THE MIRACLE CASE: FILM CENSORSHIP AND THE SUPREME COURT

by Laura Wittern-Keller and Raymond Haberski Jr. Lawrence, KS: University Press of Kansas, 2008. 256pp. Cloth. $35.00. ISBN: 9780700616183. Paper. $16.95. ISBN: 9780700616190.

Reviewed by Steven B. Lichtman, Department of Political Science, Shippensburg University. Email: SBLichtman [at] ship.edu.

pp.95-99

One of the most enjoyable features of the University Press of Kansas’ “Landmark Law Cases and American Society” series is the breadth of cases that it covers. There are volumes devoted to great cases such as MARBURY v. MADISON and BROWN v. BOARD OF EDUCATION, and there are also volumes that cover infamous cases such as DRED SCOTT v. SANDFORD and LOCHNER v. NEW YORK. Yet the series’ primary virtue (among many) is that it does not limit its definition of “landmark” to those cases which, for better or for worse, occupy space in the pantheon of American law. The series also features monographs on cases which perhaps were once regarded as important – and which perhaps still should be so regarded – but which today seem to have slipped through the cracks.

Such is the case with BURSTYN v. WILSON, the US Supreme Court’s 1952 decision which marked the first time that movies were recognized as qualifying for the protections of the First Amendment. A half-century after its issuance, BURSTYN has been progressively deemphasized by casebook editors and constitutional law teachers. Not only do the leading undergraduate constitutional law textbooks fail to excerpt BURSTYN, these texts do not even mention it as a related case or list it in their indexes. This milestone case in free speech law, it seems, no longer merits even a footnote in contemporary narratives of the First Amendment.

But now, courtesy of Laura Wittern-Keller and Raymond Haberski Jr., BURSTYN v. WILSON has been given a decidedly comprehensive treatment. THE MIRACLE CASE is an outstanding reminder that perhaps teachers and students of American constitutional law should revisit BURSTYN, if not for the quality of the opinion itself, then at least for its place in the historical development of freedom of speech.

In BURSTYN v. WILSON, the Supreme Court considered the constitutionality of New York State’s attempt to suppress Roberto Rossellini’s film “The Miracle,” which centers on a homeless Italian woman who is impregnated by a man she believes to be St. Joseph. Rossellini’s intended message was to show how motherhood can transform an ordinary woman into something holy, but the Catholic Church regarded the movie as blasphemous. Although “The Miracle” had been approved in advance by New York State’s film censorship board, the Church – via its satellite group, the Legion of Decency – exerted its customary sway over key New York [*96] City officials. Soon after “The Miracle” opened at the Paris Theater, New York City’s Commissioner of Licenses informed the theater that its operating license would be suspended if it continued to show the movie. Film distributor Joseph Burstyn, who had shepherded “The Miracle” into the United States, successfully pursued an injunction against the License Commissioner, only for the state’s censor board to rescind its earlier approval of “The Miracle” on the grounds that, upon further review, the film was sacrilegious after all. Burstyn challenged that ruling, and despite the existence of a 1915 precedent, MUTUAL FILM CORPORATION v. INDUSTRIAL COMMISSION OF OHIO, which declared movies to be nothing more than a regulable business transaction, he ultimately secured a unanimous Supreme Court decision in his favor (and the overruling of MUTUAL FILM).

THE MIRACLE CASE is a lively account of not only the lonely journey of Joseph Burstyn’s lawsuit, but also the scattershot development of American movie censorship regimes. Wittern-Keller and Haberski masterfully illustrate the parallel tracks of film regulation: on one path, localized censor boards and the ever-present threat of coordinated federal action in the field; on a separate path, a movie industry eager to reassure the public that its products were wholesome entertainment worthy of their discretionary dollars – and equally eager to forestall the imposition of governmental regulations. The result was a back-channel alliance of prudish officials and skittish film companies, an arrangement which persisted for decades. The Motion Picture Association of America refused to stand against censorship in the BURSTYN case, and pointedly withheld its support for his legal challenge. Wittern-Keller and Haberski carefully depict the MPAA’s pusillanimity as representative of an industry fearful of ruffling governmental feathers at the height of the McCarthy period. This story is one of many examples of how their overall narrative delineates the various interlocking pressures endured both by Hollywood and the distributors of foreign films through the 1950s and 1960s.

The book also shines as a history of “what happened next.” Burstyn’s triumph ushered in a new era of challenges to censorship schemes, culminating in the eventual invalidation of the various state and local movie censorship boards, and the wholesale revision of the movie industry’s ratings standards. While the coverage of the various post-BURSTYN dynamics is entertaining and informative, there are places in this section of the book where a bit more depth would have been welcome. For example, BURSTYN set in motion a series of events which brought about the decline of Hollywood’s antiquated Production Code, yet that story is understressed, and there is no mention of autocratic Code czar Geoffrey Shurlock.

A related quibble is that the authors’ portrayal of influential New York Times critic Bosley Crowther seems one-sided. While Crowther is rightly lionized as an ardent foe of censorship, he was also an increasingly reactionary detractor of the new cinema values that emerged in the 1960s. However, this dimension of his career is mentioned only briefly. In [*97] effect, THE MIRACLE CASE is the inverse of Mark Harris’ splendid 2008 book, PICTURES AT A REVOLUTION (a chronicle of the nominees for Best Picture of 1967 as a microcosm of the change sweeping Hollywood), which strafes Crowther for his cultural intransigence while underplaying his central role in the anti-censorship fights of the 1950s and 1960s. Indeed, these two otherwise superior works can serve as excellent companion pieces, both for general readers as well as for course offerings in Film and Politics.

Importantly, THE MIRACLE CASE is not merely a history of mid-century American film. The Supreme Court’s declaration in BURSTYN v. WILSON that movies did “count” under the First Amendment was a first step towards an eventual overhaul of its entire philosophy of freedom of speech in general, and obscenity in particular. As Wittern-Keller and Haberski demonstrate, BURSTYN placed the Court on a collision course with still-potent sociopolitical imperatives to provide the moviegoing public with some guidance as to what it was paying to see, as well as with lingering governmental desires to protect the public from unsavory images.

BURSTYN is all the more momentous because at the time it was issued it ran counter to prevailing free speech wisdom. One year earlier, in DENNIS v. UNITED STATES, the Supreme Court, in a 6-2 plurality, had suggested that the First Amendment’s protections could be circumvented in a time of national emergency, such as the perceived international Communist conspiracy. While DENNIS was an important modification of the shopworn clear-and-present-danger test, civil libertarians hardly saw it as a change for the better. If anything, DENNIS increased the risk of the kind of capricious governmental restrictions on speech with which Joseph Burstyn had to contend.

Furthermore, even contemporary free speech advocates were unprepared to admit films into the sacrosanct world of the First Amendment. Alexander Meiklejohn, whose 1948 book, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT, was one of the first systematic treatments of the meaning of free expression, drew a distinction between “public” and “private” speech. To Meiklejohn, private speech was excluded from constitutional shelter, and he saw artistic speech as unquestionably private. While some critics challenged Meiklejohn’s public/private distinction precisely because it left artistic speech unprotected, this did not mean that they considered movies to be worth the First Amendment’s time. Meiklejohn’s biographer, Adam Nelson, details the tensions between Meiklejohn and Zechariah Chafee, who charged that Meiklejohn’s theory devalued literature’s First Amendment worthiness. At the same time, though, as Wittern-Keller and Haberski ably point out, Chafee “saw a clear distinction between political speech and entertainment or commercial speech – the one protected and the other not” (p.38).

Although THE MIRACLE CASE admirably documents BURSTYN v. WILSON’s place in the evolution of free speech philosophy, there is one important area in which Wittern-Keller and Haberski come up a little short. The [*98] book is rather light on actual law. Only a handful of pages are devoted to the opinions in BURSTYN (and despite access to conference notes, there is even less material on the internal debates and the opinion-drafting process). In fairness, neither Tom Clark’s main opinion nor Felix Frankfurter’s trenchant concurrence stand as momentous incarnations of the form. Nevertheless, Clark’s palpable hostility for both governmental censorship and official enforcement of religious orthodoxy is at least a small harbinger of major First Amendment developments in the early 1960s, such as NEW YORK TIMES v. SULLIVAN and ENGEL v. VITALE, and more attention to BURSTYN’s place on this jurisprudential continuum would have been welcome.

The treatment of MUTUAL FILM, the 1915 decision that was overruled by BURSTYN, is similarly brief but comparatively more satisfying. MUTUAL FILM was characteristic of the Court’s inattention to the First Amendment prior to World War I, and the authors adroitly site that case both in what David Rabban calls the “Forgotten Years” of free speech, and in the Progressive Era’s embrace of paternalistic governmental expertise, which surely extended to keeping the public safe from coarse motion pictures.

Ultimately, THE MIRACLE CASE is a book with some minor flaws that do not significantly detract from its overall quality. Wittern-Keller and Haberski have produced an entertaining and readable work that will appeal to students studying the history of freedom of speech, and also to faculty who wish to enliven their constitutional law pedagogy with a case which has been obscured by time but which nevertheless deserves a second look.

REFERENCES:
Harris, Mark. 2008. PICTURES AT A REVOLUTION: FIVE MOVIES AND THE BIRTH OF THE NEW HOLLYWOOD. New York: Penguin.

Meiklejohn, Alexander. 1948. FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT. New York: Harper.

Nelson, Adam R. 2001. EDUCATION AND DEMOCRACY. Madison: University of Wisconsin Press.

Rabban, David M. 1997. FREE SPEECH IN ITS FORGOTTEN YEARS. Cambridge (UK): Cambridge University Press.

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

BURSTYN v. WILSON, 343 U.S. 295 (1952).

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

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).

ENGEL v. VITALE, 370 U.S. 421 (1962).

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

MARBURY v. MADISON, 5 U.S. 137 (1803). [*99]

MUTUAL FILM CORPORATION v. INDUSTRIAL COMMISSION OF OHIO, 236 U.S. 230 (1915).

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

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© Copyright 2009 by the author, Steven B. Lichtman.

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CHICANO STUDENTS AND THE COURTS: THE MEXICAN AMERICAN LEGAL STRUGGLE FOR EDUCATIONAL EQUALITY

by Richard R. Valencia. New York: New York University Press, 2008. 480pp. Cloth $49.00. ISBN: 9780814788196.

Reviewed by Anna Kirkland, Departments of Women’s Studies and Political Science, University of Michigan. Email: akirklan [at] umich.edu.

pp.92-94

Richard Valencia’s primary goal in CHICANO STUDENTS AND THE COURTS is to correct the record of civil rights history that often fails to take account of Mexican American struggles for educational equity and to respond to the idea that Mexican American parents are indifferent to educational aspiration. His book is a highly detailed catalogue of all the relevant lawsuits about educational equality and Mexican American students, including not only school segregation, but also chapters on school financing, special education, bilingual education, school closures, the rights of undocumented students, higher educational financing, and high-stakes testing. Valencia discusses the cases any scholar of constitutional law knows well, such as SAN ANTONIO SCHOOL DISTRICT v. RODRIGUEZ (declining to add education as a fundamental right in a financing equity case from 1973) and the PLYLER v. DOE decision of 1982 (affirming the right of undocumented children to attend public schools), but also dozens and dozens of lesser-known but very interesting cases. There is also discussion of relevant federal and state statutes and ballot referenda. The strongest feature of the book is this scope and range, making it a useful reference for scholars and students interested in constitutional law, racial and ethnic politics, and educational rights litigation. Valencia’s book essentially extends the mental map of the classic BROWN v. BOARD OF EDUCATION-focused view of educational equality: backwards and forwards in time, from the 1848 Treaty of Guadalupe Hidalgo and forward to the recent proliferation of high school exit exams across the country, and from an often-exclusive focus on African Americans and the civil rights movement to a broader view that includes the legal struggles of our largest minority group. I read about many important cases that I had not seen discussed elsewhere and was entirely convinced first, that the relative lack of attention to the Mexican American experience in the law is regrettable and merits correction, and second, that it is certainly incorrect to say flatly that Mexican American parents do not value education (though one could object to such a clumsy generalization without having read this book and still want to understand better why Latino students have the highest high school dropout rate of any group).

Valencia refers to his method in one chapter title as a legal history, and he devotes the Introduction to spelling out a theoretical framework for the book, drawing upon critical race theory, critical legal studies, and post-colonial studies. The book is historical in the sense of chronologically presenting all [*93] the lawsuits from the very first ones. Valencia organizes the chapters according to the types of cases, and then within each chapter he reviews the litigation and evaluates its success in promoting educational equity. By success, Valencia means whether the outcomes support his views of what equity means, namely integration, funding that does not depend on property taxes, closings that do not disproportionately affect minority schools, promotion of bilingual education, avoiding disproportionate diversion of minority students to special education, and repealing high stakes testing laws and relying on multiple criteria instead. He presents research in favor of these outcomes and uses critical race theory to point out that entrenched racism probably explains why many of these laws and policies have not turned his way.

But one disappointment of the book is its failure to plumb deeply into what is at stake in these disputes and to see how they are entangled and sometimes in tension. For example, Valencia points out in the school segregation cases that speaking only Spanish was often a reason to segregate students, a rationale he decries (pp.26-28). Yet in the discussion of bilingual education, he defends maintaining language rights and argues that assaults on bilingual education are racist (p.196). There is an interesting tension here between equity as integration and assimilation and equity as parity of cultures, and these cases present a unique opportunity to reflect upon it that Valencia does not take. Additionally, though Valencia refers to critical race theory as promoting alliances across minority groups, he reports without discussing moments in desegregation history in which Mexican American plaintiffs prevailed by insisting on their whiteness and by pointing out that cases upholding African American segregation were therefore inapplicable (p.50). In the RODRIGUEZ litigation discussion of wealth as a possible candidate for suspect class treatment, we get an enormous amount of detail about the process of the cases and a bullet-pointed summary of conclusions from the rulings, but no discussion of why income level is so contentious as a category worthy of strict scrutiny in American constitutional law (pp.91-103). These theoretical problems are much discussed at the intersections of public law, law and society, and political theory in political science, but this book does not offer much beyond explication of the cases themselves.

Valencia’s background is in educational psychology, and so there is much more connection to that literature than to any political science, public law, or law and society literature. Valencia’s aim is to explain the cases, and his attempts to use critical race theory, critical legal studies, and post-colonial theory remain as window dressing around a step-by-step explanation of how various waves of litigation played out. Once these theories are introduced, they reappear here and there to reinforce conclusions that racism is endemic to American society, that outcomes of cases are politicized and indeterminate, and that Mexican-Americans are a conquered people. The level of detail about the cases is exhausting and not particularly illuminating. There are dozens of block-quoted passages and tables that seem unnecessary and equally numerous bulleted lists without much narrative [*94] voice to contextualize them. For example, one table (p.234) presents a list of seventeen cases about undocumented students, along with the U.S. district court, the case number, the division of the Texas state court system, and the filing date. The endnotes are equally dense, but when I turned to note 138 on page 112 noting a sentence that characterizes a legal argument about an ad valorem tax, the note does not explain what an ad valorem tax is or why it would be unconstitutional in Texas, but instead goes on for several sentences about how the case name changed because the Commissioner of Education changed. When I looked it up online (there is no entry for the term in the index), I learned that an ad valorem tax is simply a property tax based on value and often assessed when the property changes hands and that Texas does not have a state-level property tax. If there was a previous discussion of the term in that chapter on school financing, I could not find it. So while Valencia uses lawyerly language (like “the instant case”) and gives a great deal of legal detail, in the end his presentation does not impose enough intellectual order to generate a powerful narrative. CHICANO STUDENTS AND THE COURTS would nonetheless be a useful reference for a scholar interested in the details of educational rights cases brought by Mexican Americans or in educational rights cases more generally.

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

PLYLER v. DOE, 457 U.S. 202 (1982).

SAN ANTONIO SCHOOL DISTRICT v. RODRIGUEZ, 411 U.S. 1 (1973).

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© Copyright 2009 by the author, Anna Kirkland.

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CONSTITUTIONALIZING ECONOMIC GLOBALIZATION: INVESTMENT RULES AND DEMOCRACY’S PROMISE

by David Schneiderman. Cambridge: Cambridge University Press, 2008. 340pp. Hardback. $120.00/£60.00. ISBN: 9780521871471. Paperback. $45.00/£23.99. ISBN: 9780521692038. eBook format. $36.00. ISBN: 9780511389276.

Reviewed by Donald Feaver, School of Accounting and Law, RMIT University, Melbourne. Email: donald.feaver [at] rmit.edu.au.

pp.88-91

A well-designed regulatory scheme should, in theory and in practice, achieve its objective without adversely affecting on other regulatory schemes (Coglianese 2002). The new work by David Schneiderman, CONSTITUTIONALIZING ECONOMIC GLOBALIZATION: INVESTMENT RULES AND DEMOCRACY’S PROMISE, is an interesting look at how the emergence of universal rules regulating foreign investment is having a disruptive effect on government policies well beyond their immediate sphere of application. Although this might seem to be an example of regulatory failure, the investment rules regime has every appearance of being a success. There is strong evidence to indicate that investment rules do facilitate foreign investment flows by extending rights to foreign investors in the form of market access guarantees and investment safeguards (Neumayer and Spess 2005). However, as Schneiderman argues, the international investment rules regime appears to be an example of ‘global regulation’ that, while succeeding on the surface, has the effect of undermining alternative, and perhaps better, governance models by restricting first-best economic and social policy options that could otherwise be implemented at local levels. The important contribution of Schneiderman’s book lies in his explanation of the origin, the extent to which and how this body of universalizing economic rules, (which are substantively flavoured by the interests of global corporate and financial interests) is gaining priority over the interests of national governments and the societies they govern.

In addition to the Introduction, the book has nine chapters divided into three parts. Each of the three parts examines the broad issues from a differing perspective. The Introduction and Part One describe the theoretical foundation, substantive composition and the operation and effect of the international investment regime. After discussing the relationship between the international constitutionalization of economic rights and the neo-liberal concept of globalization in the Introduction, Chapter One examines the emergence of the international architecture of networks of investment agreements as well as a description of most important substantive provisions contained in those agreements. Chapter Two is one of the most important chapters of the book. In it, Schneiderman explains the substantive source of transnational property rights. In doing so, he describes the relatively recent transformation of [*89] the takings doctrine under US constitutional law. He traces the history of this transformation from the functional early interpretations of the Fifth Amendment through the steps of the progressive expansion of the takings rule by successive courts over the decades. More interestingly, he describes how the influence of the US rule has been extended into the international sphere of application. Chapter Three, in largely focusing on the NAFTA Chapter 11 experience, examines the interpretation and effects of specific provisions of the emerging universal standard, such as unreasonable interference and deprivation of expected economic benefits in how the interpretation of international rules by tribunals is reinforcing the US influenced takings rule.

Part Two examines the application and effects of the quasi-constitutional investment rules in greater depth. The inflexible and incoherent social effects of the rules are demonstrated in how they undermine social policy and values in the areas of health and environmental policy, development and land reform and, most importantly, democracy. The three chapters that comprise Part Two all examine how the “emergent” transnational constitutional order “outside” of states is influencing constitutional and statutory arrangements “inside” of states as a result of the strong discourse of economic globalization (Bourdieu 1998). Here the transformative effects of transnational law on domestic constitutional rules and structures are evident in the limited capacity to regulate economic subjects. To illustrate, Chapter 4 examines the shift in Canadian constitutional culture that has been, according to Schneiderman, influenced by the investment rules contained in the North American Free Trade Agreement (NAFTA). In what, in effect, is an extra-territorial application of US constitutional law to international investment disputes, it is interesting to note how a range of disputes have been determined using criteria drawn from US constitutional law and the application of the distinction between compensable takings and noncompensable exercises of the police power.

In Part Three, alternative conceptualizations of globalization are analysed from a perspective of how neo-liberalism has subverted the concepts of citizenship (in Chapter Seven) and the rule of law (in Chapter Eight). The message underlying both Chapters is that alternative approaches to conceptualizing globalization provide an opportunity to construct more flexible frameworks of rules to encourage and support a more humanitarian, rather than economically driven, global social order. More specifically, alternative concepts of citizenship and law based on the primacy of human rights and values provide a means of finding more just balance between global, local, economic and social interests. This message is further reinforced in the concluding Chapter which draws together the many themes of the book in affirming the notion that one of the purposes of constitutionalism is to ‘keep open the channels of change.’

If it is accepted that the current investment rules regime is an example of incoherent international regulation, the essence of the conflict and friction is, as Schneiderman explains, twofold. The first source of friction stems from a [*90] series of recent US Supreme Court decisions that have developed a legal standard that is heavily influenced by neo-liberal ideology. In itself, this standard may be appropriate as it applies to US domestic affairs. However, the problem, as Schneiderman so aptly points out, is that the adoption and ‘export’ of the US standard as the universal standard, has a whole range of negative consequences for other nation states having different levels of economic development, cultural and social welfare policies.

The second aspect of the problem Schneiderman identifies is the manner in which this questionable standard is becoming globally institutionalized. The source of international economic regulation, such as the investment rules regime, arises from inter-governmental agreements that modify the behaviour of sovereign nation states. A characteristic of these agreements is that they often have the effect of limiting government action. Where these limitations are also closely connected to ‘fundamental values,’ such as economic freedom and the protection of private property, rules limiting government action can take on constitution-like characteristics.

The inter-related themes of the international constitutionalization of investment rights and the neo-liberal conceptualization of economic globalization provide the analytical foundation upon which Schneiderman nicely incorporates other contemporary social theories, such as structuration (Giddens 1993) and complexity theory (Castells 1996), to explain an organic and hierarchical entrenchment of private economic rights. However, it is the mechanical effects of international investment agreements that raise a range of interesting governance and legal questions. The substantive composition of most international investment agreements can be reduced to two main obligations imposed on nation states. The first obligation, designed to facilitate international investment flows, accords with the neo-liberal mantra of securing a ‘level playing field’ through foreign investment access guarantees. The method by which market access is secured is through the application of two trusty principles of international economic law – ‘national treatment and most favoured nation’ (Trebilcock and Howse 2005). The first provides that foreign investors should be treated as if they are already domiciled within the host state and should be accorded treatment no less favourable than that available to nationals within that state. The second provides that foreign investors are entitled to treatment no less favourable than that available to foreign investors of any other third country.

The effect of the two principles securing market access rights is their function as a legal Trojan horse. In the event that these standards of treatment are not met, international investment agreements contain a second, more controversial obligation known as ‘the takings rule.’ Herein lies an interesting feature of Schneiderman’s analysis. On the one hand, his discussion of the evolution and operation of the international version of the rule prohibiting ‘takings,’ or the public expropriation of private property without just compensation, is one of the several strengths of the book. Schneidermann explains how a broadening interpretation and application of the United States version of this rule is influencing the formation [*91] of an international ‘takings standard’ that reaches well beyond the regulation of investment and can affect the ability of governments to legislate across a broad spectrum of matters. On the other hand, Scheneiderman might have chosen to analyse and discuss in greater detail how the legal effects of market access guarantees opens the Pandora’s box of the expansive and therefore, restrictive, takings rule.

Although CONSTITUTIONALIZING ECONOMIC GLOBALIZATION presents an argument that cautions against a prioritization of private economic rights over and above that of collective social rights, Professor Scheiderman’s treatment of the two sides of the argument is, on the whole, presented in a balanced fashion. Proponents of the neo-liberal global economic order argue that a constitutionalization of economic rights is necessary to ensure the free flow of goods, services, intellectual property and investment across borders. Limits on government action are justified to ensure that economic expansion through open market access is guaranteed and that private property rights are safeguarded. Those critical of the neo-liberal view argue that market access guarantees and property safeguards come at a very heavy social price. Market access guarantees and private property safeguards represent commitments made by governments to forgo their right to make national economic policies where local collective interests come into conflict with international private interests. Although the book provides a very good systematic examination of the regulatory frictions and social conflicts arising from the neo-liberal investment regime, the book’s real value lies in its underlying objective of describing how alternative conceptual approaches that do not seek to preserve vested interests ‘enlarge the practical range of possibilities,’ whereby the objective of economic development is achieved without inhibiting state action.

REFERENCES:
Bourdieu, Pierre. 1998. ACTS OF RESISTANCE: AGAINST THE TYRANNY OF THE MARKET. New York: New Press.

Castells, Manuel. 1996. THE RISE OF THE NETWORK SOCIETY. Oxford, Blackwells.

Coglianese, Cary. 2002. “Bounded Evaluation: Cognition, Incoherence, and Regulatory Policy.” 54 STANFORD LAW REVIEW 1217-1238.

Giddens, Anthony. 1993. NEW RULES FOR SOCIOLOGICAL METHOD (2nd ed). Stanford, CA: Stanford University Press.

Neumayer, Eric and Laura Spess. 2005. “Do Bi-lateral Investment Treaties Increase Foreign Direct Investment in Developing Countries.” 33 WORLD DEVELOPMENT 1567-1585.

Trebilcock, Micheal and Robert Howse. 2005. THE REGULATION OF INTERNATIONAL TRADE (3rd ed). London: Routledge.

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© Copyright 2009 by the author, Donald Feaver.

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POLICE AND THE LIBERAL STATE

by Markus D. Dubber and Mariana Valverde (eds). Stanford, CA: Stanford University Press, 2008. 288pp. Cloth. $55.00. ISBN: 9780804759328.

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

pp.83-87

I am not a political theorist, and I do not read much political theory literature. This is an important point, because it puts my comments about POLICE AND THE LIBERAL STATE, edited by Markus D. Dubber and Mariana Valverde, in context. Political theorists might well view this book differently. The book was written, I think, with political theorists (and legal philosophers) in mind. (Unfortunately, I am not a legal philosopher either). The book’s appeal should be greatest for those with an interest in the concept of police power.

A few months ago, I reviewed another book that focused on this topic, POLICE POWER: PATRIARCHY AND THE FOUNDATIONS OF AMERICAN GOVERNMENT, written by one of the co-editors of POLICE AND THE LIBERAL STATE. I found that book difficult reading and swore never to read another book like it. Nevertheless, I agreed to review POLICE AND THE LIBERAL STATE, probably because the title did not tip me off that this book was another excursion into the nebulous world of the police power. (Why the identity of one of the co-authors did not suggest to me that the police power might well be the subject of the book is beyond me).

I re-read my review of POLICE POWER to see if it would help me better understand POLICE AND THE LIBERAL STATE. To my great surprise, I discovered not only that it did, but also that I had learned much more from POLICE POWER than I had remembered.

Nevertheless, what I said in that book is equally true of this one. The reading is difficult, at least for someone like me who is not accustomed to reading works of political theory or legal philosophy. Because it is an edited book, the topics of each chapter vary greatly. Some chapters focus more clearly on the police power than others. Some chapters will undoubtedly appeal to some readers while not appealing to others.

There were a few chapters in the book that I did not find appealing or helpful. Chapter One, “Police, Sovereignty, and Law: Foucaultian Reflections,” by Mariana Valverde is primarily a discussion of Michel Foucault’s 1978 lectures on security and governmentality at the College de France. Dubber and Valverde indicate in their introduction that the chapter is a “contribution that will interest Foucault specialists, while at the same time providing an accessible introduction to the uninitiated” (p.8). I am confident that the chapter will appeal to Foucault specialists, but I am one of the uninitiated and I did not find it very accessible. [*84]

Chapter Two, “The Supreme Sovereignty of the State: A Genealogy of Police in American Constitutional Law from the Founding Era to LOCHNER,” by Christopher Tomlins, attempts to put police power in historical context. It demonstrates that even though the Constitution does not extend a power to act for “the protection, safety, prosperity, and happiness of the people” (p.37) explicitly to Congress, Congress has in effect frequently exercised such authority both through its power to regulate commerce and through reliance on its capacity to act as a sovereign state.

Chapter Four, “Limited Liberty, Durable Patriarchy,” by Mark Kann, ties the use of the police power to the movement in the late eighteenth and early nineteenth centuries to incarcerate individuals to protect society and insure their reformation. This chapter will undoubtedly be of interest to sociologists and students of criminal justice who teach corrections, but its contribution to a better understanding of the role of police power, while not insignificant, is not as great as the contribution made by some other chapters.

Three chapters were of greater interest to me, although not always because they helped me develop a better understanding of the police power. Chapter Three, “Police Power and the Hidden Transformation of the American State,” by William Novak, traces the use of the police power to radically change the role of government in the United States in the period between the end of the Civil War and the beginning of the New Deal. One theme of this chapter is the transition from viewing government in the United States as a necessary evil to be limited in scope as severely as possible to a new view of government as not just a needed but a desirable “mover and shaker” in shaping social and economic structures. Many of us probably view this transition as a product of the Depression and the New Deal. Novak argues forcefully that it is a product of the Civil War and Reconstruction. A second important contribution of the chapter is to link the rise of the administrative state to this transformation of government (grounded on reliance on the police power).

Chapter Six, “Work and Authority in Policing,” by David Sklansky, is a fascinating call for greater participation by police officers in the decision-making processes of their departments (in other words, greater participatory management). Sklansky puts the reluctance to engage in participatory management in policing in historical context, explains the reasons for the persistence of this reluctance, and suggests several benefits to be derived from greater participatory management by police officers. I strongly commend the chapter to students of policing generally and to senior level police administrators particularly. However, its contribution to a better understanding of the nature of the police power is minimal.

Chapter Seven, “The Elusive Line Between Prevention and Detection of Crime in German Undercover Policing,” by Jacqueline Ross, discusses efforts in Germany to place controls on the police use of undercover policing tactics. In particular, Germany has attempted to separate the use of undercover tactics to develop evidence to be used in prosecuting individuals for criminal activities (“repressive powers”) from the [*85] use of those tactics to develop information that can be used more generally to prevent future harm (“preventive powers”). This chapter demonstrates (through the use of empirical evidence) the difficulty in attempting to draw such a distinction. The chapter will be of interest to people concerned with issues about the use of law to control police behavior, but again, its contribution to a better understanding of the nature of the police power is, to me at least, minimal.

This brings us to the three chapters that most significantly advanced my understanding of the police power (again, keeping in mind that my understanding of the concept was at a relatively low level). The first of these is Chapter Five, “Criminal Police and Criminal Law in the Rechsstaat,” by Markus Dubber. While exercise of the police power extends well beyond substantive criminal law, it is the legitimacy of that body of law on which Dubber focuses. He views upholding the autonomy of the individual as the basis for legitimizing any government. Since substantive criminal law establishes rules that interfere with the exercise of autonomy by individuals, how can that interference be justified?

Dubber first examines the acts that have been criminalized. Government is justified in criminalizing certain acts because they can be viewed as a conflict between two autonomies – the autonomy of the offender to act as he pleases and the autonomy of the victim to be free from the interference, a freedom that is frustrated by the offender’s actions. Given the conflict in autonomies and the necessity to choose between the two, government is justified in coming down on the side of the victim. Government may do so, however, only where the offender acts autonomously. This gives rise (properly) to the requirements in American criminal jurisprudence that the act criminalized be a voluntary act and that the offender acted intentionally. It also justifies defenses such as insanity, infancy, and consent because where these defenses apply, either the offender did not act autonomously (insanity and infancy) or the victim relinquished his autonomy (consent).

Chapter Eight, “Vulnerability, Sovereignty, and Police Power in the ASBO,” by Peter Ramsay, is an insightful discussion of the recently enacted Crime and Disorder Act of 1998 and its controversial provision dealing with Anti-Social Behaviour Orders (ASBOs). This provision permits government officials to obtain an ASBO against a person who officials can demonstrate “has acted . . . in an anti-social manner . . . that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself” under circumstances where “such an order is necessary to protect persons . . . from further anti-social acts by him” (p.160). The magistrate who issues an ASBO may include in the order any prohibitions deemed necessary to insure the protection of the endangered person such as “exclusion zones, restrictions on associating with named individuals, communicating with other named individuals, using offensive language, wearing certain items of clothing, drinking alcohol, and so on” (id.).

While Ramsay discusses some of the publicly expressed sentiments behind this legislation and includes a very [*86] interesting comparison of ASBOs with the centuries-old British “bind over” (a judicial order requiring a person to keep the peace or be of good behavior), the most interesting aspect of the chapter is a discussion of whether the ASBO is likely to survive scrutiny by the European Court of Human Rights (ECtHR). He concludes that it will. The ECtHR has held that an Austrian statute prohibiting conduct “likely to cause annoyance” does not violate the European Convention on Human Rights because the statute’s reference to the causing of annoyance describes an effect of the defendant’s behavior that must be proved by the government. Such a requirement eliminates the problem with the bind over for good behavior. In another case, the ECtHR found that British provision improper under the European Convention on Human Rights because it failed to describe any behavior that was prohibited. To use American jurisprudential language, the British bind over was “void for vagueness.”

Thus Ramsay concludes that this extremely broad expression of the police power in the ASBO provision is likely to withstand review by the ECtHR. Interestingly, Ramsay also argues that the ASBO provision actually cuts both broader and deeper than the bind over for good behavior. Broader, because the ASBO requirement to prove conduct that “causes harassment, alarm or distress” reaches behavior not reached by the bind over for good behavior, since it extends to behavior that “offends anyone, including people more sensitive to particular conduct than the majority” (p.169). (British case law has held that the bind over for good behavior only extends to behavior that is “wrong rather than right in the judgment of the vast majority of fellow citizens” (id.)). Deeper, because the ASBO results in a specification of the precise behavior which the subject of the ASBO must avoid and thus regulates the subject’s behavior more closely.

One of the (alleged) paradoxes of the police power is that it can be used to justify virtually unlimited power of the state, even in a society that purports to be committed to the rule of law. Ramsay’s chapter provides strong support for this assertion.

Chapter Nine, “Loitering in the City That Works: On Circulation, Activity, and Police in Governing Urban Space,” by Ron Levi, is an analysis from the police power perspective of the U.S. Supreme Court’s decision in CHICAGO v. MORALES. In that case, the Court struck down (6-3) a Chicago anti-loitering ordinance that gave police the authority to give an order to disperse to any person an officer “reasonably believes to be a criminal street gang member loitering [remaining in one place with no apparent purpose] in any public place with one or more other persons” (p.187). It was the failure to comply with the order to disperse that was criminalized by the ordinance, not the loitering itself.

Levi provides some interesting analysis of the majority, plurality (concurring), and dissenting opinions in this case, but his most interesting points deal with the majority’s failure to grasp adequately the purpose behind the Chicago ordinance. Citing Foucault’s lectures on the proper governing of cities, Levi argues forcefully that critical to the successful governing of cities is maintenance of [*87] “the circulation and activity of the urban population” (p.182). Healthy cities require vibrant commercial and social interaction. It was precisely the curtailment of such activity at which the Chicago ordinance was aimed. Levi presents strong evidence that the ordinance was passed in response to complaints from citizens who were not just concerned about drug activity in their neighborhoods, but about the inability of citizens to move freely about their neighborhoods because of the pervasive presence of gangs engaged in this drug activity.

The power to control this kind of behavior is textbook police power. What I found most interesting about the Levi chapter is that he just about convinced me that the MORALES case was wrongly decided. I say “just about” because it is Levi’s emphasis on the need to protect activity in the community that I find compelling. The only problem is that the importance of movement is at this point more of an intuitively appealing philosophical assertion than it is an empirically proven proposition. Provide empirical proof of the importance of movement in the community and I will be persuaded.

The other interesting aspect of the Levi chapter is that the MORALES decision seems to demonstrate that courts will indeed impose limits on the exercise of the police power. One of the central tensions in the police power discussions in this book is that some commentators assert that once an exercise of government power is found to be based on the police power, it is not subject to legal control while other commentators assert that the police power is subject to judicial review.

Indeed, this book suggests that the two most pressing matters facing the police power discussion are defining police power (which the editors concede “has tended to resist definition” (p.4)) and clarifying the extent to which the courts can or cannot limit it.

Several authors in this book indicate that the police power went decades without scholarly attention, but the contributors generally attempt to rectify that problem. Those efforts are to be commended. However, if this book and POLICE POWER are any indication of the general state of the evolving discussion, it is one that is lacking in cohesion and focus. Perhaps that is inevitable when such an ambiguous concept is finally addressed after years of neglect. One can only hope that as this body of literature expands, more dialog will ensue, resulting in greater clarity.

REFERENCE:
Dubber, Markus D. 2005. THE POLICE POWER: PATRIARCHY AND THE FOUNDATIONS OF AMERICAN GOVERNMENT. New York: Columbia University Press.

CASE REFERENCE:
CHICAGO v. MORALES, 527 U.S. 41 (1999).

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© Copyright 2009 by the author, Jack E. Call.

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RETHINKING JUVENILE JUSTICE

by Elizabeth S. Scott and Laurence Steinberg. Cambridge: Harvard University Press, 2008. 384pp. Hardcover. $29.95/£22.95/€27.00. ISBN: 9780674030862.

Reviewed by Lucy S. McGough, Paul M. Hebert Law Center, Louisiana State University Law School. Email: Lucy.McGough [at] law.lsu.edu.

pp.78-82

That this book was eagerly anticipated is an understatement: At a social policy conference in the Fall, an attendee spotted my review copy and asked with some excitement, “Is it out already? Where did you get your copy?” That encounter is a singular event in my experience. Not quite a Harry Potter release but close.

Such expectations stem from the widely acknowledged acumen of the authors as well as a throbbing, contemporary perplexity about the role of the juvenile courts. Elizabeth Scott, formerly of the University of Virginia Law School and now the Harold R. Medina Professor at Columbia Law School, is a highly regarded expert on issues of family and children’s law. Lawrence Steinberg, whose specialty is adolescence, is a Distinguished Professor of Psychology at Temple University. Both were members of the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, a think tank that has provided influential research for the formation of juvenile justice policy for the past decade. Scott and Steinberg take an interdisciplinary approach in formulating what they term a “Developmental Model” for rethinking the law’s approach to adolescent offending, one that reflects the core principles of proportionality and due process. The book is well written and its arguments easily understood by academics, policymakers and laypersons.

They surface two important issues of juvenile justice policy, though both are re-thought in light of the empirical research on adolescence. The first issue is whether adolescents deserve a separate niche of procedures and sanctions, rather than being lumped in with younger delinquent children in the juvenile court or at the opposite extreme, subjected to the same processing as are adults in the criminal justice system. Although not excused by lack of mental development or moral awareness, does the diminished cognitive capability and moral immaturity of most adolescents suggest that they are less culpable and hence, their punishment should be lighter than that meted out to an adult offender? The second issue, the more complex in terms of implementing policy, is how diminished cognitive understanding that affects substantial numbers of adolescents is to be taken into account by a justice system that insists that an accused understand the adversarial process and participate in the development of his or her defense.

The Founding Mothers of the juvenile courts were convinced that delinquents were children in need of protection, not so dissimilar from abused and neglected children. During the past 20 years, as Scott and Steinberg properly note, there [*79] has been a collapse of the philosophical underpinnings of the juvenile courts when public clamor demanded that something be done about the apparent significant increase in violent juvenile crime. (Of course, as Zimring (2005) most notably has demonstrated, the juvenile crime incidence in the 1990s in fact did not significantly expand, but such voices did not quell the wave of fear.) Even some juvenile justice experts abandoned traditional beliefs that almost all offenders could be rehabilitated with supportive supervision and that retribution and punishment were inappropriate reasons for intervention. In view of what was touted as a burgeoning crop of “super-predators,” critics sought punitive revisions, and legislatures responded by diminishing the juvenile court’s jurisdiction and moving public safety to a prominent place in the listing of its purposes.

The traditional binary categorization of “children” and “adults” ignores the developmental reality that adolescence does not easily fit in either group. Adolescence is characterized by a unique set of features, including problematic attributes of immature judgment, impulsiveness, experimentation and present indulgence that are often hallmarks of criminality. Like Goldilocks’ choices, appropriate sanctions for adolescent offenders should avoid the too soft sanctions applied to very young miscreants as well as the too harsh penalties imposed on adult criminals. This insight was clearly embraced by the Supreme Court when, in ROPER v. SIMMONS (2002), it declared that the use of the death penalty for offenders under the age of eighteen constituted cruel and unusual punishment. The same argument calls into question whether a punitive sanction for a sixteen-year-old who is a violent aggressor or a habitual offender is appropriate for the disposition of a twelve-year-old, first offense burglar. The authors state that they provide a social welfare analysis of youth crime policy and replace the traditionally exclusive goal of fairness and rehabilitation of young offenders with a politically more promising goal of the prevention of crime at the least cost to society. Thus, whether or not criminal trial and incarceration is an appropriate sanction is assayed in terms of whether imprisoned youths recidivate more than those remaining in juvenile institutions and programs (yes) and whether incarceration is more expensive (yes). They urge the replacement of the “rehabilitative” model of the juvenile court with a “developmental” model that takes into account society’s legitimate concerns about public safety and accountability. Borrowing from the concept of mitigation in criminal law, Scott and Steinberg suggest that an adolescent who commits a crime should neither be excused nor held fully responsible for the offense. Adolescence is a time of diminished decision-making capability and susceptibility to suggestion and herd behavior, classic characteristics justifying mitigation of punishment.

Many professionals, practitioners and academics, have struggled with the conundrum abiding in the very concept of the juvenile court. If a child is so cognitively immature that she does not understand the process in which she is enmeshed and how to protect herself, and consequently, she cannot be tried in (and punished by) a criminal court without violating her constitutional [*80] rights, can she be tried and punished at all? Initially, the juvenile court founders argued that a court of informal, comprehensible process and limited powers of punishment would pass moral muster, although GAULT (1967) called that assumption into constitutional question. The “MacArthur Study,” funded by the John D. and Catherine T. MacArthur Foundation and published in 2002, found a high incidence of cognitive impairment among alleged juvenile perpetrators. The Study was an impeccably designed, nationwide, empirical comparison of accused juveniles with groups of non-offending juveniles, imprisoned adults and non-offending adults (Grisso, et al. 2003). In matters of trial-related understanding and reasoning about issues vital to their defense, a significant proportion of the group of accused juveniles were found to be barely functioning at the cognitive levels of adults deemed mentally incompetent to stand trial: 30% of accused 11-13 year-olds; 19% of 14-15 year-olds; and 12% of 16-17 year-olds. Not surprisingly, competence diminishes with age: the younger the child, the more likely he or she is to lack the “adjudicative competence” required by Due Process. In several decisions, including its landmark decision in DUSKY v. UNITED STATES (1960), the Supreme Court held that adjudicative competence includes the ability to narrate the events leading up to arrest, to advise counsel about critical decisions, to request or waive counsel, and whether to plead guilty. The Supreme Court has never considered whether the federal Constitution requires that a juvenile accused of a crime (or delinquent offense) must be competent to stand trial, but its juvenile cases do not leave the answer in much doubt. The MacArthur Study did not tell readers about any unknown adolescents’ deficits; its developmental trend finding was also easily intuited; even the extent of incompetence in each age group was not surprising. The remarkable aspect of the Study was that the quality of the research forced policymakers to do something about the continued processing of mentally retarded and developmentally incompetent accused children. The MacArthur Study lent enormous credibility to reformers’ claims.

Simply engrafting conventional incapacity to stand trial principles from criminal procedure creates terrific practical problems for the juvenile system. There are huge numbers of accused delinquents who lack adjudicative competence, and for the very young, for example a twelve-year-old, maturation may take five or six years. Postponing hearings until these young accused incompetent delinquents acquire developmental maturity creates safety risks (and may also violate speedy trial commands), and institutionalizing them without a finding of guilt or dangerousness is more clearly unconstitutional. Scott and Steinberg propose a different, “relaxed” standard for a determination of competence in the juvenile court, a concept which they credit to Bonnie and Grisso (2000). The proposed juvenile test of competency to stand trial requires a finding that the child understands the charges, the proceeding, his role and the roles of others and has the capacity to communicate with his attorney (Bonnie and Grisso 2000, at 73) What is missing from the adult DUSKY formulation is the ability to weigh the consequences of the decisions to be [*81] made, such as whether to accept a plea agreement. The requirement of capability for meaningful consultation and assistance in preparing one’s defense also appears to be diluted.

Scott and Steinberg’s asserted defense of the constitutionality of a relaxed standard is not wholly convincing. It should be noted, however, that they do insist that a distinct standard for assessing competence can only be justified if juvenile courts in fact employ lesser sanctions than the criminal courts and that there is a demonstrable commitment to treatment and rehabilitation, although institutionalization of some juvenile offenders may be necessary. Even so, nagging doubts about constitutionality haunt the proposal. Admittedly, the Supreme Court has mentioned in passing that the unique nature of the goals of the juvenile courts plays into an analysis of due process claims, but merely the disruption of the court’s processes that a requirement of competency would bring is surely not a sustainable constitutional justification. The Supreme Court has never held that all adults’ constitutional rights were held by accused children (and specifically rejected the right to jury trial in delinquency proceedings). Nevertheless, the Court’s litmus test is whether the claimed right “would strengthen greatly . . . the factfinding function” (MCKEIVER v. PENNSYLVANIA (1971)). It is hard to argue that interacting with a bewildered, frightened young teen does not imperil the accuracy of the court’s assessment of the truth of the accusations. A lengthy examination of the constitutionality of Scott and Steinberg’s proposal is beyond the scope of this review. It is enough to credit this book’s defense of the proposal as ingenious, provocative and worth debate.

These experts conclude with cautious optimism. They believe that new juvenile justice reforms that publicize available scientific developmental data and empirical data demonstrating savings in recidivism and costs due to keeping kids in the juvenile system will be successful. They believe that we can avoid the demolition of the courts or at least staunch the loss of so many young offenders from the courts’ jurisdiction. This book is one of the very few works that provides legal and developmental analyses and offers politically savvy advice about implementing a successful legislative strategy. I wish the authors had provided a bibliography, but aside from that small lapse, this is a book that everyone should read.

REFERENCES:
Bonnie, Richard, and Thomas Grisso. 2000. “Adjudicative Competence in Juveniles,” in Robert G. Schwartz and Thomas Grisso (eds). YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE. Chicago: University of Chicago Press.

Grisso, Thomas, Laurence Steinberg, Jennifer Woolard, Elizabeth Cauffman, Elizabeth Scott, Sandra Graham, Fran Lexcen, N. Dickon Reppucci, and Robert Schwartz. 2003. “Juveniles’ and Adults’ Competence as Trial Defendants.” 27 LAW AND HUMAN BEHAVIOR 333-363. [*82]

Zimring, Franklin E. 2005. AMERICAN JUVENILE JUSTICE. New York: Oxford University Press, 2005.

CASE REFERENCES:
DUSKY v. UNITED STATES, 362 U.S. 402 (1960).

In re GAULT, 387 U.S. 1 (1967).

MCKEIVER v. PENNSYLVANIA, 403 U.S. 528 (1971).

ROPER v. SIMMONS, 543 U.S. 551 (2002).

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© Copyright 2009 by the author, Lucy S. McGough.

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QUEEN’S COURT: JUDICIAL POWER IN THE REHNQUIST ERA

by Nancy Maveety. Lawrence, KS: University Press of Kansas, 2008. 200pp. Cloth. $29.95. ISBN: 9780700616107.

Reviewed by Terri Peretti, Department of Political Science, Santa Clara University. Email: tperetti [at] scu.edu.

pp.73-77

In QUEEN’S COURT, Nancy Maveety examines policy leadership on the Rehnquist Court and offers a fascinating and nuanced assessment. Her account offers several interesting insights, including (1) the rise of a “supremely individualist conception of judicial power” (p.61), seen particularly in the increase in separate opinion writing and “multivocal judicial decision making;” (2) the dominance of “rule-of-thumb jurisprudence” that is “heavily dependent on singular judgment calls by individual justices in case by case adjudication” (p.8); (3) the key role of Justice O’Connor in developing and deeply embedding these complementary practices; and (4) the powerful and multiple legacies of these behavioral developments for constitutional doctrine, the Court’s institutional norms and practices, Court commentary, and decision making in the lower federal courts.

The first two claims regarding an individualist and “choral” Court enamored of rule-of-thumb balancing are clearly explained and well-supported, often with new evidence drawn from Justice Blackmun’s papers. The third contention regarding the centrality of O’Connor for these developments may be correct but is advanced more by repeated assertion than persuasive evidence. The fourth “judicial legacy” question is original and provocative, with Maveety inviting us to go beyond merely assessing behavioral patterns during a particular Court era, instead thinking more broadly about whether and why those patterns might persist and with what consequences for the Court and constitutional theory.

QUEEN’S COURT offers much of value and I highly recommend it. It will draw the attention of those interested in the Rehnquist Court era; decisional practices involving opinion writing, coalition building, and policy leadership; and the impact of Rehnquist-era developments for constitutional doctrine, judicial scholarship, and the Court itself. It is an interesting and thoughtful book.

Maveety begins with a puzzle: despite being highly regarded as a successful chief justice, Rehnquist was not a dominant voice or a policy leader during his tenure. Instead, the Court was “multivocal” with “many separate judicial voices raised in opinion to constitute Court decisions” (p.3). In fact, the Court was “staffed by nine separate sovereignties,” which “is why there was at once no Rehnquist Court and also, a distinctively Rehnquist-era Court chorus” (p.3). The “choir director,” Maveety contends, was O’Connor – “Queen Sandra” – rather than Rehnquist. Understanding these new behavioral patterns and their [*74] doctrinal and intellectual impacts sets the agenda for the rest of the book.

Chapter One examines “Policy Leadership on the Early Rehnquist Court,” with policy leadership “refer[ring] to which justice – chief or associate, conservative, liberal, or other – controls or fashions the Court’s legal policy outputs” (p.14). Maveety finds a decentralized policy leadership pattern, though it was enabled by two Rehnquist-initiated institutional changes: a sharp decline in the number of cases accepted for review and formal opinion and a “truncated and nondeliberative conference” (p.14). Rehnquist encouraged issues and details to be worked out in the opinion-writing phase, which is consequently where policy leadership and coalition-building occurred. Maveety thus looks “behind the scenes” at the justices’ efforts to exert influence over the Court’s decisions and opinions.

Relying on Justice Blackmun’s papers and the Benesh-Spaeth Supreme Court Database for the 1986, 1991, and 1993 Terms, she identifies and documents two types of influence-exertion behavior – concurring opinions and conditional join memos (and responses to them). Examining the case records for these two phenomena produced some interesting findings. Policy exertions on the early Rehnquist Court were frequent and increased over time. Policy leadership was highly decentralized and dispersed, with different justices dominating the coalition-building and opinion-writing process in each of the three terms, although Thomas and Rehnquist tended to be the least active justices. Centrist justices like O’Connor and Kennedy frequently engaged in “policy leadership exertions,” but so did justices more distant from the Court median, such as Stevens, Blackmun, Souter, and Ginsburg. Maveety offers little evidence to support her claim that O’Connor helped to establish this individualist norm, rather than merely practicing and taking advantage of it; that is particularly true given that O’Connor, along with Thomas and Rehnquist, had the fewest leadership exertions in the 1991 Term. In any case, Maveety concedes that O’Connor was “less a solo ‘norm entrepreneur’ than one of several powerful associate justices who shaped the policy outcomes of their chief justice’s Court” (p.36). More strongly supported are her conclusions that policy leadership on the early Rehnquist Court was widely dispersed and “poorly orchestrated” (p.30) and that Rehnquist’s Court “was more his colleagues’ than his own in terms of influence over legal policy outputs” (p.36).

The next chapter explores the Rehnquist Court’s “propensity for judicial chorality – the issuance of separate concurring opinions – often including joiners – that bracketed the opinion of the Court and collectively made up the Court’s decision-making ‘chorus’” (p.37). Maveety concedes that a “dissensual trend” was well established by the start of Rehnquist’s tenure. However, she finds both a broadening of the use of concurrences (i.e., by more of the Court’s members) and an increase in “concurring coalitions, as opposed to individuals discreetly disagreeing with the majority opinion coalition” (p.40). Demonstrating how entrenched concurring behavior became in the Rehnquist era, “multivocal” decisions were not limited to high-salience cases, nor did concurrence rates vary with [*75] ideology; after all, the most prolific filers were Scalia, Stevens, O’Connor and Kennedy, with Rehnquist, Ginsburg and Souter least likely to concur. Maveety plausibly speculates that Rehnquist Court justices became powerfully committed to “sounding their discernable notes within the institutional refrain” (p.40) and “making sure that the decisional record reflected the exact parameters of the Court’s opinion so that it would not or could not be misapplied to constrict or distort the next opinion in the doctrinal line” (p.50). Concurrences, both regular and special, “served a rule-making function that enhanced the authority of individual justices to promulgate doctrine” (p.40). This is unlikely to disappear with Rehnquist’s departure from the Court, she argues, with the practice deeply ingrained among Rehnquist Court associates and clerks.

Instead of characterizing the Rehnquist Court in traditional ways, for example along an activism or ideological continuum, Maveety offers an alternative in Chapter Three, “Associates’ Justice.” She discerns from its leading cases individualism and rule-of-thumb balancing as the Rehnquist Court’s dominant decision making approach and thus its “primary institutional contribution.” “[T]he Rehnquist Court’s doctrinal legacy must be reframed as associates’ justice, that is, case-fact-sensitive jurisprudential pragmatism that occurred as individual associate justices vied for influence from the center and with one another” (p.61). Intra-Court debates focused not on the desirability of balancing itself, but on which justice offered a more suitable multi-factor, context-dependent doctrinal rule. Rule-of-thumb balancing does not appear to have emerged by necessity out of ideological division. Instead, its use by various opinion authors and in decisions where solid majorities existed suggests its deliberate and extensive adoption by the Court. The chapter does concede that there were “many thumbs,” i.e., many justices employing “rule of thumb-ism” (p.62). However, O’Connor is again given special significance in facilitating this increasingly dominant practice. Rehnquist-era decisions reflected “O’Connor style individualism” and constituted a new regime of “O’Connorist jurisprudence.” The “doctrinal legacy of the period, then, [was] a ‘queen’s Court’ of O’Connor-style legal reasoning across the board” (p.102).

Another legacy is the Rehnquist Court’s “ideational impact,” which is claimed to rival the Warren Court in its effect on constitutional theorizing. Judicial activism and juricentrism have been “increasingly castigated,” with calls for restraint and “minimalist decision making and institutional limitations . . . supplant[ing] a faith in broad and principled judicial review” (p.108). After briefly and deftly taking the reader through five decades of constitutional scholarship, Maveety offers several clever observations. She first reports that the Rehnquist Court “united a devotion to judicial seriousness with a multivocal approach to decision making” (p.121). The justices spoke confidently, seriously, and separately, “highlighting the (self-?) importance of the individual jurist to constitutional law,” each determined to clarify exactly what the Court’s ruling did and did not mean (p.122). Ironically and unintentionally, the commentators’ call for restraint safeguards the Court’s “rule of thumb [*76] precedents” that reserve to it considerable discretion and power as “doctrinal promulgation” becomes “a perpetually aggregative and additive process . . . [D]octrine is never truly set, and so never really governs judicial choice” (p.148). Thus, “O’Connorism’s wrapping dresses as it conceals the vagaries of judicial power” (p.155). The final irony or “discrepancy” that Maveety observes is O’Connor serving as “the contemporary gold standard for a judge: the practical jurist” (p.126) on a Court that was cast as a “juricentric villain” (p.125), despite O’Connor contributing the most to its identity.

Chapter Five offers a brief look at how “rule of thumb juricentrism” – O’Connorism – continued in the decisions of the early Roberts Court and will likely prove resistant to the new Chief who has expressed his desire for judicial modesty and a more unified Court voice. The conclusion then explores the consequences of this “new decisional paradigm or . . . decisional pathology” (p.146). They include: a loss of public support for the Rehnquist Court and its decisions; problems for the lower federal courts including excessive delegation of discretion and a similar and corresponding increase in judicial chorality on appellate courts; an undermining of the rule of law as vague, multi-factor tests are “mysteriously” and unpredictably applied; and “a critical problem of legitimacy.” Echoing Thomas Keck (2004), Maveety regards the latter as “the greatest danger and the most worrisome legacy . . . [A] rule-of-thumb approach masks ideological legal policy making as ‘judicious’ balancing of interests and adapting of precedential guidelines [which] inures us to judicial power without frankly acknowledging it as such, and provides comfort and cover where none should exist for unaccountable and possibly unwarranted judicial decision making” (pp.154-155).

As with any ambitious book like this one, some claims are under-developed and insufficiently defended, with the most troubling one regarding the critical role of Justice O’Connor. Perhaps it is because she is an expert on O’Connor (Maveety 1996) that the author seems determined to place the justice at the center of these developments rather than allowing the evidence to lead us toward or away from that conclusion. For example, O’Connor was not the most frequent concurrer on the Rehnquist Court and was in the top three in only two of the terms in the Court’s last decade (pp.47-48). Yet Maveety argues for O’Connor’s “essential contribution to the individualist conception of judicial power the separate opinion writing on the Rehnquist Court reflected” (p. 48). O’Connor demonstrated the importance of concurrences with her “undue burdens” test regarding abortion and the endorsement test in religious establishment cases (pp.48-49). Additionally, Maveety argues, O’Connor was “among the regular concurring opinion writers” and thus “helped to sustain the trend” (p.49). This weak conclusion is followed by a concession: Of course, “[n]o one justice . . . could be single-handedly critical to the Court’s choral decision making, but single justices could repeatedly show their decisional singularity and, by doing so aggregatively, manifest chorally” (p.49). Maveety later reasserts the claim that O’Connor’s role in developing “individuated judicial power was as a teacher of the convention, by being a confirmed practitioner” (p.56). Again, [*77] concessions follow: it is “of course difficult to verify O’Connor’s role-model influence” (p.56); additionally, Stevens and Scalia could also be viewed as teachers and practitioners, though they lacked O’Connor’s “centrist coalitional position.” Most of us will be inclined to agree with the book’s point regarding O’Connor’s substantial doctrinal and stylistic influence on the Rehnquist Court. However, this alone does not get us to the “Queen’s Court” conclusion that Maveety desires. The evidence is often insufficient and alternative explanations are overlooked, such as Kennedy’s considerable influence, Scalia’s creation of a vacuum for centrist leadership, and even Brennan’s effective practice, demonstrated over several decades, of both frequent concurrences and forging of majority coalitions through (when necessary) narrow, case-based doctrinal rules.

Despite this complaint, QUEEN’S COURT is thought-provoking and makes a valuable contribution to our understanding of the Rehnquist Court and the growth of dissensus and separate opinion-writing over the last two decades. It also offers a fine example for scholars to follow in assessing judicial behavioral change through doctrinal analysis, empirical assessment, institutional development, and normative evaluation.

REFERENCES:
Keck, Thomas M. 2004. THE MOST ACTIVIST SUPREME COURT IN HISTORY. Chicago: University of Chicago Press.

Maveety, Nancy. 1996. JUSTICE SANDRA DAY O’CONNOR: STRATEGIST ON THE SUPREME COURT. Lanham, MD: Rowman & Littlefield.

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© Copyright 2009 by the author, Terri Peretti.

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RETHINKING EQUALITY PROJECTS IN LAW: FEMINIST CHALLENGES

by Rosemary Hunter (ed). Portland: Hart Publishing, 2008. 204pp. Hardback. $94.50/£45.00. ISBN: 9781841138404. Paperback. $46.00/£22.00. ISBN: 9781841138398.

Reviewed by Adam L. Kress, Department of Political Science, University at Albany. Email: alk58 [at] cornell.edu.

pp.68-72

This edited volume’s stated purpose is to assess the nuances of modern feminism and articulate the challenges it presents. That is, women are not monolithic and, as the debate advances, neither is their struggle. Rather, in addition to attempting to gain formal agency in the public sphere, women are also attempting to gain substantive fairness as a result of this struggle. This latter category requires the notion of difference to be invoked and often codified in order to respect women’s uniqueness and not always compare them to the masculine baseline. For this baseline is not neutral, it is rather just what we are accustomed to, and formal equality in accordance with that baseline, as Rosemary Hunter points out in her introduction, has given little purchase to the advancement of feminism. She also contends that the articulation of difference, while it seems to hold promise, has had an arduous and troubled journey gaining traction in the law. The crux of the volume’s purpose, then, is to sort out how concepts of equality have been used in different legal endeavors and also to provide some examples of how women use concepts of gender and equality within the legal profession. For example, the volume includes a piece by Mary Jane Mossman who shows that, while women wrapped themselves in gendered rhetoric as a means to be let into the legal profession, once assimilated they seemed to distance themselves from their gender, allowing it to fall away, and to accept the given (masculinized) professional norms. This latter piece comes out of the third of three parts and serves as a practical exemplar of how gender and the legal profession interface. In addition, Part I, ‘Equality Projects in the Law,’ seeks to gain leverage on how notions of equality are used in movements, politics and processes, and Part II, ‘Constitutional Equality Projects,’ as its name suggests, looks at rights guarantees absent or present in national legal context (not necessarily federal).

In Chapter One, “The Married Women’s Property Acts: Equality Was Not the Issue,” Rosemary Auchmuty contends that the richness associated with the equality and difference debate is often lost on the legal profession, and specifically with regard to the Married Women’s Property Acts. These acts are hailed retrospectively as a great advance for British Women, chiefly because they allowed for separate marital property rights, effectively dealing a blow to masculine coverature. However, Auchmuty uncovers evidence to show that proponents of this act were not driven by concepts of equity in our modern sense, but rather by Victorian notions of feminine inferiority. That is, they passed these acts to protect married [*69] women, who were vulnerable and inferior, from further exploitation within the marital covenant. In light of this, Auchmuty then considers whether first wave feminists got the story wrong or were naïve, but ultimately she settles on an interpretation that would cast the members of this movement as aware and wise – realizing that this was a symbolic measure which would help move the feminist agenda along (pp.17-18). Auchmuty also details early notions of equality in outcomes, and I think shows how gender difference can be employed strategically to achieve desired policy outcomes. She buttresses her claim with a lengthy discussion of the work of Frances Power Cobbe and how it centered on refuting idealized and practical views of marriage with privilege given to men by law, which Cobbe herself is careful to divorce from equity, grounding it instead in notions of justice and practicality. These arguments, of course, hinge on the image of the deflected drunkard husband and therefore ultimately harken back to notions of protective rather than equalizing legislation. Hence, according to Auchmuty, we are left with a strategic movement led by Cobbe and others which ultimately rejects equality and embraces difference in an effort to persuade Victorian era men to exact policies that would have the effect of advancing women.

In the next chapter, Heather Douglas looks at equality and difference as they relate to domestic violence in her piece, entitled “The Demise of the Provocation Defense and the Failure of Equality Concepts.” Douglas details the masculine origins of the provocation defense and contends that women seeking to use it typically in abuse-provoked killings of their partners had trouble making arguments which were congruent to those made by men who usually invoked provocation differently. She details a number of sequentially related reforms, including trigger incidents, demonstration of fear vs. anger, and sudden temporary loss of control. The problem with each of these refinements on the provocation defense was that they were often hard to prove conclusively or did not match the facts closely enough to allow prosecution arguments to explain away the protection, such as with the Hill case referenced by Douglas, wherein Mrs. Hill was waiting for her husband to return from a drinking bout. The abuse was present, and she was at a critical breaking point, but given that she was waiting for a period of time, there was some dispute as to whether this was a sudden temporary loss of control (p.49). Thus, in the end, Douglas argues that these reforms often did not have the intended effect, frequently broadening protections on attackers at the same time they negatively stereotyped women as weak and irrational (p.53). In sum, this chapter nicely points out how equality benchmarked against men is problematic, and, at the same time, difference can be misused once it is codified in law.

Following this is a chapter by Susan Boyd, entitled “Is Equality Enough Father’s Rights and Women’s Rights Advocacy,” wherein she assesses arguments for equality and difference as they relate to child custody. She attempts to give fair consideration to the paternalist rights movement, showing how this effectively uses arguments for equality among the sexes to gain purchase. However, she is not [*70] convinced that the moment of divorce is the right time to lend credence to this type of equal rights claim, especially given incidences of abuse or the feminization of poverty (meaning men typically have more financial wherewithal) which often comes bundled with divorce cases (p.73). What is evident from her analysis of the Canadian family court system is that leaving gender aside for a system proffered on strict gender equality under the law may not serve women’s interests. While Boyd does not want to dismiss partner rights or same-sex marriage rights, she does illustrate the need for some discretion within family law and shows how feminism, as it evolves, might not constitute a debate that is solely about equality. That is, there are times gender matters and circumstances are unique; however, she realizes this potentially contradicts the classic aims of feminism. In short, she presents a good illustration of the complexity of the gender equality debate and how it is not always clear which side feminist advocates want to take, as in certain circumstances, arguments of difference are needed to produce fair and just outcomes. That said, on the whole her argument can be taken as one which is truly neutral, looking to provide protections for the major caregiver regardless of gender, arguing that law should be holistic, looking at the family structure and history, rather than trying to infuse equality at the point of its rupture.

Rosemary Hunter attempts to make sense of the concepts of equality and difference as they relate to feminism of the past, as well as to the post-modern feminism of the future. In her ‘Alternatives to Equality’ monograph, which concludes Part I, she begins by rooting equality in the history of the feminist discourse, articulating how different or unequal treatment has long been synonymous with marginalization and subjugation in feminist as well as other contexts. This notion has also underpinned much of the rhetoric associated with the feminist movement, helping it gain traction by detailing how women are dispossessed and subjugated by men. This abusive power dialogue, however, is perhaps short-sighted and outmoded for dealing with many contemporary feminist concerns in the public sphere. Hunter contends that the political landscape has changed, and, while the roots of early feminism are important, often addressing specific nuances of women’s experiences (specifically abuse and mistreatment), they need to be refocused to pay homage to the changing status of women in law and society (p.83). To illustrate her point, Hunter looks to equal pay and provision of state services. She ultimately concludes that both examples show a need for a more nuanced look at women’s issues in context, as well as dedication of more resources to facilitate remedies (pp.100-101).

Shifting gears, Part II seeks to narrow the scope of argument, presenting two pieces dealing specifically with Constitutional issues. The first, “Equality Rights: What’s Wrong?” by Reg Graycar and Jenny Morgan, looks at equality through the Australian Legal System, which, despite its conspicuous lack of a Bill of Rights, seems in their view actively to debate if not protect civil liberties (p.106). Their hypothesis is that the lack of a Bill of Rights will produce better and more innovative policies; thus, they turn to the discourses [*71] surrounding same-sex couples and abortion rights to bear out their claims (p.106). The authors attempt to use same-sex couples to refute the claim made by Australian proponents of same-sex rights that a Bill of Rights would hasten and smooth the national codification of equal rights legislation (p.113). For this their benchmark is primarily the United States, though they also look at South Africa. Graycar and Morgan provide a good literature review of gay rights struggles stateside, relying heavily on the work of Carl Stychin, but they fail to relate this adequately to their primary case. Moreover, a similar dynamic happens in their discussion of abortion. They contend that lack of a Bill of Rights unconstrains the Austrian legislature, allowing it to transcend the bonds of formal equality for a better, more nuanced, approach, yet they bring to bear little evidence for the Austrailian case to demonstrate why it is indeed better (p.121). In sum, this chapter brought to bear a good theory that was short on evidence.

Concluding this section is a theoretical piece by Karin Van Marle, entitled “Haunting (In) Equalities,” which seeks to articulate that the law inherently excludes and limits, rather than empowers, women (p.125). For this, she relies on Jacques Derrida and Karl Kare, respectively, for concepts of equality and transformative constitutionalism. She then applies these concepts to the South African Constitution and in-so-doing is able to further parse her concepts bearing out monumental vs. memorial constitutionalism and their links to formal and substantive equality (p.145), an exercise which, for her, supports the claim that law is an insufficient end to achieving substantive equality and in the end ultimately breaks down (p.146). Her argument is well grounded and her concepts are clearly defined; thus, she is able to lodge a compelling critique of the limits of law, seemingly pointing perhaps to less formalized rights and more innovative legislating.

The third and final section of the book assesses cases of women attempting to bring change to the legal profession. The first piece is Mary Jane Mossman’s “Gender Equality and the Legal Profession,” which, as I stated at the outset, does a fine job of showing how women used gender to break into the legal profession, but then distanced themselves from gendered associations once they joined the ranks. This piece is buttressed by Hillary Sommerland’s work, entitled “That Obscure Object of Desire: Sex Equality and the Legal Profession.” Sommerland’s major contention is that women have changed over the decades and are perhaps no longer uniform outsiders seeking entry, but rather vastly different individuals grouped by sex, who may no longer have trouble gaining entry to and navigating the legal profession (pp.171-172). Her work is deeply rooted in theory where she attempts to articulate through a post-modern moment that seems liberating but, in fact, places the onus for discrimination on the individuals who, in this case, either accept subjugation or fail to use their gender roles effectively to gain liberation (p.174). That said, the crux of her argument is practical, as she wants to bring the theory to bear on real law students’ experiences. She does this by employing a longitudinal study of 90 law students (30 part-time and 60 full-time), with a series of survey and ethnographic methods to gain purchase on her theoretical claims (p.179). [*72] Ultimately she does find some evidence that norms relating to women are changing; however, at the same time, there is some sense of a need to belong and a need to emulate long established professional norms. Sommerland’s work, on the whole, becomes more than just assessing traditional in-group/out-group norms. Through her discursive methods she presents a rich picture of how identity is formed, which helps to explain the failure of a great shift in the legal profession per individualism rather than collective subjugation.

In conclusion, this edited volume comes together as a good primer to a rich set of theoretical arguments and debates, providing a solid overview, not just of international legal development through a feminist lens, but also feminist thought more generally. The extensive footnotes will be prized by law and APD scholars, as well as those looking at projects relating to the expression of gender in institutions more broadly. The collection represents a great effort by Hunter and her colleagues.

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© Copyright 2009 by the author, Adam L. Kress.

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THE TREASON TRIALS OF AARON BURR

by Peter Charles Hoffer. Lawrence, KS: University Press of Kansas, 2008. 224pp. Cloth. $35.00. ISBN: 9780700615919. Paper. $16.95. ISBN: 9780700615926.

Reviewed by James H. Read, Professor of Political Science, College of St. Benedict and St. John’s University. Email: jread [at] csbsju.edu.

pp.64-67

Aaron Burr was a central character in three fascinating political dramas of the early American republic: the 1800 presidential election, when an electoral college tie between Burr and Thomas Jefferson took 36 ballots to resolve; the fatal duel with Alexander Hamilton in 1804; and Burr’s high-profile treason trial of 1807, where Burr was suspected of plotting violently to sever the Kentucky region from the United States, or perhaps to lead an illegal invasion of Spanish territories, or perhaps something else altogether. No one knew at the time, and no one knows today, exactly what Aaron Burr intended when he arranged for a large gathering of men and boats on Blennerhassett Island in the Ohio River on December 9, 1806.

Burr was publicly accused of treason by President Thomas Jefferson, who declared to Congress in advance of any trial that Burr’s “guilt is placed beyond question.” In a trial presided over by John Marshall (Chief Justice of the Supreme Court, but here serving as presiding judge of the federal circuit) the jury acquitted Burr of treason on September 1, 1807 (U.S. v. BURR 1807).. The treason trials of Burr and his alleged co-conspirators Erich Bollman and Samuel Swartwout are described in detail in this engaging and readable book by Peter Charles Hoffer (University of Georgia), a specialist in American legal history.

Any reader looking for final and definitive explanation of what exactly Burr was up to will not find it here. By the end of the book Burr’s character and actions remain as mysterious as before. Hoffer presents his own conjectures, but resolving Burr’s plan (if he had one) is not the purpose of the book, and its major contribution lies elsewhere.

This book is about Burr’s trial (and those of his alleged co-conspirators). Its central protagonist is not Burr at all but John Marshall, who in the course of the episode generated key precedents on the meaning of treason (the only crime defined in the Constitution), whether and when habeus corpus may be suspended, on the use of evidence, whether the executive branch is bound by the Sixth Amendment to deliver information essential to the accused’s defense, and many other matters. Hoffer observes that most historians treat the Burr trial as a political drama, but maintains that the legal story is equally important (p.185).The major accomplishment of THE TREASON TRIALS OF AARON BURR is convincingly to argue that the Burr trial was an important moment in the history of American constitutional law.

The first two chapters of the book present biographical sketches of the story’s main characters (Burr, Jefferson, Marshall, and as offstage ghost, [*65] Alexander Hamilton) and describe what is known and alleged about Burr’s western adventures. The narrative here is necessary but breaks no new ground. The real action and major contribution of the book, the legal and constitutional story, begins at Chapter 3, which details the history of English treason law and how it was transformed by the American Revolution and Constitution.

In English law the crime of treason was extremely broad, including not only overt acts “but merely the discussion of an act.” Treason law was designed less to protect the nation as a whole than to protect the king against actual or potential political opponents: “The overbroad and vague statute allowed the crown to prosecute its most vocal opponents as traitors;” criticism of the crown or “seeking to sway the sentiments of the king’s subjects against him” could be construed as treason (pp.58-59). The American revolutionaries found themselves in a peculiar position with respect to treason law: on one hand they needed to protect the fragile new nation against enemies, which required some kind of treason law; on the other hand, the revolutionaries themselves could all have been indicted for treason if independence had failed, which sensitized them to the dangers of a too-sweeping definition of treason.

This ambivalence produced the constitutional clause on treason, which both defines and limits the meaning of the crime: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court” (quoted and discussed p.66). That treason shall consist “only” of levying war or aiding enemies, and that it must involve an “overt act” (i.e. not mere intention or discussion) prevents Congress from legislatively broadening the definition of the crime. The requirement of two witnesses creates a high burden of proof. Hoffer quotes from an important commentary on the treason clause in the 1791 law lectures of James Wilson, a member of the committee of detail that put this language in final form and later Associate Justice of the Supreme Court. The crime of treason, Wilson observed, is “dangerous and hostile to the state,” but at the same time the false imputation of treason “has been and may be dangerous and oppressive to the citizens.” The purpose of the constitutional language on treason was both “to secure the state, and to secure the citizens” (p.66).

This strict constitutional definition of treason, as interpreted by John Marshall, was key to the outcome of the Burr trial. For whatever Burr may or may not have been up to in 1806, the prosecution could produce no witnesses to any “overt act” of “levying war” against the United States. Burr himself was not on Blennerhassett Island on December 9, 1806. If as alleged he intended or discussed the violent separation of the west from the Union, this does not qualify as an overt act. If Burr had actually engaged in unauthorized military action against Spanish territories, this would have violated the Neutrality Act of 1794 but likewise falls short of treason. [*66]

If the Burr trial simply involved the straightforward adjudication of the Constitution’s restrictive treason clause, the legal story would have been a very short one. But when political stakes are high, as they were in this case, and especially in cases involving real or perceived threats to national security, constitutional restrictions are easily swept away. This occurred in at least one treason case preceding Burr’s (John Fries, leader of an anti-tax riot), and it has occurred in numerous instances (typically under charges other than treason) since Burr’s trial up to our own day. What makes John Marshall the true hero of Hoffer’s story is Marshall’s unwillingness to allow the Jefferson administration to cut legal corners in its prosecution of a potentially dangerous defendant. Bollman and Swartwout, Burr’s alleged co-conspirators, as well as Burr himself, were initially denied habeus corpus or any of the Sixth Amendment protections of accused persons. Marshall overturned the habeus corpus denial as chief justice in EX PARTE BOLLMAN, which set the tone for Burr’s later trial (where Marshall presided as circuit court judge). The Jefferson administration based its public case against Burr on a letter allegedly written by Burr and copied in someone else’s handwriting, which Jefferson refused to disclose as evidence. Marshall ruled against Jefferson’s claim of executive privilege, and the document was eventually submitted to the court.

Hoffer occasionally signals the contemporary relevance of the issues raised in the Burr case. “Too often and too easily those whose opinions we oppose or suspect become ‘traitors’ in our minds. The harmful misuse of the term becomes far more serious when the executive and the Congress – the elected branches – fear for national security, engage the nation in war, or seek out internal enemies” (p.5; see also pp.101, 206). He describes the precedent Burr’s acquittal set for limiting the scope of later treason prosecutions, and suggests that if Burr had been convicted, “a precedent would have been set to arrest, try, and convict for treason anyone who said anything that the regime in office thought gave aid and comfort to an enemy” (p.187).

The book’s strength is its analysis of the legal and constitutional issues raised by the Burr trial. Hoffer’s readings of character are more open to question. He seems to have a sure understanding of Marshall and is at least plausible in his judgment of Jefferson. His interpretation of Burr’s character is borrowed from Burr’s most sympathetic biographers: Burr was a man who truly believed what he said, a true gentleman who “always gave back full measure of friendship and loyalty” (p.16), whose “public conduct was always above reproach” (p.189). Hoffer does not believe Burr had any treasonable or aggressive plans in 1806 but instead conjectures that Burr was engaging in “a sweeping entrepreneurial shell game, a confidence scam” to keep his creditors at bay (p.190). Even if true, this explanation hardly squares with his relatively favorable comments on Burr’s character. Hoffer’s mercifully brief remarks on Alexander Hamilton are completely off-base: Hamilton is portrayed as a “land speculator” who like Burr sought public office as a means of private gain and whose opposition to Burr originated from Burr’s defeating Hamilton’s father-in-law for a Senate seat in 1791 (pp.14, 24, 118). [*67]

Hoffer’s questionable judgment of Burr (and his wholly misleading picture of Hamilton) does not compromise his central argument in the book. Whatever Burr’s character and intentions, the fact remains that, by the Constitution’s definition of treason, and its requirement of two witnesses to an overt act, the case against Burr was extremely weak. At the same time the political pressure to overleap those constitutional limitations was very strong. John Marshall shines throughout this book, even if Burr remains in the shadows.

To the ultimate question, “why does Burr matter?”, Hoffer replies that the Burr trials proved “that judges had the power to deny to the other branches ill-founded prosecutions of unpopular and even dangerous men. This is the most important precedent of the Burr treason trials, the most important story we can tell about law in the early republic, and one we have to remember” (p.188). If the continuing popular fascination with so dubious a character as Aaron Burr can be turned to some constructive purpose, Hoffer has found it.

CASE REFERENCE:
EX PARTE BOLLMAN, 8 U.S. 75 (1807).

U.S. v. BURR, 8 U.S. 469 (1807).

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© Copyright 2009 by the author, Lesley A. Jacobs.

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THE INVISIBLE CONSTITUTION

by Laurence H. Tribe. New York: Oxford University Press, 2008. 304pp. Hardback. $19.95. ISBN: 9780195304251.

Reviewed by Kang Chen, Department of Government, Houston Community College. Email: kchen28 [at] yahoo.com.

pp.60-63

The publication of a new book on the Constitution by Harvard’s Laurence Tribe, one of the country’s pre-eminent constitutional law scholars, is an event of intrinsic importance. However, the release of THE INVISIBLE CONSTITUTION is significant for more than the usual reasons. First, Professor Tribe’s fame rests largely upon his landmark treatise, AMERICAN CONSTITUTIONAL LAW. In 2005, Professor Tribe announced that he was not writing the eagerly awaited second volume to the third edition of his treatise, because radical disagreement over constitutional basics had made it impossible to fulfill what he considered the function of a legal treatise: to bring competing legal doctrines across the spectrum of an entire field of law under a single, comprehensive, organizational principle or scheme. THE INVISIBLE CONSTITUTION may be read as an exposition of what can be done in the field of constitutional law now that treatise-writing is impossible.

Second, as many readers of this REVIEW will know, Tribe is legal advisor to President-elect Obama (who merits a mention in Tribe’s book at page 201) and is helping him draft a plan to deal with the Guantanamo detainees. Therefore, a book that provides a glimpse into Tribe’s most recent thinking on the Constitution holds not only scholarly but also contemporary political relevance.

In THE INVISIBLE CONSTITUTION, Tribe argues that, when it comes to hard questions involving constitutional fundamentals, the visible text of the Constitution provides no answers. On the contrary, our beliefs regarding constitutional fundamentals determine how we interpret the text of the Constitution, and, indeed, even what counts as the text of the Constitution, since the Constitution does not automatically self-incorporate amendments. If, for example, the United States Congress proposes an amendment, and 37 states ratify the proposed amendment (one less than the 38 required to meet Article V’s three-fourths requirement), and ratification then stalls, can the United States Congress proceed to pass a law or resolution promising federal monies (say, for highway repair) to the 38th state to ratify the proposed amendment? If not, why not? After all, nothing in the text of the Constitution can be reasonably read to forbid such a practice. I believe a number of Americans, including many Americans who believe that we should hew to the letter of the Constitution, would nonetheless find such a practice objectionable and unconstitutional. If a state thereafter ratified the proposed amendment, should we consider that amendment to be part of the Constitution? My point here is not to give an answer to that question; my point is that the question cannot be answered without reliance upon [*61] postulates about legitimate and illegitimate practices within the ratification process, postulates that are not specified in the visible text of Article V, or anywhere else in the Constitution. Hypotheticals of this sort could be endlessly multiplied. Considerations such as these lead Tribe to say that “the invisible Constitution is at the center of the Constitution’s meaning and of its inestimable value” (p.22).

Given such a statement, it is critical that the reader understand what Tribe means by the invisible Constitution. He begins by noting that “the visible Constitution floats in a vast and deep – and, crucially, invisible – ocean of ideas, propositions, recovered memories, and imagined experiences” (p.9). A number of readers – not altogether unreasonably – have read the foregoing as a statement of what the book is about. I believe they are mistaken. On the very next page, Tribe says that his interest “is less in what’s invisible ‘around’ the Constitution than in what is invisible within it” (p.10, emphasis in original). His purpose is to make the reader see “the important respects in which the Constitution’s commands, principles, and modes of operation and evolution go well beyond the words it contains” (p.25). There are some constitutional principles and requirements, such as the antisecession principle, the anticommandeering principle, and the principle of judicial review, that lie at the very heart of the Constitution, despite their lack of explicit textual warrant. There are many such principles, Tribe says. And once we recognize that fact, we will stop arguing about whether there is an invisible Constitution and start arguing about what the invisible Constitution contains.

The foregoing reconstruction of Tribe’s argument is a “thin” account. That is, I have presented the bare-bones or the fundaments of Tribe’s argument by extracting its most commonsensical and least controversial contentions. A “thicker” account of Tribe’s argument could discuss his attempt to establish “autonomy” as a, if not the, fundamental value of the invisible Constitution, and his use of “autonomy” to justify a decidedly liberal orientation to privacy issues. Such a discussion would evaluate arguments regarding what values and principles American political institutions do and should embody. In other words, such a discussion would be a realization of Tribe’s goal of moving the nation’s constitutional conversation “away from debates over what the Constitution says . . . and toward debates over what the Constitution does” (p.22, emphases in original). I shall forsake such a discussion in order to tease out the notion of constitutionalism underlying his conception of “invisibility.”

I begin by noting that Tribe’s argument about the limitations of the Constitution in answering questions involving constitutional fundamentals may seem counterintuitive or even blasphemous. He rightly observes, “the common view is that anything not burned into the Constitution’s unique text must have a more shadowy and dubious, and accordingly less legitimate, status in the law of the Constitution than that enjoyed by its words” (p.21). Tribe contests the “common view” by arguing that certain principles “are so logically central to our governmental system’s coherence that their binding status . . . is unimpaired by the fact that they are not stated in, or even plausibly inferable from, any part [*62] of the Constitution’s text” (p.34). “Especially dramatic in this respect is the proposition that no state may secede from the Union. That proposition, more than any other, is written not in ink but in blood” (p.29). Apparently, the Union is like the mob: once you join, you can never get out, and, like the mob, the Union will use violence to punish, intimidate, and coerce would-be defectors.

Be that as it may. Tribe is confident that the Constitution contains within itself, invisibly of course, the antisecession principle. But precisely if one carefully considers the problem of state secession, one comes to see that Tribe is not sufficiently attentive to the distinctions between problems that occur on the constitutional level and problems that occur at even deeper levels. In this sense, Tribe exhibits the constitutional lawyer’s typical bias of assuming that the constitutional level simply is the deepest level of political commitment. He fails to perceive that, while the “law of the Constitution” is fundamental law, there are principles more fundamental than fundamental law. That which is illegal is not simply illegitimate.

No one knew this better than Abraham Lincoln. Lincoln’s First Inaugural Address makes plain his belief that “no State, upon its own mere motion, can lawfully get out of the Union;” any such motion is unconstitutional. But in that very same address, he distinguished between the people’s “constitutional right” of amendment and their “revolutionary right to dismember or overthrow” their government; i.e., he distinguished between action which is legitimate by virtue of its legality and action which is legitimate despite its illegality. To be sure, a distinction exists between secession (by a part of the people) and revolution (by the whole people), in theory if not in practice. But Lincoln knew that such a theoretical distinction was too weak a reed upon which to build a case for taking up arms against the Southern states. Lincoln took up arms against the Southern states not merely because they formed an “illegal organization in the character of confederate States,” but because they had become aggressors and attacked a federal fort, thereby instigating a “giant insurrection” (July 4, 1961 Message to Congress in Special Session). Not merely the perceived unconstitutionality of the secession, but the violent and insurrectionary character of the secession, justified Lincoln’s resort to force. Had the South managed peaceably to persuade the defenders of the federal forts in the South to vacate the forts, Lincoln would have faced a more difficult challenge in justifying war with the Southern states.

In short, Lincoln, that American Cromwell, recognized the limits of law and even of constitutionalism itself; there simply is no way to constitutionalize and thereby legalize the people’s right to revolution, for example. Lincoln understood that the written Constitution presupposes foundational principles not articulated in the text. But he also saw what Tribe perhaps willfully fails to see: that those foundational principles do not thereby constitute some “invisible Constitution,” because not all of those foundational principles permit governmental acknowledgement, much less enforcement. In this manner, Lincoln gives proper weight to the “common view” of the singular importance of the text of the [*63] Constitution while going beyond that view, whereas Tribe in rejecting that view fails to do justice to the truth contained within it. By focusing too much on the Constitution as a text, Tribe misses the significance of the text of the Constitution.

REFERENCES:
Tribe, Lawrence H. 1999. AMERICAN CONSTITUTIONAL LAW. Eagan, MN: West Publishers.

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© Copyright 2009 by the author, Kang Chen.

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RIGHTS, REMEDIES AND THE IMPACT OF STATE SOVERIEGN IMMUNITY

by Christopher Shortell. Albany, NY: State University of New York Press. 208pp. 2008. Hardcover. $65.00. ISBN: 9780791475072. Paperback. $23.95. ISBN: 9780791475089. direct text format. $20.00. ISBN: 9780791478028.

Reviewed by J. Mitchell Pickerill, Department of Political Science, Washington State University. Email: mitchp [at] wsu.edu.

pp.54-59

For many of us who teach courses on the US Constitution and/or constitutional law, the subject of state sovereign immunity and the Eleventh Amendment was probably only barely covered – if at all – when we took the same courses as undergraduates, or even as law students. Yet, a wave of Supreme Court decisions beginning in the mid-1990s brought the issue to the fore for constitutional law scholars. In RIGHTS, REMEDIES, AND THE IMPACT OF STATE SOVEREIGNTY, Christopher Shortell uses the Rehnquist Court’s decisions as a starting point for analyzing state sovereign immunity both as a legal doctrine and as a constitutional principle that reaches “beyond the courts” (see Chapter 1). The book addresses two related questions: first, when are states most likely to be successful in asserting sovereign immunity as a defense against lawsuits, and second, how effective is the assertion of sovereign immunity in bolstering states’ authority? Shortell develops case studies during four distinct historical periods during which states actively asserted state sovereign immunity as a defense against being sued in the federal courts and the court decisions adjudicating those claims.

The book begins with a theoretical overview and a very short review of sovereign immunity doctrine. Shortell theorizes that litigants should be expected to press their claims in extra-judicial venues if they are denied redress by the courts. He hypothesizes that three factors will increase the probability of success for plaintiffs who pursue their claims against states outside the courts: resources, political support for the plaintiffs and political support for the issue. He then posits that when plaintiffs are indeed successful outside the courts, the “risk” to states increases, by which he means “the level of risk that using state sovereignty as a defense will result in a reduction in autonomy and power for the state compared to its status before using sovereign immunity” (p.7). Shortell then briefly traces the origins of sovereign immunity “as a legal concept [that] extends at least as far back as the feudal system,” and he describes how the concept developed from thirteenth century England through the American Revolution, being codified in different forms in the Articles of Confederation, the 1787 Constitution and eventually the Eleventh Amendment (pp.13-14). He also traces the judicial doctrine from CHISHOLM v. GEORGIA (1793) through SEMINOLE TRIBE OF FLORIDA v. FLORIDA (1996), and the various Supreme Court decisions in between.

The core of the book focuses on a series of case studies through four distinct historical periods, consisting of analyses [*55] of judicial decisions and Eleventh Amendment jurisprudence and the political and historical context of the decisions. “The Dawn of State Sovereign Immunity,” spanned the period from the revolutionary era beginning in the 1770s, through the years immediately following adoption of the Eleventh Amendment in the late 1790s and early 1800s. The second period, “Debt Repudiation and Backlash in the 1840s” involved a period of heavy state borrowing in the 1830s, largely for transportation infrastructure such as canals, roads and railroads. By the 1840s, nine states in particular faced daunting debts that resulted in defaults on their loans. While the federal courts did not play a significant role in resolving these issues, Shortell shows how the doctrine of sovereign immunity helped to define the political context in which states acted, even encouraging debt repudiation in some instances. The third historical period analyzed in the book covers “Post-Civil War Debts and the Exercise of Immunity.” Again, a number of states found themselves in financial straits, this time as a result of borrowing to rebuild during the Reconstruction era. As in the previous time periods examined here, the doctrine of state sovereign immunity was frequently invoked by states in an effort to avoid paying on their debts. Although the federal courts did weigh in during this period, states’ successes in asserting sovereign immunity appear to have been mixed. The main lesson to be gleaned from these case studies, according to Shortell, is that while states were often able to rely on state sovereign immunity in courts, they did so at their own peril because claimants found nonjudicial methods for asserting their interests, often times to the detriment of states. The case studies illustrate how the states’ assertion of sovereign immunity against creditors, bondholders and the like often resulted in lower prices for state securities, “broader sanctions brought by investors,” and successful political campaigns against the party in power at the time (see e.g., p.112).

In the final part of the book, Shortell considers the state sovereign immunity cases during the “Rehnquist and Roberts” eras and assesses this recent wave of judicial decisions in historical and political contexts. For each of the cases – SEMINOLE TRIBE OF FLORIDA v. FLORIDA (1996), COLLEGE SAVING BANK v. FLORIDA PREPAID (1999), FLORIDA PREPAID v. COLLEGE SAVINGS BANK (1999), ALDEN v. MAINE (1999), KIMEL v. FLORIDA BOARD OF REGENTS (2000), and BD. OF TRUSTEES OF THE UNIVERSITY OF ALABAMA v. GARRETT (2001) – Shortell develops the background of the case, an analysis of Court’s holding, the actual consequences of the Court’s decision and the broader policy and political implications of the decision. He also provides a very brief discussion of NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS (2003) and TENNESSEE v. LANE (2004), in which states unsuccessfully asserted sovereign immunity.

While the case studies are informative descriptive accounts of state sovereign immunity over time, Shortell also assesses the actual effects of state sovereign immunity and the likelihood that states will be successful invoking sovereign immunity in the Supreme Court. He concludes that the two factors that are most important for increasing [*56] the chances of a claimant’s success and for presenting risks to states are the claimant’s resources and political support for the issue; he found less support for his hypothesis that political support for the claimant would influence the likelihood of success. According to Shortell, “When the state does not acquiesce to at least some of Plaintiff’s demands, the conflict is likely to continue [outside the courts]. When plaintiffs lack any means of response, this is not serious. When those resources and opportunities are available, however, states are likely to face severe consequences” (p.158). And so for example, when states turned their backs on creditors in the 1840s, there were significant “economic repercussions” for states, resulting in a significant credit crunch and backlash against state legislators that limited those states’ “ability to lead the way in areas such as railroad development” (Ibid.). And thus among the many implications for states today, Shortell warns that states could face similar consequences if they attempt to ignore patent and trademark laws in response to the COLLEGE SAVINGS BANK and FLORIDA PREPAID cases, which would likely provoke a backlash against business groups who would have the resources to challenge states (Ibid.).

Shortell concludes that strict enforcement of state sovereign immunity doctrine by the Supreme Court is more likely to weaken state authority than to strengthen it. And thus, he further concludes “that state sovereign immunity achieves none of the beneficial goals that the Court claims for it,” which is consistent with the findings of Rubin and Feeley (1994) regarding the benefits (or lack thereof) of federalism more generally (p.159). He also suggests in the conclusion to the book that the modern Court has chosen an ill-advised path in enforcing sovereign immunity, and has ignored the “rights of those seeking redress” (p.162).

This book provides an important resource for anyone interested in the history of state sovereign immunity doctrine. The case studies of the doctrine at the time of the Founding, in the 1840s and in the post-civil war era are well researched and presented in a manner that allows for theoretically grounded analysis of states’ assertion of sovereign immunity during these distinct periods. Those who teach constitutional federalism will find this book invaluable for understanding and teaching the history of state sovereign immunity.

Shortell makes a persuasive case (in a somewhat narrow sense, I think) that states may not be truly increasing their power or autonomy by asserting sovereign immunity, because the affected parties may be successful in pushing their cases in other political venues. As much as I recommend the book, there are a number of unanswered questions and additional considerations related to this research, such as the strategic and political goals of (and benefits to) states, the much broader political contexts in which claims of state sovereign immunity seem to proliferate and the proper role of the Supreme Court in policing sovereign immunity. It may be that Shortell is overstating the conclusions to be drawn from his case studies by claiming, in effect, that there are no benefits to assertions of sovereign immunity, and that the Court bears responsibility for denying rights and decreasing [*57] democratic accountability when sovereign immunity is brought to bear. But I think, before such a sweeping conclusion can be solidified, some of these other issues will need to be addressed.

For instance, there seems to be an underlying assumption in the book that the assertion of state sovereignty is necessarily intended to increase state autonomy in some broader sense; but what if states’ simply use it strategically to achieve more narrow and short term goals? All of the nineteenth century cases studied in RIGHTS, REMEDIES AND THE IMPACT OF STATE SOVEREIGNTY revolve around states that faced serious financial issues, and asserted sovereign immunity as one way of alleviating their financial woes; their situations were often times analogous to individuals or businesses who cannot pay their debts and file for bankruptcy. Choosing bankruptcy may have some negative long-term consequences, and certainly it will affect their ability to secure loans, and perhaps even begin new businesses or expand existing businesses in an autonomous manner, but it may be the best short term solution to serious problems. In a number of the cases analyzed in this book, creditors pursued their claims despite the assertion of sovereign immunity, and they ended up negotiating with states and accepting payment on only a portion of the debt owed – much the same as creditors and debtors in bankruptcy actions. The states who asserted state sovereignty the strongest were doing so because they were in the weakest position; it may have been useful to analyze in more depth states who did not assert sovereign immunity during the same time periods as well as a broader range of “benefits” states might have received from asserting sovereign immunity. To be clear, I am not questioning Shortell’s conclusions that there were long-term ramifications for states who repudiated debts entirely; rather, I am questioning what the strategic goals of state actors actually were and suggesting that the efficacy of sovereign immunity should at least in part be measured by the actual (and perhaps more narrow) goals of those asserting it. And, given that the nature of states’ claims of sovereign immunity cases in the late twentieth century seems to be very different from those earlier times that centered round payment of debts, it may well be that states in recent years have quite different goals than did states in the first three historical periods analyzed in this book.

In moving to the recent wave of sovereign immunity decisions by the Supreme Court, Shortell applies the lessons from the nineteenth century cases to these contemporary ones. Much of his analysis regarding the effects of the recent decisions is speculative – that is, he forecasts possible negative consequences similar to those of his historical cases for states who continue to assert sovereign immunity in the twenty-first century. There is a criticism of the modern Court’s enforcement of sovereign immunity that is sometimes implicit and sometimes explicit. For example, Shortell argues on the final page of his book, “In the case of sovereign immunity, the costs are high, while the benefits are marginal. That alone should be sufficient to give the current majority on the Court and their supporters pause” (p.162). And yet, given Shortell’s own findings and the clear political nature of the sovereign immunity issue, I wonder how much [*58] attention, much less criticism, should be given to the Supreme Court. To what extent is the Court really responsible for the state sovereign immunity “problem?”

For example, the Court’s sovereign immunity cases of the past decade or so cannot be isolated from the other federalism cases the Court has handed down limiting federal power under the commerce power, the Tenth Amendment and Section Five of the Fourteenth Amendment. And it is now well documented that the Court’s decisions in these areas were pre-figured to a large extent by national politics, in which federalism, limited government and states’ rights were at the core of a new conservative (and national) agenda (e.g., Pickerill and Clayton 2004). Thus, using Whittington’s (1999) framework, we might conclude that the Court’s constitutional interpretation of federalism was the result of constitutional construction of federalism – and sovereign immunity – by national political actors. This is not a Court that can properly be characterized as leading the sovereign immunity charge, although it has clearly been accommodating of it.

Additionally, even though state sovereignty has been asserted as a political value nationally, the choice to assert sovereignty belongs to the individual state, not to the Court. To be fair, Shortell does indeed recognize states as initiators of the claims and suggests that states should proceed with caution, but I think more could be made of the fact that the Court is enforcing one interpretation of the Eleventh Amendment (one favored by the political regime for the last several decades) only after states choose to raise immunity as a defense. And even then, the Court may find itself a long way down a doctrinal path that limits its choices in a path dependent manner, whether the policy outcome be desirable or not (see e.g., Kersch 2004; see generally, Pierson 2004). But states have to choose strategically and politically whether to avail themselves of it. Perhaps state attorneys general would be wise to heed Shortell’s concerns. Indeed, Bosworth (2006) has shown that some states are in fact voluntarily choosing officially to waive state sovereign immunity. But when states choose to assert the defense at their own peril, it seems odd to place blame on the Court for the fallout, especially when the defense seems consistent with national political regime values. In sum, of all the political institutions and actors advocating for state sovereign immunity, the Court’s role has been the most passive. And thus, the notion that the Court has diminished “accountability” (p.159) or trampled on the “rights of those seeking redress” (p.162) by enforcing state sovereign immunity under the Eleventh Amendment seems a little farfetched to me.

Some of my comments here probably can be considered to go beyond the scope of Shortell’s project. I agree with the key implication he draws from his findings that states would be wise to consider the long term consequences of the sovereign immunity defense before asserting it. However, I simply suggest that in assessing “success” and the proper role of the Court in these cases, we must consider the much broader political landscape that created a hospitable environment for claims of state sovereign immunity, and new federalism more generally, as well as the actual strategic and political goals of the [*59] state actors making those claims. In any event, Shortell’s rich account of sovereign immunity over time provides much food for thought about all of these issues, and I highly recommend students and teachers of constitutional federalism to read this book.

REFERENCES:
Bosworth, Matthew H. 2006. “‘An Innate Sense of Fairness’: State Reponses to the US Supreme Court’s Sovereign Immunity Decisions.” 36 PUBLIUS 393-420.

Kersch, Kenneth I. 2004. CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN CONSTITUTIONAL LAW. Cambridge: Cambridge University Press.

Pickerill, J. Mitchell and Cornell W. Clayton. 2004. “The Rehnquist Court and the Political Dynamics of Federalism.” 2 PERSPECTIVES ON POLITICS 233-48.

Pierson, Paul. 2004. POLITICS IN TIME: HISTORY, INSTITUTIONS AND SOCIAL ANALYSIS. Princeton, NJ: Princeton University Press.

Rubin, Edward L. and Malcolm Feeley. 1994. “Federalism: Some Notes on a National Neurosis.” 41 UCLA LAW REVIEW 903-952.

Whittington, Keith. 1999. CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL POWERS AND CONSTITUTIONAL MEANING. Cambridge: Harvard University Press.

CASE REFERENCES:
ALDEN v. MAINE, 527 U.S. 706 (1999).

BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA v. GARRETT, 531 U.S. 356 (2001).

CHISHOLM v. GEORGIA, 2 DALL. 419 (1793).

COLLEGE SAVING BANK v. FLORIDA PREPAID, 527 U.S. 666 (1999).

FLORIDA PREPAID v. COLLEGE SAVINGS BANK, 527 U.S. 627 (1999).

KIMEL v. FLORIDA BOARD OF REGENTS, 528 U.S. 62 (2000).

NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS, 538 U.S. 721 (2003).

SEMINOLE TRIBE OF FLORIDA v. FLORIDA, 517 U.S. 44 (1996).

TENNESSEE v. LANE, 541 U.S. 509 (2004).

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© Copyright 2009 by the author, J. Mitchell Pickerill.

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FAITH, REASON AND CONSENT: LEGISLATING MORALITY IN EARLY AMERICAN STATES

by William G. Miller. New York: LFB Scholarly Publishing, 2008. 298 pp, Hardcover. $80.00. ISBN: 9781593322731.

Reviewed by Peter Cane, The Australian National University College of Law. Email: canep [at] law.anu.edu.au.

pp.50-53

The burden of this book is well represented by its title. William Miller’s basic arguments are (1) that in post-Revolutionary America the constitutions of various states (Virginia, New Jersey, Delaware, Pennsylvania, Maryland, North Carolina, Georgia, New York, Vermont, South Carolina and Massachusetts) empowered the legislature to use the law to enforce moral principles, and (2) that legislatures exercised this power freely (3) to give legislative force to moral principles purportedly derived from or embodied in divine law (‘faith’) or natural law (‘reason’). In Chapter 8, Miller discusses and rejects the views of scholars who argue (so Miller says) that the political ideology motivating early legislators was neither faith nor reason but ‘consent’ or ‘popular sovereignty.’ According to this latter line of argument, the source of the moral principles that were given statutory force by early legislatures was neither divine law nor natural law but ‘the relativistic will of man’ (p.273). In terms of modern debates about ‘legal moralism’ and ‘the legal enforcement of morality,’ Miller’s contention may be expressed as an argument that early ‘moral legislation’ was based on religious or secular ‘critical morality’ rather than on contemporary ‘positive morality.’

Before proceeding further I should say that I am an Australian lawyer with some knowledge of and interest in the famous debate between HLA Hart (Hart 1963) and Lord Patrick Devlin (Devlin 1965), and subsequent contributions to that debate, most notably by Joel Feinberg (Feinberg 1984; 1985; 1986; 1990) (see Cane 2006). I am not a legal historian, let alone a historian of post-revolutionary America; nor do I have any expertise in the constitutional law of the American States in either the post-Revolutionary or the modern period. I have an amateur interest in US politics and have spent some time in the country but can claim no special insight into American culture.

In Chapter 1, Miller identifies four ‘streams of thought’ about ‘the extent to which law should regulate individual behavior’ (p.5) each of which provides a different basis for identifying moral principles that may appropriately be given legislative force: the authority (or will) of the legislator, the ‘will of the people,’ ‘theory’ (or ‘reason’), and ‘religion and theology.’ Miller interprets the first two streams of thought as appealing to ‘the opinions of the ruler or the people at a given time’ (p.12) and the latter as appealing to ‘fixed principles’ that provide an ‘ultimate standard’ (p.12). In Chapter 2, Miller argues that ‘[t]here are three prominent grounding principles, which the early American state founders laid as a foundation for moral legislation: popular sovereignty, [*51] natural law and divine law’ (p.19). Contrary to what the argument of Chapter 8 might lead the reader to expect, Miller does not see commitment to popular sovereignty as being ‘necessarily incompatible’ with commitment to either divine law or natural law as legitimizing sources for moral legislation. Rather he seems to think that such ultimate standards leave room for, but also constrain, human choice. Miller identifies two categories of moral legislation: laws ‘that restrict citizens from violating the natural rights of others (e.g., theft, murder and assault)’ (let us call these ‘category 1 laws’) and ‘laws that restrict citizen’s behaviour even when the rights of another citizen are not threatened by such behaviour’ (let us call these ‘category 2 laws’) (p.25). The latter, he says, ‘are more important to this study’ (ibid).

The first step in Miller’s strategy is to examine the text of constitutions for evidence of appeals to faith, reason and popular sovereignty as principles of political legitimacy. Chapter 3 explores ‘the account of the nature of God given by each constitution . . . to determine whether that view places . . . limits on . . . moral legislation’ (p.26). Chapter 4 explores the ‘view of human nature . . . espoused by each constitution . . . largely in the context of . . . discussions concerning the rights of citizens’ on the basis that ‘the kinds of rights affirmed . . . and the basis for affirming those rights (i.e., nature, divine revelation, or convention) provide guidance and standards for . . . legislators’ (pp.26-7). Miller’s second step (Chapter 5) is to examine constitutions to discover the extent to which they direct . . . government to legislate morality’ and ‘the objective of such legislation’ (p.129). His main finding is that three of the constitutions examined ‘explicitly grant the power’ (p.164) to make category 2 laws while the other eight ‘do not provide a clear mandate’ (p.201) to make category 2 laws. The third step in Miller’s strategy (Chapters 6 and 7) is to survey legislation made ‘in the years following the ratification’ (pp.198-9) of the various constitutions to ascertain ‘what kinds of moral legislation’ were made and whether ‘on the basis of popular sovereignty or . . . either natural or divine law’ (p.165). Miller’s summary conclusions are that legislatures in all the states engaged to a significant extent in category-2 law-making, and that ‘most of the clear reasoning given in support of moral legislation is based on divine law or popular sovereignty or both’ (pp.25-6).

Finally, Chapter 9 opens with the assertion that modern US governments – and especially, Miller implies, the federal government – engage in significantly less category-2 law-making than their early counterparts. There follows a comparison between ‘the view of John Rawls . . . [and] the approach of the early American state founders,’ the motivation for which seems to be the identification of Rawls as a leading exponent of modern liberal (and secular) political theory. According to Miller, Rawls’ idea of the original position ‘requires people to view themselves as a “self originating source” of their own convictions’ (p.281). By contrast, the early American legislators believed they had discovered truths, which existed ‘outside themselves’ (ibid), that could provide a legitimate basis for moral legislation. Miller ends with the observation that the power of the states [*52] to pass moral legislation has been ‘increasingly limited in the last 100+ years’ (p.282) and the recommendation that as ‘long as the liberty to freely migrate and work in other states with different regulations exists,’ it would perhaps ‘be a positive development to allow the states a bit more room to legislate based on moral principles that their citizens hold – even to allow moral regulation of behavior that is deemed immoral for religious reasons by most of the state’s citizens’ (ibid).

It is hard to know how most fairly to assess this book. Should it be read as a contribution – albeit a very restrained contribution – to the so-called ‘culture war’ between religious monists and secular pluralists? Or as politico-legal history? Or political theory? Or as a study of the politics of federalism?

The main problem with reading FAITH, REASON AND CONSENT as political theory is that the book contains no substantial or credible discussion of any of the relevant theoretical debates. The very brief analysis of ‘Rawls’ Original Position’ (pp.278-81) contributes nothing of value either to the book itself or to the political theory literature more generally. If Miller is conversant with the large body of highly sophisticated 20th-century writing about the legal enforcement of morality, his simplistic approach to, and lack of analysis of, the extremely complex and difficult concept of ‘moral legislation’ belie the fact. Running through the book is a tension, between popular sovereignty and ‘fixed principles’ as sources of legislative and political legitimacy, which the author barely attempts, and certainly fails, to explore, let alone resolve. In short, FAITH, REASON AND CONSENT lacks theoretical depth.

Reading FAITH, REASON AND CONSENT as an exploration of the politics of federalism is equally difficult. Miller’s proposal for a re-adjustment of the federal-state balance is no more than a suggestion, and it is unsupported by any serious or sustained analysis of the law and politics of federalism. For instance, Miller delphically comments, without elaboration or analysis, that the United States Constitution is more ‘permissive’ than the early state constitutions examined in the book (p.277). The pivotal role of the United States Supreme Court in establishing and policing the boundary between federal and state legislative power is not even mentioned.

As history, FAITH, REASON AND CONSENT consists largely (Chapters 3-7) of an analysis of the constitutions and selected legislation of eleven American states in the period immediately following the Revolution. As I indicated earlier, I am not competent to judge this material as a work of history. However, what strikes me, even as a lawyer, is the unsuitability of Miller’s methodology for answering his basic research question. If the historical argument of FAITH, REASON AND CONSENT can be summarised in one proposition, that proposition would probably be along the following lines: the constitutions of the early states empowered legislatures to enact category 2 moral legislation in order to give effect to divine law; and early legislatures freely exercised that power in order to give effect to divine law. The basic questions that need to be answered in order to test this hypothesis are what motivated the early state [*53] founders in drafting constitutional provisions empowering legislatures to enact category 2 laws, and what motivated legislators in enacting such legislation? Miller purports to answer these questions by subjecting the text of the early constitutions and early legislation to close textual analysis. But as every lawyer (and, I am sure, every historian and every student of politics) knows, there may be a significant gap between what a document says and the motivations of its authors. A major – perhaps the major – shortcoming of Miller’s approach is that he tells us next-to-nothing about the authors of the constitutions and legislation the texts of which he analyses, or about the social and political environment in which they lived and worked.

Perhaps, then, we should read FAITH, REASON AND CONSENT primarily as a contribution to contemporary cultural debates. Certainly, Miller’s throw-away line about federal-state relations might be thought to bolster his credentials as a cultural warrior, especially when the picture (painted in Chapter 9, especially at 277), of contemporary America as a liberal free-for-all and the US Constitution as a libertarian’s charter, is set alongside Miller’s opening image of ‘The Battleground of Moral Legislation’ (pp.4-6). It is not necessary to peer too closely between the lines of FAITH, REASON AND CONSENT to discern that for the author, ‘One Nation Under God’ is more than rhetoric. Miller looks back with admiration to a period when, as he sees it, the project of ‘making men moral’ was central to the American dream. Sadly, such gentle nostalgia is unlikely to have much impact in a society in which even people whose world-view is grounded in faith or reason (or both) disagree deeply about the meaning and practical implications of fundamental values.

REFERENCES:
Cane, Peter. 2006. “Taking Law Seriously: Starting Points of the Hart-Devlin Debate.” 10 THE JOURNAL OF ETHICS 21-51.

Devlin, Patrick. 1965. THE ENFORCEMENT OF MORALS. Oxford: Oxford University Press.

Feinberg, Joel. 1984. HARM TO OTHERS (THE MORAL LIMITS OF THE CRIMINAL LAW, vol.1). New York: Oxford University Press.

Feinberg, Joel. 1985. OFFENSE TO OTHERS (MORAL LIMITS OF CRIMINAL LAW, vol. 2). New York: Oxford University Press.

Feinberg, Joel. 1986. HARM TO SELF (THE MORAL LIMITS OF THE CRIMINAL LAW, vol.3). New York: Oxford University Press.

Feinberg, Joel. 1990. HARMLESS WRONGDOING (THE MORAL LIMITS OF THE CRIMINAL LAW, vol.4). New York: Oxford University Press.

Hart, HLA. 1963. LAW, LIBERTY AND MORALITY. Oxford: Oxford University Press.

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© Copyright 2009 by the author, Peter Cane.

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JUDGING DEMOCRACY

by Christopher Manfredi and Mark Rush. Toronto: University of Toronto Press, 2008. 152pp. Paperback. CDN and US $24.95. ISBN 9781551117027.

Reviewed by Jamie Cameron, Osgoode Hall Law School, York University, Canada; jcameron [at] osgoode.yorku.ca.

pp.46-49

JUDGING DEMOCRACY’s comparison of Canadian and American constitutional jurisprudence squeezes answers to big questions into a small package. The book’s central purpose is to provide a correction to the fervent belief – held at large by Canadian academics and jurists – that the Charter of Rights and Freedoms, enacted in 1982, is a unique and masterful document, not least because it propelled a style of review that differs, in fundamental ways, from the American prototype.

In little more than 130 pages Christopher Manfredi and Mark Rush dislodge this article of faith, declaring instead that the careful and self-conscious distinctions of early Charter interpretation have all but “withered away” (p.11). Today, those distinctions have been replaced by a “remarkable convergence in thinking” between the Canadian and American Supreme Courts (ibid.). JUDGING DEMOCRACY finds compelling evidence of this convergence in the jurisprudence on voting rights and democratic participation.

The book engages broader issues of review along the way. Manfredi and Rush also trace an emergent style of decision-making in both courts that is pragmatic and incremental, rather than theoretical, in nature. This “dialogic” approach is grounded in respect for legislative deliberation and espouses a sparing conception of review in which courts intervene to protect the democratic process, and not otherwise. The authors explain, following the discussion of democratic rights, by taking Canada’s court to task for its muscular decisions on gay rights and access to health care. In this, the court compares negatively to the US Supreme Court, which earns praise for being more “Canadian and dialogic” than the Canadians. Meanwhile, northern judges receive a scold for their “impatience with the deliberative legislative process” (p.133).

Parenthetically, one wonders what the authors would say about the US Supreme Court decision in DISTRICT OF COLUMBIA v. HELLER (2008), which constitutionalized the right to bear arms. Not only is such a result foreign to Canadians, the American court flexed more judicial muscle than its counterpart had in any of the Charter decisions the authors single out for disapproval. Yet JUDICIAL DEMOCRACY’s message is that Canada’s constitutional vanity is misplaced – such is the narcissism of small differences – and that the court should do more to emulate its American counterpart.

In comparing the jurisprudence on democratic rights, Manfredi and Rush find convergence in the face of [*47] conflicting decisions. For instance, years after RICHARDSON v. RAMIREZ held, in 1974, that US prisoners are not constitutionally entitled to vote, the Supreme Court of Canada found, in 2002, that, under the Charter, they are (SAUVÉ v. CANADA). Undaunted, the authors contend that the two courts “really have converged” because they engaged in “essentially the same debates” about prisoners and the vote (p.62). That debate on both sides of the border bears resemblance hardly seems striking, much less compelling. More to the point, a side-by-side review reveals that the two decisions are not that alike after all: whereas RICHARDSON focuses on the text and history of §2 of the fourteenth amendment, which addresses the franchise passingly in setting a formula for representation, SAUVÉ concentrates on the Charter’s requirement that limits on rights be demonstrably justified. In doing so the court subjects the government’s reasons for denying federal prisoners a vote to the Canadian equivalent of strict scrutiny.

The authors turn from criminal disfranchisement to voting rights, which pits three generations of US jurisprudence – rooted in the disfranchisement of African Americans, the prevalence of gerrymandering, and the one person, one vote rule – against a single decision by the Supreme Court of Canada (the “SASKATCHEWAN REFERENCE”). That comparison yields the insight that, while Canada rejected the one person, one vote rule in favour of a standard of effective representation, the US Supreme Court has gradually eased up on an imperative that was all but impossible to enforce. Though “the Canadian groundwork differs in important ways” (p.73) and the comparison could not avoid being lop-sided, Manfredi and Rush conclude that a “Canadianization” of American jurisprudence is taking place (p.76). The claim proves too much, but the authors make the more salient point that the courts in both countries should be, and have become, skeptical of “cartel-like behaviour” by the legislatures (p.85). The lesson is that judicial modesty is inappropriate when legislators manipulate and “lock up” the electoral process (ibid.).

Campaign finance shows more promise, as the BUCKLEY line of decisions finds an echo in the Charter jurisprudence. On these issues Canadian commentators and jurists have been quick to dismiss first amendment doctrine which, to northern sensibilities, validates and constitutionalizes the tainting role of money in politics. Instead, Canada proudly embraces an egalitarian approach which endorses third party spending limits, because doing so equalizes voices and promotes fairness in democratic politics.

Here, too, the authors attack the façade of constitutional difference. Not only is Canada less unlike the States than it claims, the US is closer to Canada on questions of election law than many suppose. In this they point to MCCONNELL v. FEDERAL ELECTION COMMISSION, which upheld provisions of the Bipartisan Campaign Reform Act, and HARPER v. CANADA, which approved strict limits on third party spending. The authors are intrigued by a counterpoint in both courts which urges strict scrutiny of regulations which serve to entrench and consolidate the powers of those in office. [*48] They conclude that “it is no longer accurate to say that [the campaign spending cases] lie at opposite extremes of a libertarian-egalitarian spectrum” (p.117).

To their credit, Manfredi and Rush address two decisions which were released after JUDGING DEMOCRACY went to press. R. v. BRYAN, upholding a federal prohibition on the transmission of election results while polls remain open, did little to disturb their account of Canadian election law. But FEDERAL ELECTION COMMISSION v. WRTL, which came within a hair of overruling MCCONNELL, was more difficult to reconcile with the book’s themes of convergence and dialogue. Just the same, the authors contend that neither court is wedded to a theoretical position and that both are “developing their jurisprudence incrementally” (p.123). They admit that the lack of a “coherent judicial vision of democracy” creates uncertainty, but do not consider that problematic. It is part of a “dialogic approach to constitutional interpretation” which reinforces democratic self-government – “so long as the judiciary approach election law questions modestly” (p.123).

It is trite that what you find in comparative analysis depends on what you are looking for. Canadian scholars and jurists readily sideline points of similarity in the thrust to validate and institutionalize an ongoing narrative of Canada-US difference. In that, JUDGING DEMOCRACY provides a welcome correction to the blinders Canadians don in commenting on American constitutionalism and its relevance to the Charter. At the same time, there is a danger of over-correction: similarities can just as easily be overstated as differences. The claim that Canada-US distinctions have withered away is based on comparisons which are drawn at a broad level of generality and either gloss or overlook the presence of significant, embedded differences. Balancing the differences which distinguish with the similarities which bind is the stuff of comparative analysis. JUDGING DEMOCRACY has merit in re-balancing the Canadian account, but not in overstating the case for convergence.

Not to be forgotten are the authors’ prescription for review and suggestion that both courts embrace a dialogic model which would honor the deliberative process through the practice of judicial modesty. Their idea of modesty in review is subject to the proviso that regulation of the democratic process calls for different treatment. There, heightened scrutiny is necessary to prevent legislatures from enacting regulations which entrench incumbent interests. And that, rather than the withering of distinctions between the Canadian and American Supreme Courts, is JUDGING DEMOCRACY‘s more telling point of convergence.

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

DISTRICT OF COLUMBIA v. HELLER, 554 U.S. ___ (2008).

FEDERAL ELECTION COMMISSION v. WISCONSIN RIGHT TO LIFE, 551 U.S. ___ (2007). [*49]

HARPER v. CANADA, [2004] 1 S.C.R. 827.

MCCONNELL v. FEDERAL ELECTION COMMISSION, 540 U.S. 93 (2003).

REFERENCE RE PROVINCIAL ELECTORAL BOUNDARIES (SASK.), [1991] 2 S.C.R. 158.
R. v. BRYAN, [2007] 1 S.C.R. 527.

RICHARDSON v. RAMIREZ, 418 U.S. 24 (1974)

SAUVÉ v. CANADA, [1993] 2 S.C.R. 438.

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© Copyright 2009 by the author, Jamie Cameron.

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H.L.A. HART, SECOND EDITION

by Neil MacCormick. Stanford, California: Stanford University Press, 2008. 256pp. Hardback. $70.00. ISBN: 9780804756785. Paper. $24.95. ISBN: 9780804756792.

Reviewed by Samuel T. Morison, U.S. Department of Justice. Email: samuel.morison [at] usdoj.gov.

pp.41-45

When the first edition of Neil MacCormick’s H.L.A. HART appeared in 1981, it was notable for being the first book-length treatment of Hart’s legal philosophy, which was comprised largely of a sympathetic analysis of Hart’s most famous and enduring work, THE CONCEPT OF LAW (1961). As such, MacCormick’s book filled an important gap in the then existing literature for an accessible, introductory text on the main themes in Hart’s jurisprudence.

Nearly thirty years later, and sixteen years after Hart’s death, the scholarly production of critical literature on his thought has grown to enormous proportions, including several monographs, countless journal and law review articles and, most recently, a comprehensive biography, Nicola Lacey’s widely acclaimed A LIFE OF H.L.A. HART: THE NIGHTMARE AND THE NOBLE DREAM (2004). While the intellectual landscape has thus changed considerably, the need for a reliable introductory text on Hart’s contributions to jurisprudence is no less necessary. In this regard, the second edition of MacCormick’s book, updated to account for the major developments since its original publication, such as the posthumously published Postscript to THE CONCEPT OF LAW, continues to fill an important niche in Hartian scholarship.

MacCormick, who attended Hart’s lectures at Oxford as a graduate student in the early 1960s, does not undertake a complete survey of Hart’s scholarship, but instead aims more modestly at a “friendly” introductory account that provides a “sympathetic reconstruction of Hart’s main ideas” (p.13). At the same time, the analysis is not without critical bite, since MacCormick repeatedly claims throughout the book that “Hartian doctrine . . . points in the right direction but does not take us far enough” (p.159). He thus purports at various points (about which more below) to extend Hartian insights in a more rigorous and thoroughgoing manner than Hart himself did. The end result, as MacCormick admits, is a substantially amended conception of law. Indeed, Hart’s reaction to the first edition was to insist that “he considered himself a more hardened positivist than MacCormick had depicted,” which “made him out to be more of a natural lawyer than he wanted to be” (p.15). The present edition would no doubt elicit the same reaction.

As in the first edition, the heart of the book remains MacCormick’s reconstruction of Hart’s general theory of the structure of modern municipal legal systems as “a union of primary and secondary rules,” which is set forth primarily in Chapters 9 through 11. In an “inversion of Hart’s order of [*42] proceeding” in THE CONCEPT OF LAW, this discussion is preceded by a series of chapters examining “the building blocks of Hart’s theory of legal order” (pp.61, 117), namely his conception of social rules, his views on positive and critical moral theory, and the notions of obligation, duty and wrongdoing, power-conferring rules, and rights. It is followed by chapters devoted to an exposition of Hart’s theory of crime and punishment, the relation of law and morality, and an epilogue addressing the methodological concerns discussed in the Postscript.

Before turning to these issues, MacCormick begins, usefully I think, with a brief biographical sketch that sets the stage by reviewing Hart’s early career as a practicing lawyer, his credentials as a proponent of egalitarian social democracy, which crucially informed his reformist impulses, and the philosophical milieu in postwar Oxford, which was “the intellectual context to which his analytical jurisprudence belongs” (p.23). Perhaps surprisingly, in discussing the distinction between “law” and “politics” that figures so prominently in American constitutional discourse, MacCormick candidly observes that Hart’s views on the relation of law and political morality did not escape the parochial concerns of his time and place. “Though he claimed it applied to legal systems quite generally,” MacCormick writes, “Hart’s theory of law bears some of the marks of the . . . unspoken assumptions of the English lawyer” and is therefore “clearly recognizable as the work of an English lawyer of the twentieth century” (pp.8, 10).

While this might have been nothing more than a modest acknowledgment that no scholar can really lay claim to an Archimedean vantage point from which to evaluate social phenomena, it raises some thorny issues for Hartian jurisprudence. Stephen Perry (1996) has usefully distinguished between methodological and substantive versions of positivism, which are logically distinct. On the methodological side, as MacCormick suggests, Hart’s theory makes a claim to universality, in the sense that all genuine legal phenomena are assumed to possess a certain set of shared features or characteristics, regardless of time and place. In this view, the task of the legal theorist is to provide a morally neutral “descriptive account of what societies living under law all have in common” (p.210).

To be sure, such a description should take into account the participant’s perspective, the so-called “internal point of view,” which may or may not include normative considerations, but any such connections between law and morality are a strictly contingent matter. Hart is not much concerned with the reasons why officials accept properly pedigreed social rules. In particular, while moral considerations might be a criterion of validity in some legal systems (e.g., the Bill of Rights to the U.S. Constitution), this is by no means a conceptual necessity. Hartian reportage thus aspires to be a scientific, explanatory-descriptive enterprise that may be conducted independently of any context-dependent features of a particular legal system, such as the moral and political values which it subserves.

But serious reservations have been raised about the plausibility of this entire [*43] approach to jurisprudence. In the first place, as Perry points out, existing legal systems are artifacts of human cultural construction, rather than a “natural kind,” such as the elements of the periodic table, each instantiation of which may be said to share some common essence or function. For this reason, a general theory of law as such may not be a scientifically fruitful explanatory category, perhaps no more enlightening, as Brian Bix (1999) puts it, than “a theory of all objects that begin with the letter ‘N’.” Whatever jurisprudes are up to, it does not seem to be science in any ordinary sense of the term. (But see Brian Leiter (2003) for a vigorous dissenting view).

Moreover, whatever might plausibly be said about all legal systems, past and present and across cultures, is likely to be so abstract as to be without much practical significance. As noted above, Hart readily concedes that legal phenomena must be understood and described from a hermeneutic point of view, with the important proviso that the theorist need not personally embrace this perspective. Be that as it may, this is always the perspective of those persons who are actual participants in a particular legal culture. In understanding legal phenomena, we always start from what Perry calls a “local methodological stance,” since “it is by no means evident how we would go about formulating pre-theoretical propositions about ‘all’ legal systems.” With such an understanding firmly in hand, we might well be in a position to formulate a more general concept of law in a comparative fashion, but since legal institutions and practices are intelligible only in view of some inherently contestable function, value, or purpose, such as the promotion of justice and the common good, such an inquiry seems to be an unavoidably normative enterprise.

It is not clear to me precisely where MacCormick stands on this issue. On the one hand, he seems to insist, with Hart, that the validity and content of law are strictly matters of social fact. This, in turn, leaves open the possibility that “faithful reports can be given about the character and content of some body of law even by somebody who has no commitment to the particular values in which these laws are grounded” (p.204). From this it also follows that “the bare existence of a legal system as a system of rules carries no guarantee concerning the substantive justice or moral satisfactoriness of the content of these rules” (p.208).

On the other hand, Hart defended the separability thesis, at least in part, in frankly normative terms, namely as a warning against “the risk of moral complacency about the uses of the concept of law.” Hart’s positivism thus remains “grounded in practical, indeed moral, concerns, not purely epistemic ones,” and MacCormick concedes that it is not clearly “tenable to base one’s methodology on a claim about the moral basis for insisting on detached juristic inquiry” (p.209).

MacCormick then takes this line of argument a step further. Following John Finnis, he says that “it can be argued most persuasively that law must in principle be oriented toward the common good of the community whose law it is and seek to realize justice among its members” (pp.208-209) (emphasis added). Understood in this way, the law as it is actually [*44] implemented in any given jurisdiction can and often does fall short of the distinctive values it ought to realize, but if an aspiration toward justice and the common good is an inherent feature of the concept of law, then the status of purely descriptive conceptual analysis seems uncertain. Indeed, MacCormick (2007) claims elsewhere that where a given law or set of laws “cannot be accounted for under any possible conception of justice that could reasonably be adopted or advocated by a reasonable person willing to subject his or her beliefs to discursive scrutiny, then what is thus done by way of rules and practices of governance would not properly count as law.” In such “extreme cases,” he says, the ostensible laws “carry no element of genuine obligation with them, though they may be backed by coercion enough” (p.209).

This is a congenial conclusion, perhaps, but it is certainly not Hart’s view of the matter. As is widely known, Hart’s project in THE CONCEPT OF LAW was to rescue positivism from the reductive Austinian formulation according to which law was essentially an order backed by an effective threat of coercion. The problem with this picture, Hart pointed out, is that one’s being obliged to obey a command under the threat of sanctions in the event of noncompliance in no sense gives rise to a genuine obligation. In order to distinguish habitual obedience, motivated perhaps by fear of punishment, from actual rule-following behavior, Hart insists that those to whom the rules apply must adopt a certain “reflective critical attitude,” namely they must willingly accept the rules as a shared or common “standard of behavior.”

In a pre-legal society, the “primary rules” of behavior are obligatory essentially because they are accepted as legitimate by the members of a group as forming part of its conventional morality. By contrast, in a modern legal system, Hart makes no appeal to the content of the primary rules. Instead, such rules are obligatory by virtue of their origin, because they are properly enacted according to a valid secondary rule, which is itself accepted as a social rule of the group.

Moreover, it is sufficient if the public officials who are responsible for the formulation and implementation of the primary rules – legislators, judges, and lawyers – willingly accept the secondary rules in a normative sense. For the system to function, the mass of the citizenry need only generally obey, although Hart allows that in a healthy society, most citizens will also adopt the internal point of view. In the last analysis, however, being under a legal obligation is, after all, to be subject to sanctions for disobedience, even for the members of a systematically oppressed minority. As Hart soberly observes, “coercive power, thus established on its basis of authority . . . may be used to subdue and maintain, in a position of permanent inferiority, a subject group . . . For those thus oppressed there may be nothing in the system to command their loyalty but only things to fear. They are its victims, not its beneficiaries.” Although MacCormick bristles at the suggestion (pp.194-195), it is difficult to escape the conclusion that Hart’s theory of law collapses into the very Austinian model he intended to reject.

These are difficult questions and much more would have to be said to make [*45] these brief comments convincing. But my suggestion is that, if Hart never really escaped the perspective of the typical socially liberal, upper middle class English lawyer of his day, as MacCormick says, then perhaps the substantive values he ascribes to the concept of law were not and could not have been as descriptively neutral as he supposed.

REFERENCES:
Bix, Brian. 1999. “H.L.A. Hart and the Hermeneutic Turn in Legal Theory.” 52 SOUTHERN METHODIST UNIVERITY LAW REVIEW 167-199.

Hart, H.L.A. 1961. THE CONCEPT OF LAW. New York: Oxford University Press.

Lacey, Nicola. 2004. A LIFE OF H.L.A. HART: THE NIGHTMARE AND THE NOBLE DREAM. New York: Oxford University Press.

Leiter, Brian. 2003. “Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence.” 48 AMERICAN JOURNAL OF JURISPRUDENCE 17-51.

MacCormick, Neil. 2007. INSTITUTIONS OF LAW: AN ESSAY IN LEGAL THEORY. New York: Oxford University Press.

Perry, Stephen R. 1996. “The Varieties of Legal Positivism.” 9 CANADIAN JOURNAL OF LAW AND JURISPRUDENCE 361-381.

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© Copyright 2009 by the author, Samuel T. Morison. The views expressed in this review are the personal opinions of the author and do not represent the official position of the U.S. Department of Justice.

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BUSH v. GORE: EXPOSING THE HIDDEN CRISIS IN AMERICAN DEMOCRACY

by Charles L. Zelden. Lawrence, KS: The University Press of Kansas, 2008. 416pp. Cloth. $34.95. ISBN: 9780700615933.

Reviewed by Michael R. Dimino, College of Law, Florida State University (Visiting Associate Professor); School of Law, Widener University. Email: mrdimino [at] mail.widener.edu.

pp.35-40

With the presidency of George W. Bush at its conclusion, it has come time to evaluate from an historical perspective the farcical events that led to its beginning. Charles Zelden has done so and has produced a volume that is invaluable to scholars, students, and anyone interested in understanding the confusion and the litigation that surrounded the 2000 presidential election in Florida. Roughly the first two-thirds of Zelden’s text describes the problems with the administration of the 2000 election, and the efforts to correct them, marvelously noting facts and strategies, and giving the reader a sense of the people whose decisions and actions were crucial during that period. The text reads as a journalistic account, with the drama of a novel, but with circumstances that are stranger than fiction. Professor Zelden’s attempts in the last third of the book to critique the Supreme Court’s decision in BUSH v. GORE and draw lessons from that election, however, are more controversial and less valuable. In all, Zelden’s book is a worthwhile contribution to the literature on election law and BUSH v. GORE, because it aids the reader in understanding the motivations and actions of the candidates and their legal teams, though it does not purport to be a legal analysis (p.210) and is not convincing in its analysis of the motivations and actions of the judges who decided the case or in its suggestions for reform.

Because the attention of students and scholars naturally focuses on the two opinions by the United States Supreme Court, it is easy to overlook the scores of other cases filed to complain about the butterfly ballot, absentee ballot applications, overseas military ballots, etc., etc., which resulted in the parties arguing for looser, and then stricter definitions of valid votes (or vice versa), depending on which interpretation was believed to help the party obtain an advantage. Zelden does an excellent job of presenting these litigations in a readable format, allowing the reader to re-experience the excitement of the period while viewing the various cases in the context of an overall strategy employed by each camp. (For Gore, because he trailed in the initial vote totals, the strategy was generally to expand the definition of legal votes and to do so as quickly as possible. Bush, on the other hand, generally urged a strict interpretation of the laws governing a valid vote and sought to delay, hoping to change the initial vote totals as little as possible.)

A particularly handy appendix (pp.285-97) lists the events surrounding the election controversy chronologically. As Zelden notes, a thorough discussion of [*36] any one litigation requires the writer to relate events occurring over the space of time (including, for example, the arguments in both sides’ briefs, the trial-court decision, and the appeal), though in the kaleidoscopic events of those weeks, several other developments would have occurred during that space of time. Zelman’s narrative wonderfully tells the stories of those intermixed litigations, including the proper context while avoiding confusion. But to the extent that the narrative discussions leave the reader unclear, the reader may consult the appendix for quick assistance.

After summarizing the United States Supreme Court’s opinions in BUSH v. GORE, the book’s approach takes a significant turn. Whereas to this point the book had been content to describe the actions of the candidates, voters, election administrators, lawyers, and judges involved in Election 2000, Chapter Nine begins Professor Zelden’s analysis of the opinion and subsequent reforms, ultimately leading to Zelden’s conjecture about how a different opinion might have prodded the country to learn the “lessons” of BUSH v. GORE and adopt what Zelden considers to be worthwhile election reforms.

Finding the Court’s announced reasons for staying, and then ending, the recounts unconvincing, the text asks what could have induced Chief Justice Rehnquist, and Justices O’Connor, Scalia, Kennedy, and Thomas to act as they did. Unfortunately, however, the effort quickly devolves into an effort at amateur psychology, or (as Zelden more charitably describes it) “reasoned speculation” (pp.235, 279, 301). Thus, for example, he concludes that Justice O’Connor’s taste for individual self-reliance made her unreceptive to claims of voters who had failed to punch out their ballots’ chads completely (pp.218-19, 225-26). Similarly, Zelden supposes that Chief Justice Rehnquist was motivated by a desire to save the country from a “constitutional and political crisis” brought about by the Florida Supreme Court’s misreading of its state’s statutes, and that Justice Kennedy’s “moderate conservati[sm]” (p.220) led him to reject the Chief Justice’s “highly technical” (p.219) conclusion based on Article II of the Constitution that the Florida Supreme Court had overstepped its authority. While these explanations are, on the whole, plausible, there is little to support them. Judicial decisions are complex, and the motivations for individual judges’ decisions are quite difficult to ascertain when they do not coincide with the judges’ jurisprudential philosophies.

Zelden never explains, moreover, why he chose to focus on these “wider questions” of motivation (p.210) except to assert that such a focus is necessary to “understand the meaning and import of BUSH v. GORE and the entire 2000 presidential postelection controversy” (p.200). He is too quick to dismiss the importance of the fundamental question in evaluating any judicial decision: Was the decision correct, as a matter of law? Instead, he focuses on the correctness of BUSH v. GORE solely as a political matter, gauging whether it was the best way to achieve particular results (among them the installation of George W. Bush as president and the reformation of the nation’s electoral systems).

Indeed, though Zelden at times appears to leave the question of BUSH v. GORE’s [*37] correctness to others, at other times he treats the question as fundamentally unimportant or unanswerable. Thus, he states that “[a]ny answer we could arrive at [concerning the correctness of the decision] would depend too much on who was constructing the answer” (p.210) and concludes that all manner of varying judicial decisions from state and federal courts were “legitimate” (pp.118-19, 241) without ever offering us a criterion or definition of legitimacy. Zelden seems to consider a decision “legitimate” if it is plausibly correct, though he never says so explicitly.

I certainly would not argue that judicial questions can be definitively resolved, and that we all should be able to agree as to whether a particular judicial decision is correct or not. But the extent to which a decision is legitimate must relate to whether the decision and the methodology are right, by whatever criteria we individually assess them. Stated more simply, BUSH v. GORE is a problematic judicial decision only if, because, and to the extent that, it is wrong.

In the end, Zelden’s critique of BUSH v. GORE is not that it was wrong on the law or that it was politically motivated (he concludes that a variety of motivations likely contributed to the outcome, and that rank partisanship was not enough by itself to explain the Court’s actions). Rather, Zelden complains that the Court’s equal-protection rationale could have been phrased more expansively, and the Court could have used BUSH v. GORE – especially if the Court was able to maintain a seven-Justice majority invoking the Equal Protection Clause – to prod the country into changing the nation’s electoral systems (pp.279-83). Zelden suggests that permitting partisan officials to make determinations that shape elections and that therefore determine election results is antidemocratic and perhaps should be held unconstitutional. It is this capacity for partisan manipulation of the electoral system that Zelden identifies as the “hidden crisis in American democracy” to which he refers in the subtitle.

Nothing is new about these criticisms; Zelden cites reports recommending various reforms in complaining that the reports’ recommendations have, in large part, been ignored (p.251-52). The United States’ practice of having elections run by partisans has received scorn from commentators, and solutions such as non-partisan districting commissions have been suggested. But Zelden’s dream that BUSH v. GORE could have brought about these changes if it were written slightly differently is pure fantasy.

In the first place, Zelden’s belief that achieving a seven-Justice majority opinion would have been “eas[y]” is wrong (p.221). Yes, the per curiam opinion’s decision to stop the recount was an especially weak part of its opinion, and yes, a remand to the Florida Supreme Court to construct an appropriate standard for the recount would probably have been able to attract the votes of Justices Souter and Breyer, who found an equal-protection violation in the Florida Supreme Court’s ordering of the statewide recount but who objected to the majority’s decision to halt the recount entirely. But such a remedy would have driven away Chief Justice Rehnquist and Justices Scalia and [*38] Thomas. Those three Justices believed the Florida court’s decisions had so changed that state’s election law as to violate Article II’s requirement that legislators be chosen in a manner directed by the state legislatures. To permit the Florida Supreme Court to act again would have compounded the error, in the view of those Justices. Accordingly, had the per curiam opinion found an equal protection violation but sought to remand the case to permit Florida to conduct a recount under proper standards, there might have been four votes (Justices O’Connor, Kennedy, Souter, and Breyer) for such an approach, but three votes would have demanded an end to the election, and two others (Justices Stevens and Ginsburg) would have preferred to affirm the Florida decision. The result would have been a Court unable to render a judgment.

Even if there were a seven-Justice majority willing to call for electoral reform, I have no confidence at all that the Court’s opinion would have brought about the changes Zelden desires. Zelden does recognize that “the realities of partisan politics might have undermined reform” (p.281). Nevertheless, he draws on the Court’s efforts in dismantling de jure segregation to argue that the Court could have pressed the country to modernize its electoral system if it had issued “a mandate grounded in the Constitution” (p.280, see also 242). There is no reason, however, to expect success in such an endeavor when the Constitution itself contains no such mandate.

The uniqueness of the 2000 election may have made it possible to assert, as Justice Scalia has done, that “[c]ounting somebody else’s dimpled chad and not counting my dimpled chad is not giving equal protection of the law” (230), but it is not possible to believe that the Constitution as historically understood requires any of the sort of reforms that Zelden sees as beneficial. The Court distinguished some of them in BUSH v. GORE itself, concluding that localities’ decisions to use different voting technologies did not lead to the equal-protection concerns presented “where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards” (531 U.S. 98, 109 (2000)). Even more clearly, the Constitution has not been an effective impediment to partisan gerrymandering, though the practice is hundreds of years old (VIETH v. JUBELIRER (2004)). Still less has the Constitution stood in the way of elected officials taking part in the political process in other ways that could advantage one party or another.

Had the Court used BUSH v. GORE to issue a “call to arms” for electoral reform (p.280), the mandate would not have been “grounded in the Constitution.” Rather, the Court would have faced the same criticism it continues to face for issuing such a poorly reasoned opinion, and would have been criticized additionally for being brazen enough to urge an even more extensive remedy than the case required – based on nothing other than the political theory favored by a majority of unelected, unaccountable judges.

Furthermore, the idea that Justices should use court cases as means to alter public policy is a conception of the judicial role anathema to three of the Justices joining the majority opinion. [*39] Rather, it views the role of the judge in the Warren Court mold, in which perceived injustices were rooted out, and constitutional language and history were decidedly secondary. That this approach may have been the same one used (hypocritically) by the Justices in the BUSH v. GORE majority is reason to condemn that decision – not to lament that the Court’s holding was limited.

Zelden’s policy-oriented view of judicial decision-making is shown by his description of the purposes of a Supreme Court opinion. Zelden states that in addition to deciding the case, opinions should be “sweeping enough to convey the overall meaning of the Court’s ruling to nonlawyers,” and goes so far as to state that “the job of the Supreme Court is to produce order out of chaos and direction out of confusion” (p.180). Producing order out of chaos (whatever that means) has nothing to do with the job of the Supreme Court, and though a few high-profile cases will garner attention from the popular press, “the job of the Supreme Court” is to decide cases consistently with the requirements of law. If the question in a case turns on technical parsing of language in a statute or administrative regulation, a “sweeping” ruling unnecessary to the case before the Court would fail to respect the proper limits of the Court’s judicial-review power.

Zelden is especially concerned about the potential for election outcomes to be skewed in favor of Republicans through means that depress turnout among minorities, the poor, and other Democratic constituencies. Accordingly, he complains about such matters as requirements that voters present identification (a requirement upheld by the Court this past Term in CRAWFORD v. MARION COUNTY BOARD OF ELECTIONS (2008)); argues for the expenditure of millions of dollars to update voting systems, poll-worker education, and registration lists; and criticizes allegedly discriminatory purges from registration lists of persons thought to be ineligible to vote (pp.244-78). But of course the country is hardly united in Zelman’s call to action on these matters. Rather, democracy in the United States continues to carry a meaning different for everyone. BUSH v. GORE called national attention to a few problems – such as the use of punch-card ballots without criteria for judging votes cast by that method – that everyone realized needed to be fixed. To go beyond solving those problems to overhauling the entire “broken electoral system” (p.247) is to adopt a highly contestable idea of “the lesson” to be learned from the 2000 election.

The most interesting and the most pervasive theme of American election law is the interrelationship between elections and legislating: The political process determines who the legislators are, but the legislators determine the shape (and indirectly the results) of the political process. A course on election law must wrestle with that paradox, and must consider the proper place of the judiciary in such a scheme.

But just as we should be worried that the politicians in power can perpetuate their hold on power by manipulating elections, so can judicial decisions skew the results of the political process in favor of one party or one set of interests. Zelden believes judicial power should be exercised in favor of increasing participation and power of liberal voters, [*40] but he never explains why such actions would be any more appropriate (or any less partisan) than decisions by the other branches that advance partisan interests. The judiciary, as well as the other branches of government, can place a thumb on the scale in favor of one side or the other – just ask any of the Democrats who are still upset at BUSH v. GORE, or the Republicans who viewed the Florida Supreme Court’s decisions as disregarding statutory language when doing so improved the chances of a victory for Vice President Gore.

What BUSH v. GORE teaches is not just that election administration can have partisan consequences, but that election laws and their interpretation and enforcement are not politically neutral, regardless of the party or the institution responsible for making, interpreting, or enforcing those laws.

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

CRAWFORD v. MARION COUNTY BOARD OF ELECTIONS, 128 S. Ct. 1610 (2008).

VIETH v. JUBELIRER, 541 U.S. 267 (2004).

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© Copyright 2009 by the author, Michael R. Dimino.

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JUDICIAL POWER AND NATIONAL POLITICS: COURTS AND GENDER IN THE RELIGIOUS-SECULAR CONFLICT IN ISRAEL

by Patricia J. Woods. Albany, NY: SUNY Press, 2008. 272pp. Cloth. $75.00. ISBN: 9780791473993. Paper. $24.95.ISBN: 9780791474006.

Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University, College Station, TX 77843-4348. Email: j-baer [at] tamu.edu.

pp.32-34

Comparative public law scholarship has, so far, eschewed the prevailing dichotomy of comparative politics: the separation between micro-research (often termed “single-country studies”) and macro-research (what the cool kids do). Patricia Woods’ important new book is a welcome continuation of this counter-trend. Her study of Israeli judicial politics is shrewd, sophisticated, culturally sensitive, and historically grounded. She is able to make good use of both her closeness to and distance from her subject. Her background as a feminist and a student of comparative religion and politics sustained her dedication through the long haul of writing a book. Her status as a non-Jew helped her to win the trust of members of mutually antagonistic Jewish factions. (No doubt, her ability to conduct interviews in Hebrew, indicated in the references, also helped.) The book’s first and last chapters initiate and frame the daunting task the author has assumed: generating testable hypothesis and macro-theory about public law and comparative politics by researching a nation like no other in the world.

Israel was the first modern religious-linked state. It remains the only such state founded on (rather than progressing toward) liberal principles. In a century when bonds between official religions and their countries were loosening – or being ruptured – Israel was founded by Jews for Jews. A member of the High Court of Justice, writing in 1973, identified the founding principles of the nation as “efficacy,” “democracy,” and “Jewishness” (p.127). This last word is not and has never been synonymous with “Judaism.” Israel requires no sectarian membership or observance; it has no religious test for high office; it guarantees freedom of, and from, worship. But there is no Jeffersonian wall between state and religion.

“Status-quo agreements” (p.36) between the founders and the Orthodox and Ultra-Orthodox gave religious courts “exclusive authority over personal status or family law (p.36). David Ben-Gurion, the first prime minister, defended these concessions as essential to establishing the unity that would allow a state to exist at all; while he may have been right, the decision has come back to haunt the society. Conflict between Orthodox patriarchy and commitment to equality and democracy was inevitable. The entrenchment of judicial review assured that particular conflicts would end up in the courts. As a result, the HCJ has been confronted with such issues as praying at the Western Wall, eligibility for membership on local councils, and the enforceability of religious court orders. Imagining a parallel situation where American courts reviewed the personnel [*33] policies of the Roman Catholic Church or the Church of Jesus Christ of Latter-Day Saints will give the reader an idea of how incendiary these rulings have been.

There is no sign that the Orthodox factions have considered a retreat similar to that of the Catholic hierarchy on birth control after GRISWOLD v. CONNECTICUT. (This analogy suggests a nagging counter-factual: what if such a retreat had been followed by the equivalent of ROE v. WADE?) In the 1990s, “the president of the HCJ received death threats and the HCJ has been compared to biblical enemies of the Jews” (p.75). But the secular Jews who comprise the majority of Israelis have mixed loyalties. These attitudes are suggested by the familiar phrase, “the synagogue I don’t go to is an Orthodox synagogue” (p.176). This majority would have confronted cross-pressures had the HCJ chosen religious autonomy over gender equality. But the judicial trend has been in the opposite direction. The HCJ ruled over Orthodox objections that women can serve on local councils. It reversed an order forcing a woman to try to reconcile with her estranged husband. And, in an episode reminiscent of the “all deliberate speed” rhetoric of BROWN v. BOARD OF EDUCATION II, the HCJ required the government to effect a compromise between the “‘sensitivities’ of those praying at the Wall, and the ‘traditions’ of the place” (p.167) administered by the Haredi Jews. The solution was to reserve a prayer site at the wall for women.

Woods’ treatment of the judicial output provokes the one negative observation I have about the book. Like many who privilege process over doctrine and result, she lacks the skill of narrating questions in a way that makes it clear at the outset who won and who lost. This difficulty can frustrate the reader who is not already familiar with the decisions, and it makes the book less accessible to students. But this is a less than devastating criticism of a valuable study. Woods’ focus is on court decision-making, and she has intriguing and incisive new things to say about it.

The book’s organizing question is this: “When, why and how do national courts begin, systematically, to engage heated issues?” (p.1). This formulation presumes that courts have a choice whether or not do this. While I suppose any court can find a way of not deciding, staying out of the fray is easier in some systems than in others. Applied to Israel, Woods’ question suggests another vital question: “When, why, and how does a faction gain or lose control of an issue area?” This derivative question might come into play, for instance, if demographic changes strengthened or weakened a group within a jurisdiction. Woods takes her question in an unfamiliar direction. Her argument that “intellectual communities with whom judges live and work and think on a daily basis provide the most determining factor to explain when, why, and in what manner courts chose to intercede in political battles” leads her to develop the concept of “judicial communities” (p.13), evocative of Jeremy Bentham’s concept of judge and company. Members of cohesive judicial communities share geographical region, formal educational history, and professional socialization, and are likely to have known one another for a long time. Israel’s judicial community amply qualifies as cohesive, but it would not [*34] necessarily top the list. While most members attended the same law school, the Hebrew University of Jerusalem, French judges may well have gone to the same lycee. Israel’s judicial community, again like that of France, and, probably, like most such communities, is as noticeable for whom it leaves out as for whom it includes: not only those less privileged by education and comfort, but also the Orthodox factions. The interest group that controls family law is separated from the dominant legal community.

As Woods recognizes, her concept of a judicial community could not be wider of the mark in describing judge and company in the United States. She coins the term “multiple judicial communities” to refer to systems in which factions “compete with one another for influence on judicial thinking” (and where the Orthodox might fit right in). This situation, she concedes, decreases “the utility of the judicial communities model” (p.187). But this may concede too much; after all, the United States had a far more cohesive judicial community when its judicial activism began than it does now. One might also ask whether the degree of cohesion in a judicial community has affected judicial activism or restraint. Has the further multiplication of judicial communities in the United States since World War II, stimulated by, inter alia, the GI Bill, the education amendments to the civil rights laws, and the growth of mass communications, affected the courts’ willingness to engage in controversy; and if so, how?

JUDICIAL POWER AND NATIONAL POLITICS is a welcome addition to the scholarship on comparative judicial politics, and Patricia Woods is a welcome new voice in the field. This promising scholar shows an ability not only to identify and explore sophisticated research questions, but also to generate new ideas for herself and others. The impact of her work will cut across subfields and enrich the political science discipline.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION II, 349 U.S. 294 (1955).

GRISWOLD v. CONNECTICUT, 381 US 479 (1965).

ROE v. WADE, 410 US 113 (1973).

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© Copyright 2009 by the author, Judith A. Baer.

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THE MADISONIAN CONSTITUTION

by George Thomas. Baltimore: The Johns Hopkins University Press, 2008. 264pp. Cloth $50.00. ISBN: 9780801888526.

Reviewed by Douglas C. Dow, Department of Political Science, The University of Texas at Dallas. Email: dougdow [at] utdallas.edu.

pp.28-31

Readers of George Thomas’ recently published book, THE MADISONIAN CONSTITUTION, should not expect a detailed analysis of the Framer’s constitutional thought during the 1780s or as it evolved at later points in his long career. Instead, the author adopts Madison’s name and a handful of his writings to delineate an ideal type of constitutional theory and practice. In this ambitious, densely written and thought provoking work, Thomas proposes a perspective on constitutional interpretation that is at once a normative theory of constitutional practice and a redescription of constitutional history informed by that practice. Thomas challenges some of the common understandings of constitutional authority, especially the ideas of judicial supremacy and popular constitutionalism. He offers instead an alternative explanation of how constitutional meanings are made, one that emphasizes the irreducible element of institutional contestation and conflict. Thomas’ MADISONIAN CONSTITUTION rejects a strictly legalistic or political reading of the document, promising instead to restore a “constitutional perspective” (ix, italics in original), that better respects how the text actually underpins the practices of both law and politics.

In his first two chapters, Thomas lays out an explanation of his theory of proper constitutional interpretation. Much of the weight in describing a Madisonian Constitution is spent describing what it is not. He challenges the idea that the Supreme Court should be the hegemonic institution empowered with the authority to pronounce through judicial review the ultimate word on constitutional interpretation. By claiming to be the final arbiter of meaning, the Court illegitimately seizes a power of sovereignty reserved for the document itself. Judicial supremacy also redirects the meaning of the Constitution to constitutional doctrine, and this legalistic vision of the document transforms the Constitution into a set of mere legalities, “narrowing and distorting the constitutional mind-set” (p.36). But for Thomas, it is not just the Court, but any single authority that claims to be the final determiner of meaning, that must be rejected. In that vein, he has sharp words for adherents of popular constitutionalism, in whose hands “democracy becomes primary, as other formal institutions should yield to the people’s judgments about constitutional meaning” (p.157).

Institutional forms are indeed the key to Thomas’s normative vision of the Constitution. Abandoning the idea that there is a single non-textual authority capable of speaking in the name of the Constitution, he argues that the document establishes a system of countervailing powers, in which the three branches of the federal government [*29] compete with each other through a system of interlocking powers and authorities. While sustaining the ultimate sovereignty of the text, Thomas emphasizes that Madison designed a constitution that calls forth institutions that each have the equivalent responsibility for articulating explanations of what the Constitution means. As a result, constitutional meaning can never be settled, as each branch properly asserts its own interpretation.

The central four chapters of THE MADISONIAN CONSTITUTION each describes an historical episode meant to exemplify the practice of constitutional engagement by each branch and the inherent clashes built into the system. The first lays out some of the conflicts between Congress and the Court during the 1870s over the meaning of the Reconstruction Amendments, as well as over which branch possessed the ultimate authority to enforce that meaning. The remaining three moments form something of a trilogy, examining the rise and critique of the Administrative State. Thomas starts with a description of the challenge launched by the Progressives against the Supreme Court’s resistance to national economic regulation. This is followed by another chapter that positions the push by the Roosevelt Administration to expand the authority of the national government broadly within the context of progressive thought. He concludes his historical analysis with an examination of the Reagan Administration’s attempts to counter judicial supremacy and New Deal federalism, through the promotion of departmentalism and an originalist philosophy.

Each historical chapter offers a redescription of events and arguments designed in a fashion that brings to light the fidelity of that historical moment to his ideal type. These episodes are familiar to constitutional scholars, and Thomas makes it clear that his intent is not to give a full historical account of each conflict. While each chapter contains numerous insights, their true significance lies in Thomas’ collective use of them to provide a broad outline of how the Madisonian Constitution operates. By exploiting the thematic continuities, Thomas rather convincingly demonstrates that these episodes should not be thought of as crises or even necessarily as establishments of new constitutional regimes. However, these chapters also reveal troubling questions about the relationship Thomas wants to sustain between his normative vision of Madisonian practice and the political realities of American constitutional history.

While Thomas argues that the Constitution establishes institutional forms designed to engage regularly in battle with each other, he is not willing to reduce constitutional practices to just another form of politics. As a result, Thomas does not appear to be interested in emphasizing the singular and contingent behaviors taken by historical actors reacting to localized crises and reaching out for political goals. Instead, in an attempt to wrestle philosophical coherence and permanence out of constitutional history, each episode is designed to reflect not its uniqueness but rather a reoccurrence of the same pattern of behavior. “In Madisonian terms, such conflicts are never-ending: they have persisted since the founding and will remain with us long into the twenty-first century” (p.167). [*30] Ironically, Thomas’ approach to constitutional interpretation, with its emphasis on inter-branch fights, nevertheless manages to keep the actual politics of these fights at arm’s length.

Thomas is interested in the basic forms that the conflicts take more than the conflicts themselves. As a result, his historical descriptions exist at a high level of generality, as Thomas seeks to wring from them broader meanings, translating grubby politics into nobler contestations over constitutional meaning. To take one example, Thomas argues that Reagan’s defense of departmentalism and his challenges to national supremacy are his attempts to return to “first principles” (p.126). Nowhere does Thomas give an account of the particular political battles of the Meese Justice Department in its struggles against independent agencies or independent prosecutors. It is, of course, these local conflicts, against Congress as much as the federal courts, which gave birth to the initial idea of the unitary executive, a concept which Thomas dispatches in a sentence.

In these accounts, political actors are obliged to talk like constitutional scholars, whatever their intentions, and the discourse they are compelled to speak often sounds much like Thomas’. It is difficult to tell sometimes whether the politicians Thomas discusses share his fidelity to a Madisonian constitutionalism or whether the Madisonian Constitution is visible only from the distance of the scholar. “The written text brings institutional forms to life that look back to the text as part of bringing the Constitution to life – making fundamental law an actual constitution” (p.15, italics in the original). In such passages, Thomas renders opaque the actual agency of political representatives, and he suggests, without clarification, that political institutions are capable of enacting their own logic, independent of the intentions of particular persons.

While acknowledged as not a fulsome history, Thomas’ four episodes are marked as much by what is left out as by what is included. Excluded are a number of topics that might disrupt the dominant narrative of persistence of the Madisonian ideal throughout American history. For a book that signals its preoccupation with the separation of powers, there is a noticeable lack of sustained discussion about key subjects in that area. Most noticeable is the absence of any deliberation on the continuing disagreements about the proper distribution of war powers, or the concern over the expansion of presidential prerogative. Developments since the end of World War II have revealed not only the disproportionately expanding authority of the commander-in-chief, but also the acquiescence by Congress to this growing power, and the timidity or helplessness of the federal courts to resist a determined president.

If the choices Thomas has made as a constitutional historian are sometimes troubling, it is all in service of expressing the normative vitality of his ideal type of the Madisonian Constitution. It is on this subject that I have found the most interest, and the most frustration. I have found interest because throughout the text are scattered ideas about what kind of constitutional meaning is produced by these constant episodes of conflicts. For example, Thomas speaks of the need for judgment [*31] and suggests in the introduction that greater attention to constitutional conflicts will allow us “to distinguish far more vividly than we do constitutional propriety from constitutional meaning” (p.6, italics in original). However, this intriguing dichotomy is never further explained, and what constitutional propriety means is never defined. However, beyond the hint that part of constitutional propriety requires each branch to acknowledge the right and obligation of the others to form its own judgment of constitutional meaning, little more is forthcoming.

THE MADISONIAN CONSTITUTION must be admired as an ambitious work, one that seeks both to articulate a vision of strong constitutional responsibility and to read this vision into a history of constitutional development. Thomas’ critiques of the problems of judicial supremacy and popular constitutionalism are illuminating. He engages evocatively with contemporary literature on the Constitution, with some of his most interesting methodological debates taking place in the endnotes. Ultimately, however, this is a frustrating work that delivers vague hints at alternative notions of constitutional responsibility and propriety without the detailed follow through such concepts require. In the end, readers will come away with a clear idea of what a Madisonian perspective on the Constitution is not. But a picture of what it is will have to wait for further elaboration.

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© Copyright 2009 by the author, Douglas C. Dow.

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TERRORISM, GOVERNMENT, AND LAW: NATIONAL AUTHORITY AND LOCAL AUTONOMY IN THE WAR ON TERROR

by Susan N. Herman and Paul Finkelman (eds). Westport, CT: Praeger Security International, 2008. 232pp. Cloth $75.00/£41.95. ISBN: 9780313347337. eBook format. $82.50. ISBN: 9780313347344.

Reviewed by Torin Monahan, Department of Human and Organizational Development, and Department of Medicine, Vanderbilt University. Email: torin.monahan [at] vanderbilt.edu.

pp.25-27

Antiterrorism efforts in the United States present a number of interesting challenges for state and local governments. There are perennial struggles over who should pay for investigations that depend upon local law enforcement or for new technologies for critical infrastructure protection. There are also concerns that the Department of Homeland Security (DHS) may be prioritizing approaches to protection that are inappropriate for localities, such as mandating the purchase of expensive equipment to remove improvised explosive devices that have not yet proven to be serious domestic threats. But the key question taken up in this book is “To what extent can state and local governments legally resist, selectively implement, or translate federal-level security and antiterrorism mandates?” For the authors in this edited volume, this question hinges upon – and promises to redefine – federalism in the post-9/11 era.

The book’s contributors review a handful of noteworthy examples of resistance by local governments to investigations initiated at the federal level. For instance, when in November 2001 Attorney General John Ashcroft asked local police departments to draw upon an FBI list to “interview” Middle Eastern men living in their cities, police chiefs from Detroit to Chicago to Tucson to Portland, Oregon, initially refused to cooperate on the grounds that they might be violating respective state and local laws against racial profiling and targeting individuals without probable cause. Eventually, in response to fear of political reprisal, police departments capitulated entirely or worked out acceptable arrangements with the FBI, such as carefully scripting questions in accordance with state law in order to conduct the interviews requested.

In another remarkable case, federal authorities placed hundreds of “special interest detainees” in New Jersey prisons immediately following September 11, 2001. According to New Jersey’s longstanding “Jailkeeper’s Statute” of 1898, the names of any inmates housed in county jails must be made public. The American Civil Liberties Union (ACLU) requested the names of these detainees and was told that the Immigration and Naturalization Service (INS) had jurisdiction, thus local sheriffs would not comply with the ACLU request. A New Jersey Superior Court judge found that the existing statutes were unambiguous and that the names should be released. In response, the INS Commissioner issued an emergency interim regulation [*26] claiming that INS had authority to supercede state law. A subsequent INS statement explained that the emergency interim regulation would “relieve state or local government entities of responsibility for the public release of information” (p.108). The New Jersey Supreme Court agreed, and the ACLU opted not to take the case to the US Supreme Court. According to Ronald K. Chen, who authored a chapter on this case in the book, this outcome represents a threat to federalism itself. He writes: “For the federal government to enact a regulation that forbids state officials from complying with the dictates of state law raises at least the suggestion of federal assumption of the powers of the state sovereign over its own state officials” (p.117).

For most of the contributors to this book, what makes these examples troubling is that they clash harshly with legal precedent, especially that set by the Supreme Court in PRINTZ v. UNITED STATES. In this case, “the Court found unconstitutional a provision of the federal Brady Act that would have required local law enforcement officials to assist in conducting background checks before issuance of a gun permit” (p.7). This finding, in essence, amounts to an anti-commandeering principle that should hold true in all cases where federal requests are made of local authorities. Federal agents may choose to ignore state laws, but state agents must honor the laws and policies of their jurisdictions; additionally, state agents cannot be “commandeered” to serve federal dictates unless they do so voluntarily and are compensated for that work. One might imagine that exceptions could be made in times of national crisis, but Justice Scalia’s majority opinion in PRINTZ was unequivocal in stating that there could be no exceptions to the anti-commandeering principle, even if the burden upon local law enforcement was minimal. Nonetheless, when it comes to requests for state and local agents to assist with federal antiterrorism campaigns, the tendency is for most parties to ignore the legal precedent established by PRINTZ.

The superb chapter by Erwin Chemerinsky, “Empowering States when it Matters,” effectively demystifies such apparent discrepancies between precedent and practice by analyzing the politics behind supposedly neutral court cases. He argues:

the [Supreme] Court’s recent decisions finding preemption expose the political content of its federalist rulings. The Court has eagerly found preemption of state laws regulating business, such as tobacco companies, the auto industry, and insurance companies. On the other hand, most of the Supreme Court’s federalism decisions invalidating federal laws have struck down civil rights law – such as the Violence against Women Act, the Religious Freedom Restoration Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. . . what animates the Rehnquist Court is not a concern for states’ rights and federalism. Rather the Court is hiding its value choices to limit civil rights laws and to protect business from regulation in decisions that seem to be about very specific doctrines of constitutional law, such as the scope of the commerce power and the circumstances of preemption. (p.131)

From this standpoint, when cities such as Portland elect to provide greater civil rights protections to individuals than do [*27] federal agencies, should it ever be heard by the Supreme Court, preemption of those protections would be the expected outcome. And in the ruling prohibiting the release of the names of INS detainees housed in New Jersey jails, federal preemption of state statutes was the outcome in spite of there being no existing federal statutes that could be mobilized to argue for such preemption. As a corrective, Chemerinsky concludes that any preemption of state laws should be explicitly indicated by laws passed by Congress; otherwise, states should be allowed to act on behalf of their citizens and accord them greater protections and rights if they deem fit.

The general thesis of this book is compelling but seemingly not substantiated by the many cases analyzed. In the introduction, Susan Herman remarks that “our structures of federalism have the potential to serve as an alternative check on federal overreaching if, as some believe likely, the courts prove to be unduly reluctant to find that various federal antiterrorism actions violate rights or other provisions of the Constitution” (p.3). I find myself agreeing that there is potential for federalism to check federal overreaches, but for a number of reasons there does not appear to be a likelihood of that happening. First, most states and cities voluntarily comply with federal requests for assistance or cooperation because officials at those levels are politically vulnerable and fear being removed if they do not appear to be acting in the interests of national security. Second, federal funding is increasingly tied to compliance on the local level, as can be witnessed with the Clear Law Enforcement for Criminal Alien Removal Act of 2003, which requires state and local law enforcement offices to disclose to DHS and the Department of Justice information about apprehended illegal aliens in order to receive federal funding (p.129). Third, federal entities are effectively circumventing the anti-commandeering principle by deputizing local police and campus security as federal agents (p.15), as occurred with Portland city police participating in the Portland Joint Terrorism Task Force (p.83). Fourth, and not touched upon in this book, federal entities are more and more relying on private contractors for intelligence-gathering and policing operations, both internationally and domestically, thereby bypassing any checks that federalism might provide in these situations. Notwithstanding these reservations about the persuasiveness of the book’s thesis, TERRORISM, GOVERNMENT, AND LAW is a provocative book that identifies legal dilemmas that should be discussed and debated widely.

CASE REFERENCE:
PRINTZ v. UNITED STATES, 521 U.S. 898 (1997).

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© Copyright 2009 by the author, Torin Monahan.

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FRESH PERSPECTIVES ON THE ‘WAR ON TERROR’

by Miriam Gani and Penelope Mathew (eds). Canberra: Australian National University E Press, 2008. 419pp. AU$29.95 Paperback. ISBN: 9781921313738. ePrint. ISBN: 9781921313745.

Reviewed by Katherine L. Vaughns, University of Maryland School of Law; email: kvaughns [at] law.umaryland.edu.

pp.21-24

This book is a collection of essays written by Australian, European and Canadian scholars who approach terrorism and counter-terrorism measures from “a variety of disciplinary perspectives, including international law and international relations, public and constitutional law, criminal law and criminology, legal theory, and psychology and law” (Back cover). It represents the end product of a workshop held at the Australian National University in Canberra in April 2005, organized as part of a research project, titled “Terrorism and the Non-State Actor After September 11: The Role of Law in the Search for Security” (p.2), the goal being in part that new and different perspectives are added to the volume of literature on the “metaphor of war “in the context of terrorism (p.3). Thus far, this metaphor’s rhetorical value has remarkable staying power, propelling modern democratic governments to conceive of counter-terrorism measures that, arguably, lack considered debate, accord broad executive deference, enact and define overly-broad “terrorist” offenses, endanger established legal principles, target minority groups unfairly (potentially radicalizing them), and, essentially, threaten the very essence of modern democratic principles and values. In fact, one might view this collection as asking, and ultimately attempting to answer whether in response to terrorist attacks the pattern of “terror, repression, and response” (p.329) will ever be halted.

As with any enterprise of this type, selecting out and grouping a variety of commentaries into distinct parts to be read as a cohesive whole is not easily accomplished. Yet, the editors of this volume, Miriam Gani and Penelope Mathew, have managed to do so more or less successfully by placing the sixteen essays into five separate groupings labeled around common stages of conflict on a metaphorical battlefield, such as “preparing the ground,” and “rules of engagement.” Gani and Mathew also begin with a solid introduction that easily orients the reader. It includes a useful summary of these different parts and the selected chapters that fill them with brief topical, issue-related descriptions. And from a comparative point of view for an interested scholar, particularly as more voices are heard and more actors such as the courts and human rights organizations speak out more forcefully, these fresh new, multiple country perspectives are a welcome contribution to this ever-changing legal and political battlefield called the “war on terror.” And an added bonus is found in the part that delivers “reports from two theatres of war” – namely, the chapter that reports on the progress and problems of [*22] the European Union as a collective actor in the so-called “war on terror.”

For the reader, it is a remarkable find, although admittedly not surprising, that these various perspectives written by scholars from different countries reflect upon similar responses, reactions and themes that resonate throughout the entire volume. For example, a common theme is the tired, over-worked phrase as a justification for the extreme measures taken in reaction to combating terrorism that “exceptional times require exceptional laws.” Several essays take exception to this notion that there is a need for such additional laws, i.e., those that expand ordinary criminal laws and evolve into exceptional new, security laws to address these so-called “exceptional times.” For example, referring to it as the “siren song of necessity,” one author of this particular chapter writes about the British experience with terrorism, noting that “[t]he United Kingdom (UK) has a long and complex history of engagement with terrorism and other forms of violence directed at achieving political aims (p.327). Perhaps some lessons can be learned – eventually.

This collection thus ranges from essays about “identifying the threat (defining and understanding its complexities) and choosing the weapons,” e.g. the barbarism of torture and the devaluing of human rights legislation and obligations, to arriving at solutions post-conflict (e.g., amnesty), and along the way the assessment of public perceptions of terrorist acts and counter-terrorism responses is thrown into the mix. That said, the essays are thoughtful, well-researched and, at times, provocative and even cleverly entertaining. In the end, the overarching themes of this volume are seemingly the reactionary role of governments and the role that protection of human rights plays in the conflict. Do they matter; should they be valued; or when exceptional times require exceptional laws should they be suspended? Read as a whole, the book sets the stage for a universal response to the conflict, one that does not ignore human rights values. In the final part of the book about “calling a halt” to the conflict, the concluding chapters offer some hope – albeit a mere glimmer – that rights could matter after all.

Boldly starting with three provocative essays, the first part covers important themes. One describes aspects of the British experience with Islam and associated politics together with its failure to understand the complexities of the relationship between Islam and terrorism in its Muslim communities (p.9). The next addresses the use of torture in the “war on terror.” After writing eloquently about the end of torture by absolute monarchs during the Age of Reason and the rise of the period of Enlightenment, the author of this particular chapter observes that, in the aftermath of 9/11, a rise in the justification for the use of torture as a weapon in the ‘war on terror” finds governmental adherents and academic defenders. Undoubtedly past really is prologue. He then convincingly discredits those who would advocate for a “very modest proposal for torture” (p.33). After all, torture is torture. And, the third concerns the failure of human rights legislation to matter in perilous times. The author of this final chapter likens the current 21st century situation to the one depicted in the opening scene of the most recent Pirates of the [*23] Caribbean movie, subtitled At World’s End (p.45). In the end, the author notes that the fictional autocratic character who read a proclamation about the need for emergency measures suspending basic rights would be pleased with the events occurring post-9/11 (p.62).

The debate over the severity and extra legality of counter-terrorism measures and the lessening of human rights considerations in the process has generally been addressed by the all too familiar turn of phrase about a need to” balance” rights and security. Those essays that focus on the balancing approach do so with disdain. As in the balancing process, rights always appear to be sacrificed as the emergency response to protecting the nation takes immediate precedence. As a result, a serious problem usually arises, one that tends to affect members of targeted minority groups disproportionately while the media frenzy and public demands for security take over. In such instances, a government’s inclination is, arguably, a determination not to appear “impotent.” In that sense, these essays on the security versus liberty conundrum (or debate) seemingly move away from a balancing approach. This is undoubtedly a refreshing perspective. In fact, the arguments made in this venture go so far as to suggest that an approach that values human rights incorporation into such measures ought to be encouraged.

In the years since the terrorist attacks on September 11, 2001, shocked us in the United States, many other modern democratic states similarly adopted a wide-range of counter-terrorism measures in an effort to respond to future threats of international terrorism in this so-called “war against terrorism.” The use of law has been a central part of the design and justification of those responses, as well as attempts to moderate and restrain their excesses (p.127). Unfortunately, what amounts to a war over words – to wit, what is “terrorism,” what is a “terrorist organization,” what is a “terrorist act” – and the evolution of ordinary criminal law to new and expanding preventative and pre-emptive laws, is a domestic one that has far-reaching, extra-criminal and political overtones internationally. Thus a need for a universal response, of a diplomatic nature, arguably, seems appropriate. And this book is an excellent collection of commentaries on the current state of the conflict internationally as of 2007.

Helpfully, the editors suggest that the book need not be read in its entirety (p.5). In other words, this compilation of essays also functions as an e-book, allowing the reader to pick and choose among the several parts and their multiple book chapters. Although a concluding chapter interconnecting all of the common themes of the various essays would have been helpful, it is not needed for a successful exploration of the essays in the book. However, an online coda post-publication summarizing the latest developments in the making at the time of publication could serve a useful purpose, given that the literature on this subject continues to intrigue many readers. For example, an observation about the potential for a changing landscape in the near future – to which several of the book’s chapters allude, namely that governments in two of the countries reported on have changed administrations – and especially now that the United States is on the verge of, hopefully, correcting its current [*24] course and changing directions – would enhance the political currency of this volume.

In sum, this is a book full of critical and analytically-supported commentaries about recent scholarship in the above mentioned fields relating to the”war on terror.” Unfortunately, as previously mentioned, anything written about this metaphorical war is out of date almost as soon as it is published. But at the time of publication, a comparative study of the experiences in a range of countries will always make for a valuable contribution to the literature. In the end, this book makes collectively apparent that modern democratic governments have essentially failed in waging the so-called “war on terror” with the use of force, devaluing of human rights and potential radicalization of targeted minority group members. Now is the time to wage a new war, perhaps a “war of ideas,” – to wit, a metaphorical “war on terror” that is not based on force and denigration of rights, but one that is focused on democratic principles and diplomacy.

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© Copyright 2009 by the author, Katherine L. Vaughns.

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THE POLITICS OF CONSTRUCTING THE INTERNATIONAL CRIMINAL COURT: NGOs, DISCOURSE, AND AGENCY

by Michael J. Struett. New York: Palgrave Macmillan, 2008. 240pp. Cloth. $79.95. ISBN: 9780230604575.

Reviewed by Victor Peskin, School of Global Studies, Arizona State University. Victor.Peskin [at] asu.edu.

pp.14-20

In The Hague, the world’s attempts to build institutions of international justice are on full display. At one end of town, not far from the North Sea, stands the International Criminal Tribunal for the Former Yugoslavia (ICTY), where since the mid-1990s numerous war crimes suspects from all sides of the recent Balkan wars have stood trial. At the other end of town is the temporary home of the more recently established International Criminal Court (ICC). The courtrooms and the procedures employed by the ICTY and ICC have much in common. But these international war crimes tribunals are two different kinds of institutions in authority, jurisdiction, and origin.

The ICTY will complete its mandate and shut its doors in a few years time. But the ICC is intended to last in perpetuity. Where the ICTY has narrowly focused its prosecutions on the atrocities in the former Yugoslavia, the ICC has been created to deliver justice on a global scale. And where the ICTY was created by the 15-member Security Council, the ICC was established through the active participation and consent of 120 states that negotiated the blueprint for the Court during a five-week long conference a decade ago in Rome.

The ICTY and the International Criminal Tribunal for Rwanda (ICTR) have been hailed by human rights activists and legal scholars as revolutionary. These international war crimes tribunals, the first since the World War II-era Nuremberg and Tokyo courts, possess the legal authority to trump state sovereignty by prosecuting individuals suspected of committing war crimes, crimes against humanity, and genocide. Even without the enforcement powers of Nuremberg and Tokyo, the success of the ICTY and ICTR in holding trials has galvanized an era of global criminal accountability, leading to the creation of other ad hoc tribunals and to the ICC itself. With its intended permanence and global scope, the ICC is regarded as the most important of the war crimes courts. It has also been the court most difficult to establish.

The fact that 108 states have now become parties to the Rome Statute of the ICC, and thereby open themselves up to potential prosecution, is a remarkable development in international law and politics. What prompted these states to band together in Rome to empower a court that one day could target their own political and military leaders? This is the central question of Michael J. Struett’s new book, THE POLITICS OF CONSTRUCTING THE INTERNATIONAL CRIMINAL COURT: NGOS, DISCOURSE, AND AGENCY. Struett, an assistant professor of political science at North Carolina State University, also asks another [*15] important question – why did states design the ICC in such a way as to give the Court and particularly its chief prosecutor considerable authority and independence?

For an answer to these questions, Struett points to the crucial role played by international human rights non-government organizations (NGOs) in promoting a standing international criminal court. From the time the idea for such a court was broached in the early 1990s (reviving a failed plan from the early 1950s) to the difficult work of negotiating the Statute in Rome, NGOs were an influential if not always visible force. Struett argues that these organizations – particularly Amnesty International and Human Rights Watch – prodded states to embrace the ICC by galvanizing international support for the norm of universal justice and providing timely and effective challenges to opponents who sought to weaken the Court’s authority. A chief source of the influence of NGOs was their expertise. States – particularly small ones that lacked diplomatic resources – often looked to NGOs to assess proposals on the design of the future court. As the idea for a permanent court gained momentum, human rights NGOs came together in 1995 to form a network called the Coalition for the International Criminal Court (CICC). By the time the Rome conference began in June 1998, the coalition, now comprised of hundreds of organizations, had become a formidable lobbying force.

According to Struett, the CICC successfully framed the terms of the debate, arguing not only for the necessity of a court, but for one that would have enough authority to withstand state attempts to thwart prosecutorial independence. Of critical importance, he writes, was the role of NGOs in ensuring that states were committed to the underlying premise that the ICC must eliminate impunity. The coalition maintained that the ICC should embody the universalistic principle of equal justice that is the bedrock of the international human rights movement, and not become a tool for powerful states to wield against their weaker enemies.

Struett argues that both prior to and during the Rome conference, NGOs helped shape the debate by developing “a normative discourse between nongovernmental organizations, lawyers, academics, international civil servants, and states” (p.23). The power of this discourse, Struett argues, often rendered NGOs more influential than states. “In many respects,” he writes, “it was the NGOs, and not state governments, that predominantly shaped the content of the Rome Statute” (p.23). As benevolent non-state actors, NGOs and their international justice campaign had claimed a morality that states pursuing their strategic interests do not possess. Thus, Struett concludes that the NGO discourse “was morally resonant; consequently they were influential” (p.23).

Through their detailed policy reports and tireless advocacy, NGOs helped establish the raison d’etre of the ICC as a court created to deliver justice globally and fairly. “By the time of the Rome conference in 1998,” writes Struett, “nearly all of the interlocutors accepted these first principles as being the crucial logical foundation for the adoption” (p.39) of the Rome Statute, the Court’s [*16] founding document. This normative foundation would later strengthen the hand of the NGOs and pro-ICC states when it came to negotiating the fine print of the Rome Statute. For example, when the United States sought exemptions from prosecution, states’ earlier commitment to the principle of equal justice made it difficult for them to acquiesce to this bid for American exceptionalism. To be sure, Washington was rebuffed here and elsewhere by NGOs and pro-ICC states. However, in other instances the Statute was weakened in an unsuccessful attempt to secure American acceptance.

As Struett notes, the widespread acceptance of the “first principles” did not guarantee that states would actually cede significant authority to the ICC. When state delegations gathered in Rome, consequential issues – such as the extent of the Court’s jurisdiction and the mechanisms for triggering investigations – had not been resolved. On the matter of jurisdiction, the International Law Commission, back in 1994, proposed that states should have the right to block ICC prosecutions of their own nationals. The plan to give states the upper hand, as Struett observers, reflected a perceived need at the time to placate likely state opposition to a robust court. Another key issue that remained undecided at the start of the Rome conference was the relationship between the ICC and domestic courts. It had become clear that the ICC would complement domestic courts, and only be allowed to take up cases when a state proved unable or unwilling to undertake prosecutions. This has become known as the principle of complementarity. In this respect, the ICC would be a court of last resort. (In contrast, the ICTY and ICTR are courts of first resort and are not required to defer prosecutions to domestic judiciaries.) But how would complementarity at the ICC be designed in the Rome Statute? Would the ICC or the targeted state have the authority to determine the validity of a domestic war crimes prosecution? At Rome, the United States argued for a system of complementarity that would significantly constrain the ICC chief prosecutor. Another critical matter to be resolved at Rome was the role of the Security Council. In an apparent bid to control the ICC’s prosecutorial agenda, the United States and China argued that Council referrals should be the only way to trigger investigations.

Struett concludes that NGOs and allied states that lobbied for a robust court emerged victorious at Rome. To bolster this contention, he notes that in nearly all respects the Rome Statute “nearly fulfilled the wish list” (p.129) of the NGO coalition and their early recommendations. On the issue of jurisdiction, State Parties to the Statute automatically fell under ICC jurisdiction. The complementarity provision was worded to grant the ICC the authority to pass judgment on the integrity of domestic war crimes trials. The bid to give the Security Council sole control over triggering investigations failed. The Council did emerge from Rome with the authority to refer situations to the chief prosecutor. Importantly, however, investigations can also be triggered by state referrals and by the prosecutor himself.

Struett’s claim of the crucial influence of NGOs in the Rome negotiations – and in subsequent efforts to persuade states to ratify the Statute – is certainly a [*17] defensible one. The pivotal role of global civil society in the creation of the ICC is a view advanced by a number of observers of the Court (for example, see Broomhall 2003; Glasius 2005; Paris 2008; Schiff 2008). In key respects, however, Struett falls short of making a strong case for such a high level of NGO influence. For Struett, a recurring problem is one of evidence. While he provides examples of NGO activism, the problem lies in a general failure to substantiate a link between this activism and the specific outcomes of the Rome process. In his methodological discussion, Struett acknowledges both the need to substantiate his argument and the difficulty of doing so. As he points out, “causation is an elusive phenomenon in the social sciences” (p.25). Therein, he says, lies the value of his proposed approach of “process tracing” (p.34) to assess the hypothesized NGO role. Process tracing is a qualitative methodology to examine and explain different stages of decisionmaking. Key to his approach is to analyze NGO discourse (e.g., policy reports) and conduct in-depth, open-ended interviews with NGO activists and state actors to determine the extent of NGO influence on state delegations in Rome.

While Struett’s choice of interviewing and discourse analysis appears sound, the problem lies in its uneven and incomplete execution. In his empirical chapters, Struett seems to back away from his earlier aim of rigorously tracing the process of NGO influence on the final outcomes in Rome. In his discussion of the Rome conference in Chapter Six, Struett writes that the complexity of the negotiations renders it too difficult “to trace every possible act of [NGO] persuasion” (p.116). Yet, there is still more he could have done – particularly by more effectively drawing on his interviews with NGO and state representatives – to substantiate his claim of strong NGO influence. Instead, in this chapter he settles for the weaker claim that NGO influence “can be logically related to the choices that were made in the final drafting of the Rome Statute” (p.116). In other words, he contends that NGO influence can be inferred by the fact that the Statute bears a close resemblance to the early proposals advanced by NGOs. But this inference confounds correlation with causation. Struett also contends that his claim of NGO influence “is buttressed by extensive anecdotal evidence that NGO analyses were repeated in countless conversations leading up to and during the negotiations themselves” (p.116). However, he does not often share these anecdotes with the reader. Anecdotes, of course, are a valid part of discourse. Conveying them would have strengthened his argument as well as made his account of the historic Rome conference more evocative.

Struett’s treatment of the decision to convene the Rome conference is one of a number of lost opportunities to convince the reader of strong NGO influence. Struett notes that holding such a conference was by no means inevitable. Knowing this, NGOs “worked constantly to create a sense of urgency among state delegations in order to move the process forward” (pp.104-105). But he does not demonstrate how NGOs created this sense of urgency or whether their actions significantly moved states to hold a conference. [*18]

Moreover, Struett highlights purported NGO influence in a manner that tends to discount the importance of pro-ICC states in shaping the Statute. Consider his account of the debate over ICC jurisdiction. Struett reports that the United States lobbied for a proposal that would only allow ICC prosecution of state nationals when the particular state consented on a case-by-case basis. In the end, there was widespread state opposition to such a provision, and it did not appear in the Statute. With little evidence, Struett asserts that the exclusion of this provision “can only be explained in light of the rhetorical positions of the pro-ICC NGOs” (p.100). To support this bold claim, he maintains that NGO arguments “prevailed because they were oriented toward creating a discourse that could be normatively justified as producing justice for all” (p.100). Another case of asserting NGO influence without demonstrating it occurs in Struett’s discussion of the negotiations on the independence of the chief prosecutor and the role of the Security Council. Struett asserts that an NGO-run newspaper wielded its influence by publishing an article criticizing the proposal to give the Council sole control over triggering investigations. And, he claims (though without supporting evidence from his interviews) that the newspaper article “assured that delegates to the Rome conference would have to consider its implications” (p.129). In these examples we see a return to Struett’s formula that posits NGO influence as naturally flowing from the resonance of its discourse. Perhaps. But here, Struett does not persuasively show how or indeed whether NGO use of this normative argument shaped state preferences. He also does not adequately consider a leading alternative hypothesis – that is, the extent to which pro-ICC states may have acted largely on their own accord to counter the effort to weaken the Court.

This is not to say that Struett is blind to state participation in the writing of the Rome Statute. He does sometimes integrate state actors into his empirical chapters and shows the give and take between states prior to and during the Rome conference. Moreover, Struett provides the reader with an accessible account of how the complex negotiations evolved. (And in Chapter Three, he provides an excellent analysis of why the post-World War II plan for a global war crimes court foundered.) But he does not often explicitly credit states for playing a decisive role in shaping the Rome Statute and driving the creation of the ICC. Even when he provides evidence of state initiative, he often does not acknowledge that his hypothesis of crucial NGO influence is challenged. Struett’s argument would have been more measured and nuanced had he done more to highlight disconfirming evidence by explicitly accounting for instances of limited NGO influence, as well as recognizing the full range of NGO strategic action.

Struett does not delve into the political calculus behind NGO advocacy of compromises that diminished the authority of the ICC. The following example is a case in point. Struett writes that NGO and state supporters of a strong chief prosecutor gave ground to the opposition by acknowledging that there was “some merit” (p.127) to concerns about granting the prosecutor too much authority. Is this an implicit NGO acknowledgment of the danger of [*19] excessive prosecutorial power or is it a strategic NGO retreat in the face of strong state resistance? Struett provides too little information to answer this question or to probe the strategic dimensions of NGO decisionmaking.

One might reasonably come away from this book, which places such great emphasis on the principled nature of NGO action and discourse, thinking that NGOs would refuse to support proposals that could weaken the ICC. But at times the Coalition for the International Criminal Court did lend its backing to such proposals. How then should we understand Struett’s mention that the CICC advocated for Singapore’s proposal to grant the Security Council authority to halt Court investigations or prosecutions for renewable one-year periods? On one hand, the CICC’s advocacy role seems puzzling since this provision (which appears in Article 16 of the Statute) effectively gives the Council power to block prosecutions indefinitely. On the other hand, one suspects that the savvy CICC might have backed Article 16 in an effort to exert influence over the rules governing its implementation. In this respect, it is important to note that Article 16 cannot be easily invoked insofar as it can be blocked by a single permanent Council member. Perhaps the limits of the CICC’s influence over states in Rome compelled it to act strategically, settling for what justice could be attained even if this fell well short of the foundational principle of universal justice.

THE POLITICS OF CONSTRUCTING THE INTERNATIONAL CRIMINAL COURT would have been enhanced with a more sustained explanation of the efficacy of NGO activism. In his introductory chapters, Struett establishes high expectations for doing so by repeatedly telling the reader of the crucial role of NGOs. He also promises to identify the conditions for NGO success in helping to create the ICC, a move intended to provide insight into why some global civil society campaigns succeed while others fail. It is with these expectations that the reader waits for a synthetic conclusion chapter that will clearly lay out the factors that explain NGO success in the case of the ICC. In the conclusion, however, Struett leaves his central focus by the wayside in the pursuit of a diffuse discussion of a range of themes related to the legitimacy and future success of the Court.

The text is also undermined in a number of smaller, but consequential ways. In part of Chapter Seven, for instance, Struett sets out to show how NGOs worked to secure state ratifications in Britain, Uganda, and Argentina. However, the British and Uganda case studies offer little information on the NGO role. The book also suffers from numerous grammatical mistakes that pose a distraction to the reader. In places the book feels a few years out of date. For example, the author does not cite or engage Marlies Glasius’ important 2005 study, THE INTERNATIONAL CRIMINAL COURT: A GLOBAL CIVIL SOCIETY ACHIEVEMENT. In the same vein, Struett’s discussion of an NGO conference held in Turkey in 2005 could have been brought up to date. He cites the conference as “an example of the information transmitting techniques that NGOs have now perfected” (p.147). But by not reporting on the results of the conference, the reader is left again to question the actual extent of NGO influence. [*20]

As Struett correctly points out, the role of NGOs in the construction of the ICC is not only a matter of history, but remains relevant to the Court’s ongoing bid for universal state ratifications of the Rome Statute. Perhaps it is just as important to understand the role that NGOs are now playing in providing political support to the ICC and its chief prosecutor as they try to build international pressure for the handover of key suspects, particularly those implicated in atrocities in northern Uganda and the Darfur region of Sudan. With no enforcement powers of its own, the ICC must turn to powerful international actors to press recalcitrant states to cooperate. It is here that NGOs can play an indispensable role by amplifying the ICC’s voice and making such international pressure a moral and strategic imperative.

REFERENCES:
Broomhall, Bruce. 2003. INTERNATIONAL JUSTICE & THE INTERNATIONAL CRIMINAL COURT: BETWEEN SOVEREIGNTY AND THE RULE OF LAW. Oxford: Oxford University Press.

Glasius, Marlies. 2005. THE INTERNATIONAL CRIMINAL COURT: A GLOBAL CIVIL SOCIETY ACHIEVEMENT. New York: Routledge.

Paris, Erna. 2008. THE SUN CLIMBS SLOWLY: JUSTICE IN THE AGE OF IMPERIAL AMERICA. Toronto: Random House of Canada.

Benjamin N. Schiff. 2008. BUILDING THE INTERNATIONAL CRIMINAL COURT. New York: Cambridge University Press.

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© Copyright 2009 by the author, Victor Peskin.

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DEPLOYED: HOW RESERVISTS BEAR THE BURDEN OF IRAQ

by Michael Musheno and Susan M. Ross. Ann Arbor: University of Michigan Press, 2008. 216pp. Cloth. $24.95. ISBN: 9780472070299. Paper. $19.95. ISBN: 9780472050291.

Reviewed by Malcolm M. Feeley, School of Law, University of California at Berkeley and Visiting Fellow, Law and Politics Program, Princeton University (2008-09). Email: Mfeeley [at] princeton.edu.

pp.10-13

Why should a book examining how army reservists bear the burden of the war in Iraq be reviewed in the LAW AND POLITICS BOOK REVIEW? A good question. And there is a good answer. This study is something of a classic impact study of legal policy. True, it does not examine all the impacts of a complicated and sustained policy. Nor does it focus on the impact of court orders. But it does focus on one aspect of the impact of a policy, how ordinary people called into service to respond to those policies and are personally affected by their service. Michael Musheno and Susan M. Ross ask, why did these people join the reserves? What did they expect? What did they experience? This book explores answers to these and related questions. The book has an admirable Studs Terkel-like quality; it allows the reservists an opportunity to speak for themselves, to tell their own stories in their own words. Although they often do not focus on it, Musheno and Ross’s reservists are caught up in a web of law: they retain their jobs because of law, they lose their jobs because of law, their cars are reposed because of law, their credit ratings are determined by law. Welfare, disability, and social security rights for reservists and their families are affected by what the law says and how it is interpreted. Wisely, the authors do not break down the variety of burdens experienced by the reservists into separate and distinct “dimensions;” instead as I said, they let their subjects reflect on their own concerns and experiences as they see them. Still, as was revealed in Austin Sarat’s well-known conversation with the welfare recipient in Providence, Rhode Island, “the law is everywhere.” It is here too. But in the accounts of the reservists, for the most part the law is invisible or only implicit. Nevertheless in this short essay – in part because of the reviewer’s interests and in part because of the Law and Courts audience – I will draw out and focus on the law and its implications that are more or less latent in the volume. Advance apologies to the authors if I fail to characterize their book adequately. However, as will be obvious to readers of this review, I think the book is a stunning achievement. It is in the best bottom-up tradition of the American social sciences. It can be read profitably by scholars in several disciplines.

DEPLOYED is a study of citizen-soldiers – reservists – called into service in the wake of 9/11 and sent to Afghanistan and Iraq, often for multiple tours. None of them were prepared for 9/11 or knew when they joined the reserves that it would entail such extended service and sacrifice. Musheno and Ross’s study is an account of how [*11] some of these reservists adapted to their unexpected responsibilities. Following the lives and responses of a handful of individuals – all assigned to the same company of Military Police to which the authors had especially good access – they identify the various pathways that led these young men and women to join the Army Reserve, and most interestingly the ways they adapted to their activation. Some were “adaptive” and adjusted quickly to the huge changes, both at home and abroad. Others were “struggling reservists,” whose troubles, the authors found, were more often linked to problems at home than to dangers on the battlefield. And still other reservists were dismissive of military life and opposed the war even as they served, often with distinction, in or near the field of battle.

For many, and especially those in the first two categories, the adaptive and the struggling reservists, reserve duty and activation were valuable. They provided a sense of higher duty, excitement, an opportunity to broaden experiences, an alternative to the mundane, and at times an escape from responsibilities. One factor that distinguishes the first from the second group is not so much the characters of the reservists but supports at home – demands of family and friends, precarious economic security, and the like. But in all three groups, the authors seem to be challenging stereotypes of battle-shattered soldiers who return as broken souls and social pariahs. In contrast to the image of so many Viet Nam veterans, the authors find resourceful individuals whose experiences seem to have been, if not exhilarating, at least character-building. It is of course difficult to generalize from the experiences of so few, all of whom were in the same company, and the authors are careful to limit generalization from such small numbers. It may be that any more severe problems may not reveal themselves for some years into the future, or that the reservists in this particular company were shielded from some of the worst conditions during their deployments.

Whatever the case, law is everywhere for these reservists. It affects why they joined the reserves, what happens to them and their families when they are deployed, and how they fit back into civilian life upon their deactivation. Time and time again, the authors show that the law is not sufficiently responsive to the rapidly activated and deployed reservists. Not surprisingly these and related factors affect the reservists differentially and in turn affect whether they are adaptors, strugglers, or dismissers. Law is everywhere and is received, applied and used differentially depending on skill, access, and luck.

Although the analysis of the law in the lives of the reservists is largely latent, whatever there is, it is in the foreground. Against it, buried deeper in the background is the lawlessness and quasi-lawlessness of executive action and Administration maneuvering to avoid public discussion, Congressional oversight, and the rule of law. The Bush Administration has been repeatedly criticized for its cynical maneuvering to maximize its powers and secrecy with respect to post-9/11 policies affecting detention of suspected terrorists, the build-up to the war, and the conduct of the war. Consistently, writings by intrepid journalists, testimony by witnesses in judicial proceedings, and mea culpas by repentant insiders, reveal [*12] wholesale abuses of the rule of law. With a new Administration, such revelations are bound to reveal still more and more serious abuses. (As many readers of this review know, one of our own – Lou Fisher in the reference division of the Library of Congress – was unceremoniously removed from his position because of his defense of Congressional war power prerogatives vis a vis the Executive, but even with the intervention of Senator Byrd, he was not restored to his position.) And as I suggested above throughout all this, as an institution Congress has revealed itself incapable of exercising its constitutional responsibilities to act as a check on the Executive. Time and time again it has allowed itself be manipulated and lied to, responding ostrich-like by burying its head in the sand.

Although the book does not directly deal with the issue, nevertheless DEPLOYED indirectly reveals the bankruptcy of the government’s policy of depending upon reservists rather than instituting a citizen draft. It reveals the same executive hubris that was demonstrated by John Kennedy, Lyndon Johnson, Robert McNamera, McGeorge Bundy, Henry Kissinger, General Westmoreland, and others in the Viet Nam era. Then the Administration chose to use the regular army rather than mobilize the reserves in order to avoid the ire of the general public or to jeopardize pursuit of the Great Society. Now, in Iraq, the opposite policy has been followed, but for the same reasons: to foster a quiescent public. Mobilizing volunteer reservists – rather than depending more heavily on the regular army and resorting to aggressive recruitment campaigns and possibly to conscription – is the preferred way to keep the lid on opposition. However it is the same manipulation of the law by a cynical Administration. And it reveals the same cowardliness by Congress that we saw in the Viet Nam era. An important difference, however, is that the current policy has succeeded, whereas the earlier approach eventually failed. In the 1960s and 1970s demonstrations spear-headed by draft-age young people, eventually toppled the Government, while recently, despite presiding over an unpopular war, the Administration’s use of reservists (and privatized military operatives) succeeded in minimizing public opposition and helped the president gain re-election. Indeed this policy was so successful that the new president, elected in part on his opposition to the war in Iraq, has retained his predecessor’s Secretary of Defense.

Seen against the almost daily revelations of cynicism, hubris, distortion and lying that were part and parcel of the Bush Administration for its entire eight years, Mucheno and Ross’ account of brave and struggling reservists is profoundly saddening, if not tragic. Their motivations so often sincere and their actions – both at home and abroad – so often heroic, must be understood against the fact they were pawns used by arrogant leaders who had neither the decency nor the courage to be honest to the reservists or to the American public as to their true intentions. The sad truth is that these intrepid citizen-soldiers have served in vain. The Iraq war follows in the footsteps of World War I and the war in Viet Nam as a symbol of arrogance and indifference by callous leaders. The hubris, misrepresentations, lying and willful disregard of the law were characteristic of all of these [*13] encounters, but it may be that the Bush Administration has carried these antics to new extremes, willfully subverting the safeguards that had been erected in the wake of these earlier disasters.

However, these issues are not the primary themes of Musheno and Ross’s book. Nor should they be. Any such thorough analysis of these themes will require greater distance and perspective. Still, when such accounts are written, Musheno and Ross’ book should be drawn upon; it will provide much to reflect on, for they tell the stories of the men and women caught up in the mess.

Since Viet Nam, American military leaders have had a heightened appreciation of the value of human lives and reasonable military objectives, and I note that on the back cover of this book there is an endorsement from a professor at West Point. One hopes the cadets read it there. But one hopes, also, that civilians in the Executive Office – whether or not they have dodged military service – will read this and similar accounts in the future. And let’s hope that members of Congress and their staffs will read it as well. (Hope springs eternal!)

Despite the strength of character of the reservists and the strengthening of character that their experiences brought many of them, DEPLOYED is a profoundly discouraging book. For it unwittingly tells the story of how eager and dutiful young men and women were duped and betrayed by high officials with evil intent. The cynical behavior of our leaders makes Mucheno and Ross’s account of the struggles and successes of the reservists all the more poignant.

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© Copyright 2009 by the author, Malcolm M. Feeley.

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COMPETITION LAW AND POLICY IN THE MIDDLE EAST

by Maher M Dabbah. Cambridge: Cambridge University Press, 2007. 366pp. Hardback $105.00/£58.00. ISBN: 9780521869089. eBook format. $84.00. ISBN: 9780511363962.

Reviewed by Kasturi Moodaliyar, Oliver Shreiner School of Law, University of Witwatersrand, South Africa. Email: kasturi.moodaliyar [at] wits.ac.za.

pp.7-9

This book is an unprecedented exploration of competition law and policy in the Middle East. Most competition law texts generally focus on the EU or the US application of the law and very little is written about competition law and policy in other countries. COMPETITION LAW AND POLICY IN THE MIDDLE EAST provides an interesting perspective as to how the competition policies were formulated in the various Middle Eastern countries, which I am sure, most readers would find fascinating. The book is written for an academic audience but does focus on the practical aspects that the competition authorities face in the various jurisdictions.

Maher M. Dabbah initially focuses on the Middle East as a region of competition law development. More specifically he has identified the following countries (albeit not an exhaustive list) that fall within the region: Israel, Turkey, Algeria, Morocco, Tunisia, Libya, Jordan, The Kingdom of Saudi Arabia, Qatar, Bahrain, Kuwait, Oman, United Arab Emirates, Egypt, Lebanon and Syria. He identifies five issues that resonate through all Middle Eastern Countries (MECs) which are (a) Foreign direct investment, (b) Economic growth and poverty, (c) Corporate governance, (d) Institute structure and design and (e) Competition advocacy.

The MECs are identified as predominantly Islamic countries (except for Israel), and the chapter on the relationship with Islam attempts to dispel any myths or pre-misconceptions that a reader may have about the book. In this chapter Dabbah examines whether there is a mutual influence of competition law and policy with Islam. Islam placed in the context of competition law and policy appears to be an unusual association, but the roots of competition law and policy in Islam, as Dabbah points out, stems as far back as the seventh century. The author delves into the various sources of Islamic texts, for example, the Quran and Ejtihad, whose concepts have been influential in this ideology.

The third chapter is devoted to Israel, the home to the MEC’s oldest competition law. The Restrictive Business Practices Law of 1959 was modeled largely on the UK competition laws of the time. Dabbah spends a fair amount of discussion on the mechanisms of the competition law system in Israel, from how restrictive agreements, monopolies and mergers are dealt with, to competition advocacy and Israel’s international outlook. Although it seems like a slow start for the competition law [*8] to be used effectively, the law did evolve over time to the point where there have been more amendments under the 1988 Law and discussion of further development. Dabbah explores the two gaps in the 1988 Law, the adaptation to a restrictive arrangement and block exemptions. The author advocates for radical reform of the 1988 law to bring it in line with world standards as well as to improve Israel’s economy and consumer welfare.

Chapter Four provides in depth discussion of the Republic of Turkey and the development of competition law in this region which, Dabbah postulates, was founded on strong economic ideology based on strategic political ambitions and desires. Although competition law was enacted in the 1960s, it was only in the 1980s that the Government moved toward liberalization of the economy and devoted greater focus to prevent monopolization and cartelization in markets. Apart from the structure of the competition authority and the nature of the restrictive practices that fall under their jurisdiction, Dabbah discusses Turkey’s involvement with other institutions, such as the EC, EFTA states, Israel FTA, Morocco FTA and Palestine FTA, and he postulates that further development in competition law will see more of an alignment by Turkey with the EC practices.

Chapter Five covers competition law and policy in the Arab Maghreb countries based in the north of Africa – Algeria, Morocco, Tunisia and Libya. Each country had its own reasons for developing competition policy. Some of the countries seem to be aligning their policies with the EC.

Chapter Six on Jordan discusses the economic transformation since the year 2000. In its effort to transform its economy, Jordan has become signatory to a number of trade agreements with the EC, EFTA and US Qualified Industrial Zones. Jordan also experienced competition law development in the 1990s and subsequently in terms of the present Competition Act of 2004. Dabbah emphasizes that in addition to having a competition Act, the Courts will also have an important role to play to enforce the Act and that the Directorate should also focus on capacity-building activities.

Chapter Seven examines the competition policy in Gulf States – the Kingdom of Saudi Arabia, Qatar and the Republic of Yemen. There are also Gulf States with no specific competition law such as Bahrain, Kuwait, Oman, and the United Arab Emirates. The Gulf States are also in an economic transition. Dabbah illustrates the huge significance of competition law and policy introduced in the Gulf States, with the caveat that there is much to be done in building effective competition regimes.

Chapter Eight focuses on Egypt and its pursuit of globalization. The author speaks of the Egyptian Government’s economic agenda which was to try to bring it in line with Europe in order to facilitate trade with and investment by these European countries. This was cemented by the Association Agreement between Egypt and the EC which became effective in 2004. This agreement also stimulated Egypt’s move towards the development of competition [*9] policy, and in 2005 the Protection of Competition and the Prevention of Monopolistic Practices was adopted. Dabbah indicates that this Act may have been too ambitious and that there is huge ambiguity in the wording and scope of the Act which may make it difficult to enforce. Competition issues in the cement, steel and telecommunications industries are discussed. However, it appears that more advocacy is required in Egypt’s competition law and policy as well as a redraft of the Act.

Chapter Nine on Lebanon and Syria have been paired due to their close association, but the author points out that that these two countries do not share the same competition law and policy regimes. Lebanon has moved towards a more comprehensive progressive competition law, and through the Association Agreement has helped strengthen trade relations with the EC. Dabbah addresses two competition challenges that Lebanon faces, namely, the high level of concentration in domestic markets and the exclusive agents that dominate the Lebanese markets. Syria, on the other hand, has had its challenges with a struggling economy. The motivation for Syria to work towards enacting a competition law appears to be influenced by other international organizations such as UNCTAD, the EC, as well as other MECs. The policy focuses on aspects such as collusion, abuse of dominance, mergers and exemptions, and also deals with pricing policies in special cases and the improper exercise of intellectual property rights. The author also notes that Syria’s competition law is not just a mere ‘cut and paste’ of competition laws from other jurisdictions, but rather, special attention has been paid to the needs of Syria as a developing country.

When we think of the Middle East, images of war torn destruction generally comes to mind, least of all competition law and policy. This book clearly sheds light on the competition law and policy challenges facing MECs. Although it may appear to have a limited geographical reach, the challenges and lessons that the MECs have faced transcend their jurisdictional boundaries.

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© Copyright 2009 by the author, Kasturi Moodaliyar.

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ACT OF JUSTICE: LINCOLN’S EMANCIPATION PROCLAMATION AND THE LAW OF WAR

by Burrus M. Carnahan. Lexington, KY: The University Press of Kentucky, 2007. 216pp. Cloth. $40.00. ISBN: 9780813124636.

Reviewed by James C. Foster, Political Science, Oregon State University-Cascades. Email: james.foster [at] osucascades.edu.

pp.1-6

Questions about the legality of executive actions undertaken by the administration of George W. Bush dogged his presidency. From defining aspects of his Administration’s prosecution of the “war on terror,” to the more than eight-hundred signing statements he added to legislation, and the “midnight” administrative rules he rushed into effect during his waning days in office, the prerogatives of a “unitary executive” reigned – scripted by Dick Cheney, David Addington, Alberto Gonzales, Donald Rumsfeld, and John Yoo (see, e.g., Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody 2008; Fisher 2008). The Bush era seemed like Nixon redux, with the volume turned up. In David Frost’s legendary May 19, 1977 interview with Richard M. Nixon, dramatized on stage and screen recently in “Frost/Nixon,” the former president asserted his own, and Bush’s, view of presidential power with unabashed clarity:

FROST: So what . . . you’re saying is that there are certain situations . . . where the president can decide that it’s in the best interests of the nation or something, and do something illegal.
NIXON: Well, when the president does it that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly.

President Abraham Lincoln did not share the Nixon/Bush view. The depth of Lincoln’s disagreement with his two successors becomes apparent in the course of Burrus M. Carnahan’s ACT OF JUSTICE.

Carnahan reads the January 1, 1863 Emancipation Proclamation as an action steeped in the rule of law. For Carnahan, President Lincoln’s “act of justice” was dictated by the “laws of war,” i.e., the rules governing relations among belligerents. Carnahan’s monograph tells the compelling story of how Lincoln artfully worked his way, in lawyerly fashion, to the conclusion that emancipation was unavoidable. “For most of his life,” Carnahan writes, “Abraham Lincoln earned his living by practicing law. He was a general practitioner, whose work ranged from the defense of accused criminals to the defense of property rights. When, as president, Lincoln weighed the issues raised by his most important and controversial exercise of the war powers, the Emancipation Proclamation, he would necessarily have viewed these in light of his practical knowledge of American law” (p.2). Carnahan is himself a lawyer. Having earned both a J.D. (Northwestern) and an LL.M. (University of Michigan), Carnahan holds an appointment as Professorial Lecturer in Law at The George Washington University. His academic appointment reflects Carnahan’s prior [*2] twenty-year career as an Air Force lawyer specializing in the law of war, and his contemporaneous work as foreign affairs officer in the Bureau of International Security and Nonproliferation at the U.S. Department of State. ACT OF JUSTICE is one lawyer’s skillful examination of another lawyer’s consummate work.

Carnahan starts at the beginning. A convincing storyteller, he paints a picture by setting the stage, establishing the context within which events unfold. When Confederate forces fired on Fort Sumter on April 12, 1861, Lincoln was a neophyte in international law. He may have been an experienced general practice lawyer, but Lincoln knew little about the rules regulating warfare. Even while responding, a week after the Fort Sumter attack, by issuing a proclamation blockading Southern ports, Lincoln is supposed to have observed: “I don’t know anything about the law of nations” (fn.2, p.173). Lincoln was a quick study. Massachusetts Senator Charles Sumner tutored him, “planting the seed” (Chap.1; pp.48, 61) of the Emancipation Proclamation by arguing that, under the Constitution, presidential war powers authorized the Chief Executive “to free the slaves in rebellious states” (p.5). Sumner derived his arguments from analysis that fellow Massachusetts citizen John Quincy Adams had fashioned during his tenure as a Member of Congress. Adams, in turn, drew upon his experiences, first, as James Monroe’s Secretary of State (1817-1825), then as President (1825-1829). On March 21, 1842, Congressman Adams delivered a speech in the House in which he linked emancipation with war powers, and the laws of war. Adams spoke as war with Mexico and Britain loomed over the status of Texas. In the event of war, Adams contended, slave states could maintain their “peculiar institution” (Stamp 1956) so long as these states could fend for themselves.

[B]ut if they come to the free states, and say to them, You must help us to keep down our slaves . . . then I say that with that call comes full and plenary power to this house and to the Senate over the whole subject. It is a war power. I say it is a war power; and when your country is actually at war . . . Congress has power to carry on the war, and must carry it on according to the laws of war; and by the laws of war an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them. . . . But when the laws of war are in force, what, I ask, is one of those laws? It is this: that when a country is invaded, and two hostile armies are set in martial array, the commanders of both armies have power to emancipate all the slaves in the invaded territory. (p.14)

Although it became the legal linchpin of emancipation, Adams’ prescient assessment left many key questions unanswered. Dispositive issues remained unaddressed. Carnahan devotes the major part of his book, Chapters 2 through 5, to these matters.

First, and preeminently for Lincoln, was the status of slaves as property. Even if the laws of war swept away peacetime rules, the laws of war did not sanction unrestrained, wholesale violation of rights. As primary enforcers of the laws of war, military personnel were on the frontlines of interpreting such authority. [*3] In nineteenth century America, soldiers – mostly officers, in practice – were personally liable for damages should they be judged to have overstepped their legal authority (p.2; Chap.2). Carnahan explicates this tension between military authority to seize enemy slaves, on the one hand, and officers being answerable for violating property rights, on the other, by comparing two legal precedents. Carnahan’s discussion juxtaposes the late Chief Justice John Marshall’s views with those of the then-sitting Chief Justice Roger B. Taney, in the broader context of Taney’s defense of slave property in his DRED SCOTT opinion and Taney’s hostility toward President Lincoln’s civil war policies.

In his 1814 opinion in UNITED STATES v. BROWN, Chief Justice Marshall adopted his colleague Joseph Story’s war powers analysis – with a crucial qualification. Sitting as circuit judge in a trial resulting from the U.S. confiscation of a cargo of pine logs from one Armitz Brown during the War of 1812, Story upheld the seizure. Marshall embraced Story’s reasoning: “Respecting the power of government, no doubt is entertained. That war gives to the sovereign full right to take the persons and confiscate the property of the enemy, wherever found, is conceded” (p.26). Nevertheless, in the event, the BROWN majority sided with the owner of the logs (Story dissenting). Marshall held that the Constitution required Congress to authorize seizing enemy property and no such statute had been adopted. Carnahan remarks: “In his opinion for the Court, Chief Justice Marshall also specifically noted that in [BROWN] the seizure had not been ordered or approved by the president as part of the government’s effort to prosecute the war. This statement would be extremely significant for the U.S. government almost fifty years later” (p.27). MITCHELL v. HARMONY stands in contrast to the BROWN Court’s view of lawful seizure. In his opinion, Chief Justice Taney sided with Manuel X. Harmony, a civilian merchant whose wagons and mules had been seized by Lieutenant David D. Mitchell during the Mexican War (1846-1848), holding the seizure an illegal taking under the Fifth Amendment. Taney’s ruling upheld a judgment of over $90,000 damages plus $5,000 costs against the hapless Lt. Mitchell, an astronomical price for following orders (which the Supreme Court rejected as a defense).

Carnahan summarizes the composite legal landscape of seizure in the wake of BROWN and HARMONY:

[U]nder the laws of war, the U.S. government and its military arms were not required to respect any rights of the owner of private property belonging to an enemy national. Private property owned by an American citizen, however, must be fully respected, even in wartime, because – except in the case of civil war – the laws of war would not apply to relations between a government and its own people. If military necessity required seizure or destruction of American property, the government must still compensate the owner. (emphasis added) (p.29)

Carnahan’s summary raises a second question that has philosophical and policy aspects. What was the status of the Confederacy: “criminal conspiracy [*4] or war” (Chap.3)? Lincoln confronted a knotty dilemma. Under the laws of war, in order for Union forces legally to “seize” (emancipate) Southerners’ enslaved “property,” a state of civil war had to exist between the Confederacy and the Federal government. But to characterize the conflict with the eleven States in rebellion as a civil war would confer on what Lincoln called the “so-called Confederate States of America” (p.61) a status completely contradictory to his bedrock view that, in principle, the Union was indissoluble. Doing so also would recognize the sovereignty of the Confederate States of America, inviting other nations, like Britain, to do so as well. Between April 1861 and April 1863, the Lincoln Administration adopted a time-honored lawyer’s approach to difficult predicaments – it finessed. (Charles Lindblom might say that Lincoln pioneered “muddling through”) (Lindblom). The two exceptions to the administration’s “legal ambivalence” (p.45) – proclaiming a blockade of Southern ports, and authorizing suspension of the writ of habeas corpus – resulted in confusion and a rebuke, respectively. For a blockade to be legitimate, it had to be a military measure, but the proclamation dictated that captured Confederate crew members be treated as criminals, not prisoners of war. This left Union “generals in the field without guidance on how to deal with the enemy – as a belligerent army or as an armed criminal conspiracy” (p.50). Lincoln’s April 27, 1861 suspension of the writ of habeas corpus from Philadelphia to Washington, D.C. generated a case that gave Chief Justice Taney the chance to reject the president’s order as unconstitutional in EX PARTE MERRYMAN. “In 1861 . . . Taney was not ready to accord President Lincoln the same deference he had given to the governor of Rhode Island in a much less serious insurrection [LUTHER v. BORDEN]” (P.52).

During the first fifteen months of the Civil War, circumstances on the ground created exigencies that eventually became Union necessities. Not to put too fine a point on the situation, the South was winning; or, at least, not losing. The mortifying July 1862 failure of Gen. George B. McClellan’s five-month Peninsula Campaign made it “clear that the Confederacy was still strong, and the U.S. Army not quite strong enough, to bring the war to a close” (p.103). Intriguingly, in the key section of his book, Chapter 7, Carnahan frames this state of affairs, as Lincoln saw it, in terms of physics and geometry, and of Article I, §8, Clause 18. Chapter 7 is titled, “Military Necessity and Lincoln’s Concept of the War.” Carnahan could have titled it “Valences and Emancipation” because Chapter 7 traces how force of circumstance shaped Lincoln’s intellectual path, from opposing proclaiming emancipation in autumn 1861 to drafting such a proclamation in July 1862. “President Lincoln’s . . . view of the war [w]as primarily a problem of physics and geometry, requiring the application of superior force at the correct places in order for the North to prevail” (p.94). In two telling quotations, Carnahan provides this revealing window into how Lincoln perceived the Civil War:

I state my general idea of this war to be that we have the greater numbers, and [*5] the enemy has the greater facility of concentrating forces upon points of collision; that we must fail, unless we can find some way of making our advantage an overmatch for his; and this can only be done by menacing him with superior forces at different points, at the same time. . . . [Using colored troops] is not a question of sentiment or taste, but one of physical force, which may be measured, and estimated as horse-power and steam-power are measured and estimated. (p.94)

His task, as Lincoln saw it, was to satisfy himself, as well as convincing the American people (and, not incidentally, “a candid world”) of the legality of emancipation resulting from the military necessity of emancipation. Differently stated, was executive emancipation “necessary and proper”? Carnahan argues that Lincoln was of two minds regarding the Necessary and Proper Clause. When it came to waging war, Lincoln adopted John Marshall’s “Federalist/Whig” (p.95) view. “[F]or example, the president approved orders allowing army commanders when operating in rebel territory, to take any private property ‘which may be necessary or convenient for their commands, for supplies or other military purposes,’ or to have private property ‘destroyed, for proper military purposes’” (p.96). Emancipating human beings held as property required “a stricter [Jeffersonian] standard of military necessity” (pp.97, 96). “[A]n emancipation proclamation would only be issued when it appeared to the president that without it, the Union’s war effort would be rendered ‘nugatory’” (p.96).

The Confederate defeat of the Federals at the Seven Days’ Battles, June 25-July 1, 1862, rendered Lincoln’s hope for a foreseeable Union victory nugatory. “During a carriage ride to a funeral on July 13, only a few days after returning to Washington [from visiting Gen. McClellan], Lincoln first revealed to Gideon Welles and William Seward that he ‘had given it much thought and . . . had about come to the conclusion that we must free the slaves or ourselves be subdued’” (p.104). The remaining question was, on what legal grounds could the president free the slaves? Lincoln’s answer was to cast the Emancipation proclamation as a “Weapon of War” (Chap.8), “[i]n modern terminology . . . a weapon of both economic and psychological warfare” (p.121). “In its final form, the Emancipation Proclamation was based on two of the government’s belligerent rights under the law of war. It relied on the right to seize and destroy enemy property for reasons of military necessity, and on the right to seek allies through promising liberty to an oppressed people” (p.117). The second rationale is Lincoln’s radical innovation (at Senator Sumner’s urging, conveyed by Treasury Secretary Salmon P. Chase). In his 1852 DROIT DES GENS, Swiss jurist Emmerich de Vattel had written: “to deliver an oppressed people is a noble fruit of victory; it is [also] a valuable advantage gained, thus to acquire a faithful friend” (p.115). By treating Southern slaves as oppressed human beings to be liberated, as well as enemy property to be seized, Lincoln melded law with morality.

When writing about Abraham Lincoln, or reviewing writing about Lincoln for [*6] that matter, it is a challenge to resist resorting to clichés and superlatives. Nevertheless, the story of Lincoln’s act of justice lends itself to invoking the phrase “necessity is the mother of invention.” More precisely, Lincoln’s Emancipation Proclamation underscores the fact that necessity is not necessarily the mother of invention. Necessity creates the possibility – not the inevitability – of invention. Here’s the superlative: Lincoln’s genius manifested itself in his ability to employ military necessity to midwife “a new birth of freedom.” Although Burrus Carnahan did not witness Lincoln’s recreation of the American Republic, he is an acute observer who provides readers a lucid account of how lawyer Lincoln slouched toward harnessing the laws of war, grounding his executive act emancipating American slaves on the military necessity of defeating the Confederacy in order to save the Union. Carnahan shows us how a president can act audaciously and lawfully, at the same time. His book offers potential lessons for our own perilous time.

REFERENCES:
Fisher, Louis. 2008. THE CONSTITUTION AND 9/11: RECURRING THREATS TO AMERICA’S FREEDOMS. Lawrence, KS: University Press of Kansas.

“Frost/Nixon.” 2008. Universal Pictures.

Lindblom, Charles E. 1959. “The Science of Muddling Through.” 19 PUBLIC ADMINISTRATION REVIEW 79.

Morgan, Peter. 2007. FROST/NIXON. London, UK: Faber & Faber.

Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody. http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf.

Stamp, Kenneth M. 1956. THE PECULIAR INSTITUTION: SLAVERY IN THE ANTE-BELLUM SOUTH. New York, NY: Knopf.

CASE REFERECES:
DRED SCOTT v. SANDFORD, 19 Howard 393 (1857).

EX PARTE MERRYMAN, 17 Fed Cas. 144 (Circuit Court, District of Maryland, 1861) (Case No. 9,487).

LUTHER v. BORDEN, 7 Howard 1 (1849).

MITCHELL v. HARMONY, 54 U.S. 115 (1851).

UNITED STATES v. BROWN, 8 Cranch 109 (1814).

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© Copyright 2009 by the author, James C. Foster.

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