with a block grant program entitled Temporary Assistance to Needy Families. In a system already noted for its miserliness, the TANF changes virtually erased any safety net for the poor. The limited statutory entitlements under AFDC were rolled back to a virtual vanishing point, and states were granted broad discretionary authority to structure their programs around devastatingly strict ‘moral’ requirements, as well as greatly enhanced powers to identify and pursue putative fathers for child support. As Anna Marie Smith argues in WELFARE REFORM AND SEXUAL REGULATION, the cumulative impact of these changes is profoundly eugenic: the poor are discouraged from reproducing altogether, leaving them available for work in the lowest wage sectors of the economy. By stepping up its moral policing of poor women, especially poor women of color – and through the bodies of those women, its policing of poor men – the state effectively isolates and controls a group that has always posed a threat to its stability and order.

Smith has meticulously assembled both facts and theory in this searing indictment of United States welfare policy. Reaching deeply into history and drawing upon Foucauldian notions of ‘biopower,’ Smith traces the state’s efforts to render poor populations legible and manageable. Since the Enlightenment, she notes, the poor have always been portrayed as brutish animals driven by ‘reckless profligacy,’ whose deviance requires control. Poverty programs, she notes, have ‘served as one of the key sites in which the emerging modern State apparatus . . . first developed modern population management and policing technologies” (p.25). A science of poverty has emerged that “degrades the poor while it advances an extraordinarily ambitious policing project [which] operates largely on a mundane level” (Id.).

In its present incarnation as ‘paternafare,’ Smith asserts, poverty policy renders poor women wholly dependent upon the state and the biological father. The policy operates on many, many levels to keep women in line: while the constellation of programs contained in the policy does little in real terms to reduce the plight of poor women and children (the incomes of [*630] most poor women with children are so low that even a minimal contribution in family income looks significant), it creates a network of information about the poor which makes them easily traceable and subject to continued supervision. To qualify for assistance, for example, a woman must assist the state in locating the biological father and assign her rights to support to the state. She must provide the state with the name of a putative father; the state in turn pursues a ‘child support’ action to yoke that biological father into repaying the state for benefits paid to his children and the children’s mother. Since the fathers of poor children and partners of poor mothers are typically poor themselves, such fathers often find themselves encumbered with financial obligations that follow them far longer than the mother’s stint on welfare. Payments continue to the state, not the family, until the debt is fully paid. Mother cannot negotiate for support once they leave the welfare rolls, because there simply are no more resources to be distributed. The child support provisions of the new policy, as Smith notes, masquerade as an egalitarian feminist position by requiring men to pay their fair share of the costs of child rearing. Yet, as she argues, the policies divert attention from the fact that “even the best designed child support system cannot, in and of itself, transform the wage labor market that locks a substantial number of these men and women into the lowest income brackets” (p.118).

Naming names for child support actions is just the beginning of the new policing mode. In several chapters, Smith painstakingly examines the full panoply of tools employed to scrutinize the intimate lives of poor mothers, from the imposition of family caps to marriage promotion programs to efforts to coerce poor women into surrendering their children for adoption. She systematically demonstrates the ways in which these efforts single out the poor women for surveillance, deny such women the privacy that women and families who are not dependent take for granted as a constitutional right, and, in instances where women may be fleeing from abusive partners, subject women and their families to increased risks of violence. She refutes the myths of greedy welfare mothers and deadbeat dads that are deeply embedded in contemporary discussions of welfare by a careful marshalling of facts. Throughout, she argues that the system is based on a patriarchal policy that wants to put the male back in control of the family and of sexuality itself.

In the last two chapters of the book, Smith sets forth a useful typology of five approaches to welfare policy with an eye to how much each model actually alleviates poverty, as well as how much each model encroaches on custodial mothers’ self-determination and intimate privacy rights. Not surprisingly, the paternafare model created in 1996 scores lowest on alleviating poverty and highest on intervening in mother’s lives. The next three models, the first based upon a model in operation in Wisconsin, the second akin to the models adopted in several European countries, and the third a set of proposals that Smith sees as possible with modifications to the Earned Income Tax Credit and TANF programs, are all deemed by Smith to be within the realm of possibility, and are increasingly effective at alleviating poverty while protecting the dignity and autonomy of poor mothers. Her fifth [*631] approach is a utopian ideal, modeled on a presumption that all caregivers should be valued and universally entitled to a living wage for that work, without discrimination based upon the caregiver’s marital status or other living arrangements.

WELFARE REFORM AND SEXUAL REGULATION is a compelling work; it is likely to become the gold standard in discussions of contemporary welfare policy. Deeply grounded in theory, it also manages to move pragmatic discussion about welfare policy forward. While I have some misgivings about what often seems to be a wholesale dismissal of the importance of connecting fathers to children under any circumstances, those disagreements are minor, and the points Smith makes about trying to assure women’s autonomy provide a convincing counterweight to those concerns. This book is a call for social justice that commands attention and respect.

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© Copyright 2008 by the author, Alice Hearst.

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ECONOMIC RIGHTS: CONCEPTUAL, MEASUREMENT, AND POLICY ISSUES

by Shareen Hertel and Lanse Minkler (eds). New York : Cambridge University Press, 2007. 420pp. Hardback $90.00/£45.00. ISBN: 97805210870559. Paperback $29.99/£16.99. ISBN: 9780521690829. eBook format. $24.00. ISBN: 9780511332319.

Reviewed by Andrew T. Hayashi, Department of Economics, University of California, Berkeley. Email: ahayashi[at]berkeley.edu.

pp.624-628

Unless one is already familiar with the history of human rights scholarship and the state of the field today, one will be struck when reading ECONOMIC RIGHTS about how frequently the discussion returns to certain fundamental questions underlying the research program. What is the source and justification of human rights? For any given answer to this question, is there a meaningful distinction between so-called negative and positive rights? Even if positive economic rights, such as the right to a decent standard of living, basic income, and work, are fundamental human rights, then should they be codified as justiciable legal entitlements? Are legally enforceable economic rights desirable or even feasible? The recurring appearance of these questions is perhaps because the distinction in the United States between legal rights to be free from interference and legal entitlements to certain benefits retains such currency. Yet, it is also apparent that there is no unanimity on these foundational questions even among the economic rights scholars represented in the volume. ECONOMIC RIGHTS contains numerous valuable insights and innovations, empirical and theoretical, for students and scholars interested in the rights-based approach to alleviating poverty and global injustice. Indeed, it has many contributions that will be helpful to anyone concerned with either development or distributive justice issues, regardless of one’s views about how to achieve them. However, the authors’ protestations about the settled philosophical status of economic rights and the importance of justiciability notwithstanding, I could not help but come away from this collection of essays feeling quite ambivalent about whether economic rights are the best way to secure freedom from deprivation for the global poor.

ECONOMIC RIGHTS is a collection of articles by various scholars from law, political, science, and economics that were initially prepared as papers for a conference on economic rights. Naturally, the methodological diversity of the articles in the volume reflects this. The volume is neatly divided into three parts, containing pieces on conceptual, measurement, and policy issues related to economic rights. The organization is excellent, both making the book easy to use as a reference for current research on these three subtopics, as well as providing a logical framework for partitioning the broad field of economic rights. As a result, the book is much more coherent than one would expect from a collection of essays of this sort. The writing is consistently very good, and although the essays on empirical [*625] methods require some basic familiarity with quantitative methods, none of the articles are beyond the reach of upper-level undergraduate students. Consequently, it should have a broad audience among students and scholars in the human rights and development fields.

The first section of the book deals with “concepts.” Although the section contains some interesting ideas, I only summarize them here to discuss the Measurement and Policy sections in greater depth. In the first chapter, Jack Donnelly provides a fascinating and eye-opening historical account of United States involvement in the negotiation of the Universal Declaration of Human Rights, as well as a discussion of the justiciability of economic rights. Wiktor Osiatyński then offers a novel and interesting approach to justifying rights based on the manner in which the protected needs are met. He argues that only those rights that require government action to fulfill should be protected by rights. Since, for most people, economic needs are satisfied through consensual market transactions, they do not need to be protected by rights (except for those who cannot meet their needs because of misfortune).

In Chapters 4 and 5, Albino Barrera and Michael Goodhart provide instrumental justifications for the enforcement of economic rights. Barrera argues that basic economic need fulfillment is necessary for human capital accumulation and that the accumulation is necessary for efficiency; however, he does not quite complete the argument and say that economic rights are necessary to satisfy economic needs . Goodhart then attempts to demonstrate that economic rights are necessary for emancipation and to be free from economic domination. In Chapter 6, Philip Harvey explores the quantitative dimension of the right to work and challenges the mainstream measurement techniques, arguing that there is a structural job shortage that persists even during boom-times. The article contains some very interesting data analysis and suggestions for alternative unemployment measures.

The measurement section of ECONOMIC RIGHTS will be of interest to anyone interested in research on global poverty regardless of whether they are on board with the rights-based approach of the book. The recurring theme throughout the section is the call for more disaggregated data, particularly cut along lines of traditional discrimination such as gender. Important information is lost in the use of such highly aggregated measures of economic welfare as GDP per capita or mortality and literacy rates at a national level and, in particular, they can obscure systematic and oppressive discrimination. In Chapter 9, Mwangi S. Kimenyi enhances the set of tools for measuring distributional effects by defining “pro-poor growth” and identifying a correlation between income inequality and pro-poor growth.

One of the distinctive measurement challenges faced by economic rights advocates is the “progressive realization” requirement of Article 2(1) of the International Covenant on Economic, Social, and Cultural Rights, under which countries are obligated to “undertake to take steps . . . with a view to achieving progressively the full realization of the rights [recognized in [*626] the ICESCR].” In order to adjudicate compliance with the requirement of the covenant, there must be some operational definition of what progressive realization looks like. Audrey R. Chapman and Clair Apodaca provide thoughtful discussions of the challenges of operationalizing “progressive realization.”

Recognizing that poor countries are less able to satisfy economic rights than poor ones, David L. Cingranelli and David L. Richards offer an interesting way of measuring the “effort” that a country is making toward satisfying those rights. They use the residual from a regression of a quality-of-life index on a country’s GDP and status with respect to the ICESCR as a measure of the government’s “effort” to meet basic needs conditional on its resources. The approach is similar in spirit to the idea that the Solow residual, the remainder after capital and labor are accounted for in determining national output, represents “technology.” As with the Solow model, labeling the regression residual “effort” is misleading, since it is reflects everything that is unexplained by the covariates. Nevertheless, it is important to identify a country that is underperforming relative to what we would expect based on its national income and treaty commitments, and at the very least should prompt investigation into the content of the residual.

The chapter by Shawna Sweeney seems somewhat out of place in the context of a section largely devoted to the difficult methodological and practical issues surrounding the measurement of economic rights violations. Rather than a methodological contribution, it is a substantive attempt to identify the correlates of women’s economic rights. Sweeney utilizes a country-level panel dataset and estimates an ordered logit model in which changes in a women’s economic rights index within a country are a linear function of variables that include the colonial history of the country, presence of military conflict, population, its output and openness to trade, and measures of political secularism and democracy. Based on what is reported in ECONOMIC RIGHTS, the results are extremely difficult to interpret. It is simply too hard to tell where the identification of the correlations is coming from. A single year? A small subset of countries? What is the distribution of the index of women’s rights across countries? Unlike ordinary least-squares regressions, the distribution of the women’s rights index matters for the ordered logit. Why were the errors not clustered at the country level to allow for within-country correlation in shocks? In general, cross-country comparisons rarely permit clean identification of causation. The analysis in this chapter does yield some interesting correlations that warrant further investigation, but it is somewhat regrettable that Sweeney occasionally slips from discussing the predictiveness of certain variables into ascribing causation or determinacy.

The final section of ECONOMIC RIGHTS is devoted to “policy issues” and contains several excellent essays that illustrate the greatest strength of the volume: the insights and views of scholars with decades of experience in the human rights field and first-hand observations of what works, and what doesn’t, in increasing freedom from deprivation. [*627]

The first two chapters of this section, by Sigrun Skogly and Mark Gibney, and Sakiko Fukuda-Parr, discuss the availability of international law to marshal trans-national support for economic rights. Skogly and Gibney argue that obligations to assist poorer countries in upholding economic rights arise from existing international law. Fukuda-Parr provides a very careful analysis of strengths and weaknesses of the targets and indicators in Goal 8 of the UN’s Millennium Development Goals. David Forsythe provides a fine counterpoise in Chapter 14, arguing that there are no international rights to assistance. He also thoughtfully discusses the proper expression of the priority of economic rights, noting that while education, for instance, is not constitutionally protected in the United States, that it has risen to the level of being a “constitutive commitment” that is a de facto right. This sort of flexibility in thinking about the implementation of economic rights is a valuable contribution to the volume.

Susan Dicklitch and Rhoda E. Howard-Hassman contribute a wonderful article in which they describe the effects of macroeconomic structural adjustment policies in Uganda and Ghana, documenting the beneficial effects of the reforms on productivity, infant mortality rates, life expectancy, literacy, and access to food and water. These reforms included enforcing private property rights and privatizing state-run enterprises, thereby reducing the ability of leaders to consolidate power and purchase political support through bloated government payrolls and statist economies. The piece is notably non-ideological, and
Dicklitch and Howard-Hassman provide extensive details about the institutions and economic conditions under which Ghanaians and Ugandans lived pre-reform and how the reforms affected incentives and outcomes. One of the other virtues of the article is the attention it draws to issues of corruption, instability, and political economy, which are otherwise largely absent in the book. The remarkable “on the ground” detail they report is exactly the sort that is often ignored in high-level policy discussions. Much more of this kind of research is needed.

The final two essays in ECONOMIC RIGHTS overlap in their discussion of child labor and workers’ rights, although they focus on very different aspects. Peter Dorman argues that in light of the economic cost of workplace injury, that there should be no presumption that higher standards for workplace safety would present an obstacle to growth in the developing world. Second, he attempts to estimate the economic costs and benefits of abolishing child labor. While the quantitative results are, in my view, highly speculative, the estimation is valuable because it makes an attempt to figure out how costly child labor might be (by one metric). Dorman raises important questions about labor market institutions which are, in any event, tragic.

Yet, we live in a world filled with tragic choices and Kaushik Basu provides a valuable warning about the “fallacy of binariness.” He argues that, in our rush to do away with terrible things, we must not be naïve about the possibility of still more terrible things following in their wake, and we cannot afford to be ideological when there are unavoidable [*628] conflicts between rights and other important objectives, and even as between rights themselves. More generally, he argues that we need to be wary about the tendency toward deontological principles and away from welfare considerations when thinking about policy for those in far-off lands. But the real contribution from Basu’s excellent article is a framework for thinking about when individual rights should be alienable, a contribution that is worth discussing briefly because it highlights a tension in the economic rights approach. The inquiry begins by discussing the consequences of allowing people to contract over a certain rights, such as the right to be free from hazardous working conditions. Individuals will sort; those who are willing to trade this right for greater compensation will do so, while those who value this right more highly will work at a lower wage in safer conditions. Those who are not willing to work in hazardous conditions receive a lower wage than they would if everyone were prohibited from trading this right and, in a sense, they pay a price. In answering the question whether a given right should be alienable, “maintainable” in Basu’s terms, we should ask whether it is the kind of right that people should have to pay a price to keep. But then we are left with the question about how to determine which rights are maintainable and which are inviolable, i.e. non-tradable. The analysis will likely be determined by two issues: how much the right is valued intrinsically, and how high a price people who do not want to trade the right will have to pay. It is hard to see how these questions can be answered in the abstract, or why they could better be answered by legal scholars or judges than through a political process that incorporates the facts on the ground, and the values of the community.

Basu does not, in the end, arrive at many firm conclusions, and neither had I after reading ECONOMIC RIGHTS. But then, the problems of global poverty and economic deprivation admit of no easy solution, and many of these essays do an excellent job of illuminating promising avenues of research and critically reflecting on an approach to economic injustice that is worthy of serious consideration.

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© Copyright 2008 by the author, Andrew T. Hayashi.

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SECURING CONSTITUTIONAL DEMOCRACY: THE CASE OF AUTONOMY

By James E. Fleming. Chicago: The University of Chicago Press, 2006. 335pp. Cloth. $45.00. ISBN: 9780226253435.

Reviewed by Ronald Kahn, Department of Politics, Oberlin College. Email: Ronald.Kahn [at] Oberlin.edu.

pp.610-623

James Fleming has written a creative, original, and thought-provoking theoretical treatise that seeks to meld process (democratic-reinforcing) and substantive individual rights bases into an explanation of the process of constitutional decision making by courts and by constitutional theorists. Fleming asks, “What form of democratic government does the Constitution as a whole embody – specifically, is it a scheme of constitutional democracy that guarantees substantive rights like autonomy, or, to the contrary, a scheme of majoritarian representative democracy that guarantees neutral processes for representing conflicting interests but no such substantive rights?” (p.3). The primary institutional question that Fleming considers is “What should be the role of courts compared with legislatures in deciding cases implicating moral disagreements in our morally pluralist polity?” (p.3). The primary objective of the book is to provide an “overarching substantive theory” that “firmly connects privacy or autonomy to the substance and structures of constitutional democracy and to the roles and responsibilities of courts and legislatures in protecting constitutional norms” (p.3).

In the introductory chapter, two basic elements or themes for a theory of securing constitutional democracy are presented: It must define how to secure “the basic liberties that are preconditions for deliberative democracy, to enable citizens to apply their capacity for a conception of justice to deliberating and judging the justice of basic institutions and social policies, as well as the common good,” and second, it must secure and define the basic liberties that are preconditions for deliberative autonomy, “to enable citizens to apply their capacity for a conception of the good to deliberating about and deciding how to live their own lives”(p.3). The primary objective is to afford everyone the status of free and equal citizenship in our morally pluralistic constitutional democracy. These themes reflect two bedrock structures of our constitutional scheme: deliberative political and personal self-government” (pp.3-4). In supporting autonomy rights granted in LAWRENCE v. TEXAS (2003) and PLANNED PARENTHOOD v. CASEY (1992), that is, not finding these cases “anomalous, unruly, or rootless,” Fleming seeks to “show that deliberative autonomy is rooted, along with deliberative democracy in the language and overall design of the Constitution. Each theme has a structural role to play in securing and fostering a constitutional democracy” (p.4). In doing so, Fleming provides a critique of and alternative to the process-perfecting theories of John Hart Ely and Cass Sunstein, which reject the centrality of substantive liberties except when they can be recast as [*611] procedural preconditions for democracy. For Fleming, substantive liberties, such as privacy, autonomy, liberty of conscience, and freedom of association are viewed as part of the Constitution, and not derived simply from democratic norms. These liberties are the basis for ensuring deliberative autonomy for the individual, with important implications for deliberative democracy. Drawing upon Rawls, while rejecting natural rights theory, Fleming provides a theory of “constitutional constructivism . . . which draws our principles and rights from our constitutional democracy’s ongoing practice, tradition, and culture” (p.6).

In Chapter 2 Fleming provides a critique of John Hart Ely’s process-perfecting theory that has often appeared in the literature: that Ely “avoid[s] giving effect to certain substantive constitutional provisions,” while denying its substantive basis (p.20). Fleming’s contribution is that he melds polity malfunction nodes of Ely’s theory to foundational rights principles in a way that informs both sides of the polity-rights divide among constitutional scholars and creatively links these constitutional theories to Rawls’ political theory. Fleming presents a fine overview of Ely’s theory. It is “a theory of representative democracy that is rooted in Dworkin’s principle of equal concern and respect”(p.25). Thus, for Fleming, Ely’s theory fails as a substantive theory because it “does not embrace substantive fundamental rights or values that lie behind the CAROLENE PRODUCTS framework”(p.25). Fleming seeks to remedy this problem. He views Ely as accepting the method and contents of Dworkin’s theory. Thus, it is a “process-perfecting theory,” that perfects representative processes, under the substantive value of equal concern and respect, which Fleming calls a “qualified utilitarianism rooted in equal concern and respect” (p.25). Chapter 2 is a critique Ely’s work at the level of substantive political theory, rather than “to belittle it as taking a pointless flight from substance to process [as Lawrence Tribe does], or to pontificate about the necessity of making constitutional choices in constitutional interpretation” (pp.26-27). Fleming criticizes Ely for “crying ‘substance’ too indiscriminately” (p.29). Fleming also argues that the problem with Ely’s theory is that it is merely a process-perfecting theory, and not a constitution-perfecting theory; therefore it does not give “meaningful effect to both the substantive and the procedural liberties embodied in our Constitution” (p.30). In a relatively few pages we review the major critiques of Ely’s process-perfecting theory, and how the Fleming constitution-perfecting theory builds upon, and significantly improves, our understanding of the substantive values in Ely’s theory. Here, unfortunately, and throughout the book, there is too much repetition of Fleming’s major argument and lesser points. There is no need to lead the reader so much when writing.

Chapter 3 offers a critique of Cass Sunstein’s process-perfecting theory, as enunciated in THE PARTIAL CONSTITUTION, as a way to demonstrate how Fleming’s constitution-perfecting theory is superior. Fleming argues that “Sunstein’s theory does not secure the preconditions for deliberative democracy, and that it recasts certain substantive liberties such as privacy, autonomy, and liberty of conscience as preconditions for deliberative democracy [*612] or, worse, leaves them out entirely” (p.9). Fleming continues, “Sunstein’s theory, like Ely’s, thus represents a flight from protecting substantive liberties,” and is partial, not whole because it would not fully secure the preconditions for deliberative autonomy. Furthermore, it is partial, not impartial, because it would not adequately protect citizens’ divergent conceptions of the good from coercive political power” (p.9).

Chapter 7 continues Fleming’s critique, in this case of Sunstein’s later work on judicial minimalism. It also criticizes Michael Sandel, who along with Sunstein provides “republican challenges to liberal theories of the sort that Rawls and I propound” (p.141). Fleming writes, “Sandel’s civic republicanism is too thick because it requires deeper agreement on goods and virtues than seems feasible, given the fact of reasonable moral pluralism, without intolerable state oppression. Conversely, Sunstein’s minimalist republicanism is too thin because, in the face of such pluralism, it settles for shallower agreement than is necessary to secure fundamental constitutional freedoms” (p.142).

Many scholars have made similar criticisms of Sandel and Sunstein, but Fleming’s contribution here is that he seeks a theory of constitution-perfecting that judges can follow that is neither too thick, nor too shallow. Fleming writes, “A theory like mine with affinities to Rawls’s theory is just right” (p.142). Analyses of LAWRENCE v TEXAS (2003) and privacy cases prior to LAWRENCE are skillfully used to demonstrate why Fleming’s theory is superior to those of Sunstein and Sandel. Moreover, Fleming argues that LAWRENCE is a synthesis of liberal and republican arguments, not unlike that found in his constitutional theory. Fleming makes the argument (perhaps too subtly) that this constitution-perfecting theory is not wide theorizing, because the Supreme Court in the late 20th and early 21st centuriew has followed its broad outlines.

I will speak to the problems that Fleming finds with Sunstein’s judicial minimalism, and less to Fleming’s accounts of Sandel and Rawls. Fleming writes, “Cass Sunstein objects that liberal theories like mine are too thick: they sponsor ‘maximalist’ constitutional interpretation by the judiciary and too deep a vision of the substantive Constitution” (p.142). Fleming does not like the fact that “For Sunstein, the domain of any substantive republic is outside the courts in the realm of deliberative democracy” (p.142). For Fleming, Sunstein’s call for minimalist Court decisions, incompletely theorized agreements on particular outcomes, and leaving issues undecided in order to allow political deliberation to proceed, forces the Court and Sunstein to “eschew both autonomy arguments about choices (such as those liberals like Ronald Dworkin and I make) and moral arguments about goods (such as those civic republicans like Sandel make)” (p.142).

Fleming opposes Sunstein’s argument that GRISWOLD v. CONNECTICUT (1965) and LAWRENCE v. TEXAS (2003) are too adventurous and too rooted in a moral argument for individual autonomy, and Sunstein’s calls for these decisions to be based on desuetude (a doctrine by which courts will decline to enforce laws that have [*613] fallen into a state of disuse, a condition Sunstein argues was met by the statutes at issue in both GRISWOLD and LAWRENCE). Sunstein’s minimalism as a method for deciding autonomy and privacy cases is viewed by Fleming as “a troubling withering away of the proper role and responsibility of courts as vindicators of constitutional rights;” “a disturbing retreat” from THE PARTIAL CONSTITUTION’s “potentially robust interpretation of the Equal Protection Clause” based on opposing laws “perpetuating second-class citizenship” in favor of “judicial incrementalism” (p.164).

Fleming makes a valid point when he argues that Sunstein’s judicial minimalism “constrains even the process of analogical reasoning” (pp.165-166), which for Sunstein is a process through which “a court must interpret the principle, rule, or standard that accounts for the result in the prior case and apply it to the new case” (p.166). Fleming interprets Sunstein’s theory of judicial minimalism as saying “Whether analogical reasoning takes a conservative or a critical view of social practices depends . . . not on the method itself, but on the ‘principles brought to bear on disputed cases’” (quoting Sunstein 1996, at p.194) (p.166). Fleming questions Sunstein’s theory of judicial minimalism because “There is reason to doubt that a court could engage in analogical reasoning or use a tool box of legal methods without recourse to some broader principle or grander theory in interpreting the proper scope of equality, whether it be an anti-caste principle (like Sunstein’s) [in THE PARTIAL CONSTITUTION] or the principle of equal concern and respect (like Dworkin’s)” (p.166).

Fleming’s critique of minimalism centers on Sunstein’s failure to respect robust implied fundamental rights (substantive rights) in the Constitution and on Sunstein’s vision of the limited institutional capacities of courts, as compared to more directly political accountable institutions, to decide divisive moral questions such as the right to marry for gays. Fleming writes, “They [courts] arguably would be abdicating their responsibility were they to side with Sunstein and against Dworkin on this dispute” (p.167). Finally, Fleming cogently argues that Sunstein’s judicial minimalism will not promote or enforce democratic deliberation. He writes, “Democratic deliberation about the common good is not the same as deliberation about the meaning and realization of constitutional principles and obligations, and it may well lead to flouting the Constitution outside the courts. Indeed, the Constitution properly interpreted outside as well as inside the courts may trump the common good and preclude deliberation about certain matters” (p.168).

The matters that Fleming is most concerned about that will be threatened by judicial minimalism are “questions raised by moral disagreement (especially about basic liberties)” (p.169). For Fleming, the Constitution “is not self-enforcing with respect to individual rights that are preconditions for the trustworthiness of the outcomes of the political process. Thus, a Constitution-perfecting approach to judicial review is warranted in these areas” (pp.169-170).

However, a problem with judicial minimalism that Fleming fails to address is the fact that Court decision-making is [*614] not simply about the selection and application of polity and rights principles, or concepts of the good, what I have called elsewhere internalist polity and rights principles (see Kahn 1994). Of equal importance is that the Supreme Court constructs the world outside the Court as it applies these principles. It is the mutual construction of polity and rights principles through their application to the lived lives of persons, through a process of analogy, which informs judicial decision-making (see Kahn and Kersch 2006). Fleming is correct when he makes the point that there is a “a disturbing retreat” in Sunstein’s work on judicial minimalism from THE PARTIAL CONSTITUTION’s “potentially robust interpretation of the Equal Protection Clause” based on the opposing laws “perpetuating second-class citizenship” (p.164). However, the more important problem with Sunstein’s judicial minimalism (and, I would add, with Fleming’s constitutional theory) is not simply the choice of the proper principle or constitutional rights theory, but rather his failure to recognize the importance to Supreme Court (and to lesser court) decision-making of the social construction process in which all courts are called upon to engage (see Kahn 2005). Most legalist constitutional scholars tend to center their analyses on the nature of equal protection and/or substantive due process principles (or theories of the good) as in Fleming’s case, or in utilitarian theory as in Sunstein’s case. They tend to tell judges what values and principles to follow.

Unfortunately, such theories do not model the process of Supreme Court decision-making in which there is a mutual construction of such principles in light of the lived lives of persons. This process forces non-originalist Justices, even conservative ones, to expand rights, even when policy predilections and the politics outside the Court would argue against the expansion of such rights. This mutual construction process is explored in the essays in Ronald Kahn and Ken I. Kersch’s THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT (2006). It is up to political scientists to view Supreme Court decision-making as a mutual construction of (internalist) principles and the world outside the Court when explaining Court action. We must do more than center our analysis on what legal or political theory the justices should follow. When we do this, constitutional theory will move beyond arguments about why one scholar’s set of principles or theory is best, to more careful explanations of why doctrinal change occurs – even when past principles and election returns augur against such change.

To his credit, Fleming rests his argument not simply on his view of the Constitution and constitutional theory, but on the fact that in LAWRENCE, ROMER, and other cases he sees the melding of deliberative autonomy and deliberative democracy values. Yet we need to ask what causes a conservative court in a conservative era to embrace such expansive values. It has something to do with the role of the Supreme Court in our constitutional system and its institutional norms and processes, and not simply an argument of what constitutes the good, which leads to these results.

In Chapter 4 Fleming outlines his theory of securing constitutional democracy by [*615] exploring the two primary themes of deliberative democracy and deliberative autonomy. More specifically, Fleming presents the rudiments of Rawls’ reformulation of his theory of justice from one of fairness to one of political constructivism, and then he transforms Rawls’ theory of political constructiveness into a theory of Constitutional constructiveness. That is, Fleming “uses Rawls’ guiding framework of equal basic liberties to help orient our deliberations, reflections, and judgments about our Constitution and constitutional democracy” (p.65). Fleming does not ask the reader to accept all that Rawls requires for there to be justice, nor does Fleming rely on Rawls as an authority for what the Constitution means (p.64). Rawls’ framework is used to argue that any theory of constitutional constructivism must support both deliberative democracy (and the place of courts and political institutions in a democracy) and deliberative autonomy, defined as “liberty of conscience, freedom of intimate association, decisional autonomy, decisional privacy, spatial privacy, bodily integrity, and an anti-totalitarian principle of liberty,” which are “the preconditions for personal self-government or for deliberation and decision by citizens – individually and in association with others – about how to lead their own lives”(p.72).

More than Sunstein in his work on judicial minimalism, Fleming accepts the requirement that courts should not accept the status quo as neutral. Fleming’s constitutional constructivism is dualist in several senses. It accepts the constituent power of “We the People,” as expressed in the higher law of the Constitution, as different from the ordinary power of the people in legislative bodies. Fleming writes, “[constitutional constructivism] preserve[s] the fundamental rights ordained and established by the higher law of the Constitution against encroachments by ordinary law.” Thus, it rejects monist views of our scheme, which emphasize popular sovereignty and majoritarianism over and against fundamental rights, and therefore equate popular sovereignty and majoritarianism with the British model of parliamentary sovereignty” (p.76). Constitutional constructivism is dualist in the second substantive sense of conceiving “the content of the higher law of the Constitution as a synthesis of the conflicting traditions of civic republicanism and liberalism” (p.76).

Thus, Chapter 4 is primarily an exposition of how these two traditions meld in his theory of constitutional constructivism. This melding becomes far clearer if one reads Chapter 7 before reading Chapter 4. Reading the chapters in this order also will make it clear to the reader in what ways there is a foot on the scale in favor of individual rights and liberalism over civic republicanism in Fleming’s theory of constitutional constructivism.

Chapter 5 “elaborate[s] the theoretical underpinnings and scope of deliberative autonomy in the matrix values of liberty of conscience and freedom of association” and “show[s] how a conception of deliberative autonomy can justify and impart coherence and structure to a list of familiar ‘unenumerated’ fundamental rights commonly classed under privacy, autonomy, or substantive due process” (p.11). In this chapter, the reader is [*616] provided with a clear notion of what Fleming views as the unenumerated or implied fundamental rights which constitute deliberative autonomy and a listing of cases where we can see such rights.

Fleming does a fine job in showing that these values inform the important majority opinions in PLANNED PARENTHOOD v. CASEY (1992) and LAWRENCE v. TEXAS (2003), and are less present in the opinion of originalist Justices. He builds on this case analysis to demonstrate his opposition to Ely’s and Sunstein’s process-perfecting theory, as well as Scalia’s and Bork’s originalism. Fleming ends the chapter with an analysis of what he means by deliberation, and why deliberative autonomy is necessary for individual and collective decision-making in a democratic society. He argues effectively why the search for a vision of deliberative autonomy is a bounded process; it is not simply deciding what higher law requires and applying such laws. Nor is it an out-of-control search for unenumerated rights. Fleming argues that it is limited to “significant basic liberties” (p.109).

Drawing on Rawls, Fleming writes, “Basic liberties are conceived as primary goods (or all-purpose goods) that in principle are significant to all persons, no matter what their conceptions of the good” (p.109). Unenumerated rights which should be allowed are those that foster deliberative autonomy and “the ordered reproduction of society over time, but nonetheless be prohibited from standardizing people with respect to such matters because they are so important” (p.110). The most important check on wild unenumerated rights for Fleming, is that in deciding on such rights they must overcome the hurdle of meeting the “compelling, important, or even merely legitimate interests” of society, while accepting “the general presumption [by Rawls] against imposing legal and other restrictions on conduct without sufficient reason” (p.110). Therefore, the controlling mechanism for battling wild unenumerated rights is their consideration in light of theories of liberty and the interests of society. There is little discussion of how the decision-making process and institutional norms of the Supreme Court and lower courts limit wild rights expansion by courts.

Chapter 6 is an important chapter. Fleming proposes a reconception of the substantive due process inquiry that is based on the recognition that ‘unenumerated’ fundamental rights are significant to deliberative autonomy. Fleming argues that principles embodied by the Constitution are “aspirational” in the sense that they may not be fully expressed, and may even be contradicted, by historical practice. Fleming provides a competent overview of what the “rational continuum of ordered liberty” has meant “from PALKO to LAWRENCE.” At the core of the analysis is a discussion of when the Court has viewed traditions as “aspirational principles” or “historical practices, narrowly conceived” (p.114). Fleming argues that PALKO, GRISWOLD v. CONNECTICUT (1965), and ROE v. WADE (1973) view traditions as aspirational principles, while BOWERS views tradition as historical practices, narrowly conceived. He than argues that in PLANNED PARENTHOOD v. CASEY (1992) and LAWRENCE v. TEXAS (2003), the [*617] Court returned to a third view of liberty – Harlan’s notion that there is a rational continuum of liberty that views tradition as a “living thing,” which is closer to aspirational principles than to historical practices (p.114). Fleming offers a valid critique of Justice White’s majority opinion in Bowers as narrowly conceiving due process inquiry as “a backward-looking question concerning historical practices, stripped of virtually any aspirational force or critical bite with respect to the status quo,” and Justice Scalia’s plurality opinion in MICHAEL H. v. GERALD D. (1989) as “an attempt to narrow the BOWERS due process inquiry even further” (p.115). Fleming applauds Justice Brennan’s criticism of Justices who view the Constitution not as a “living charter,” but as a “stagnant, archaic, hidebound document steeped in the prejudices and superstitions of a time long past” (pp.115-116). Thus, a “guiding framework” of Fleming’s constitutional constructivism is to view due process analysis as aspirational with regard to questions of deliberative democracy and autonomy.

Much of this chapter is a reformulation of Justice Harlan’s dissent in POE, and critique of majority, plurality, and dissenting opinions in GRISWOLD, CASEY, LAWRENCE as well as MICHAEL H. and WASHINGTON v. GLUCKSBERG (1997). LAWRENCE is viewed as a return to aspirational values after their denial in BOWERS. Therefore, constitutional constructivism, as seen in Kennedy’s majority opinion in LAWRENCE represents a return to a “CASEY-like understanding of aspirational principles and a repudiation of Scalia’s and Rehnquist’s conceptions of historical practices” (p.125). Finally, Fleming views “Constitutional constructivism’s guiding framework, with its criterion of significance for deliberative autonomy,” as “chart[ing] a middle course between Scalia – the rock of liberty as hidebound historical practices – and Charybdis – the whirlpool of liberty as unbounded license – in the due process inquiry” (p.126).

The central argument in the book is that, within substantive due process jurisprudence, one must consider both deliberative autonomy (substantive individual rights) and deliberative democracy (rights to political process), and accept that these are important homologous and related values in constitutional theory and practice. The separation between process and substantive rights values which informs most constitutional theory is rejected by Fleming. The operationalization of why this separation is not possible and has not been present in constitutional law, as seen in due process analysis, is a core contribution of this book. As explored above, to understand the relationship between these rights and polity principles one must move beyond a grand constitutional theory and discussion of cases; one must provide a systematic theory of the social construction process over time and compare them among doctrinal areas.

Part III of the book explores how Fleming’s theory could be adjusted in the following ways: to secure the family of basic liberties as a whole (Chapter 8), to preserve the constitutional order itself in circumstances of war and peace (Chapter 9), and to perfect the Constitution through the pursuit of what Fleming calls “‘happy endings’ in [*618] constitutional interpretation” (p.13) – that is, “perfecting our imperfect Constitution” (p.15). Part III is less successful than Parts I and II. With each chapter, the reader gets further and further from arguments exploring directly the theory of constitutional constructivism, and its core substantive elements, found in the first seven chapters

Chapter 8 draws upon Rawls to argue that the Court must center constitutional analysis on the clash of higher order values or basic rights principles as a whole, and not at the level of the pursuit of conceptions of the public good in utilitarian terms or the imposition of perfectionist values (p.174). Therefore, no basic liberty value by itself is absolute. By way of example, Fleming argues that the First Amendment should not be read as including absolutist principles of the right to political speech but, when implicated, requires the other basic principles in the Constitution be considered when deciding First Amendment Cases. Fleming centers on how he would decide cases involving the clash of freedom of expression, under the First Amendment, and the concern for equal citizenship under the Equal Protection Clause. He criticizes BUCKLEY v. VALEO (1976) and FIRST NATIONAL BANK v. BELLOTTI (1978), cases which invalidate campaign finance limitations, R.A.V. v. CITY OF ST. PAUL (1992), which found an anti-bias (hate speech) law to be unconstitutional, and BOY SCOUTS OF AMERICA v. DALE (2000) which allowed the Boy Scouts to prohibit homosexuals from its ranks, as too absolutist in defining what First Amendment speech requires.

Fleming argues that the Court should have decided such cases in terms of securing the right of equal citizenship as well as First Amendment speech rights, since both of these rights are required if the Constitution is to protect both deliberative autonomy and deliberative democracy, the two keynote themes in his theory of constitutional constructivism. The Court must consider all basic liberties at issue in a case, that is, take all basic rights seriously. Moreover, justices should not balance at the level of utility as Justice Frankfurter or and Sunstein would have us do. Constitutional constructivism “gives priority to the family of basic liberties as a whole and thus stringently protects not only the political liberties associated with deliberative democracy but also the personal liberties associated with deliberative autonomy” (p.179). Personal self-government and political self-government are important values which support each other. Under such a framework, ROBERTS v. UNITED STATES JAYCEES (1984), which required the Jaycees to include women as full members, was correctly decided. For, unlike the above cases, in ROBERTS the Supreme Court refused to view the regulation of freedom of association as simply an individual or group First Amendment issue, but rather viewed it as equal protection and First Amendment issues.

Fleming writes, “We should treat ROBERTS as an archetype of how the Court might frame clashes between freedom of association and equal protection, and how it might secure the core or central range of application of both freedoms, rather than privileging the former to the exclusion of the latter.” While Fleming seeks to make arguments [*619] on the basis of how the Supreme Court should apply basic polity and rights principles in order to secure deliberative autonomy and deliberative democracy, when one looks more deeply into his analysis of cases, one finds that the decision points, or the bases for his conclusions about how to decide such cases, seem to be more at the level of what I would call a basic constitutive social construction process, in which analogies from past practices and cases play an important role in making constitutional choices. For example, Fleming seems to argue that ROBERTS was rightly decided, not simply because it was based on equal protection and First Amendment principles, but also because of the social facts in the case, that the Jaycees “had failed to demonstrate that the Act imposes any burdens on the male members’ freedom of expressive association” because the Jaycees “already had admitted women as junior members and invited them to participate in their training and community activities” (p.190). This example raises questions for me, not about the need for the Court to look at both First Amendment and equal protection values in such cases. Rather, it raises questions as to whether the choices are made at the level of principle or at the level of past practice, or rather at the level of the application of social facts to these principles, through a process of analogy. If the Jaycees had not allowed women in at all, would that have tilted the decision for associational expression?

Moreover, the BOY SCOUTS case is criticized for not recognizing that the New Jersey legislature and its Supreme Court “implicitly had adopted the view that the state has a compelling interest in eliminating discrimination on the basis of sexual orientation in public accommodations” (p.192). Fleming writes, “Even if the Court were not ready to go all the way with ROBERTS and hold that a compelling government interest was present in BOY SCOUTS, it should have taken a few steps in that direction, given its decisions in ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003),”cases which “manifested some concern for government’s securing the status of gays and lesbians as free and equal citizens” (p.192). The core of this argument is not simply a theory of democratic autonomy and deliberation, but also the importance of precedent and prior behavior in deciding cases. Fleming considers additional points in comparing the relationship of the Jaycees to women and the Boy Scouts to homosexuals. Therefore, we see in Fleming’s preferred method for deciding these cases the acceptance of the fact that the social construction process leaves much room for courts to decide cases for or against a minority, whether they use First Amendment and/or equal protection principles. Moreover, Fleming admits the choice by courts is wide and accepts the legitimacy of courts coming up with decisions different from what he would like.

Therefore, all that Fleming seems to require of jurists is that, at a theoretical level, they take both sets of rights or multiple sets of rights principles seriously. It is up to courts to make decisions, and they may have a different view from Fleming’s. This suggests that we need a deeper theory of application of the core principles in Fleming’s theory, to ensure that both sets of values are applied in ways that secure basic [*620] rights, rather than just the view that courts consider such rights principles in their decision making.

BOWERS is an easy case to criticize, because it did not really engage in a decision-making process that took seriously prior privacy cases. JAYCEES, BOY SCOUTS, and R.A.V. are harder cases, for, although members of the Supreme Court did consider both equal protection and First Amendment rights and thus did meet Fleming’s concerns against making choices only on First Amendment absolutism, it chose to respect equal protection principles only in the JAYCEES case. Fleming does not offer clear arguments as to why the BOY SCOUTS and R. A. V. cases violate rights basic to deliberative autonomy or deliberative democracy. Most importantly, the relationship between autonomy and democracy in these cases is not linked to the wider theory of constitutional constructivism that is presented in the first seven chapters. Fleming calls for the Court to consider both First Amendment and equal protection principles in such cases but does not explain why the failure to consider both undercuts his theory of constitutional constructivism.

Chapter 9 moves further from Fleming’s constitutional theory. It is a justification for why it is permissible to move away from the Constitution in periods of war and crisis, as a means to preserve the constitutional order for a later day. Drawing upon familiar themes invoked by Abraham Lincoln to justify putting the Constitution aside (as he did at the start of the Civil War), and James Madison to argue why it was permissible to use a ratifying process for the Constitution (which was unconstitutional in terms of the Articles of Confederation), Fleming argues that BUSH v. GORE (2000), which settled the 2000 Presidential Election, and the incarceration of “persons that planned or aided terrorist acts” “as the President determines,” were justifiable. Fleming argues that in war and crisis, there is an affirmative obligation to secure the preconditions for constitutional democracy, as long as the President and nation restore the Constitution when the nation is no longer in war or crisis. Because the Constitution is only an imperfect “means to the ends of our constitutional democracy” (p.197), its principles may properly be violated in extraordinary circumstances in order to preserve the Republic and further those ends. The problem with the chapter is that only the bare outline of this argument is made and alternative views are not seriously considered. An additional shortcoming of this chapter is that in no way is it related to the more general constitutional theory presented in the book, and the author admits this. Fleming writes, “Unlike previous chapters, I do not elaborate or apply constitutional constructivism’s guiding framework to secure basic liberties associated with constitutional democracy. Rather . . . I reflect on whether there are circumstances in which, to preserve or restore the conditions of constitutional democracy itself, it may be justifiable to violate the Constitution” (pp.195-196). There is not even a discussion of the range of preconditions that would warrant the waiving of the basic liberties which Fleming claims are so important to him. The only transformative, aspirational element in this chapter is the notion that conservatives no longer, without being hypocrites, can view the Constitution as [*621] containing only negative rights against government, since in BUSH v. GORE (2000) they have argued for a positive right of protecting the welfare of the nation from crisis. Fleming considers whether a reconsideration of DESHANEY v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICE (1989) and the presence of positive rights, such as the right to welfare for citizens, lies in the future. I think not. One would at least have to provide a full definition of constitutional principles and their construction through time to make the arguments that Fleming seeks to make in Chapter 9. No such arguments are offered.

In Chapter 10, Fleming returns to make an argument for his happy-ending Constitution-perfecting theory. He argues against Levinson’s critique of happy ending theories, Ackerman’s dualist theory where justification is from “We the People” in action and not foundational principles, and in favor of Sager’s view that constitutional justice is to be viewed as a subset of all political justice. However, unlike Levinson, Ackerman, and Sager, Fleming refuses to center on the imperfections of the Constitution, which he admits do exist. Rather, he writes, “We should aspire to interpret the Constitution so as to make it the best it can be” (p.211). Realizing that unlike the German Constitution, in our Constitution basic rights are not entrenched; that is, they may be changed by Article V amendments. The goal for Fleming is to resist constitutional tragedies and imperfections, which include Court decisions that lead to “the imperfect provision for affirmative liberties,” “the failure of the constitutional order (for example, the failure to generate the civic virtue necessary for citizens to affirm basic liberties which might lead to the breakdown of the wall of separation between church and state or more generally to a culture war that imperils basic liberties),” “a decision in constitutional law that has horrible consequences for the lives of particular citizens or groups,” a decision that has disastrous consequences for interpretive method and for the development of doctrine,” and a decision which reduces our political system from a fair scheme of equal participation to a veritable marketplace if ideas” (pp.220-221).

For Fleming, there are three senses in which a constitutional tragedy may exist. One sense, is “If the “Constitution were to allow or require terrible evil of grave injustice, and if fidelity to the Constitution were to mandate complicity in such evil and injustice” (p.221). Fleming views the original Constitution’s protection of slavery as the best example of this first sense. A second sense of the tragic is “If the Constitution were wrongly interpreted to sanction a terrible evil of grave injustice, when in fact the Constitution, rightly interpreted, allows or requires a good outcome or happy ending” (p.221). Fleming views PLESSY v. FERGUSON (1896) and BOWERS v. HARDWICK (1986) as such cases. A third sense of the tragic are cases which present “tragic issues” or necessitate “tragic choices,” when the Court must “reconcile two rights in order to prevent either from destroying the other,” as found in the flag salute cases (p.221). Fleming concludes the book by arguing that WASHINGTON v. GLUCKSBERG (1997), which did not protect the right to die, including the right of terminally ill [*622] persons to physician-assisted suicide, is a tragic case in all three senses. At the core of this tragedy is what I believe is at the core of Fleming’s theory: the right to individual autonomy over self from the state, thus allowing the individual “to live autonomously rather than as a mere creature of the state or God,” a right of “self-authorship,” and the right of citizens to be “the authors of their own tragedies” (p.224).

Thus, the object of this nuanced constitutional theory is to provide the best account of the Constitution to produce happy endings, defined as fostering democratic autonomy, and its close, but secondary, relative, democratic deliberation.

Finally, this is one of the very best theories I have seen which seeks to make sense of the relationship between core rights and polity principles in our liberal-republican Constitution and does so by looking at hard cases. However, this constitutional theory needs more precise linkages to the process of Supreme Court decision-making, through time and in additional doctrinal areas to sustain its soundness and authority.

REFERENCES:
Kahn, Ronald, and Ken I. Kersch. 2006. THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT. Lawrence, KS: University Press of Kansas.

Kahn, Ronald. 2005. “Why Lawrence v. Texas (2003) Was Not Expected: A Critique of Pragmatic Legalist and Behavioral Explanations of Supreme Court Decision Making.” In H.N. Hirsch (ed), THE FUTURE OF GAY RIGHTS IN AMERICA. New York: Routledge: 229-264.

Kahn, Ronald. 1994. THE SUPREME COURT AND CONSTITUTIONAL THEORY, 1953-1993. Lawrence, KS: University Press of Kansas.

Sunstein, Cass. 1996. LEGAL REASONING AND POLITICAL CONFLICT. New York: Oxford University Press.

Sunstein, Cass. 1993. THE PARTIAL CONSTITUTION. Cambridge, MA: Harvard University Press.

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

BOY SCOUTS OF AMERICA v. DALE, 530 U.S. 640 (2000).

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

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

DESHANEY v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICE, 489 U.S. 189 (1989).

FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 435 U.S. 765 (1978).

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

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

MICHAEL H. v. GERALD D., 491 U.S. 110 (1989). [*623]

PALKO v. CONNECTICUT, 302 U.S. 319 (1937).

PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).

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

R.A.V. v. CITY OF ST. PAUL, 505 U.S. 377 (1992).

ROBERTS v. UNITED STATES JAYCEES, 468 U.S. 609 (1984).

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

ROMER v. EVANS, 517 U.S. 620 (1996).

US v. CAROLENE PRODUCTS, 304 U.S. 144 (1938).

WASHINGTON v. GLUCKSBERG, 521 U.S. 702 (1997).

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© Copyright 2008 by the author, Ronald Kahn.

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THE BEST INTERESTS OF THE CHILD IN HEALTHCARE

by Sarah Elliston. New York: Routledge-Cavendish, 2007. 328pp. Hardback. $190.00/£49.00. ISBN: 9781844720439. Paper $53.95/£25.00. ISBN: 9781844720422.

Reviewed by James G. Dwyer, Marshall-Wythe School of Law, College of William & Mary. Email: jgdwye [at] wm.edu.

pp.605-609

Sarah Elliston, a lecturer in medical law at the University of Glasgow, has produced an accessible treatise-like work that should serve as a useful reference for British academics in law and medicine and as an engaging introduction to the law governing medical decision making for children for a general British audience. After an opening chapter in which she identifies many of the difficult ethical questions that arise with more serious medical interventions for children, Elliston presents five additional chapters, in each of which she summarizes the law and empirical literature relevant to answering one or more of these questions: when should children themselves have the power to decide whether they will receive medical care, how should decisions be made by others for a child who is too young to be given that power, when should a parent have the power to refuse treatment for a child against the recommendation of medical professionals, to what extent should genetically impaired infants receive life-prolonging treatment, and when is it permissible to use one child to benefit others – in particular, as research subjects or as organ donors?

These questions are perennial ones in the legal system, and doctrine is continually developing. I am an American legal academic not much familiar with UK law in this arena, so I cannot judge whether Elliston’s book is the best reference on these topics, but she culls a great number of court decisions and offers plausible interpretations of UK statutes and of international legal texts. I was left with the impression that the book is thorough and reliable, and therefore that is will be useful to any who wish to know the current state of the law in the UK. Elliston does discuss some decisions of the European Court of Human Rights, which would be pertinent throughout Europe, but for domestic laws she generally confines herself to the UK, so the proper audience for her discussion of legal rules is limited to the UK. As a reference work for a UK audience, then, Elliston’s book appears to be a success.

Elliston also aims to make the book something more than just a treatise. In the first, quite lengthy, chapter, Elliston undertakes to advance normative positions on the ethical questions she identifies, to establish a framework for evaluating the legal rules and decisions she discusses throughout the rest of the book. Normative analysis transcends geographical boundaries and legal jurisdictions, so success in this undertaking would make Elliston’s book a worthwhile read for a much larger audience. In this respect, though, success is much more difficult to achieve, and I was not satisfied that Elliston had done so. The positions [*606] Elliston takes, as to fundamental questions such as who has what moral rights in connection with medical decision making for children and what is a proper substantive rule for effectuating any rights of children, are plausible and, in fact, popular ones. She adds some gravity to them by her rich account of real world dilemmas. But ultimately she fails to back her positions with convincing arguments, and at times she simply asserts what her view is without offering reasons why others should share her view. Thus, readers who are well versed in the philosophical literature addressing parent-state conflicts over child rearing or who are looking for a serious theoretical analysis of the ethical issues raised by medical decision making for children are likely to find the normative aspect of Elliston’s otherwise fine work disappointing.

Examining the largest of Elliston’s normative claims will illustrate how I believe the book falls short in striving to be more than a treatise. At the outset of the book, Elliston attacks the best interests test as inappropriate for judicial adjudication of disputes between two parents or between a parent and medical professionals concerning medical interventions on children. Instead courts should “be concerned only with ensuring that significant interests of the child are not put at risk and that the decisions made by parents meet a reasonableness standard” (pp.2-3). Elliston thus appears to advocate a two-part legal test, authorizing courts to override parental wishes if they find either that parental wishes would put a child’s welfare at risk or that a parent is being unreasonable. Elliston suggests that her adopting a harm-to-child or parental-unreasonableness test is “heretical” (p.2), and it might seem so against the backdrop of the GILLICK decision and the Children Act of 1989 in the UK, which dictate that in matters involving the “care and upbringing of a child” the child’s welfare must be the “paramount consideration.” But many political theorists have asserted such a position, and numerous other court decisions in the English-speaking world reflect a harm or unreasonableness test rather than a best interests test. (Dwyer 1996). Elliston herself cites several British scholars who have taken this position and notes that such an approach “is already prevalent in healthcare practice” (pp.2-3).

Risk to significant interests has fairly concrete meaning, but what is “reasonableness” in this context? None of the theorists Elliston cites has spelled out and defended a particular conception of parental reasonableness, and Elliston does not either. If her target is just court decisions in which judges conclude that a parent’s wishes are reasonable but they are going to override those wishes anyway, then she might not need to supply her own definition of reasonableness. She can simply argue that parents’ views should receive deference when everyone agrees the views are reasonable, at least so long as courts are deploying a plausible notion of reasonableness, such as “not clearly contrary to the child’s overall welfare or best interests as determined by the courts after receiving evidence from all concerned parties.” Elliston is not likely to receive much resistance to a position that, when it is unclear which course of action is better for a child, courts should let parents decide. But that is rarely true in litigated cases; typically when judges rule against parents in conflicts between [*607] them and medical professionals, they find that the parents’ wishes are clearly contrary to the child’s best interests and are ipso facto unreasonable. To criticize such rulings, Elliston would need to supply and defend her own, alternative definition of reasonableness, but she does not do so. The reasonableness prong of her test thus appears to be vacuous and/or of little practical significance.

Elliston better articulates and defends her position that courts should override parental wishes only to avoid risk to significant interests, rather than on the basis of a best-interests analysis. The arguments she offers for the position have had sufficient currency in legal scholarship to justify characterizing them as familiar. The first rationale is that applying a best interests test “usurps the legitimate authority and function of parents” (p.3). Elliston’s primary reason for adopting this test is not, therefore, the child-centered one that courts should override a parental decision only to avoid significant harm to the child because otherwise the cost of intervention for the child (e.g., parental anxiety, litigation expenses for the family, delayed resolution of stressful situations, and so on) would exceed the benefit. Such a child-centered rationale would be an entirely plausible – indeed, arguably irrefutable – rationale. In fact, if one assumes such costs for the child are always present, a risk-to-significant-interests test might in practice be indistinguishable from a best-interests test. Depending on how great one thinks those costs are, one might even think Elliston’s test as quoted above is insufficiently deferential to parents even from a child welfare perspective, for it seems unlikely that a parent-parent or parent-doctor dispute would ever end up in court unless a parent’s wishes clearly threaten some significant health interest of a child. For example, within a best-interests framework, a court might well conclude that it should not order Christian Scientist parents to have their child receive certain vaccinations, because doing so would cause all members of the family (including the child) to experience great anxiety about the fate of the child’s soul. But a court applying Elliston’s risk-to-significant-interests test might well conclude that it should override the parents’ religious objection, because failing to receive vaccinations straightforwardly creates a risk of serious disease for the child. Elliston appears not to have thought through how exactly her test differs from a best-interests test, but on the surface her test appears unacceptably incomplete, focusing only on the potential costs of non-intervention and ignoring the potential costs of intervention. Elliston also is not consistent in articulating the test, for at other points she expresses it in terms of “significant risk of serious harm,” which would likely produce in many cases outcomes different from what a “risk to significant interests” test would produce.

Elliston’s rationale for her test, though, is adult-centered rather than child-centered, appealing to parents’ “legitimate authority and function.” In fact, she states outright that parents should be empowered to compromise children’s welfare in order to vindicate the parents’ “own rights to determine the values that are important to them in raising their children” (p.37). Elliston never identifies the source of such a parental entitlement to effectuate their values through control of a child’s life, [*608] nor does she explain why a court should view parents’ authority and function as encompassing a power to do what the court believes to be clearly detrimental (though not “seriously” so) for the child. There seems implicit an invocation of some natural right of parents to sovereignty over their offspring. Elliston’s repeated use of the term “parental autonomy,” which is actually an oxymoron (because “parental” means “related to directing the life of a child” and “autonomy” means “power to direct one’s own life”), suggests that she views children as mere extensions or appendages of their parents rather than as persons in their own right. The notion of a natural parental right of dominion over offspring remains a popular notion, to be sure, but in the face of serious critiques of natural rights in general and of parental entitlement in particular in the contemporary philosophical literature, anyone aiming to defend a normative position like Elliston’s today would need to make such an invocation explicit and engage the philosophical literature. (Dwyer 1998, ch.3)

Elliston also maintains, by way of support for a harm test, that best-interests decision making is indeterminate. It is too uncertain, she maintains, what a child’s welfare entails, and “[g]iven the unavoidable lack of precision in this area, the values and preferences of decision-makers are bound to enter into the equation in judging whether the predicted outcomes are what are best for the child” (p.17). She cites by way of authority for this criticism several notables of family law scholarship, such as John Eekelaar, Robert Mnookin, and Jonathan Herring. I have responded at length elsewhere to criticisms of the best-interest test (Dwyer 2006, ch.7), but rather than reiterate the defense here, I will simply note that Elliston’s proposed substitute test is hardly more determinate. Courts are to assess in part whether parents’ decisions are “reasonable,” yet as noted above, Elliston provides little clue as to what that amorphous term means. She suggests in one passage that parents act reasonably when they balance the child’s welfare against competing interests within the family, including the parents’ own (p.37). But surely the parents would have to do this balancing in a rational and fair manner to deem it reasonable. If judges therefore must assess whether parents have done a rational and fair balancing, then in practice judges would still have to assess what is in the child’s best interests (to know whether and to what degree the parental choice compromises it), and in addition would need to determine independently what is in the interests of other family members (some of whom might also be children) and also what weight should be given to other family members’ interests. That would simply multiply the opportunities for judges’ subjective views and biases to infect decision making. The best interests test, by comparison, limits judicial discretion by narrowing the proper focus to one person’s welfare. Likewise, asking judges to decide when a parental decision poses “a risk” to “significant interests,” or poses a “significant risk” or “unacceptable risk” of “serious harm,” calls upon them to make highly subjective decisions. Do children have a significant interest in not getting the chicken pox, thus authorizing a court to order vaccination against the disease despite parental objection? Is a pregnant teen seriously harmed by being forced to carry the baby to term? [*609]

By way of further condemnation of the best-interests test, Elliston makes the common criticism that, in applying a best interests test, judges in practice sometimes covertly let other considerations, and in particular the interests of other parties infect the decision making (p.22). The most common example might be the sympathy many judges feel for mothers who manifest great distress at the prospect of having to spend much time away from their children. Such sympathy might be some part of the explanation for why primary paternal custody is rather rare. But it is a non sequitur to reason from the premise that courts do not fully apply a best interests standard to a conclusion that they should instead apply some other standard, one that ostensibly invites judges (by virtue of a “serious harm” standard) to subordinate the child’s welfare more often to the feelings and desires and interests of parents, and one that encourages judges (by virtue of a parental reasonableness test) to focus on the parents’ state of mind instead of on the child.

In sum, the normative discussion in the first chapter of this book is underdeveloped and does not add to the extant theoretical literature addressing state limitations on parental discretion. The strength of the book is rather in supplying a useful reference for a UK audience and in pointing to concrete decision making contexts in which it is especially difficult for courts to apply a best interests test. Hopefully the shortcomings of the normative dimension of the book will not prevent readers from benefiting from the rich legal and empirical presentations.

REFERENCES:
Dwyer, James G. 1996, “The Children We Abandon: Religious Exemptions to Child Welfare and Education law as Denials of Equal Protection to Children of Religious Objectors,” NORTH CAROLINA LAW REVIEW (74) 1321-1478.

Dwyer, James G. 1998. RELIGIOUS SCHOOLS V. CHILDREN’S RIGHTS. Ithaca, NY: Cornell University Press.

Dwyer, James G. 2006. THE RELATIONSHIP RIGHTS OF CHILDREN. New York: Cambridge University Press.

CASE REFERENCE:
GILLICK v. WEST NORFOLK AND WISBECH AREA HEALTH AUTHORITY, [1986] 1 AC 112.

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© Copyright 2008 by the author, James G. Dwyer.

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DEAD CERTAINTY: THE DEATH PENALTY AND THE PROBLEM OF JUDGMENT

by Jennifer L. Culbert. Stanford, CA: Stanford University Press, 2007. 248pp. Cloth. $55.00. ISBN: 9780804757454. Paper $21.95. ISBN: 9780804757461.

Reviewed by James R. Acker, School of Criminal Justice, University at Albany. Email: acker [at] albany.edu.

pp.601-604

You do not want this book for your Death Penalty 101 class.

Jennifer L. Culbert, an Assistant Professor in the Department of Political Science at Johns Hopkins University, holds a PhD in Rhetoric. In this book she uses the Supreme Court’s capital punishment jurisprudence as a vehicle to study “the problem of judgment,” an inquiry that dissects the language and methodologies used by the justices in their evolving efforts to legitimate decisions resulting in the penalty of death. This terrain is fertile because of the manifest difficulty in achieving consensus about what conduct, committed by which individuals, under what circumstances, merits the ultimate punishment. The conceptual ambiguities of these boundaries are compounded by the limitations of the lexicon on which we must rely to capture them, and our inevitable dependency on fallible actors within the justice system to implement them. These are the very conditions under which the problem of judgment becomes most acute: “where shared criteria for determining what is good or just are lacking” (p.3), we cannot rely on rote formulas and mechanical classification. Judgment must be exercised. “How we understand the validity of the claims we make, and how we expect others to accept and respect these claims (particularly when these claims may lead them to harm) is the question with which this book is concerned” (p.3).

How, then, to reveal the complexities involved in the problem of judgment? Culbert invokes Friedrich Nietzsche’s history of metaphysics, “How the ‘Real World’ at last Became a Myth: History of an Error,” as set forth in TWILIGHT OF THE IDOLS (1998). She does so because the problem of judgment, first and foremost, is metaphysical in nature, which is to say that it fits within “the philosophical study of the fundamental nature of reality and being” (p.4).

If these early signals do not alert readers that this is not your typical death penalty volume, they will soon discover that Nietzsche is merely the protagonist in an extensive cast of distinguished philosophers. In chapter one alone we are introduced to Plato, Kant, Mill, Habermas, Heidegger, Arendt, and Foucault, among others. Many more will follow. The challenge is to move seamlessly from Zarathustra to ZANT v. STEPHENS (1983), from Max Weber to MCGAUTHA v. CALIFORNIA (1971), from CRITO and Socrates to cruel and unusual punishment and Justice Stewart, transitions which also adorn the book’s pages.

Only the intrepid will reach chapter two and beyond, although there is reason to endure. [*602]

The contrast could not be more stark between Culbert’s abstract foray into philosophy, legal reasoning, and the metaphysics of judgment, and books such as David Von Drehle’s AMONG THE LOWEST OF THE DEAD: THE CULTURE OF DEATH ROW (1995), and David R. and Mark Dow’s edited collection, MACHINERY OF DEATH: THE REALITY OF AMERICA’S DEATH PENALTY REGIME (2002) – books which depict the decidedly untidy, rough and tumble, bordering on chaotic, politically dominated, anything-but-philosophical world of capital punishment.

Culbert surveys the cerebral, rather than the visceral realm of punishment by death and the justifications for it.

In doing so she draws parallels between Nietzsche’s history of metaphysics and the Supreme Court’s ongoing quest to rescue modern death penalty law from the unprincipled abyss that had characterized capital punishment when FURMAN v. GEORGIA (1972) declared it unconstitutional as then administered. This analytical framework is apt because the Court’s continuing attempts to ground post-FURMAN death penalty doctrine within a framework of reason is reminiscent of what Nietzsche identifies as a fundamental error in his philosophical exposition: “the positing of an eternal, absolute, immutable essence as the actuating principle and primal element . . . of philosophy, which metaphysics, through reason, seeks to discover, reveal, or reclaim” (p.6). In other words, much as modern death penalty doctrine has gone from pillar to post in search of unifying precepts and agreement about the appropriate goals and objects of capital punishment, “philosophers try to grasp what is but fail and then look for reasons to explain their inability to comprehend the ‘thing in itself’” (p.7).

The book thus juxtaposes the six stages of the history of metaphysics described by Nietzsche and the evolving jurisprudence of death developed by the Supreme Court, all the while mining insights about the problem of judgment. This journey is certain to take readers down paths they have not heretofore explored. The way stations are as exotic as they are thought provoking.

Culbert argues that the Supreme Court, mirroring Nietzsche’s exegesis, entered the constitutional fray with the assumption that capital punishment is capable of being and in fact is grounded on core truths – a “real world” – that embrace desert, justice, responsibility, blameworthiness, and related concepts. It further assumed that such truths are knowable and can be revealed through the evidence and processes employed in the “apparent world” – the actual sentencing decisions made by juries and judges pursuant to law. The Court’s initial jurisprudence confidently embraced these assumptions, investing heavily in the proposition that the new, guided-discretion legislation approved in GREGG v. GEORGIA (1976) and companion cases would embrace offenders and offenses imbued with essential “death-worthiness,” and that this real world quality would be revealed or manifested in the apparent world of capital sentencing decisions.

Premises shifted and analysis was transformed as experience dampened the justices’ early optimism. Culbert describes how the Court’s ensuing [*603] doctrinal evolution jibes with Nietzsche’s depiction of the stages marking the history of metaphysics. She enlists ZANT v. STEPHENS (1983) to portray how reason yields to metaphor in explaining the decision process in capital cases. TISON v. ARIZONA (1987) illustrates the ascending importance of the assumption that shared communal norms underlie and account for death penalty judgments. The justices’ authorization of victim impact testimony in PAYNE v. TENNESSEE (1991), in repudiation of earlier cases that had disallowed such evidence (BOOTH v. MARYLAND (1987) and SOUTH CAROLINA v. GATHERS (1989)), is interpreted as another paradigm shift. In this turnabout, the Court exhibits a new-found preference for the real world experiences of murder victims’ survivors as validating sentencing principles, replacing its prior commitment to the ability of observable norms to disclose the legitimating grounds of judgment. “[W]ith the PAYNE decision, the Court makes an absolute of pain and suffering and maintains the legitimacy of a rule of law threatened by uncertainty” (p.111).

The last stage in Nietzsche’s history of metaphysics is marked by the realization that with the abolition of the “real world,” i.e., a loss of faith in the existence of absolute or core principles that represent the truth, we must also abandon our allegiance to the “apparent world” on which reliance has been placed to divulge those elusive truths. This conclusion follows because “it is only in relation to the real world that the apparent world ‘is’ as such” (p.128). The advent of DNA analysis, and our corresponding new ability to bring the appearance of certainty to judgments, Culbert maintains, imported significant new implications for capital punishment. Yet the “certainty” introduced by DNA, the newly found scientifically-grounded power to establish identity, is of limited value in this context. The quest for truth in death sentencing is not so neatly reducible to objective facts. We must still interpret and give meaning to the facts. We must make judgments. Properly construed, DNA technology has only made this obligation clearer and the problem of judgment all the more paramount.

Culbert concludes by analyzing “the experience of judgment” and its component parts, which consist of: (1) an act, (2) an agent, (3) the judge’s competence, and (4) the judgment’s effects. The experience of judgment is complex and in some respects mystifying. In particular, a delicious gap separates the raw ingredients of a decision and the decision itself. A judgment embodies an affirmative, creative act, taken by a “sovereign-like” agent, within a larger web of relationships, with consequences that may not be fully intended because of the diverse community in which it will be given effect. All of these attributes are discernible in the Supreme Court’s evolving death penalty jurisprudence embracing FURMAN v. GEORGIA (1972) and beyond. In this context, “judgment is an act that brings a new interpretation of the world into being and, in so doing, reorients the world, more or less violently excluding other possibilities for beginning” (p.158). Perhaps moving beyond the culminating stage of Nietzsche’s history of metaphysics, where worlds both real and apparent are forsaken, Culbert ultimately embraces the potentially revitalizing prospects of making new beginnings. [*604]

Minor lapses occur in the book where, inexplicably, the decision dates accompanying Supreme Court cases repeatedly lag one year behind the actual decision dates. For example, ZANT v. STEPHENS (1983) (pp.23, 50, 141), BOOTH v. MARYLAND (1987) (pp.89, 90), SOUTH CAROLINA v. GATHERS (1989) (pp.89, 90), and PAYNE v. TENNESSEE (1991) (pp.88, 89, 91) are all incorrectly cited as having been decided one year earlier than they truly were. Moreover, on occasion, only readers schooled in navigating the dense and nearly inaccessible verbiage that is the hallmark of some philosophical writing will find their way through passages within the volume. Thankfully, these challenges are relatively infrequent and do not indelibly mar Culbert’s generally lucid style.

Culbert’s thesis is complex, her frame of reference novel, and her thoughts run deep. Philosophers, rather than lawyers, and doctoral students, rather than undergraduates, will be most likely to take advantage of her creative marriage of metaphysics, the jurisprudence of capital punishment, and the problem of judgment.

REFERENCES:
Dow, David R., and Mark Dow (eds). 2002. MACHINERY OF DEATH: THE REALITY OF AMERICA’S DEATH PENALTY REGIME. Routledge: New York.

Nietzsche, Freidrich. 1998. TWILIGHT OF THE IDOLS, OR, HOW TO PHILOSOPHIZE WITH A HAMMER. Trans. Duncan Large. Oxford University Press: New York.

Von Drehle, David. 1995. AMONG THE LOWEST OF THE DEAD: THE CULTURE OF DEATH ROW. Times Books: New York.

CASE REFERENCES:
BOOTH v. MARYLAND. 1987. 482 U.S. 496.

FURMAN v. GEORGIA. 1972. 408 U.S. 238.

GREGG v. GEORGIA. 1976. 428 U.S. 153.

MCGAUTHA v. CALIFORNIA. 1971. 402 U.S. 183.

PAYNE v. TENNESSEE. 1991. 501 U.S. 808.

SOUTH CAROLINA v. GATHERS. 1989. 490 U.S. 805.

TISON v. ARIZONA. 1987. 481 U.S. 137.

ZANT v. STEPHENS. 1983. 462 U.S. 862.

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© Copyright 2008 by the author, James R. Acker.

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INTIMACY AND RESPONSIBILITY: THE CRIMINALISATION OF HIV TRANSMISSION

by Matthew Weait. New York: Routledge, 2007. 233pp. Hardback. $170.00. ISBN: 9781904385714. Paperback. $51.95. ISBN: 9781904385707.

Reviewed by Joe Rollins, Department of Political Science, Queens College, CUNY. Email: joerollins [at] nyc.rr.com.

pp.598-600

In INTIMACY AND RESPONSIBILITY Matthew Weait sets out to problematize how the criminal law has been used against those who transmit HIV to their sexual partners and, along the way, provides insight into the ways that criminal law constructs responsible subjects. As HIV/AIDS has become medically manageable for those who have access to the necessary drugs, the sense of crisis has passed and scholarly attention in the area has waned. Weait’s book is a welcome reminder that the problem has not gone away and that AIDS remains an important subject for new theories and analysis. His thesis can be summarized succinctly: Criminalization of HIV transmission is unlikely to prevent onward transmission of the virus and may, instead, have pernicious side effects. Weait’s methodology is perhaps best described as discourse analysis; court transcripts, judicial opinions and statutory language serve as the most prominent data but media reports also make an occasional appearance. The cases examined in the book, fourteen altogether, come from England and Wales and all originated with criminal charges brought against individuals who were tried for or plead guilty to transmitting HIV to sexual partners. These cases constitute the entire universe of such prosecutions and a synopsis of each is provided at the end of Chapter 1.

Chapter 2 explores in detail the trial of Feston Konzani – a Malawian national convicted in 2004 of recklessly transmitting HIV to three female partners – and serves three purposes: to show the messy and complicated range of problems that law must address in matters involving human relationships, especially sexuality and HIV transmission; to show how passions, sentiments, behaviors, and expectations are translated into the language of the law; to set the stage for the themes examined in the remainder of the text. Those themes, reflected in subsequent chapter titles are “Harm, Causation and HIV Infection,” “Risk, Recklessness and HIV,” “Consent, Knowledge and Disclosure,” and “Responsibility, HIV Transmission and the Criminal Law.” A rich textual resource, the Konzani trial serves the author’s purpose admirably and whets the reader’s appetite for what follows. Weait relies on the case extensively to ground his arguments and where necessary draws reinforcement from the others. This approach is parsimonious and necessary because it makes otherwise complex arguments manageable for the reader unfamiliar with the law and case materials from England and Wales, but, to his credit, it also makes the reader wish for a more thorough treatment of the other cases because his take on Konzani is so compelling. [*599]

Chapter 3 frames the discussion of harm and causation by explaining the limitations of phylogenetic analysis – the scientific technique by which viral samples from person A might be linked to the infection of person B. Despite the desire of legal actors to find certainty in science, Weait shows that scientific certainty in such cases is elusive at best. Coupling this discussion with an explanation of the legal concept of harm leads Weait to investigate critically the notion of the autonomous legal subject who is entitled to bodily integrity, as well as the idea that law should intervene when that integrity is compromised. As he concludes, these concepts, despite political value and intellectual appeal, “lack descriptive truth” and result in theories and justifications that rest “on an inadequate foundation” (p.108).

As Weait points out, Chapter 4 is the most theoretically dense part of the book. It begins with the premise that modernity ushered in a period during which liberty was predicated upon security and security required a particular construction of the body as autonomous, bounded, and inviolable. An important aspect of this epistemological tradition has been the rise of the “risk society.” Whereas in pre-modern societies risk was seen as inevitable and beyond human control, modernity brought with it the related beliefs that risk could be managed by experts and nature could be mastered, but that the “extravagant promises of modernity – of health, wealth, and security – are ones that not only can be delivered, but ones that, paradoxically but inevitably, modernity has rendered undeliverable” (p.119); hence, the rise of post-modernity marked by skepticism and anxiety. This theoretical exegesis lays the foundation for the argument developed throughout the remainder of the chapter: “HIV positive people represent the paradigm Other of risk society, and recklessness the paradigm fault” (p.197). Here we see how the citizen/subject was rendered possible through enlightenment era philosophies of the state (e.g., Mill), and possessed a “bounded body” that is white, male, heterosexual and, at all times, a sexual agent. Sexual objects – i.e., women, people of color, gay men – possess open bodies that are liminal, hybrid and therefore threatening; the HIV positive body exemplifies this most clearly, threatening not only the corporeal body but also the body politic.

Chapter 5 considers the notion of consent and its relationship to knowledge and disclosure. Drawing on Foucault’s insights about confession what Weait shows most forcefully here, although he states it more cautiously, is law’s role in perpetuating the fantasy that heterosexual sex is clean, safe, and that any risks associated with it (e.g., pregnancy) do not fall on white, heterosexual men. Perhaps the most potent argument here, and one well supported by his evidence, is that judicial rhetoric in the cases examined makes general knowledge of HIV transmission risk unthinkable; the HIV positive person is responsible for the well-being of his or her sexual partners who, in turn, have no legal obligation to attend their own safety.

The final chapter illustrates best one of the things that is most satisfying about Weait’s book: It is an excellent example of lucid prose and convincing analyses; each chapter begins with a clear [*600] foreshadowing of the arguments to come and concludes with a summary. Theoretical frameworks are set up sufficiently without unnecessary embellishment, arguments are drawn persuasively from the evidence provided and, at the end of it all, Weait has provided a very useful, thoughtful and convincing treatment of a subject that merits further scholarly attention. The final chapter elegantly summarizes the whole and reiterates the author’s main themes.

INTIMACY AND RESPONSIBILITY makes a valuable contribution to sociolegal scholarship in general but will be of particular interest to those working on public health, the body, gender and sexuality. Weait is at his best when setting up his arguments and presenting evidence. The conclusions he draws are insightful, interesting and underscore what has long been common knowledge among public health policymakers, the gay community, and people living with HIV/AIDS: Safer-sex practices are a must and getting tested is the key to longevity. Punitive policies only deter people from getting tested and seeking medical treatment. Weait’s most illuminating insights show how legal language perpetuates the fantastical scripts through which sexual acts become sexuality, i.e., how sex is infused with meaning in Western culture. The conceptual tools deployed here – causation, risk, responsibility, knowledge, consent – help instantiate a binary system of sexuality wherein bright lines are drawn between safety and risk, male and female, hetero- and homo-, white and non-white, citizen and immigrant, despite the inaccuracy and damaging potential inherent in such stark delineations. It would have been interesting to see Weait delve more deeply into this Foucaultian power-knowledge nexus because it is so clearly an animating force behind the phenomenon he has chosen to analyze. But that was not his project, and it seems churlish to quibble with a book that is otherwise so elegant and thoughtful. The observation might be, instead, best viewed as evidence of an American reader’s limited grasp of the British gift for understatement.

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© Copyright 2008 by the author, Joe Rollins.

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MULTICULTURALISM AND THE CANADIAN CONSTITUTION

by Stephen Tierney (ed.). Vancouver, BC: UBC Press, 2008. 256pp. Cloth CDN$85.00/US$93.95. ISBN: 9780774814454. Paper CDN$32.95/US$36.95. ISBN: 9780774814461.

Reviewed by Diana Yoon, Department of Legal Studies, University of Massachusetts Amherst. Email: dyoon [at] legal.umass.edu.

pp.594-597

In 2002, the government of Canada announced June 27th as Multiculturalism Day, an annual celebration to acknowledge “the contributions of Canada’s diverse people to Canadian society.” This declaration was certainly not the government’s first gesture to cultural pluralism as demographic reality and centerpiece of national character; it adopted multiculturalism as a national policy in 1971. However prominent in official narratives of Canadian society, multicultural policies have encountered criticism from various sources, including advocates of Quebec nationalism and Aboriginal sovereignty to critics arguing that multiculturalism undermines liberal equality and national cohesion. The purpose of MULTICULTURALISM AND THE CANADIAN CONSTITUTION is not to survey and clarify arguments for and against multicultural policy in Canada. Rather, the book presents a collection of essays – written by scholars in fields ranging from political theory, public policy, constitutional law and international law – on juridical and political questions essential to understanding the normative debate over multiculturalism.

The first part of the book focuses on the development of multiculturalism and federalism in relation to the Canadian constitution. Readers interested in the “etymology of multiculturalism” in Canada (p.43) should begin with Michael Temelini’s “Multicultural Rights, Multicultural Virtues.” Temelini examines how multiculturalism was articulated and adopted as a national policy, demonstrating that the concept “originated neither from constitutional negotiations nor from legislation nor from the courts; rather, its definition was a work in progress developed over time in the context of widespread public debate and championed by an organized public movement” (pp.43-44). The analysis of the process that shaped the discourse of multiculturalism is connected to understanding its content: multiculturalism was defined not only in juridical terms (concerned with rights and practice of law), but also with a “civic humanist language and practice of virtue” (p.43). The language of citizenship and civic engagement integral to the evolution of multiculturalism is well-documented in the essay, and it reminds us that while multiculturalism is often viewed as a question of “minority rights” (Kymlicka 1995), it should also be understood as “a virtue in the sense of being an ongoing practice of understanding that is acquired in dialogue and that shapes our character and makes us become better citizens” (p.56).

Ian Peach’s essay is similarly attentive to political movements and democratic engagement in telling the story of Canadian multiculturalism. His [*595] discussion is intended as a corrective to the conventional understanding of the 1982 adoption of the Canadian Charter of Rights and Freedoms as an “intergovernmental war story” (p.92), and thus focuses on the ways that citizen participation and the work of advocacy organizations (what he calls “equity groups”) shaped that constitutional moment. Peach and Temelini offer insightful analyses of historical context and political struggles in the development of multiculturalism, which certainly enhance the reader’s understanding of former prime minister Pierre Trudeau’s role in establishing the nation’s multiculturalist vision and policy, as discussed by Hugh Donald Forbes.

Marc Chevrier’s perspective on the evolution of multiculturalism and constitutional development focuses on Canada’s federal system. In assessing how political scientists and constitutional lawyers have addressed questions of federalism, Chevrier points to conceptual ambiguities (for example, unclear terms for “federalism” and “federation”) that pose a challenge in theorizing “the constitutional regime as a distinct aspect of the political system” (p.111). He offers a nuanced discussion of the uneven impact of the 1982 constitutional amendment on the politics of provincial governments, Aboriginal rights and cultural pluralism, suggesting that the national political community is being shaped by a “double process of federalization and defederalization” (p.122).

It is generally acknowledged that the 1982 Constitution Act enacting the Canadian Charter of Rights and Freedoms marked a new era of constitutional jurisprudence. Essays in the second part of MULTICULTURALISM explain post-1982 developments in the constitutional process, highlighting “the role of constitutional interpretation by the courts in the development and enhancement of Canada as a self-consciously multicultural state” (p.3).

Jameson Doig’s “New Constitutions and Vulnerable Groups” focuses on the Supreme Court’s interpretation of the Charter – specifically, the legacy of former chief justice Brian Dickson in shaping the jurisprudence of “rights of Aboriginal peoples, members of distinctive religious and ethnic groups, and other ‘vulnerable groups’” (p.164). A survey of cases in these areas would have been useful on its own, but Doig goes further to discuss how Dickson negotiated two forces that were positioned against the Supreme Court’s capacity to give life to the Charter’s provisions: the “long tradition of parliamentary supremacy,” and the similarly well-established tradition that “placed a high premium on individual liberty” (p.165).

Hugh Kindred’s essay explores the nexus of international law and the constitutional process by acknowledging the significance of international treaties for the nation’s “multicultural citizenry” (p.148). As Kindred demonstrates, the Supreme Court “established that Canada’s international human rights obligations should inform and nourish the interpretation of Canada’s domestic Charter of Rights and Freedoms” (p.154). This interpretive approach is noteworthy considering the absence of explicit reference to international treaties in the Charter as well as challenges of [*596] implementing international agreements within Canada’s federal system. Kindred’s analysis of these issues should be well-received by scholars interested in the “domestication” or local adaptations of international law.

Two other essays in MULTICULTURALISM address international implications of pluralism in Canada. Will Kymlicka comments on the ways that the “Canadian model” of diversity circulates internationally, leading into an insightful discussion on key features of multicultural policy in Canada, conditions for its success, and implications for “exporting” the Canadian model to manage pluralism in other multiethnic states. Daniel Bourgeois and Andrew F. Johnson discuss the 2003 Action Plan for Official Languages and analyze it as a policy initiative aimed at “strengthen[ing] the authority of the Canadian state” in light of challenges arising from within and beyond the nation’s borders (p.129).

The final three essays of the book address what is arguably the most expansive theme in multicultural constitutionalism: equality. Joan Small explores how translating multiculturalism into a constitutional principle has raised questions about the jurisprudence of equal rights for individuals and groups. She does so by analyzing section 27 of the Charter, which states: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians” (p.234). In assessing the interpretive obligation of section 27, Small argues that it requires “a contextual inquiry that recognizes diversity, including cultural diversity, as an inherent aspect of human dignity” (p.209).

The concept of human dignity is also important in Katherine Eddy’s essay, which seeks to make the case for welfare rights. Approaching questions about equality and responsibilities of the state to its citizens within the framework of normative political theory, Eddy argues, “[T]he point is not just that a concern for equality can justify welfare rights provision but that it should” (p.212, emphases in original).

Robert Currie explores what a fair process of adjudication means in light of “complex social and cultural realities” (p.182) by looking at how forms of evidence concerning culture has been “received, rejected, and utilized by judges and (to some extent) juries” (p.183). Currie’s careful analysis demonstrates that courts have recognized the limits of formal equality and have employed modes of contextual analysis in the interest of fairness: “a ‘cultural discourse’ is under way, if only sotto voce, between and among the courts, that has fairness and equity as its basis” (p.190). Reading this essay in relation to scholarship on how questions of “culture” have emerged in US courtrooms (Renteln 2004) would be an excellent starting point for a comparative study. In fact, other themes in the development of multicultural constitutionalism – in particular, judicial approaches to equality that account for social inequalities and differences, jurisprudence of “group rights” and the trajectory of “equal citizenship” in the constitutional process (Karst 1989) – could form the basis of a comparative study of polities identified by a pluralist character (such as Australia, Canada, US). [*597] Similar to the manner in which Will Kymlicka addresses the assumption that Canadian multicultural policy is unique and worthy of reproducing in other places, one could adopt a comparative perspective to assess what, if any, distinct features can be observed in Canada’s multicultural constitutionalism (for example, an analysis of how US and Canadian courts have negotiated the tension between formal equality and concepts of equality that integrate cultural and other relevant social contexts).

Essays in MULTICULTURALISM AND THE CANADIAN CONSTITUTION reflect a plurality of methods, conceptual vocabulary and normative positions. Stephen Tierney’s introduction, rather than imposing a single framework through which to engage the authors, highlights points of productive tensions and questions for further study that emerge from reading each essay in conversation with the others. If the reader is to glean an overarching theme from Tierney’s introduction, it is one that insists on understanding multiculturalism through an ongoing, constantly evolving conversation – “a journey that can never be completed” (p.22).

REFERENCES:
Proclamation Declaring June 27 of each year as "Canadian Multiculturalism Day." Available at http://www.pch.gc.ca/progs/cpsc-ccsp/jfa-ha/journee-multi-day/proc_e.cfm.

Karst, Kenneth L. 1989. BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION. New Haven: Yale University Press.

Kymlicka, Will. 1995. MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS. New York: Oxford University Press.

Renteln, Alison Dundes. 2004. THE CULTURAL DEFENSE. Oxford; New York: Oxford University Press.

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© Copyright 2008 by the author, Diana Yoon.

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EUROPEAN ADMINISTRATIVE LAW IN THE CONSTITUTIONAL TREATY

by Eva Nieto-Garrido and Isaac Martín Delgado. Oxford and Portland, Oregon: Hart Publishing, 2007. 210pp. Paperback. £45.00/$95.00. ISBN: 9781841135120.

Reviewed by Jacques Ziller, Faculty of Political Sciences, University of Pavia (Italy). Email: Jacques.ziller [at] unipv.it.

pp.590-593

The book by Eva Nieto-Garrido and Isaac Martín Delgado would deserve to bear another title, i.e. “European administrative law in the treaties on the European Union and on the functioning of the European Union,” thus avoiding the risk that potential readers believe it is outdated, because the Constitutional treaty never come into force or because the Treaty of Lisbon encountered problems with the Portuguese electorate. The analyses of the book are and will remain relevant even before the amendments included in the Lisbon treaty – which are taking over the innovations of the Constitutional treaty – enter into force. The book clearly shows the added value to the field of European administrative law of the modifications that had been proposed by the European Convention 2002-2003.

In her Foreword, Carol Harlow, a well known British expert in the field of European and Comparative Administrative Law praises the book, with one minor caveat – her dislike for a code of administrative procedure. I would entirely subscribe to her praise, while disagreeing with her criticism against such a projected code, and as a matter of fact, I think the authors of the book make an excellent case in favor of a codification of procedures involving EU institutions. Harlow concludes her Foreword with the words, “we need to consider whether respect does not depend rather on effective policy-making than on institution-building and constitution-drafting.” Maybe, but effective policy-making depends on good implementation, and the object of European administrative law is nothing else than policy-implementation. Clarifying the institutional setting of the complex machinery of the EU will not be sufficient for the “delivery” of common policies. A better understanding of the principles, rules and procedures of European administrative law will help understanding what the result of a specific policy design is, and what is due to the constraints which have been built into the treaties by the governments of the EU member states and by its institutions. This is a major contribution by Eva Nieto-Garrido and Isaac Martín Delgado.

The book is divided into five chapters, each devoted to one of the issues for which innovations in the treaty-reform decade 2000-2010 are most relevant. They first try and establish the state of the art on the issue in the current treaties – EC and EU as amended by the Nice Treaty of 2001, which entered into force on 1 March 2003 –, in secondary legislation, case-law and literature. They then present the innovations contained in the Constitutional treaty – with the necessary updating comments pointing out how these innovations are taken up [*591] by the Lisbon treaty. This presentation is followed – sometimes accompanied – by the authors’ comments on the improvements which are being introduced in the EU’s basic law, and on any shortcomings. The book is therefore useful both as a complement to the standard books on European Administrative Law, by Auby and Dutheil de la Rochère (2007), Birkinshaw (2004), Chalmers and Tomkins (2007), Chiti (2008), Chiti et al (2007) , Craig (2006), and Schwarze (2006). It also introduces the debates which are to some extent already ongoing, and to some extent new because they will result from the entry into force of the relevant treaty amendments.

The first chapter is devoted to “Legislative Powers and Normative Instruments” and presents one of the most interesting reforms that will be carried in the Treaty on the Functioning of the European Union, albeit without the names which pleased the European Convention in 2002-2003 and displeased the British, Dutch and French governments in 2007, i.e. European Laws and Framework Laws and European Regulations. The chapters give a clear account of the major innovation which consists in a distinction between legislative, delegated and executive instruments. It is quite critical about some of the consequences of the reform, and would have benefited from the analyses which are developing since the adoption of the Lisbon treaty. The choice of starting the book with this chapter was a good one, as this reform gives a solid basis to the concept of European administrative law and will no doubt have important consequences, i.e. having different regimes for legislative and non legislative acts. Like US or French administrative law, European administrative law deals with regulatory acts, and is not confined to individual decisions.

The second chapter, “Implications of a Binding European Charter of Fundamental Rights for the Individual Decisions Made by the European Public Administration,” has a long title to signal that the authors intend to go beyond existing commentaries on the right to good administration, access to documents, and to protection of personal data. Nevertheless, most of the substance of this chapter is devoted to the content of these rights. The comments on the implications of a binding charter remain somewhat limited, as most of these implications will depend upon the choices made by the European Court of Justice. The fact that a binding Charter will most probably lead to an increase of questions for preliminary ruling directed at the Charter has to be born in mind, and one may wonder whether and to what extent the infamous protocol on the position of the UK might have any impact on the relevant rights.

The third chapter on “The Impact of the Charter of Fundamental Rights on Decisions Adopted by the Member States” is more original than the second one. Indeed, only part of the literature has noticed the problems related to the scope of Article 41 of the Charter: does it only cover the decisions of EU institutions, or also, as most other rights of the Charter, those of the member States’ authorities in the implementation of EU law? The Chapter gives a very useful account of the arguments and responses, and also proceeds to an in-depth examination of the reach of Article 51, [*592] about member states’ authorities “when they are implementing Union law.” The authors clearly opt for an extensive interpretation, as I would do. The case-law of the Court will tell us whether this is the right answer. A complement to this chapter could be a sector analysis: will the impact of Article 41 be more important to freedom of movement of persons – especially of third-country nationals – or to freedom, security and justice, or in the field of the internal market? Here again the protocol on the position of the UK with respect to the Charter might shed a new light on a disputed issue.

The fourth chapter, “Towards a Law on Administrative Procedure,” again presents a very useful in-depth examination of the innovation resulting of the new Article 298 TFUE (III-398) which gives legal basis for general codification of administrative procedures of EU institutions, bodies, offices and agencies. The authors not only discuss the issue of the legal basis, but also the application of such a general regulation on administrative procedure, drawing upon the code of good administrative behavior of the European Ombudsman. Spanish lawyers are very much aware of the advantages and drawbacks of a general law on administrative procedure, as their country has been one of the first in Europe – with Austria – to adopt such a regulation. Whether a European regulation of Administrative procedure would have the impact on European administrative law that the APA has had on American administrative law, would be an interesting topic for further discussion.

Chapter Five on “Judicial Protection” is rightly placed at the end of the book, signaling that judicial protection is a rather minor field of innovation – compared with the other institutional changes resulting from the constitutional treaty. At the same time, it rightly demonstrates that there are also some interesting innovations in the field of judicial protection, which should not be underestimated: the modification of the rule of standing in actions of annulment against a regulatory act, the extension of the courts’ jurisdiction to Europol and Eurojust, the mention in the treaty of the member states’ obligation to provide appropriate remedies to ensure effective legal protection in the fields covered by Union law, and – last but not least – the extension of the court’s jurisdiction to the entire field of the area of justice, security and freedom. This is, I believe, the major change – from the point of view of positive law – which would result from the entry into force of the Lisbon Treaty. Interestingly, the protocol on transitional measures and the protocols on the positions of Denmark, Ireland and the United Kingdom remind us that this new field of EU law might have a reduced territorial scope, thus introducing geographic differentiation as an important issue for European administrative law.

REFERENCES:
Auby, Jean-Bernard, and Jacqueline Dutheil de la Rochère (eds). 2007. DROIT ADMINISTRATIF EUROPÉEN. Bruxelles: Bruylant.

Birkinshaw, Patrick. 2004. EUROPEAN PUBLIC LAW. Cambridge, Cambridge University Press. [*593]

Chalmers, Damian, and Adam Tomkins. 2007. EUROPEAN UNION PUBLIC LAW – TEXT AND MATERIALS. Cambridge, Cambridge University Press.

Chiti, Mario P. 2008. DIRITTO AMMINISTRATIVO EUROPEO (3rd ed). Milan : Giuffrè.

Chiti, Mario P., Guido Greco, Gian Franco Cartei, and Diana-Urania Galetta (eds). 2007. TRATTATO DI DIRITTO AMMINISTRATIVO EUROPEO (2nd ed). Milan: Giuffrè.

Craig, Paul. 2006. EUROPEAN ADMINISTRATIVE LAW. Oxford : Oxford University Press.

Schwarze, Jürgen. 2006. EUROPEAN ADMINISTRATIVE LAW (1st rev. ed). London: Sweet & Maxwell.

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© Copyright 2008 by the author, Jacques Ziller.

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FREE SPEECH AND HUMAN DIGNITY

by Steven J. Heyman. New Haven: Yale University Press, 2008. 320pp. Cloth $50.00. ISBN: 9780300114867.

Reviewed by Paul Weizer, Department of Social Sciences, Fitchburg State College. Email: pweizer [at] fsc.edu.

pp.587-589

This book, by Steven J. Heyman, Professor of Law at the Chicago-Kent College of Law, presents a theory of First Amendment jurisprudence which seeks to balance the sometimes inherent conflict between free speech and human dignity. To accomplish this, the author adopts a “liberal humanist” approach which seeks to balance concern for the human personality against broader concerns for free expression. Heyman then applies his theory to a wide range of current controversial issues such as hate speech, flag burning, abortion protests, and pornography in order to demonstrate how the balancing process would work in practice.

Part One, which consists of two chapters, considers the history of free speech jurisprudence in the United States. Chapter One explores the natural rights origins of the First Amendment covering the thoughts of such philosophers as Locke, Cato, and Blackstone. The chapter further explores the impact of these individuals on the thinking of Madison and the Federalists from ratification through the sedition controversies. Heyman finds that this “original” view of the First Amendment was that free speech was limited by the rights of others. In Chapter Two, Heyman looks at modern First Amendment jurisprudence which comes to view free speech issues as conflicts between individual and societal rights without any clear way to resolve the clashes. The famous views of Holmes and Brandies are the central focus of this chapter. Heyman sees this shift as problematic which leads to his proposed standard.

Part Two is then divided into four chapters which lay out Heyman’s rights based approach to the First Amendment. Under this theory, rights are based on respect for the human personality and each person’s right to self-determination. Heyman argues that the Framers understood free speech to be a natural right. Many of the problems associated with modern speech issues stem from straying from this view and can be resolved by returning to the roots of the right to free speech. As rights flow from a respect for human dignity, the limits on such rights become easier to define. One basic right of all man is the right to life and more broadly personal security. When speech endangers basic rights such as this, limitations are in order. This view is one with which it is hard to take issue. Heyman, however, takes a much broader view of basic rights. Another basic right he considers is the right of personality. This would include “unwarranted assaults on one’s mental and emotional well being” (p.54). Also included in the right to personality is freedom from invasion of privacy which is defined as “the right to maintain the integrity of one’s personality and inner life by preserving the boundary that separates them from other persons” (p.55). [*588] Heyman sketches the rights of personality as a continuum which ranges from rights to emotional tranquility and privacy to self expression through speech and conduct and then to image or reputation. Putting these into a “rights based” theory, the author explores not only the rights of free persons but also the rights of free persons to equality. While modern free speech jurisprudence often views liberty and equality as in conflict, Heyman views the two concepts as inseparably related. For Heyman, equality is tied to dignity, arguing that “to treat other persons as inferior or subordinate constitutes a denial of their worth as human beings.” It is with this focus that Heyman’s theory begins to take shape. In short, his liberal humanist theory is summarized as follows: “The same aspects that justify freedom of speech and thought also give rise to other fundamental rights, including personal security, personality, and full and equal membership in the community. In general, speakers have a duty to respect these rights. Conflicts between rights should be resolved in light of their relative place within the system of constitutional liberty” (p.78).

Accordingly, and most importantly, the author views the principal of content neutrality which is the core of modern First Amendment jurisprudence, as improper since much speech causes harm precisely because of its content. In Heyman’s view, content based restrictions should be allowable, and his approach set out to balance the value of the speech against the human dignity of the listener. Considering the breadth of the right to personality described above, this view would be a radical departure from the current view of the law.

Part Three is divided into five chapters, each exploring specific areas of disfavored speech and applying the author’s standard to resolve each conflict. Topics considered include subversive speech, incitement and threats, abortion protests, hate speech, and pornography. In applying the liberal humanist approach to these problems, a trend readily emerges. Where speech is directed toward the government or the public as a whole, it should be protected. On the other hand, speech that is directed at individuals or groups may often be regulated. Rather than look at content as the courts currently do, the touchstone of Heyman’s approach is the value of the human personality.

This approach advocated by the author has many benefits. Certainly it would provide consistency in an area filled with exceptions to the general rule of content neutrality. Accepting that content matters in considering the context of the speech in question could go a long way in resolving some of the thorny issues addressed above. On the other hand, determining exactly what is injurious to the human personality or the public interest opens up a whole new set of challenges. For example, in the chapter on subversive speech, Heyman considers cases dealing with the publication of classified material such as the Pentagon Papers. In applying his theory, he concludes that First Amendment protection should apply except in cases “where the defendant knew or clearly should have known that publication served no substantial public interest” (p.121). How one is to determine what the public interest is, especially whether it is substantial, is left unsaid. However, it is certainly not self-evident. In the examination of hate speech, Heyman [*589] argues that, contrary to the view of current courts, public hate speech should not be protected because it assaults the human dignity of its victims. However, he also contends that even political hate speech should not be protected “because it falls outside of a proper understanding of political debate” (p.179). In providing a basis for the scope of “proper political debate” the author looks to the International Covenant on Civil and Political Rights which, while valuable, is hardly a source based on the original intent of the Framers.

In sum, this book challenges the current state of free speech jurisprudence in American law by positing a theory which would protect most speech that challenges the government but limits much speech that attacks the rights of other people. In doing so, it is original and thought provoking and is sure to provide fodder for many fruitful discussions. It could be used in a range of undergraduate or graduate seminars dealing with civil liberties, civil rights, or equality issues. While many may take issue with the lines drawn, one does not need to agree with all of the conclusions in order to find utility in the approach of the author.

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© Copyright 2008 by the author, Paul Weizer.

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TRANSITIONAL AMNESTY IN SOUTH AFRICA

by Antje Du Bois-Pedain. Cambridge: Cambridge University Press, 2008. 418pp. Cloth. $120.00/£60.00. ISBN: 9780521878296. e-Book format. $96.00. ISBN: 9780511373015.

Reviewed by James L. Gibson, Sidney W. Souers Professor of Government, Department of Political Science, Washington University in St. Louis. Email: jgibson [at] wustl.edu.

pp.582-586

There can be little doubt that the most widely known and studied truth and reconciliation process in the world is that conducted by the South Africans. In part owing to its innovativeness – but in larger part owing to the perception that the process was instrumental in keeping South Africa from falling into the abyss of civil war and perhaps even into partition or destruction – observers throughout the world have sought to extract lessons for transitional justice and democratization from the South African experience.

As widely admired as the South Africa truth and reconciliation process is, many misconceptions still surround it. For instance, it is often asserted that the world views the process as fantastically successful, whereas South Africans view it as an abysmal failure. In fact, that (and many other misconceptions) turns out to be untrue (see Gibson 2005). That the South African process was a hybrid of criminal prosecutions and grants of amnesty is also not widely acknowledged. If the process in that country is to be held up as an exemplar for divided societies to follow in their quest for reconciliation, then much more about its actual operation must be analyzed and understood.

That is why this book by Antje Du Bois-Pedain is so important. More – much more – than any prior effort to date, Professor Du Bois-Pedain has taken the closest, most detailed, and most comprehensive look at the amnesty component of South Africa’s truth and reconciliation process. Her book is a tour de force, encompassing as it does both normative and empirical issues associated with the process. Generations to come will thank Du Bois-Pedain for her exposition of how and why South Africa provided amnesty to those committing gross human rights violations during the struggle over apartheid.

Divided into nine chapters, TRANSITIONAL AMNESTY IN SOUTH AFRICA, traverses a great deal of territory. One of the most unique contributions of this book is that Du Bois-Pedain takes advantage of a data base of more than 1,000 amnesty decisions made by the Amnesty Committee of the Truth and Reconciliation Commission. This enables her to show the strikingly high success rate of amnesty applications made by bona fide politically-connected applicants. Importantly, her statistical analysis suggests that the proportionality of the offense (whether the degree of violence of a particular gross human rights violation was appropriate to the political objectives being pursed) may not have had much influence on whether amnesty was awarded. She asserts: “This loss of any moral limit to the kind of [*583] thing that can be done in order to achieve a particular aim can be observed in the preparedness of the Committee to label as proportionate acts such as torture and the random killings of innocent, politically passive individuals in order to incite public violence to disrupt the elections” (p.126, emphasis in the original). Conclusions such as these, grounded in rigorous analysis of the actions of the Committee, abound in the book, are often counter-intuitive, and are therefore a welcome corrective to the folklore on what the amnesty process actually did in South Africa.

But Du Bois-Pedain’s study is far more than a quantitative accounting of the Amnesty Committee, as valuable as that exercise is. Instead of mere description, she also assesses the process in terms of its success at discovering the truth, empowering victims, and holding perpetrators accountable – all stated objectives of the process. In general, her conclusion is that the process did indeed achieve the goals set out for it, although a number of caveats attach to this generalization.

For example, a large number of applicants sought amnesty, and, within the terms of legislation, applicants generally provided considerable information about their deeds and their motives. While reluctant to refer to this as the production of “truth” (recall that the Truth and Reconciliation Commission itself argued that “truth” has at least five different meanings), her pragmatic approach to evaluating the amnesty process leads to the conclusion that more information was produced by that mechanism than would likely have been generated by any other means (e.g., criminal trials). Costs with such an approach clearly exist – due process was often sacrificed – but for learning who did what to whom, and why, often in the distant past, the amnesty process deserves considerable praise. The caveat here, often voiced by critics of the South African process, is that the larger context of the apartheid regime is sometimes obscured by focusing on the discrete actions of individual combatants – though, as Du Bois-Pedain reminds us, some advantage lies in the fact that amnesty applicants can account for their past deeds in terms of their own understandings of them, i.e., as political actions, and not (merely) as crimes.

As to empowering victims, she acknowledges that the amnesty process succeeded in providing victims opportunities for participation – to challenge the applicants’ versions of events and to have their own stories told and heard – even while acknowledging that the process was not centered on the victims and that many of the victims were dissatisfied with the process. Many of these issues are endemic and well analyzed within criminal justice processes, and in the South African amnesty process, as elsewhere, the requirements of the victims and the needs of the larger society often clash.

Accountability is of course the most significant weakness of any system for granting amnesty, and Du Bois-Pedain is appropriately critical of the failure of the victims (or the society) to receive retributive justice. But even on this score, her judgment is less severe than that of many human rights scholars and observers. In the South African case, it is widely acknowledged that criminal prosecutions of large numbers of those accused of human rights abuses were not [*584] feasible, both in terms of costs and the low likelihood of success (e.g., enormous amounts of resources were expended on the unsuccessful prosecution of former Minister of Defense General Magnus Malan). Given the South African reality – and the desire to learn about the past and extend dignity to the victims of the struggle – the amnesty process likely imposed about as much accountability as was possible. Moreover, the amnesty process often challenged amnesty applicants about the morality of their past acts. In doing so, “[the amnesty process] does not make these persons criminally responsible, but it makes their moral and political responsibility sting” (p.344).

In the end, her most interesting conclusions speak to the larger issues of the message the amnesty process sent to South African society on the issues of accountability and redemption. She argues that the amnesty process (coupled with the truth and reconciliation process) clearly condemned gross human rights violations, imposed at least some costs on most of those coming forward seeking amnesty, and, most generally, taught the larger society a lesson of redemption, forgiveness, and reconciliation. She asserts: “This mechanism meets the expectations and requirements of international law, in that it avoids impunity and helps to build a human rights culture and democratic commitment to the rule of law” (p.338). Many will object to these conclusions, but Du Bois-Pedain justifies them on the basis of pragmatism, and the superiority of amnesty to the alternatives – doing nothing to the perpetrators or attempting to prosecute them through the criminal justice system. In the end, irrespective of whether one agrees or disagrees with her conclusions, her position is soundly argued and grounded in a careful examination of both qualitative and quantitative evidence on the performance of the amnesty process. Little more can be expected of a treatise such as this.

Many attributes of this research are admirable. One tends to find in the human rights literature a moralizing, sermonizing tone to much of the discussion about topics like amnesty, with not a great deal of attention to the practical necessity of avoiding civil war and promoting the democratic transition. Du Bois-Pedain provides a nice mixture of overriding normative concerns, careful empirical analysis, and thoughtful examination of the pragmatic exigencies of a transition such as South Africa’s. Moreover, although much of the book reflects Du Bois-Pedain’s training and skills as a legal academic, she is a good social scientist as well, as in her intuitive observation that law is endogenous in processes such as these. This analytic blend of the-law-in-the-books, the-law-in-action, and the gritty reality of political transitions should be quite attractive to the readers of the LAW AND POLITICS BOOK REVIEW.

As much as I admire this work, I feel obliged to raise certain shortcomings of Du Bois-Pedain’s analysis. First, foremost, and quite common about analyses of the South African truth and reconciliation process, the book is heavily focused upon victims and perpetrators. This may seem an odd criticism inasmuch as the amnesty process directly involves investigating and judging perpetrators for their actions against victims. But that process was [*585] also about the transformation of South Africa, about its transition from a cruel and illegitimate system of white domination to a vibrant, multi-racial democracy. As such, the process far transcended the needs of and consequences for victims and perpetrators. Indeed, to the extent that the truth and reconciliation process actually sought societal-level reconciliation, perhaps it is the assessments of the amnesty process by bystanders (the vast majority of South African society) that are most crucial for the future of the democratic experiment in that country. One can imagine, for instance, that the needs of the victims are not paramount in an amnesty process (as they typically are not in the criminal justice system) and that the most important goal of the amnesty process is to ensure that victims and perpetrators do not become spoilers of the transition, and that ordinary people view the process as to at least some degree just. To be fair, Du Bois-Pedain does address this issue to at least some degree since she often mentions the larger social and political contexts in which the amnesty process was embedded; and, to be honest and forthright, the subject of my book – OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? – is precisely the question of how the process contributed to South Africa’s transition, so my substantive interests are located more at the societal level than at the level of victims and perpetrators. Nevertheless, more attention to the consequences of the amnesty process for building democratic institutions and processes in South Africa would have improved and broadened the analysis.

I should also note that Du Bois-Pedain seems to have a too limited understanding of justice, as least for my taste. While she compares and contrasts retributive and restorative justice paradigms in her chapter on accountability in the amnesty process, many other forms of justice are implicated in amnesty processes – distributive, retributive, restorative, and procedural, for instance – and it is often the case that one form of justice can compensate for failure to receive another form. Procedural justice is an important concern within South African politics. Whether the amnesty process was judged to be fair depends not just on retributive concerns (for which an obvious justice deficit is produced by granting amnesty), but also on whether procedures were thought fair, whether victims received some form of compensation, and whether the process was attentive to restoring the dignity of both the victim and the society victimized by apartheid.

These reservations aside, this book is a “must” for anyone who seeks to understand the transitional justice process in South Africa. Stripped of ideology, with over-arching normative questions addressed but lurking primarily in the background, this descriptive and analytical research will long stand as the definitive statement of how the South African amnesty process operated and unfolded during this crucial period of South African history. I heartily recommend the book to those concerned with processes of transitional justice and democratization, in South Africa, and throughout the world. [*586]

REFERENCES:
Gibson, James L. 2004. OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? New York: Russell Sage Foundation.

Gibson, James L. 2005. “The Truth About Truth and Reconciliation in South Africa.” INTERNATIONAL POLITICAL SCIENCE REVIEW 26 (#4, October): 341-361.

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© Copyright 2008 by the author, James L. Gibson.

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WE SHALL OVERCOME: A HISTORY OF CIVIL RIGHTS AND THE LAW

by Alexander Tsesis. New Haven, CT: Yale University Press, 2008. 384pp. Cloth $35.00 ISBN: 9780300118377.

Reviewed by Steven Tauber, Department of Government & international Affairs, University of South Florida. Email: stauber [at] cas.usf.edu.

pp.579-581

American law has an undoubtedly mixed record on civil rights. One the one hand, constitutional amendments, Supreme Court decisions, and statutes have markedly decreased discrimination against racial and ethnic minorities, women, religious minorities, the disabled, the elderly, and the GLBT community. Conversely, American law has also been the source of discrimination, and many of the policies intended to protect civil rights have been ineffective. It is common for civil rights observers to argue one position or the other, but Alexander Tsesis’ WE SHALL OVERCOME: A HISTORY OF CIVIL RIGHTS AND THE LAW refreshingly embraces both sides of this debate. Tsesis bases his quasi-optimistic view of civil rights law on America’s fundamental roots in liberty and equality as expressed in the Declaration of Independence and US Constitution. He argues that despite the systematic use of the law to discriminate, American liberal-democratic legal and political traditions have led to advances in civil rights. As he states on page two, his book chronicles the “birth pangs of civil rights” history.

Tsesis employs a legal history methodology, in which he examines chronologically the legal developments in civil rights. He focuses on official interpretations of relevant constitutional and statutory provisions, but he also examines the philosophical, political, social, and economic influences on those decisions. Chapter One explains how the liberal ideals leading to the American Revolution, especially the Declaration of Independence, provided a framework for equality, despite the fact that those principles applied only to wealthy white males. Chapter Two concentrates on the Constitution, and Tsesis demonstrates that despite the document’s endorsement of slavery, certain aspects of the Constitution and its creation laid the groundwork for subsequent civil rights progress. Chapters Three and Four examine in detail the institution of slavery in terms of its economic impact on the South and the political compromises it engendered. Tsesis also focuses on the optimistic elements of that period by tracing the history of abolitionists and their effect on law and politics.

Tsesis then analyses the period between the Civil War and the 1920s. Chapters Six and Seven illustrate the dichotomy between the Radical Republicans, who used the Reconstruction period to establish genuine civil rights protections for the former slaves, and those who sought to continue oppressing the former slaves. Chapter Seven also introduces a new civil rights struggle – female suffrage. Chapter Eight focuses on the late nineteenth century/early twentieth century time period, and it emphasizes [*580] the hyper-individualistic brand of liberalism that defined the Gilded Age, which perpetuated discrimination against blacks and women and even led to the resurgence of the Ku Klux Klan.

Chapters Nine through Twelve concentrate on the civil rights progress achieved since the 1930s. The more egalitarian period of the New Deal is the focus of Chapter Nine, which demonstrates how a more egalitarian version of the Constitution alleviated considerable suffering. However, white males enjoyed more New Deal benefits than non white-males. Chapter Ten examines the benefits that accrued to women and minorities as a result of World War Two. Chapter Eleven’s focus on the civil rights policies enacted during Lyndon Johnson’s presidency defines the most optimistic period. Chapter Twelve examines how Warren Court decisions led to advancements in civil rights for racial, ethnic, and religious minorities, as well as women. Chapter Thirteen examines some setbacks for the Warren Court decisions, but it strikes a hopeful note with its extensive discussion of LAWRENCE v. TEXAS (2003), which curtailed discrimination based on sexual orientation.

Overall, this work makes an important contribution to civil rights scholarship. Tsesis’ thesis that America’s liberal ideals have both hindered and advanced civil rights differs from other leading views on civil rights law. Specifically he disagrees with the process school, which contends that the Constitution and American law ensures only procedural fairness, and he disagrees with the perspective that American law does not grant minority rights, unless the majority community finds it advantageous to do so. Tsesis also distinguishes his work from neo-republicans who argue that liberal democracy is not central to American political philosophy. Shedding new light on the well-trodden civil rights scholarship can be a risky endeavor, but Tsesis succeeds. He carefully weighs copious evidence from numerous sources, not just Supreme Court cases and the commentary surrounding them, and he presents his findings in a well organized and easy to read fashion.

As a result, this work is useful for a variety of disciplines. Legal scholars will benefit from Tsesis’ contribution to our understanding of civil rights law, and they can use this work as springboard to debate the extent that American law has helped and/or hindered civil rights. Historians will appreciate the extensive research on the complicated history of civil rights. Even political scientists can benefit form Tsesis’ work. He demonstrates that law fundamentally shapes American policy, but he is not myopic in this approach because he recognizes that judges’ ideology, the political climate, activists, and interest groups are also central to the story of civil rights. Although not his direct intent, Tsesis does strike a balance between legal and extra-legal explanations of civil rights law.

Despite these important contributions, the book contains some notable drawbacks. First, contrary to the detailed analysis of the first twelve chapters, Chapter Thirteen is woefully inadequate. Tsesis lumps the post-Warren Court era, which is extremely crucial for civil rights, into a brief, sketchy twenty-four page chapter. This [*581] chapter leaves the impression that this period is a postscript of American civil rights history, when in fact it has been critical for racial and ethnic minorities, women, the GLBT community, the elderly, and the disabled.

A more vexing problem is that Tsesis’ conclusion is tacked on as a single paragraph at the very end of Chapter Thirteen. Tsesis devotes 300 pages to an in-depth, complex argument about civil rights law, which he then sums up in a quarter of a page. Readers, particularly graduate students and law students, require a more substantial summary of his argument and the implications it has for American law and politics. It is almost as if this final chapter and the insufficient conclusion contained within it were an afterthought. This drawback is unfortunate because it leaves the reader with a negative impression at the end of an otherwise outstanding piece of work.

Finally, Tsesis does not successfully accomplish his goal of focusing on all victims of discrimination, not solely African Americans. This is definitely a worthy goal because the African American experience is the most well-known and most studied civil rights history, but other racial and ethnic minority groups (Latinos, Asian-Americans, and Native Americans), women, the GLBT community, the elderly, and the disabled have all experienced discrimination, much of it severe. Therefore, Tsesis wisely considers those groups. The problem is that his treatment of these other groups is incomplete, especially in the first half of the book. For example, Tsesis does not discuss how American law and political ideology allowed for the forced removal of and genocide committed against Native Americans during the early nineteenth century. The bulk of Tsesis’ scant treatment of Native Americans focuses on the late nineteenth and early twentieth centuries, but he completely neglects this crucial aspect of American civil rights law. Likewise, on page 70 Tsesis discusses the Treaty of Guadalupe Hidalgo, which addressed the land Mexico ceded to the United States after the Mexican-American War. Tsesis correctly points out that the treaty was important for the expansion of slavery, but he never even mentions the more relevant point that the treaty led to discrimination against Mexican-Americans. Although the treaty promised to grant citizenship rights, including religious freedom, to the Mexicans who remained in the United States, the federal government and Western states openly violated this treaty and discriminated against Mexican-Americans. In short, Tsesis’ treatment of other aspects of discrimination is too spotty to be successful. He should have either expanded his analysis of the other groups, particularly Latinos and Native Americans, or confined his focus solely to African Americans.

These drawbacks not withstanding, I recommend this book to legal scholars, historians, and political scientists.

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

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© Copyright 2008 by the author, Steven Tauber.

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LET RIGHT BE DONE: ABORIGINAL TITLE, THE CALDER CASE, AND THE FUTURE OF INDIGENOUS RIGHTS

by Hamar Foster, Heather Raven and Jeremy Webber (eds). Vancouver: UBC Press, 2007. 352pp. Hardcover CDN$90.00/US$98.95. ISBN: 9780774814034. Paper CDN$32.95/US$32.95. ISBN 9780774814041.

Reviewed by Carmela Murdocca, Department of Sociology, York University, murdocca [at] yorku.ca.

pp.574-578

LET RIGHT BE DONE is a rich and profound volume. The collection of essays emerged as a result of a conference held at the University of Victoria to commemorate the thirtieth anniversary of CALDER v. ATTORNEY GENERAL OF BRITISH COLUMBIA, a landmark Supreme Court of Canada decision in 1973 concerning Aboriginal title. The case is arguably the most important case amongst Aboriginal title cases, and it established that Aboriginal title was a right that can and should be protected by Canadian law. The case was launched on behalf of the Nisga’a who sought to secure the rights to their ancestral land. The legal issue questioned whether the Nisga’a’s foundation for Aboriginal or “Indian” title had ever “been lawfully extinguished.” Importantly, for the Nisga’a CALDER was not about a “land claim,” a framework which has ultimately come to define Aboriginal and Inuit relationships to the land in Canadian jurisprudence. Instead, the decision “was another step in the continued assertion of their right to the lands they had never ceased to occupy and defend” (p.1). Legally, the Nisga’a did not “win” their case; however, CALDER set in motion a series of negotiations with the government that ultimately established the Nisga’a treaty that became the first contemporary treaty of any kind in British Columbia. As the editors of the collection note: “it was a defeat that established the foundation for important victories” (p.6).

The collection is divided into five sections that include: reflections on CALDER, the historical context that animates the case, the legal implications of CALDER and the international impact of the case. The section on the historical context of Aboriginal title in the Americas provides the necessary filter through which to consider contemporary jurisprudence on Aboriginal title as well as the impact on CALDER, in particular. Finally, the volume concludes with a critical eye to the future of title claims in Canada and abroad.

The book begins with reflections from a number of key participants in the CALDER case, including Frank Calder, Thomas Berger (a former justice of the Supreme Court of British Columbia, then a lawyer for the Nisga’a) and the Honorable Gerard V. La Forest (then, also a lawyer for the Nisga’a). The conversation between Frank Calder and Thomas Berger is a treat to read. Frank Calder’s extensive resume includes being the first status Indian to be elected to the Canadian legislature where he served for twenty-six years. In addition [*575] to being active in the Native Brotherhood in the 1940s and working to extend the right to vote to status Indian and Asian immigrants, Calder is best known for his attempt to have Aboriginal title recognized and affirmed through Canadian courts. In conversation, Calder was prompted to respond to the question: “how did the most important case in Canadian law of Aboriginal title come to bear your name?” (p.39). In response, Frank Calder recounts a story, an event, which was told to him by his grandfather. In the 1880s when his grandfather was a young member of the Old Aiyansh, he witnessed the arrival of canoes containing five land surveyors at the opposite side of the river. The Nisga’a community decided to send a number of Nisga’a braves to inquire about their activities. The land surveyors responded that that they were determining boundary lines for the Nisga’a nation that the Queen would then “give” to the Nisga’a. The Nisga’a braves returned the next morning with muskets, confronted the surveyors and ordered them off their land. What this story highlights is the refusal of the Nisga’a peoples to be forced into a reservation on their land. Frank Calder indicated that it was this childhood story, this refusal to permit the white settlers to parcel the land and create a reserve that initiated the series of events that led to the CALDER case and to the establishment of the Nisga’a treaty.

Hamar Foster’s contribution to the collection exposes the little known history relating to what Foster describes as “the first legal campaign” that ended in 1928 and included a twenty-year campaign on the part of Aboriginal peoples in British Columbia to have the “land question” submitted for court scrutiny. This piece includes some chilling anecdotes that reveal not only that the Nisga’a peoples rejected the white settler land policies of the day, but also foresaw a future of Aboriginal subjugation under Canadian law. For example, Charles Russ, a Nisga’a leader, spoke at a Royal Commission in 1887 that was established to investigate disturbances that were caused as a result of land conflict. In speaking to the committee, Russ explains: “We took the Queen’s flag and laws to honour them . . . We never thought when we did that that she was taking the land away from us” (p.62). Not only does Russ expose the complicated relationship between sovereignty and territory (and as Foster notes, in so doing provides “a more accurate statement of the legal situation than anything that fell from the commissioners or the politicians who appointed them” [p.63]), but he also highlights a profound incompatibility between European and Indigenous ideas about land use and land ownership. In another anecdote, Foster reproduces the words of Peter Kelly who presented a submission to the joint parliamentary committee that investigated the claims of the Allied Indian Tribes of British Columbia. When asked by the committee what would occur if they refused to acknowledge Aboriginal title, Kelly provides a prediction that remains with us today. Kelly stated: “Then the position that we have to take is simply this: that we are dependent people. Then we would have to accept from you, just an act of grace, whatever you saw fit to give us” (p.84). That this statement was made in 1927 suggests that our understandings of Aboriginal encounters with the Canadian government have yet to change in profound ways and [*576] importantly, that we have not dignified this statement with a substantive understanding of social justice.

Steven Haycox draws parallels between the Nisga’a claim and the work of the Tlingit leader, William Lewis Paul, in Alaska who helped develop what would become the Tlingit-Haida land claim. While most of the contributions to the collection illuminate the material and legal conditions that rendered Aboriginal claims to land difficult, Michael Asch’s essay examines the symbolic conditions that created such obstacles. He outlines the ways in which Indigenous societies were represented in law: as primitive and uncivilized. As a consequence of such a portrayal, it was often argued that their societies “were not sufficiently organized to presume that they had any rights of a kind that required Crown recognition” (p.102). Briefly tracing these racialized ideas in CALDER and in post-CALDER jurisprudence, Asch points out that the case explicitly highlights that when white settlers came Aboriginal peoples were indeed occupying the land of their ancestors and living in sustaining societies. Asch argues that, if Courts relied on this alternative understanding of Aboriginal peoples and communities, “the legitimacy of the Canadian state” (p.109) would be challenged.

Brian Slattery offers “A Taxonomy of Aboriginal Rights,” investigating the distinction between specific rights and generic rights concerning the legal basis of Aboriginal, Inuit and Métis rights in Canada. Specific rights are those rights “whose existence, nature, and scope are determined by factors that are particular to each Aboriginal group” (p.112). A Generic right, on the other hand, can be understood as a “right of a standardized character that is basically identical in all Aboriginal groups where it occurs” and may include such rights as the right to customary law, the right to proper treatment by the Crown and the right to self-government (p.114). Importantly, Slattery shows that in two recent and pivotal cases on Aboriginal rights in Canada, VAN DER PEET and DELGAMUUKW, courts and defendants negotiated the relationship between specific and generic rights in strikingly different manners. For example, in VAN DER PEET there was a distinct recognition that “all Aboriginal rights were specific rights” (p.112). Whereas in DELGAMUUKW, decided one year later, there was a legal narrowing of the idea of specific rights owing, in part, to the fact that the “parties to the case advanced strikingly different conceptions of Aboriginal title” (p.112).

Kent McNeil’s contribution examines the legal and political issues concerning the right to self-government in the post-CALDER era and highlights both the United States and Canadian contexts. David V. Williams examines the relationship between CALDER and Aboriginal Title in Aotearoa New Zealand. In the 1840s, British Crown officials entered into treaty negotiations with Maori peoples of Aotearoa New Zealand. The treaty, known as the Waitangi Treaty, maintained that the “entire territory of New Zealand was proclaimed to be a British colony” (p.155). In the ensuing years, many legal and political questions arose concerning Maori customary rights. In the 1980s, CALDER was invoked by “Maori litigants and their lawyers” in order to advance particular legal [*577] arguments relating to the goal of recognizing Maori customary entitlements. This contribution to the collection points to the necessity to further our understanding of Aboriginal rights, title and customary law in both local and global terms. Understanding the relationships between Indigenous struggles for recognition in different white settler contexts is key to developing robust legal strategies at the local level. Garth Nettheim furthers this dialogue and examines the influence of Canadian and International law on Aboriginal Title claims in Australia.

John Borrows’ contribution to the collection, “Let Obligations Be Done,” emphasizes that CALDER is not only important because it worked to identify that Aboriginal and Inuit peoples have rights that should properly be examined by courts, but that CALDER identified that the Crown had an obligation towards Aboriginal and Inuit peoples in Canada, legally, politically and symbolically. We are now in a time where repair, reconciliation, compensation and apologies of various sorts frame governmental and political relations with Aboriginal communities both in Canada and abroad. Borrows offers what is an exhaustive list of the various forms of legal, political and social obligation that the Crown and the nation have developed in the years since CALDER (pp.206-207). Obligations exist, as Borrows aptly notes, through people and through law whereby “people exist within relationships of subjugation or degrees of freedom” (p.202). As Frank Calder unambiguously states:

To confine people inside that boundary, you have to be on top of them. You’re both in the gutter. Right? If someone is holding down that First Nation inside that reservation, somebody’s got to be on his back and that guy on his back is controlling the law books. So the three to three decision (in CALDER) meant that he had to get off my back and we’d turn around and face each other and talk (p.205).

In essence, the task is to develop legal and political responses that identify the reality of the historical injustices experienced by Aboriginal and Inuit communities in addition to frameworks that recognize the meaning of the injustice and its contemporary implications both for the perpetrators and the victims.

Appeals to Aboriginal title in modern nation states are mediated, negotiated and anchored in law. As a consequence, such forms of recognition have been specifically national processes, infusing appeals to race and culture against the backdrop of national histories of promise and failure. Forms of recognition are also and equally cultural processes requiring discourses of social justice, political actors and group differences. This is an incisive collection of essays both for the general reader and for scholars of law, history, and social justice wishing to reflect upon and investigate these issues. The strength of this collection lies in its silent call that occurs much after one finishes the text. It is this silent call that is the legacy of CALDER itself. Our historical and sociological inquiries into forms of liberal obligation and recognition rooted in the law in white settler societies must trace the specific articulations of national narratives of progress as they have evolved to justify the elimination of Aboriginal, Inuit and Métis peoples, modern racisms and intractable settler claims to the land. [*578]

CASE REFERENCES:
CALDER ET AL. v. ATTORNEY GENERAL OF BRITISH COLUMBIA, [1973] S.C.R. 313.

DELGAMUUKW v. BRITISH COLUMBIA, [1997] 3 S.C.R. 1010.

R v. VAN DER PEET, [1996] 2 S.C.R. 507.

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© Copyright 2008 by the author, Carmela Murdocca.

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RIGINS OF LEGISLATIVE SOVEREIGNTY AND THE LEGISLATIVE STATE

by A. London Fell. Westport, CT: Praeger Publishers, 2008. 408pp. Hardback. $160.00/£90.00.. ISBN: 9780275939779.

Reviewed by Mark Welton, Department of Law, United States Military Academy. Email: Mark.Welton [at] usma.edu.

pp.571-573

This work is subtitled “Book 1: Western Hemisphere (Current News Summary) of Volume Seven: World Perspectives and Emergent Systems for the New Order in the New Age.” It thus constitutes only one part of an extensive multivolume series, published over more than a decade, which seeks to describe the historical and global development of sovereignty and the state from the European Renaissance to the present. The context in which this book appears is important, for if read in isolation it provides much detail but little analysis of an important though narrow slice of this broad history.

Most of the book is devoted to the issues of law-making, governmental relations, and private quasi-legislative activity in the United States from the end of Ronald Reagan’s administration through the early years of George Bush, Jr.’s second term as president. The various chapters in this part of the book cover the US Presidency, the Congress, the Supreme Court and lower federal courts, US federal agencies and commissions, selected states, and some sectors of American society, such as transportation, education, crime, and health care. The concluding and much shorter chapters cover major political developments in the remainder of the Western Hemisphere during this period: Canada, the Caribbean, Mexico and Central and South America.

The distinctive attribute of the book is its use of contemporary headlines taken from major newspapers to depict trends in the growth of legislative sovereignty as the defining characteristic of state and government during the period covered. For each of the governmental and private institutions and sectors covered, both for the United States and the other countries and areas in the western hemisphere, numerous headlines are quoted to depict trends, developments, controversies, or issues that relate to the role of the agency, actor, or sector under review. Footnotes to the sources appear at the end of each paragraph. An extended quotation from the first chapter on the American presidency can usefully convey the flavor of the entire text:

“Pursuing the Domestic Agenda with Congressional Law-Makers (Or, the “Imperial President” as “Super-Legislator”?). During this period in 2002-2004 of heightened presidential wartime powers and Congressional Republican mid-term victories, the Bush administration vigorously pursued (as “super-legislator?”) its extensive domestic legislative program with Congressional lawmakers. For 2002, the following headings, prior to the November mid-term elections, represent illustrative indicators arranged in chronological sequence: “White House is Backing Foes of Finance Bill” (“Party is Pressed to Fight While Shielding Bush”); “Bush’s Plan on Welfare Law Increases Work Requirement” [*572] (“Bipartisan support is seen for revisions of a landmark 1996 law”); “Bush Offers New Drug Plan Similar to One Court Barred”; “Bush Renews Push to Partly Privatize Social Security”; “Bush Promotes His Education Agenda and a Senate Candidate”; (“Adding talk of Afghanistan to that of domestic goals”); “Bush Seeking New Rules to Help Investors . . .”; “He Picks His Fights Carefully” (“Bush lets legislators do their thing, but some GOP critics say that can be dangerous”); “Bush Plan to Avert Work Injuries Seeks Voluntary Steps by Industry” (“A promise of federal enforcement against industries with high accident rates”); “Bush Makes Fervent Bid to Get Senate to Ban Cloning Research”; “White House Proposes New View of Education Law to Encourage Single-Sex Schools”: “White House and Senate in Trade Accord” (“Broader Power for Bush; Help for Displaced American Workers”); “Senate Approves Bill Giving Wider Trade Authority to Bush”; “Bush to Seek Unlikely Allies In Bid to Alter Clean Air Act” (“An effort to include blacks, labor, and environmentalists”) (p. 48)

The paragraph continues with twelve more headlines.

This format, consisting of a brief section or paragraph introduction followed by many newspaper headlines, is maintained throughout the book. Essentially the headlines, taken from twenty print and television news sources, especially the NEW YORK TIMES, are left to speak for themselves. The author, A. London Fell, occasionally indicates that a particular set of events reveals a substantial increase in law-making activity by the particular legislative, judicial, executive, administrative, or other body or actor, but that is the extent of the analysis. The reader apparently is eventually meant to perceive these as indicators that, taken as a whole, reveal a trend towards ever-increasing legislative activity extending both within and beyond the national or subnational legislatures themselves.

It is evident that the book can be read in one of two ways. First, it can be read chapter by chapter, or even skimmed, so that overall trends identified briefly at the beginning of each section are reinforced by the subsequent headlines. This is not really a satisfactory method, as the impression gained is one of redundancy. An apt analogy might be made to a prosecutor who makes a single assertion in her opening statement in court, and then seeks to question thirty witnesses who provide consistent testimony to back up that assertion. A judge, like the reader here, would quickly lose patience with such an approach. The reader would properly assume that supporting evidence provided by the plethora of news headlines might be better placed as endnotes, allowing the text with its main points to be read with much less effort.

The problem with this approach is exacerbated by the broad range of the topics. For example, the coverage of President Clinton’s two terms includes, among many other issues, health care, military exclusion of gays and lesbians, education initiatives, the impeachment proceedings, general relations with Congress, abortion, school prayer, Cuban refugees, environmental protection, and trade policy – in short, virtually the administration’s entire legislative and policy agenda, as well as responses to foreign policy and domestic crises during this period. The effort to be [*573] complete can blur the focus of the selected material.

On the other hand, the book can be read in discrete sections, using the headlines along with their noted sources at the end of the book (there is no index) to engage in deeper historical investigation of the specific events mentioned. This could merit the attention of scholars who are interested in researching how specific political or legislative events and issues were covered at a given time, and how they relate to concurrent or related other events. In short, if approached from this vantage point the book provides a detailed record of events that were deemed significant and reported at the time, within the general framework of extensive law-making activity by governments and others during this recent era. These can point the researcher to a wide range of useful subjects for study.

On rare occasion Fell refers to earlier books in this series, in particular the first two volumes, entitled CORASIUS AND THE RENAISSANCE SYSTEMATIZATION OF ROMAN LAW, and CLASSICAL, MEDIEVAL, AND RENAISSANCE FOUNDATIONS OF CORASIUS’ SYSTEMATIC METHODOLOGY, respectively. These references acknowledge discussion in those volumes of the growth of the idea of the innate power of legally-recognized entities to make laws to govern their own activities. The tentative title of the forthcoming and final volume in this series, REFLECTIONS ON SYSTEMS OLD AND NEW (with Bibliography and Index), suggests that it will provide more extensive analysis of the events and trends depicted in this and the follow-on book covering the eastern hemisphere, which will also use current new summaries as its main text. If so, and if read using the second approach noted earlier and in conjunction with the previous volumes that did not utilize the current new summary format, the student and researcher will have available a set of useful, detailed texts that can be referred to for further analysis and elaboration of the growth of law-making in modern states.

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© Copyright 2008 by the author, Mark Welton.

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LEGAL REALISM REGAINED: SAVING REALISM FROM CRITICAL ACCLAIM

by Wouter de Been. Stanford, CA: Stanford University Press, 2008. 264pp. $60.00. Hardback. ISBN: 9780804756594.

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

pp.567-570

Wouter de Been provides a thorough and sophisticated look at oft-neglected elements of legal realism and critical legal studies (“CLS,” the movement humorously referred to in the book’s title), details differences between the two movements (many of which often are obscured by short descriptions of them), and offers a compelling argument for the continuing vitality of certain components of legal realism. The author displays an impressive mastery not only of the movements themselves, but also of underlying concepts drawn from history, sociology, law and philosophy. LEGAL REALISM REGAINED is not for the novice, though: it includes references to numerous “isms” for which no adequate definitions are provided, and, despite a well-intentioned introduction, assumes (and requires) a general knowledge of jurisprudence and philosophy. Those lacking familiarity with these subjects are well advised to begin, at the very least, with Leiter (2005) and/or Tushnet (2005).

To introduce the two movements discussed in the book, generalization is necessary, though it sacrifices detail and heterogeneity within each movement for the sake of basic understanding. Crudely stated, legal realism is a movement characterized by the belief that abstract, foundational concepts, doctrines, and rules of law do not provide unique, determinate resolutions to most difficult cases, and that in deciding such cases, judges – consciously or not – take extra-legal considerations into account. CLS accepts these realist positions, but also believes that the extra-legal considerations are political in nature – rendering law into a tool of oppression and class domination – and that legal indeterminacy is so pervasive that rules of law do not provide unique, determinate resolutions to almost any case. CLS also exhibits a thoroughgoing skepticism of rationality, objectivity and knowledge. Both movements believe that many aspects of law are flawed and in need of reform. De Been’s book investigates the relationship between these two movements.

The book’s central premise is that, contrary to common belief, “Legal Realism and Critical Legal Studies are not continuous bodies of legal thought and that the attribution of Realistic antecedents to CLS ideas is in fact highly problematic” (p.13) This premise is tested through an examination of three foci, of importance, in some measure, to both movements: history, social science, and language.

(i) For realists, an understanding of history is important for its ability to explain a particular rule or legal institution as a reaction to a unique set of historical problems and circumstances that may no longer exist, rendering the particular law anachronistic. Thus, [*568] principles of law are not immutable, and reform may be necessary to allow law to address current problems and circumstances.

CLS agrees with realism that legal rules and institutions are historically contingent, and that historical understanding can serve a useful critical role, but, de Been explains, CLS thinks that realism has the relationship between law and history backwards. CLS believes that “the legal system and legal thought, by providing people with their basic conceptions and ideas about social and economic relations, help to create the very social and economic realities that the Realists thought were shaping law” (p.58). Of course, the reality may lie somewhere between these two extremes, with law, culture, and historical circumstances influencing each other, none so sterile as to exert no influence. De Been, also critical of this extremism, notes that CLS’s uni-directional view of law shaping society fails to explain how legal change comes about, if not from changes in the social fabric.

(ii) With an understanding that law is shaped and developed in light of its social and historical context, realists sought to import social science into legislation and adjudication, hoping that the social sciences could provide the critical, empirically oriented analysis that law needs in order to shed vestigial, obsolete components and better attain current goals – a decidedly instrumentalist view of law. The law and economics movement, exemplified by the work of Richard Posner, can be seen as one recent outgrowth of this realist project. Social scientific study might also provide better insight into the conditions actually affecting and guiding judicial decision-making.

CLS believes that by embracing social science, the realists merely replaced one value-laden, indeterminate, historically-contingent enterprise with another. For CLS, social science will not provide determinate answers to legal or social issues, and the titular reference to ‘science’ – conjuring an image of rationality and truth – masks its political nature. The social sciences, by brushing the status quo with a veneer of objectivity, serve only to illegitimately legitimize it. According to CLS, the realists should have taken the epistemological and metaphysical ramifications of their critique of legal doctrine more seriously, and extended it to the social sciences as well.

(iii) With respect to language, realists believe it to be “a socially constructed tool,” and that words are “merely handy symbols that referred to sets of facts” in a changing world. As such, words are also indeterminate and tied to historical context, and meaning changes over time. To realists, language can also constrain thought, insofar as thought is conducted through language. CLS scholars accept these realist beliefs but take them further, arguing that reality is not directly accessible, and can be reached only when mediated by language that strongly influences – if not determines – the way people perceive and understand that reality. Further, language does not mediate neutrally, but reflects and further entrenches the dominant political worldview. Thus, for CLS theorists, language is not a useful tool for the analysis of either law or social policy. One is struck, though, by the potentially self-defeating nature of this CLS [*569] critique, as the CLS view is also expressed, with apparent coherence, through language.

The author concludes by suggesting that elements of realism retain contemporary relevance and viability, and should not suffer the same fate as the CLS movement, which has deteriorated. De Been claims that realism (at least its viable elements, which he ties to pragmatism) is a partially “substantive” outlook. I would agree that it contains some substance, though in comparison to substantively-rich theories of law such as Dworkin’s, realism is best understood as a methodology. Realism is methodological in the sense that it does not provide a true goal or moral code, but rather only instructions on how to conduct adjudication once a goal is established. Its most important lesson, as the author reasonably indicates, is that in deciding cases, judges should be guided not only by doctrinal considerations, but by practical considerations informed by the social sciences, thus ensuring that law achieves its aims both in theory and practice. Put differently, realism counsels informed, empirically-oriented adjudication.

De Been also notes that realism “shows us that we can do without a firm ground, that we can do without such tattered foundational concepts as rationality, objectivity, and human nature and still keep faith in the project of understanding and improving law” (p.180). Realism, he claims, is still viable in the postmodernist world of epistemological relativity. Realism’s response to what it concedes to be a devastating critique of the concepts of objective knowledge and truth is to “simply accept that absolutes are not attainable and proceed with the concepts, standards, and values that are part of” a person’s “given existential setting,” even “if these are partial and limited,” as “they still suffice to produce scientific knowledge which is both reliable and valid for the circumstances at hand (and which is the only kind of knowledge situated and finite human beings can hope to generate, anyway)” (p.191). Both the author and the realists pay little additional attention to the matter, and it seems something of an afterthought. It is hard to fault the realists for this inattentiveness, as they generally were not philosophers, though they might have benefited from a more developed, explicit epistemological response. However, even in its skeletal form, the author correctly suggests that it is not essential for the realist’s instrumentalist project that objective knowledge be had; for the realist, a method of legal reasoning is successful not by virtue of its proximity to truth, but because of its utility. So long as the method leads adjudication to attain social goals more efficiently and expediently, it has succeeded.

This, however, is another indication of the paucity of substance in realism. A more substantive theory of law, offering not just a means to an end but a conception of what law’s end should be, would be more squarely faced with CLS’s epistemic critique. Perhaps, then, it is fitting that such a theory, and not the realists’, should bear the burden of a response.

Some other quibbles: first, I would have liked to see more actual or hypothetical cases cited as examples of particular realist and CLS positions, since, for some, it is difficult to imagine how they might manifest themselves in actuality. [*570] In the absence of such cases – and in stark contrast to the realist advice, commended by the author, of mooring doctrine to fact – it is not clear that these theoretical viewpoints bear any relation to potential adjudicative positions. Helpful examples the author does provide include the discussions of how the term “income” meant different things at different times, and the historical development of the principle of caveat emptor, as both demonstrate the importance of understanding law (and its language) in its own unique historical context. Second, de Been attempts to integrate elements of meme theory into the book – particularly by comparing outmoded doctrine with a certain type of meme – but neglects to describe generally what meme theory actually is. While meme theory is not a necessary part of his analysis, if choosing to include it, the author should more fully introduce it. Notwithstanding these quibbles, this work is a valuable and well-reasoned contribution to the jurisprudential literature for readers with the requisite background.

REFERENCES:
Leiter, Brian. 2005. “American Legal Realism.” In Martin P. Golding and William A. Edmonson (eds), THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY. Malden, Massachusetts: Blackwell Publishing Ltd., 2005.

Tushnet, Mark V. 2005. “Critical Legal Theory.” In Martin P. Golding and William A. Edmonson (eds), THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY. Malden, Massachusetts: Blackwell Publishing Ltd., 2005.

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© Copyright 2008 by the author, Adam Shajnfeld.

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DEFENDING LIFE: A MORAL AND LEGAL CASE AGAINST ABORTION CHOICE

by Francis J. Beckwith. New York: Cambridge University Press, 2007. 312pp. Hardback. $75.00/£40.00. ISBN: 9780521870849. Paperback. $22.99/£14.99. ISBN: 9780521691352. eBook format. $19.00. ISBN: 9780511332326.

Reviewed by Eileen McDonagh, Department of Political Science, Northeastern University, e.mcdonagh [at] neu.edu.

pp.558-566

As Francis J. Beckwith states on the first page of DEFENDING LIFE, the primary purpose of this book is to “provide a thorough defense of the pro-life position on abortion [as grounded] in a particular view of the human person . . . [that] include[s] the unborn . . . [in] the true wideness of our human community” (p.xi). Thus, Beckwith directs his greatest efforts toward establishing the premise that the fetus is a full human being from the moment of conception. By so doing, his book is primarily focused on the age-old assumption that if it can be established that the fetus is an unborn human being with the same moral and legal rights as a born human being, then there is no moral, legal, much less constitutional justification for choosing an abortion. For people still fixated on this assumption, this is the book for you, because Beckwith provides an unusually detailed survey of philosophical and medical perspectives bolstering this perspective.

However, for those who see the pro-life side as having virtually already won the debate over the personhood status of the fetus, this book will be a disappointment. For Beckwith disproportionately directs much less attention to the more compelling and challenging view that “even if” the fetus is a person with the same rights as a born person, women still have a moral, legal, and constitutional justification for abortion rights. The latter perspective is founded on women’s right to self defense in relation to a fetus whose presence and impact, if a woman does not consent to the fetus’s presence and impact, justifies the use of deadly force to stop the way a fetus transforms a woman’s body from a nonpregnant to a pregnant condition. In the wake of relatively recent state-level legislation, such as that passed by South Dakota, establishing that the fetus has the same rights as a born human being, it is the self defense approach to abortion rights that holds the key for the future of abortion rights for women. Granted, voters in South Dakota overturned by referendum legislation conferring personhood status to the fetus, but no one I know is assuming this is the last of such law-making. Thus, as careful and as meticulous as is Beckwith in establishing why the fetus is a person from the moment of conception, his book is behind the times, since this question is becoming more and more moot as each year goes by. That said, let us review the arguments Beckwith invokes about why the fetus is a person.

Philosophically: What the Fetus “Is”
In Chapter One, Beckwith begins by establishing why he thinks there are moral absolutes, or, in his words “objective morality” (p.17) that translates into granting the fetus [*559] personhood status. In Chapter Two, he reviews his version of the current status of the constitutionality of abortion rights as initially established in ROE in 1973. He depicts the Court’s ruling in ROE as permitting a woman to procure an abortion “for practically any reason she deems fit during the entire nine months of pregnancy” (p.19, italics added). Of course, everyone even superficially acquainted with ROE knows that the Court did no such thing. The Court ruled from the outset that in the latter stages of pregnancy, such as the third trimester, there is no constitutional right to an abortion unless a woman’s health or life is in danger. In later cases, the Court clarified that after viability there is no right to an abortion unless pregnancy poses serious health risks to women. Currently, therefore, “abortion on demand” applies only to the pre-viable stage of pregnancy. And then, only if a woman can back up her “demand” with the funds to pay for an abortion, since the Court has consistently ruled that it is constitutional to deny abortion funding to women, even indigent women whose health is threatened by a medically abnormal pregnancy.

In Chapter Two, Beckwith offers an interesting rebuttal to Blackmun’s contention in ROE that, even if the fetus were a person, it would not be covered by the Fourteenth Amendment because that Amendment refers only to “born” people. However, as Beckwith argues, at the time the Fourteenth Amendment was added to the Constitution, “it was not yet known that the child from conception is a separate, distinct human organism” (p.27). If there had been such a view at that time, Beckwith contends that the unborn fetus would have been explicitly included in the Fourteenth Amendment. As it is, Beckwith advises that we extrapolate backward. Thus, for example, “if a statute that forbids burglary became law at a time when no computers existed, it would not follow that the prohibition against burglary does not apply to computers . . . [rather] what matters is whether the entity stolen is property,” not the particular type of property it might be (p.28, italics in text). By analogy, what matters is that the fetus is a human being, according to Beckwith, not that it is a particular type of human being, that is, an unborn human being. Since the intent of the Fourteenth Amendment is to protect the rights of human beings, according to Beckwith, the fetus should be included in that protection, even though at the time of the Fourteenth Amendment, Congress did not intend to include the fetus in its protection.

Thus, in a nutshell, the goal of DEFENDING LIFE is to establish the personhood status of the fetus, on the assumption that once the fetus is a person, there is no moral, legal, or constitutional right to an abortion. In his apparent zeal, however, Beckwith detracts from his own logical prowess by misrepresenting the Court’s ruling. For example, he claims that the Court in WEBSTER “upheld the [Missouri] statute’s preamble, which states that ‘the life of each human being begins at conception,’ and that ‘[u]nborn children have protectable interest in life, health, and well-being” (p.32). In fact, the Court did no such thing in WEBSTER. Rather, it stated that “We . . . need not pass on the constitutionality of the Act’s preamble” (WEBSTER, p.1389), thereby explicitly refusing to rule on the constitutional relevance to abortion rights of the Preamble of the Missouri [*560] statute. People who care about abortion rights know this, and all that Beckwith accomplishes by presenting such serious misinformation is to dilute his credibility.

For those who still wish to debate whether the fetus is a person – and this book does have the tone of a debate manual on the topic – from the pro-life side, Beckwith covers the ground. He addresses pro-choice arguments that include religious liberty, human consciousness as the standard for personhood, the dangers of illegal abortions, women’s economic inequality, women’s equal rights for employment and education, and the impracticalities of abortion prohibition. He also extends his insistence on the personhood status of the fetus from the moment of conception to a critique of cloning (Chapter 8). Beckwith concludes his book with a recap of his argument, which is that (1) the unborn entity, from the moment of conception, is a full-fledged member of the human community, (2) it is prima facie morally wrong to kill any member of that community, (3) every successful abortion kills a full-fledged member of the human community, and (4) therefore, every successful abortion is prima facie morally wrong.

Legislatively: What the Fetus “Is”
Oddly, missing from Beckwith’s heavy-lifting efforts to establish the personhood status of the fetus is the way federal and state-level statutes in the last ten years have virtually done just that. In 2004, for example, Congress passed, and President Bush signed into law, the Unborn Victims of Violence Act (U.V.V.A.), which makes it a separate crime to injure or kill a fetus while committing a federal or a military crime against a pregnant woman on the grounds that the fetus is an “unborn child” from the moment of conception, where the term “unborn child,” refers to “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” It is important to note, of course, that this legislation specifically exempts legal abortions, stating that “Nothing in this section [protection of unborn children] shall be construed to permit the prosecution of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law.”

In addition, as of 2006, in at least 36 states, when a fetus dies or is harmed as a result of injuries imposed upon its mother, there is some type of fetal homicide law available for prosecuting the assailant on behalf of the fetus. In 31 of these states, fetal homicide is defined by means of state statute, and in two by means of case law. In addition, in fifteen of these states, fetal homicide laws apply to even the earliest stages of pregnancy, defined as “any stage of gestation,” “conception,” “fertilization” or post-fertilization. Fetal homicide laws apply in Arizona, for example, to “any stage of its [unborn child’s] development”), in California to the “fetus,” in Idaho to the “embryo,” in Illinois to the “unborn child” defined within the statute (§ 720 ILCS 5/9-1.2) as “any individual of the human species from fertilization until birth,” in Kentucky to the “fetus,” in Louisiana “from moment of fertilization,” in Maine to the “unborn child,” in Minnesota to the “unborn child [which] means the unborn offspring of a human being conceived, but not yet [*561] born” (Minn.. State §609.266 (2005)), in Missouri and Nebraska to the “unborn child [which] means an individual member of the species Homo sapiens, at any stage of development in utero” (§R.R.S. Neb. 28-3289 (2005)), in North Dakota to the “unborn child [which] means the conceived but not yet born offspring of a human being” (N.D. Cent. Code, § 12.1-17.1-01 (2006)), in Ohio to the “unborn member of the species homo sapiens,” in Oklahoma to the “unborn child” meaning the unborn offspring of human beings from the moment of conception, through pregnancy, and until birth including the human conceptus, zygote, morula, blastocyst, embryo and fetus (63 Old. St. § 1-730 (2005), in Pennsylvania to the “Unborn child” and “fetus . . . . where each term shall mean an individual organism of the species homo sapiens from fertilization until live birth” (18 Pa.C.S. 3203 (2005)), in South Dakota to the “unborn child, an individual organism of the species homo sapiens from fertilization until live birth” (S.D. Codified Laws §22-1-2 (2006)), in Texas to “an unborn child at every stage of gestation from fertilization until birth,” in Utah to the “unborn child at any stage of its development” (Utah Code Ann. §76-5-20 1 (2006)), in Virginia to the “fetus,” and in Wisconsin to the “unborn child [which] means a human being from the time of conception until it is born alive” (Wis. Stat. §940.04 (2006).

Granted, in most instances of congressional or state-level legislation seeking to protect the fetus from third party harm, abortion rights are explicitly protected. However, even this is changing, as was evident when the Governor of South Dakota in 2006 signed into law the “South Dakota Women’s Health and Human Life Protection Act.” Section 1 of this Act explicitly couples restrictions on abortion in the same piece of legislation that defines unborn life to have the same rights as a born human being:

The Legislature accepts . . . the fact that each human being is totally unique immediately at fertilization . . . [and] that to fully protect . . . the rights, interests, and life of . . . [the] unborn child, abortions in South Dakota should be prohibited. Moreover, the Legislature finds that the guarantee of due process of law under the Constitution of South Dakota applies equally to born and unborn human beings, and that under the Constitution of South Dakota . . . [an] unborn child . . . possess[es] a natural and inalienable right to life.

This legislation was based upon a 70 page report by the South Dakota Task Force
to Study Abortion, which concluded that since ROE, there have been scientific advances in the understanding of when human life begins, and that it is now “a matter of scientific fact [that] an abortion terminates the life of a whole separate unique living human being.” Assuming, as does Beckwith, that what the fetus “is” determines abortion rights, the Task Force concluded and the Legislature and the Governor agreed that since the fetus “is” an unborn human being with the same rights as a born human beings, abortions must be all but prohibited. Hence, Section 2 of this Act reads:

No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly [*562] use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.

It is notable, of course, that this legislation was subsequently rejected by the voters of South Dakota in a referendum. However, there is every reason to suppose that other states will follow suit and no reason to assume that voters in other states can be counted upon to negate such legislation by means of referenda. What is more, although ROE prohibited a state from using a legal definition of when life begins to prohibit abortion rights, how many of us believe the current Court would be bound by that caveat? To the contrary, it is more than likely that the current Court would seize the opportunity to uphold ROE, even while nullifying it by ruling that if and when a state defines the fetus to have the same rights as a born person in the context of abortion rights, then it is constitutional to prohibit abortions on the grounds that abortion rights should follow, not proceed, the definition of what the fetus “is.” Such a ruling would only modify, not overturn ROE, thereby allowing the Court to have its cake and eat it, too.

Philosophically: What the Fetus “Does”
Of course, as Beckwith notes, in addition to the privacy grounds for abortion rights as based on what the fetus “is,” there has been a long standing second prong, the self defense grounds for abortion rights, based on what the fetus “does.” Given the propensity since ROE in the legislative depiction of the fetus as a human being with similar, if not the same, rights as a born person, clearly, this is the prong that is going to be most relevant in the decades ahead. As first articulated by moral philosopher Judith Jarvis Thomson, two years before the ROE decision in her classic article, “In Defense of Abortion,” the question is not what the fetus “is,” but rather what the fetus “does.” In her famous scenario, she asks the reader to imagine what would happen if she woke up one morning to find herself attached to a famous violinist. This violinist will die if you disconnect him. Yet, his connection to you is so intrusive that it necessitates a destruction of your privacy and liberty, since he must accompany you everywhere for a prolonged period of time.

The moral question raised by Thomson was whether a person could disconnect – and, thus, kill – the violinist and still be a moral person. Her unequivocal answer was “yes.” While it would be a magnificent act of altruism to accept the massive intrusion of the violinist upon one’s body and liberty for a prolonged period of time to facilitate his survival, it is not necessary to go to such extremes of giving to be a moral person. Rather, such an act of altruism would be comparable to giving away most of your material resources so that others in the world who are starving might eat. It would, of course, be grandly moral to sacrifice oneself in this way to others in need, but such an extreme degree of self sacrifice is not required in order to be a moral person. Rather, one can eat well, including dinners at fancy restaurants, knowing full well that there are many, many people who are starving.

The analogy with abortion rights is obvious. A fetus intrudes upon the privacy and bodily integrity of a woman for a prolonged period of time. Even if [*563] the fetus is a human being and has a right to life, as would an attached violinist, the question is whether a woman must continue to allow the fetus to be attached to her in order to be a moral person? Or, can the woman detach herself from the fetus, knowing that by so doing she kills the fetus, and still remain a moral person? Thomson’s answer is that even if the fetus is a human being, the needs of the fetus are too great to require a woman to meet those needs as a condition for being moral. Rather, the woman may defend herself against nonconsensual intrusion of a fetus on her bodily integrity and liberty, just as she would have the right to defend herself against the nonconsensual intrusion of a violinist. Hence, a woman has a right of self-defense by means of an abortion in response to nonconsensual intrusion by a fetus, even or if the fetus is defined to be an unborn child.

Beckwith addresses the self-defense prong of the abortion debate based on what the fetus “does.” However, he does not do so with the same thoroughness, much less logical precision, as he does when addressing the privacy prong of abortion rights based on what the fetus “is.” The result is that this book is behind the times. In the years ahead, the issue in abortion rights will be more and more determined by what the fetus “does,” rather than what the fetus “is,” as states and the federal government continue the trend that endows the fetus with a status similar, if not equal to, that of a born person. And when it comes to what the fetus “does,” Beckwith has a long way to go even to come close to dealing with the fundamental moral, legal, and constitutional issues relevant to a woman’s right to defend herself from a fetus, should she refuse to consent to pregnancy, that is, should she refuse to consent to the massive changes in her body and liberty that result from the fetus.

Pregnancy: A condition in a woman’s body resulting from the fetus. Significantly, the Index of Beckwith’s book contains no entry for “pregnancy.” Yet, according to the American Bar Association, an abortion is the termination of pregnancy with an intention other than to produce a live birth or to remove a dead fetus. The very purpose of an abortion, therefore, is to terminate pregnancy. If there is no pregnant condition, there is no possibility of an abortion. How can any book about abortion rights, therefore, omit an Index reference to pregnancy? Rather, it would seem necessary to start with an understanding of what constitutes the condition of pregnancy that abortion terminates. To do so requires, at the outset, recognizing that in order for a woman to be pregnant, a fetus must be growing in – that is, using – her body. Without the fetus’s use of her body, no woman is ever pregnant. To stop the condition of pregnancy in a woman’s body, therefore, requires stopping the fetus from using her body to maintain its own growth and development, which given current technology requires removing it from her body, either by means of childbirth, a miscarriage, or an abortion. It is not until the fetus stops using a woman’s body that her body returns to a non-pregnant condition. Hence, pregnancy is a condition in a woman’s body necessarily resulting from one and only one thing: the presence of the fetus in her body. [*564]

More than a presence. It is not as if the fetus is a passive presence in a woman’s body, however, something that she merely carries around with her for a period of nine months. To the contrary, the pregnant condition resulting from the fetus consists of a massive transformation that entails dramatic changes in every system of her body. In a medically normal pregnancy, for example, a new organ, the placenta, grows in a woman’s body in response to the presence of the fetus; by about the 30th week of pregnancy, blood volume increases by about 50%; red blood cell mass increases by 20-30%; cardiac output is 30-40% higher than in a non-pregnant state during the first 3 months of pregnancy; the heart becomes enlarged and displaced to the left as a result of the way the enlarging uterus displaces the diaphragm; lung volume progressively decreases by as much as 20% from the middle to the second trimester of pregnancy; respiratory rate increases by 15% (2-3 breaths per minute); the enlarging uterus displaces the stomach and intestines from a horizontal to a vertical position; the gallbladder becomes hypotonic with slower and less complete emptying, which can result in gallstone formation due to the thickening of the bile; all metabolic functions increase during pregnancy in order to provide for the demands of the fetus, placenta, and uterus, and a pregnant woman from a metabolic standpoint can be described as living in a state of “accelerated starvation” due to the nutritional needs/demands of the growing fetus; renal plasma and flow increase to a level of 50-60% higher than in a non-pregnant state; and the endocrine system undergoes massive change as the pituitary gland, for example, enlarges by about 135% during pregnancy, prolactin levels increase tenfold, and other hormones increase double, triple, and quadruple their base levels.

Even in a medically normal pregnancy, therefore, what the fetus “does” is a very big deal. The key issue, therefore, is what justifies the fetus’s massive transformation of a woman’s body? Clearly, the fact that the fetus has no conscious intentions and cannot control what it does gives it no justification to impose itself on others, since no born person lacking mens rea has such a right. Similarly, the fact that the woman consented to sexual intercourse as an act prior to her condition of pregnancy gives the fetus no justification to impose itself on the body of its mother, since born children have no such right. Once born, for example, no state in the country requires a biological parent to donate even a pint of blood to a needy child, much less organs or other body parts. Hence, even after a woman has consented to sex, has consented to be pregnant, and has consented to be the parent of her born child, the parental duty to care for her offspring does not include the duty to donate her body. Pro-life advocates demand that the unborn child be treated in the same way as a born child. This would mean that since the duty to care for a born child does not include donating one’s body to it, then neither does the duty to care for an unborn child include the donation of one’s body. What is more, if a born child or someone acting on behalf of a born child were to take a body part from a parent without consent, the government would support the right of the parent to be free of such imposition, not the child’s right to impose on a parent’s body without consent. Applying that [*565] principle to an unborn child that imposes on a woman’s body without consent means that the government would support the right of a woman to be free of such imposition – that is, the government would support abortion rights.

The only answer, therefore, to the question of what justifies the massive transformation of a woman’s body resulting from the fetus is the woman’s consent. If a woman consents to the pregnant condition resulting from the fetus, then the way it massively transforms her body is permissible. If, on the other hand, a woman does not consent to the way it transforms her body, the fetus is imposing massive injury upon the woman. This is because morality and the law both stipulate that the key to defining injury is consent. If a surgeon performs an operation that saves a patient’s life, that surgery is presumably a wonderful event, if and when the patient consented to the surgery. Without the patient’s consent, that same surgery is a serious injury.

Nonconsensual pregnancy, therefore, just like nonconsensual sexual intercourse (rape), constitutes serious injury. Beckwith recognizes the use of this analogy by those, such as myself, who have written about abortion rights from the perspective of what the fetus “does,” but he misrepresents our views. For example, he claims that I compare “pregnancy to rape” (p.176), when, in fact, what I compare is nonconsensual pregnancy to rape. I do not assume that all pregnancies are nonconsensual any more than I assume that all sexual intercourse is nonconsensual. Yet, he claims that “McDonagh’s understanding of pregnancy as morally equivalent to rape” leads to the conclusion that pregnancy is a prima facie wrong (p.176). That is not my position. My position is that nonconsensual pregnancy is a prima facie wrong just as nonconsensual sexual intercourse (rape) is a prima facie wrong. Beckwith is smart, so I can only speculate why he would so blatantly misrepresent the self-defense foundation for abortion rights. Could it be that he cannot refute it any other way?

The extent to which Beckwith fails to address the self-defense argument for abortion rights is evident in his following hypothetical. He asks the reader to imagine a situation where a young woman involved in a car accident arrives comatose at the hospital, where she is examined by a doctor. The doctor determines that she is pregnant and that neither the woman nor her friends are aware of her condition. According to Beckwith, the self-defense argument for abortion rights as represented in my work and others, is that “pregnancy is a prima facie violation of the woman’s bodily integrity,” and, thus, the physician is “morally required to perform an abortion to rid his patient of the ‘massive intrusion’ being imposed upon her by the unborn” (p.176). As noted above, of course, the self-defense argument for abortion rights prescribes no such thing. The crucial point is not whether the woman or her friends know whether she is pregnant, but rather whether the woman consents to be pregnant. Even if the comatose woman is the victim of rape, for example, that fact alone does not tell us whether she consents to be pregnant. Granted she did not consent to sexual intercourse, but we do not know whether she consents to the subsequent condition of pregnancy. [*566] Perhaps she is a Beckwith devotee, a pro-lifer who would consent to be pregnant regardless of whether she was raped. We simply do not know. And without knowledge of whether pregnancy is consensual, the only morally and legally required action is to find out if she did, or most likely would, consent to pregnancy. Only after it is established whether her pregnancy is consensual (or not), can any other decision be made about maintaining or terminating her pregnancy.

Beckwith introduces rape in the context of an unconscious woman with the following scenario. Suppose you enter the hospital room with the same comatose woman and find “a man having sex” with her and “you correctly intervene to stop the ugly violation.” He contends that the quickness with which a person would stop the sex in this example compared to the way a person might allow the comatose woman to continue to be pregnant by refraining from intervening proves that “pregnancy is in fact a prima facie good” (p.177). In fact, that scenario proves nothing of the sort. The reason a person would stop a man from having sexual intercourse with a comatose woman is because, by definition, we would assume that this form of sexual intercourse is occurring without the woman’s consent, as defined by her comatose state. Without consent, that form of sexual intercourse is serious injury (rape), and that is why people would be morally and legally correct to stop it.

In sum, Beckwith has written a careful and meticulous treatise about why the fetus should have a personhood status equal to that of a born human being from the moment of conception. This is exactly where legislation is heading, and his book may bolster those efforts. However, if so, the self-defense argument for abortion rights will become even more important, for its power is that it preserves abortion rights for women – including abortion funding – “even if” the fetus is a person. The more that pro-life people succeed in securing a personhood status for the fetus, the more important the self-defense argument for abortion rights becomes. And yet it is precisely the self-defense argument where Beckwith’s book falls short. The fact that he miserably misrepresents the self-defense argument, despite his erudite and scholarly analysis elsewhere in the book, gives me hope – abortion rights partisan that I am – that the self-defense argument is so strong and inviolable that it stymies even the best of the pro-life advocates, such as Francis Beckwith.

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

WEBSTER v. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490 (1989).

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© Copyright 2008 by the author, Eileen McDonagh.

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