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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