REFUSING CARE: FORCED TREATMENT AND THE RIGHTS OF THE MENTALLY ILL

by Elyn R. Saks. Chicago: The University of Chicago Press, 2002. 314pp. Cloth $39.00. ISBN: 0-226-73397.

Reviewed by Katherine M. Nagle, Department of Special Education, University of Maryland. Email: knagle [at] umd.edu .

pp.1019-1021

Elyn Saks is to be congratulated. In writing REFUSING CARE: FORCED TREATMENT AND THE RIGHTS OF THE MENTALLY ILL she has woven a tapestry rich with detail and powerful in the clarity and starkness of its message. This is a book that is long overdue, as it uncovers the sad truth behind society’s equivocal acceptance of people with mental health issues, which is at best conditional and patronizing and at worst fearful, demeaning, and profoundly damaging to some of society’s most vulnerable members. One of the most refreshing aspects of the book is her implicit argument that the humanity and dignity of people with mental health issues should be at the center of the mental health system, and should dictate our structures of decision-making about care and treatment. In the introduction Saks provides the reader with an important principle: “Throughout—so as to not contribute to marginalization and stigmatization—I ask whether the mentally ill should be treated differently in these matters than the non-mentally ill, and if so, why. I recommend standards that should apply, when relevant conditions are met, to the non-ill as much as the ill” (p.3).

Saks brings satisfying clarity to very complex philosophical and historical issues by challenging the reader to consider intriguing “what if” scenarios, and exposing him or her to intentionally ambiguous case exemplars. She delights in analyzing the complex implications of conceptual definitions and many of her arguments rest on precise meanings of such things as “emergency,” “incompetence,” “impairment,” “capacity,” “health,” and “normalcy.” By deftly justifying one position and then jumping over the fence and supporting the opposite argument, she shows how the current status quo does not really hold up. Saks uses an appropriate and engaging mixed methods design as she intertwines information from actual legal cases with empirical evidence from the fields of law, medicine, and psychology to reveal society’s problematic and at times contradictory approaches to meeting the needs of this population. Society will at times intervene in ways that are more damaging to individuals than the condition itself and at times will ignore genuine cries for help by treating the individual as a criminal or citing lack of resources to meet individual needs. Saks states clearly that the subject of the unmet needs of people with mental health issues is a serious problem, but takes as her focus the dilemmas of forced treatment on such individuals.

The heart of the book, then, is the systematic consideration of three special cases of forced care: involuntary commitment, forced medication, and the use of seclusion and restraints. [*1020] Discussing commitment, Saks argues that the legal standard should require serious impairment, the patient’s “transformation into a different person,” serious danger or grave disability, and in many cases, a likelihood of treatment benefit before an individual should be confined against his or her will. Likewise, she argues for a “robust” right to refuse medication that may substantially alter the individual’s state of mind and, indeed, sense of personhood. In both cases, however, she also argues for what she calls the “one-shot-rule,” that gives doctors much more leeway to intervene during the first psychotic break. After that the patient should develop a set of advanced directives that dictate what should occur in the future, should she or he become incompetent again. By allowing individuals to choose what will happen to them when they are in the middle of a psychotic episode, Saks postulates that a more trusting relationship will develop between physician and patient and that individuals will have higher self esteem and be more likely to follow through on treatment options if they feel that they are in control.

The organization of the book facilitates the transmission of the overall message. In the opening chapters, Saks presents the reader with two personas: that of the physician and that of the lawyer. Each individual is placed at either end of a treatment continuum. The physician wishes above all things to cure the patient and is more likely to enforce treatment against the wishes of an individual with mental health issues, while the lawyer wishes to protect individual autonomy and is more likely to respect the wishes of the individual even if the individual rejects medical advice. Saks then moves swiftly to challenge the very concept of mental illness by providing numerous examples of behaviors that initially appear to signify a mental illness, but on further reflection are open to dispute. The point is well made that, if the definition of mental illness is subjective and contextual and the consequences of identification so potentially damaging, we must be very sure that in labeling an individual as mentally ill and treating them differently we are making a thoughtful and benign decision. As Saks points out, the stigma of mental illness brings with it such negative connotations that individuals are subjected to questionable treatments when they have committed no crime nor exhibited any behaviors that are dangerous to themselves or others. This message is repeated throughout each subsequent chapter, as Saks ranges from civil commitment sentences that last for years, the right of individuals to refuse mind altering medications (some of which have proven negative side effects) to the seclusion of individuals in empty rooms as a treatment option, or even as a punishment, and the use mechanical restraints, including the extreme measure of tying someone to a bed.

One of the great strengths of this book is that Saks does not shirk the difficult task of proposing another approach to the treatment of individuals with mental health issues. Saks’ firm commitment to people with mental disabilities does not allow her to ignore the fact that in some instances an individual will need to be treated against his or her will. Indeed, Saks states: “I am persuaded that a concept of mental illness is useful and necessary” (p.42). However, even when behavior crosses into dangerousness for [*1021] individuals or those around them, Saks makes it very clear that the least restrictive and least intrusive interventions should be implemented first and that they should never be used to punish individuals who cannot be held responsible for their own actions. Saks provides disturbing evidence of inmates of mental facilities left alone in small, bare rooms for long periods of time for what appear to be minor infractions of ward rules.

As I discussed earlier, Saks adopts what I would describe as a mixed-methods design. She uses traditional legal research, citing case law and judicial decisions with imaginative scenarios to illustrate discriminatory treatment experienced by this population. Although the evidence she presents would be convincing on its own, I would have preferred more qualitative data, perhaps from interviews to make more real the experiences of individuals with mental illness. For example, this approach was used to great effect by Stefan (2001) and made for harrowing and compelling reading. Saks’ approach does not enable the voices of individuals with mental health issues to be heard directly and thus misses a valuable opportunity to include these stories from individuals directly affected by discrimination. For the reader, the inclusion of routinely excluded voices would have provided a deeper dimension to their understanding of how forced treatment may be perceived by people with mental health issues.

In FORCED TREATMENT, Elyn Saks addresses the treatment of mental health issues in a unique way that should force her intended audience of mental health professionals, lawyers, physicians, and disability rights activists to pause and reconsider how individuals with mental health issues are treated and how they ought to be treated. Forced treatment of individuals with mental health issues not only discriminates against them, but robs them of their dignity, their personhood and possibly even their lives.

REFERENCES:
Stefan, Susan. 2001. UNEQUAL RIGHTS: DISCRIMINATION AGAINST PEOPLE WITH MENTAL DISABILITIES AND THE AMERICANS WITH DISABILITIES ACT by Susan Stefan. Washington: American Psychological Association.

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© Copyright 2005 by the author, Katherine M. Nagle.

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THE CASE FOR GAY RIGHTS: FROM BOWERS TO LAWRENCE AND BEYOND

by David A. J. Richards. Lawrence: University Press of Kansas, 2005.
256pp. Cloth. $29.95. ISBN: 0-7006-1391-9.

Reviewed by Sharon G. Whitney, Department of Sociology and Political Science, Tennessee Technological University. Email: swhitney [at] tntech.edu.

pp.1014-1018

David A. J. Richards, Edwin D. Webb Professor of Law at New York University, argues persuasively that “America is in transition between patriarchal and democratic culture, and gay rights is at the cutting edge of this transition, showing how far we have come and how far we have yet to go” (p.x). He begins his book with two questions. “What role does judicial review play in the development, recognition, and protection of basic human rights in the United States? What is the relationship of such judicial review to protest movements?” His thesis is that the post-World War II struggle for gay rights and its impact on American constitutional law is “the most recent chapter in this story,” for which his book offers a “gripping” insider perspective as “a leading constitutional scholar and a gay man” who has participated in the evolution of a personal and political “resisting voice” (p.xi). In lawyerly style, he parses written judicial opinions of several cases settled by the Supreme Court of the United States, including a critique of those on the majority side in BOWERS v. HARDWICK in 1986 (denying the protection of constitutional privacy to gays and lesbians) and an applause for the majority opinion in LAWRENCE v. TEXAS in 2003 (overruling BOWERS). He considers two precedents leading to LAWRENCE—PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (1992) (reaffirming ROE v. WADE (1973) on a woman’s right to abortion with no undue burden imposed by state regulations) and ROMER v. EVANS (1996) (striking down a state constitutional amendment depriving and denying homosexual orientation equal rights under the law). He also touches upon the significance of LAWRENCE for GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH (2003) (legalizing marriage for same-sex couples in Massachusetts.)

Richards considers arguments from scholarly explorations in philosophy, an interpretative history of constitutional law, and psychology and literature, all of which he weaves together to bolster his struggle for a voice of resistance against homophobia. His endnotes alone run for nearly 40 pages, and his bibliography is 15 pages, including all nineteen of his own writings (pp.226-227).

In Chapter One, “The Personal as Political,” he writes, “[m]y hope is that structuring my argument as a mapping of personal and constitutional law history will bring alive to the reader the role that developments in constitutional law play in the lives of Americans” (p.2). I think he succeeds. I was moved by his recounting of the loving influence of his (Italian Catholic) parents, particularly his strong feminist mother, and the [*1015] influence of philosophy aligned with an ethical defense of gay rights.

Others may resonate with the fact that Richards studied directly with the best of liberal philosophers, especially during his undergraduate years at Harvard University with John Rawls, and then went to Oxford University where he worked with H.L.A. Hart. The attraction to Hart is explained as a function of the latter’s defense of the British Government’s 1957 WOLFENDEN REPORT (recommending decriminalizing homosexual sodomy based on the utilitarian theory in ON LIBERTY by John Stuart Mill [1859]). As Wasserstrom (1971, at 1-9) explains in an introductory essay to his MORALITY AND THE LAW, Hart’s writings were a response to an attack on decriminalization by Lord Patrick Devlin, which continues, particularly in America, and has implications for legal enforcement of private morals beyond sexual acts, including euthanasia.

After studying with Hart (and R.M. Hare), Richards returned to the US, published his dissertation (1971), and received his law degree at Harvard. Thereafter, he began to practice law with a Wall Street firm. In 1974 he began to teach constitutional law, first at Fordham University Law School, before going to NYU School of Law.

Other gay rights scholars, advocates, and activists may also relate to Richards’ description of transformation in his personal life and scholarly development. In 1974 he met Donald Levy, another philosopher, who ultimately became his lifetime domestic partner of some thirty years. “We originally met as academics, through a mutual straight friend, to study issues of mutual concern, including the philosophy and psychology of love. As we studied and discussed philosophy and psychology, in particular Plato’s SYMPOSIUM and PHAEDRUS and Freud’s works, we also closely studied one another. As we studied love, we fell in love” (p.9). This moved him beyond philosophical abstraction and law practice to teach constitutional law, linking his academic scholarship to the gay rights protest movement while it was still in its infancy.

The rest of the book is divided into three parts of scholarly analysis. Part I, “Philosophy,” consists of just one chapter, in which Richards elaborates on the post-World War II foundation in the moral and political philosophy of liberalism. Part II, titled “Law,” is the thickest part, with seven chapters, and Part III, “Psychology,” also consists of just one chapter.

The philosophy of gay rights draws on Jeremy Bentham and John Stuart Mill’s principles of “utilitarian equality” (pp.17-22) and Immanuel Kant’s notions regarding “contractualist equality” (pp.22-23). Richards teaches the reader how both forms of equality are at the foundation of liberal political philosophy and constitutional law. In fact, his understanding, with which I think I agree, is that contractualist equality provides stronger support for Mill and liberty, thus constitutional law and gay rights.

Utilitarianism is based on an analysis of the ethical consequences of acts rather than an a priori rule of ethical conduct, which is linked to contractual equality. Whereas Bentham adheres to a values-neutral ground between individual [*1016] self-interested calculations of pleasure and pain and social democratic development, Mill revised the values-neutral element by advancing individual liberty as a superior utility for personal development, asserting the consequential principle that, as long as one does no harm to others, a democratic society and rule of law ought not to intervene into the life of the person. Hart amplifies on this principle as applied to decriminalizing homosexual sodomy. However, according to Richards, Bentham was one of the first philosophers to write a paper favoring the decriminalization of homosexual sodomy, albeit an unpublished one (p.18). With contractualist equality, the analysis rejects pleasure/pain as the basis of a personal calculation in favor of an a priori rule supposing moral dignity for each human being and the universal ability to exercise moral reasoning, thus enabling empathy for any given situation, including resistance to homophobia.

The law basis of gay rights covers abolitionism and first wave feminism, as well as post-World War II landmark cases familiar to most law and court specialists in political science. A useful concept that ties various historical forms of oppression together is “moral slavery” (p.28), which Richards developed in four earlier historical works of jurisprudence, including WOMEN, GAYS, AND THE CONSTITUTION: THE GROUNDS FOR FEMINISM AND GAY RIGHTS IN CULTURE AND LAW (1998).

Richards highlights how doctrinal developments in free speech, black civil rights, feminist jurisprudence, including the right of privacy, and sexual orientation as a suspect classification provide a rich constitutional development context favoring gay rights, as well as useful analogies from which gay rights advocates and activists may draw, enabling both a deserved critique of BOWERS and support for LAWRENCE and GOODRIDGE.

In his chapter dealing with free speech and gay rights, Richards poses an intriguing question regarding why gay rights in American constitutional law was so late in developing. He observes that, before the Civil War libertarian and egalitarian democratic voices were plentiful, including the radical and revealing poems of Walt Whitman, but after the War, a conservative anti-obscenity backlash repressed such American protest movements, including that for gender-role liberty and feminist equality, even as applied to intimate sexual behavior. Then, after World War II, in response to 19th century anti-obscenity legislation, the Supreme Court of the United States relaxed its standards, helping to empower free expression for Planned Parenthood, sexual privacy interests, and gay rights (pp.30-32).

In the chapter on religion, race, and gender as useful analogies for gay rights, I found his point about the purpose of analogies in constitutional rights analysis most insightful. The purpose is not to show factual similarities in traits vulnerable to victimization, but rather to show similarities in oppressive strategies (p.40).

In his chapter on sexual orientation as a suspect classification, Richards further develops the analogies from religion and gender. Moreover he applies them against “anti-lesbian/gay initiatives” [*1017] (pp.116-120) and “exclusion from the military” (pp.120-127).

Psychology, Richards’ third and final basis for gay rights, is linked to his recent study of voices of resistance to patriarchy. These voices derive not only from feminist psychology (e.g., Gilligan 1982), but also from male voices in history and literature on behalf of “democratic manhood” (p.151). In fact, he has recently published a book titled DISARMING MANHOOD: ROOTS OF ETHICAL RESISTANCE. Democratic manhood stands in contrast to a regime of “men, honor, and obligatory violence” (p.150). Such a regime highlights patriarchic codes of honor (e.g., virginity, monogamy, and chastity), requiring acts of violence when strict controls over female sexuality are threatened. Overall, I found this part of the book most unique methodologically in relation to published works of political jurisprudence generally, and to gay rights specifically. Here, Richards also reveals that Hart struggled with severe depression because he was gay, yet he was nonetheless married (unhappily) with a family (p.158). Because Richards learned of this fact relatively recently, he writes that it reaffirms his decision to move beyond abstract philosophical argument to expressing an ethical voice of resistance, relying on constitutional law, history, psychology, and literature. Here, he also reiterates that, ultimately, the struggle to express an ethical voice of resistance to homophobia was motivated by caring to defend his personal loving gay relationship (p.159).

REFERENCES:
Freud, Sigmund. 1959 (Vol.9)/1961 (Vol.21)/1964 (Vol.21). STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD. Ed. by James Strachey. London: Hogarth Press.

Gilligan, Carol. 1982. IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN’S DEVELOPMENT. Cambridge: Harvard University Press.

Mill, John Stuart. [1859] 1956. ON LIBERTY. Reprint. Edited by Curris V. Shields. New York: Bobbs-Merrill.

Plato. 1964. THE COLLECTED DIALOGUES OF PLATO. Edited by Edith Hamilton and Huntington Cairns. New York: Pantheon.

Richards, David A.J. 2005. DISARMING MANHOOD: ROOTS OF ETHICAL RESISTANCE. Athens: Ohio University Press.

Richards, David A.J. 1998. WOMEN, GAYS, AND THE CONSTITUTION: THE GROUNDS FOR FEMINISM AND GAY RIGHTS IN CULTURE AND LAW. Chicago: University of Chicago Press.

Wasserstrom, Richard A. (ed). 1971. MORALITY AND THE LAW. Belmont, CA: Wadsworth Publishing Co.

Whitman, Walt. 1975. WALT WHITMAN: THE COMPLETE POEMS. Edited by Francis Murphy. Harmondsworth, U.K.: Penguin. [*1018]

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

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

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

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 US 833 (1992).

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

ROMER v. EVANS, 517 US 620 (1996).

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© Copyright 2005 by the author, Sharon G. Whitney.

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THE GODLESS CONSTITUTION: A MORAL DEFENSE OF THE SECULAR STATE

by Isaac Kramnick and R. Laurence Moore. New York: W. W. Norton, 2005. 208pp. Paper. $14.95. ISBN: 0393328376

Reviewed by Stephen M. Feldman, Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. Email: sfeldman [at] uwyo.edu

pp.1010-1013

Is the constitutional system of the United States secular or religious? Isaac Kramnick and R. Laurence Moore argue in THE GODLESS CONSTITUTION that the framers of the national Constitution intended to create a secular government. Kramnick, a professor of government at Cornell, and Moore, a professor of American studies and history at Cornell, maintain that the Constitution is bereft of reliance on religion—it is godless. THE GODLESS CONSTITUTION is an expanded version of the authors’ THE GODLESS CONSTITUTION: THE CASE AGAINST RELIGIOUS CORRECTNESS, published in 1996. The new book has one additional chapter, “George W. Bush and the Wall of Separation.” As was true with the original edition, this book is aimed at the general reader and hence lacks footnotes, though it does include a brief “Note on Sources.”

After an introductory chapter, Kramnick and Moore turn to the framing of the original document. While the Articles of Confederation credited “the Great Governnor of the World,” and most contemporary state constitutions restricted suffrage, office holding, or both in accordance with religious beliefs, the proposed national Constitution did neither (p.28). Indeed, the “no religious test” clause was introduced at the Constitutional Convention and adopted by the framers with little discussion. As Kramnick and Moore underscore, however, the clause became “a veritable firestorm” during the ratification debates in the various states (p.32). For many opponents of the proposed Constitution, the lack of a religious test for office symbolized the document’s overarching “basic flaw—its general godless quality, its seeming indifference to religion” (p.33). Yet, a diverse group of Americans, including clerics as well as framers, resisted the arguments to add a provision explicitly declaring that the United States would be a Christian nation. The framing generation settled instead upon a “godless Constitution.”

Even so, Kramnick and Moore recognize that the framers and other supporters of the proposed Constitution were, for the most part, not irreligious. “The political convictions of the men who struggled to ratify a godless Constitution were not products of personal godlessness. Far from it. Almost everyone who participated in the debates about the Constitution shared a concern about the health of religion” (p.44). They believed that religion provided a necessary foundation for the nurturing of a virtuous citizenry. Then why, ask the authors, did the framing generation “refuse to assign government . . . any responsibility for promoting religion?” (pp.44-45). The [*1011] next three chapters attempt to answer that question. The first of these chapters focuses on Roger Williams, who founded Rhode Island after being banished from the Massachusetts Bay Colony. Williams, as is well known, advocated for an unprecedented degree of separation between church and state because of his strong religious convictions—a degree of separation that the Massachusetts leaders could not accept. Insisting on a pristine form of Puritanism, Williams argued that to claim Massachusetts or any other political community “was a Christian polity, a civil government party to a divine contract, was arrogant blasphemy” (p.48). The next chapter focuses on the Americans’ grounding in the English ideas on the relation of church and state, including those of John Locke. The final chapter in this part focuses on Thomas Jefferson, who was attacked more often than many other contemporaries as being an atheistic opponent of religion. Yet, as Kramnick and Moore point out, his politics more than his religion led to these attacks; he was not godless at a personal level.

The remaining chapters provide case studies, so to speak, of controversies where the godless Constitution has proven especially controversial. The first focuses on how the Baptist community supported Jefferson in the election of 1800 even as his opponents assailed his irreligiosity. The next chapter discusses, first, a controversy that ran from 1810 to 1830 regarding whether mail should be delivered on Sundays, and second, the efforts starting in the late-nineteenth century to add a Christian amendment to the Constitution. The next chapter, the last in the original book, asks how the framers imagined the American democracy could be sustained without established religion. “A democratic government was not created to produce moral citizens,” Kramnick and Moore explain. “It was the other way around: moral citizens constructed and preserved democracy. The founders left the business of teaching morality to private concerns” (p.151).

In the middle of this penultimate chapter, the authors turn toward their utmost concern: demonstrating the harms wrought by the religious right in contemporary America. This is a book of history with a clear message: the current religious right misreads American history, particularly the constitutional framing, and attempts to corrupt both American politics and religion by using religious ties for blatantly political purposes. Many contemporary religious institutions neglect their legitimate concerns with their constituents’ religiosity and morality, and instead blame liberals and government for immorality. After scapegoating the government, the religious right then aims to capture and use it to fulfill their political agenda. In so doing, the religious right uses religion so that it “has divided and stigmatized people” (p.161). Hence, the new final chapter focuses on the presidential administration of George W. Bush. Its barefaced use of religion has contributed to “a deeply divided nation” (p.178). Indeed, Kramnick and Moore fear that “not since the Civil War have the country and the national government been so polarized”—“divided along religious lines” (pp.178-79). The 2000 and 2004 election campaigns created an impression that “presidents were chosen [*1012] to be defenders of the faith, not defenders of the Constitution” (p.181).

Kramnick and Moore have admirably fulfilled their goal: to write a “polemic” advocating for a sharper separation between religion and politics (p.12). In many ways, this is an excellent, albeit brief, book. During this time of persistent debates about the public display of the Ten Commandments, about intelligent design, creation science, and evolution, and about prayers in public schools, Kramnick and Moore have filled their book with useful historical details regarding the on-running battles over Christianity and politics. And while they unequivocally have aggressively argued for their position, they have not ignored counterarguments or inconsistent evidence. Kramnick and Moore clearly believe that religious institutions can play an important role in American society—by attending to non-governmental religious and moral matters, but not to political issues. Indeed, for a polemic, THE GODLESS CONSTITUTION concludes with a remarkably generous assessment of the potential contributions that religion could make to a “government indifferent to religion” (p.176). Moreover, the authors recognize that there has existed a tension between a godless Constitution and a religious people. “The framers erected a godless federal constitutional structure, which was then undermined as God entered first the U.S. currency in 1863, then the federal mail service in 1912, and finally the Pledge of Allegiance in 1954” (p.143). To a great extent, this undermining of the godless Constitution is the reason that the authors have written their book. Kramnick and Moore believe that the framers intended to create a godless Constitution for a purpose: to preserve American society and government. When religion is explicitly interjected into politics, then government and morality suffer. “[T]he founders of this nation would regard the mixing of religion and politics in the ways now being engineered by the religious right as part of the problem of failing public morality, rather than as an answer” (p.153).

Yet, the book does have weaknesses. Kramnick and Moore suggest that a godless Constitution should translate into a godless “politics,” but in so doing, they overlook much of the history that they so compellingly depict (p.52). They seem to ignore the possibility that, if the framers truly aimed for a godless politics, then they perhaps made a mistake: the Constitution, we might say, has a design defect. While Kramnick and Moore admit that the godless Constitution has been undermined through American history, they characterize these developments as a corruption of the framers’ intentions. But a godless Constitution does not necessarily translate into a godless politics or constitutional order. One reason, it seems, that Americans are forever in the throes of religious-culture wars, revolving supposedly around Christian values, is that American society and culture are so thoroughly religious. A religious people in a democracy will, quite naturally, attempt to impose their values and interests. Indeed, at the end of the book, Kramnick and Moore note that in England, where there is an established church, the people tend to be far less religious yet more politically active than Americans. Does this mean that an established church [*1013] undermines religiosity, while disestablishment engenders religious commitment? Many Americans of the framing generation supported disestablishment exactly for this reason; they thought religious institutions would flourish more with disestablishment than with establishment.

To a degree, Kramnick and Moore do not adequately account for the relation between the original Constitution and the contemporary society. As the authors recognize, “most [of the men who championed the godless Constitution] believed in a God who rewarded good and punished evil in an afterlife. They respected the moral teachings of Christ and hoped that they would prosper among Americans and in the churches that Americans attended” (p.44). Indeed, the framers built a godless Constitution on a “de facto” Protestant society (Howe 1965, at 11). So when the framers adopted and the ratifiers accepted the “no religious test” clause, they did not necessarily intend for non-Protestants to hold office. Many assumed that America was so pervasively Protestant that a religious test was beside the point. During the North Carolina ratification debates, for instance, James Iredell explained: “[I]t is never to be supposed that the people of America will trust their dearest rights to persons who have no religion at all, or a religion materially different from their own” (Feldman 1997, at 162-63). The state Governor added that if “Jews and pagans” were to come to America, they would still be few “in proportion” to Christians, and their children would become Christians anyway (Feldman 1997, at 163). Even today, many religious-cultural battles arise from efforts to maintain remnants of the nation’s early de facto Protestantism despite the current religious diversity. Unsurprisingly, then, in the first decades of nationhood, support for disestablishment at the national level was not intended to encourage non-Protestant religions. Individuals advocated for disestablishment for a variety of reasons. For some, it was a matter of federalism: states could have establishments, as some did; the last ended in 1833 (p.118). For other individuals, disestablishment was a matter of practical politics: no single Protestant denomination seemed to wield sufficient power to dominate others. Yet for other individuals, disestablishment followed from the nation’s history: a national church might appear too similar to the Church of England (thus, state and local establishments remained acceptable)—all of which is to say that the story of religion and politics is even more complex than Kramnick and Moore acknowledge. Regardless, they offer a textured and worthy contribution in this contentious area.

REFERENCES:
Feldman, Stephen M. 1997. PLEASE DON’T WISH ME A MERRY CHRISTMAS: A CRITICAL HISTORY OF THE SEPARATION OF CHURCH AND STATE. New York: New York University Press.

Howe, Mark DeWolfe. 1965. THE GARDEN AND THE WILDERNESS. Chicago: University of Chicago Press.

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© Copyright 2005 by the author, Stephen M. Feldman.

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INSTITUTIONS AND PUBLIC LAW: COMPARATIVE APPROACHES

by Tom Ginsburg and Robert A. Kagan (eds). New York: Peter Lang Publishing, 2005. 336pp. Paper. $32.95. ISBN: 0-8204-7477-0.

Reviewed by Donald W. Jackson, Texas Christian University. E-mail: d.w.jackson [at] tcu.edu

pp.1005-1009

INSTITUTIONS AND PUBLIC LAW is quite an interesting and useful book, containing essays resulting chiefly from the fecundity of Martin Shapiro. To put that conclusion in context, I should note that the essays in this book are examples of the1990s version of “new institutionalism,” applied not only to U.S. courts, but also to transnational courts and to those of other countries. Most of the chapters were first presented at a 2003 conference honoring Martin Shapiro’s contribution of the study of public law.

This version of “new Institutionalism” is described in the introduction by Tom Ginsburg and Robert A. Kagan as taking “institutional structures seriously, rather than focusing on the individual agent alone,” and focusing on the “structures that constrain and empower some of the individuals that make them up.” The two strands that make up this version of institutionalism consist of the rationalist approach that seeks to demonstrate how rational actors pursue “exogenous” preferences in an instrumental manner within judicial systems, and the historical approach that demonstrates how judicial institutions change over time. Some readers may well think that “old institutionalism,” when done well, was not all that different, although, to be sure, usually without the norms or methods of positive political theory. Surely, not every instance of the “old institutionalism” was the sterile parsing of legal descriptions of institutions that were quite remote from reality. However, the intellectual battles cited in this book do not really lie between new and old institutionalism.

Instead, the new institutionalist approach is cast in the introduction to the book as the worthy opponent of attitudinalism, described as viewing judges as “essentially politicians in robes” who pursue their own policy preferences, and who “are only weakly constrained” by “precedents, principles and norms of consistency.” This is echoed in Chapter 1 by R. Shep Melnick, who first notes that Shapiro’s work “is a reflection of the man’s intellectual curiosity and breadth of view,” rather than a single oft-repeated theme. Instead, according to Melnick, “the heart of Shapiro’s argument is that courts are usually one part of a larger policymaking process;” it would be difficult for anyone to argue with that. Unfortunately, Melnick then attacks Jeffrey Segal’s and Harold Spaeth’s “attitudinal model” for rejecting arguments that institutional roles and judicial constraints affect judicial decision-making as “simply bunkum” (p.28). That is a demonstrable overstatement, for it was applied by Segal and Spaeth specifically to Justice Blackmun’s claim that the words “cruel and unusual punishment” precluded him from voiding death penalties, when he [*1006] had been the author of the trimester ruling in ROE v. WADE (see Segel and Spaeth 1993, at 236). Those who have been part of the fray may care about this battle of competing viewpoints, but apart from them, it is reasonable to suspect that unlike the Gettysburg Address, the “world will little note nor long remember” this battle between political scientists. It is likely that both perspectives have contributed to our understanding of judicial politics. Indeed, Melnick later concludes that, “the Supreme Court, like most courts, issues at least two types of decisions” (with other mixed versions in between). A few decisions establish new substantive legal policy (rule-making), while most judicial decisions involve routine norm enforcement and the necessity of presiding over the rules of the game. So, does that not mean that both “attitudinalists” and “new institutionalists” are sometimes correct?

Fortunately, the papers that are contained in this edited volume are much better than this controversy between competing approaches might suggest, and indeed Melnick does laudable yeoman duty in his chapter by outlining six essential elements of political jurisprudence contained in the work of Martin Shapiro: 1) “political jurisprudence must abandon traditional legal categories” and examine all decisions that are involved in making public policy; 2) “investigators must understand the underlying policy issues and dilemmas facing legislators, administrators and judges;” 3) “political jurisprudence requires placing court action within ‘the everyday world of bargaining, persuasion, concession and compromise’” that characterize American politics; 4) “court decisions affect public policy not just by changing ‘law on the books,’ but by shifting the incentives of potential litigants and intervenors;” 5) by facing “a steady stream of cases on a particular topic, judges sometimes engage in a dialog with other actors;” and 6) judges do not necessarily “play the same role in every policy arena.”

The length of this review does not permit comments of each of the 10 chapters; the comments here should nonetheless suffice to suggest the scope and tone of the book.

Howard Gillman’s Chapter 2, “How Political Parties Can Use the Court to Advance their Agendas: Federal Courts in the United States, 1875-1891,” is an excellent case study of the advancement of ideology, in this instance laissez-faire economics through the federal courts. Because courts can be used for purposes such as the one Gillman reviews, it should not surprise anyone that this is an equal opportunity venture, open to partisans of the left, right or center. Gillman’s clarification is that the development of laissez-faire ideology is best seen as politically-inspired rather than court-inspired. Thus he links “national court behavior to the interests of [then] dominant coalitions and broader changes in the political system.” This was represented by the waning of the “national enthusiasm for the vigorous protection of civil rights” and the rise of what he describes as economic nationalism within the Republican Party. This was achieved by the staffing of courts with ideologically sympathetic judges by both Republican and conservative Democratic Presidents Grant through Cleveland, and Gillman concludes that, “These partisans were [*1007] much more successful than the Federalists at transforming the judicial into a programmatic stronghold.”

It is quite useful that Gillman’s chapter is followed by another essay by Melnick (Chapter 3), on the efforts of five members of the Rehnquist Court, “to restrict the power of the national government and to increase the autonomy of the states.” This represents another programmatic use of federal judicial power. At the core of these decisions on federalism is that they usually involve and sometimes limit the uses of federal power to regulate, or control, state and local government and officials. Melnick notes a second important point: that many of the “federalism decisions involve questions about the jurisdiction of federal courts”—this also limits federal control over state and local governments. Melnick concludes, after careful analysis, that, “the pattern of recent Supreme Court decisions becomes easier to understand. The Federalist Five want to reduce federal control of subnational governments. He then examines the politics of the Court’s “new federalism.” The eventual consequences of this “new federalism” are yet indeterminate.

As we have seen, the first three chapters of the book focus on U.S. politics. Part II consists of three chapters on the European context. The first is Alec Stone Sweet’s Chapter 4 on “Judicial Authority and Market Integration in Europe.” His is a tour de force on the process of European legal integration, “provoked by the European Court of Justice and sustained by private litigants and national judges,” that has “transformed the European Union.

One of Stone Sweet’s most useful themes is to focus on dyadic relationships that rest on contracts or social exchange and on the triad of third-party dispute resolution, concepts developed by Shapiro (Stone Sweet 1999). The adoption of triadic dispute resolution in a formalized institutional setting leads to the citing of precedents as a means of justification that may mask law-making and help preserve the legitimacy of courts.

Stone Sweet applies these concepts to the “constitutionalization” of the Rome Treaty, enhancing transnational authority at the expense of the EU’s inter-governmental character. This is made more concrete in a long section on the evolution of the ECJ’s case law, consistent with Shapiro’s previous conclusion that the “Court of Justice constituted the European Community.” Stone Street concludes that this was accomplished, in part, because the member states failed to make this possible on their own.

Carol Harlow’s Chapter 5 applies and develops Shapiro’s distinction between government and governance, citing him for the proposition that the change in words reflects “a significant erosion of the boundaries separating what lies inside a government and its administration and what lies outside them. There is also an erosion of the significance of the distinction between public and private, while the word politics, in most recent social science definitions occurs in any human institution that authoritatively allocates things that people value.

One problem with the erosion of boundaries is that the means of [*1008] influencing outcomes and the players in the game change as well. The carefully developed constitutional structures for democratic influence and accountability may decline, or be overwhelmed by informal influence that lacks both transparency and accountability. Harlow applies this analysis to the European Union in a section that she calls “Government Without Executive.” She argues that Shapiro’s “antagonism to the governance concept lies in his suspicion that it is antidemocratic.” This argument is consistent with concern about the “democratic deficit” of Brussels-centered governance, and, when courts move in to “fill the gap,” her concern is that they may further “add to the democratic deficit and widen the accountability gap.”

Chapter 6, by Paul Craig, reviews the rule of law in the administration of the European Union’s Common Agricultural Policy (CAP) after the adoption of new Financial Regulations in 2002. These regulations provide the “legal framework for the structure of Community administration of the CAP” and represent, according to Craig, the constitutionalization of Community administration.

Part III presents “Comparative Contexts.” These include Javier Couso’s chapter on judicial independence in Latin America, Tom Ginsburg’s chapter on the ancillary powers of constitutional courts, Bronwen Morgan’s essay on the economic review of legislation in non-judicial institutions, and a concluding appraisal of comparative judicial research by Martin Shapiro.

Couso’s chapter focuses on Chile where he finds that a reasonable degree of judicial independence has been achieved. That makes Chile one of the few countries in Latin American for which judicial independence can fairly be claimed. My own work, with Michael Dodson, on Guatemala and El Salvador, concluded that judicial independence has only rarely been achieved in those countries. As Couso appropriately notes “the most important threat to judicial independence in Latin America has been external.” Usually that has meant the executive branch, though sometimes the leaders of the judicial branch also have been complicit or compliant members of ruling oligarchies.

One of the serious problems in contemporary social science is the too frequent absence of cumulative research through which we take proper account of the work of others in developing our own understanding. To the extent that research is cumulative, it often rests on citing the research of friends and academic “neighbors,” rather than making a serious effort to survey the field. In Couso’s instance, the recent edited book by Scott Mainwaring and Christopher Welna (2003) would be a useful addition.

Shapiro’s concluding appraisal contains a plea for more comparative research and for more attention to “non-judicialized” law—here represented by Craig’s Chapter 6 and Morgan’s Chapter 9. His view is that the study of law and courts “demands of its participants knowledge that spreads across fields conventionally labeled in political science as American, comparative and international politics.” As he notes, the [*1009] commandment of Ph.D. qualifying exams that one must “know everything” continues to expand along new dimensions, as does the scope of our research.

REFERENCES:
Dodson, J. Michael, and Donald W. Jackson. 2001. “Judicial Independence and Instability in Central America.” In Peter Russell and David M. O’Brian (eds). JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY: CRITICAL PERSPECTIVES FROM AROUND THE WORLD. Charlottesville: University of Virginia Press, 251-272.

Mainwaring, Scott, and Christopher Welna (eds). 2003. DEMOCRATIC ACCOUNTABILITY IN LATIN AMERICA. New York: Oxford University Press.

Segal, Jeffrey A, and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. Cambridge: Cambridge University Press.

Stone Sweet, Alec. 1999. “Judicialization and the Construction of Governance.” 32 POLITICAL STUDIES 147-184.

Stone Sweet, Alec. 2000. GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE. Oxford: Oxford University Press.

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© Copyright 2005 by the author, Donald W. Jackson.

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HOBBES ON LAW

by Claire Finkelstein (ed). Burlington, VT: Ashgate Publishing Company. 603pp. Cloth $225.00/£110.00. ISBN 0-7546-2178-2.

Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap [at] lagrange.edu

pp.1001-1004

“Come on in! What’s your problem? You say you had a discussion on Hobbes and the law in Smith’s class and you still feel a bit lost? Why don’t you talk to Dr. Smith? Oh, he’s ill and you have a test coming up? Well, it’s been awhile since I read Hobbes. You know I’m not an expert on him either, right? OK, I’ll do my best. If I remember right, Hobbes was the first legal positivist. He’s like Austin or Hart; he sees laws as commands from governments. Yes, he is a contract theorist too, but you probably heard in class that his ideas about the social contract are just a justification for setting up a sovereign authority. The rule of law? I’m guessing that your class decided that Hobbes wouldn’t have gone along with the idea; limits on the sovereign wouldn’t appeal to him. Yes, it’s a pretty uncomplicated view of law and government. Clearer now? Good. Glad I could help.”

I can imagine a conversation just like this between students and even fairly sophisticated scholars who are not Hobbes specialists. On the surface, every assertion above is supported by a reading of the summaries of his work in common use. Further, this second-hand knowledge is seldom corrected by deep study of his ideas. While Hobbes is one of the greatest English stylists to ever live, few assay to read all of LEVIATHAN, DE CIVE, or his lesser known works unless they are focusing closely on him as an academic interest.

Yet, as the readings in Clare Finkelstein’s new collection make clear, virtually all of the views expressed above are either incorrect or leave out substantial qualifications. It is true that Hobbes saw laws as commands, but it is probably a misunderstanding to see him as a legal positivist. He was a contract theorist, but his ideas on the character of the social contract are both complex and controversial and extend far beyond a justification for governments. Further, Hobbes’ sovereign is not unlimited; he had very particular ideas about the legitimacy of laws and the power of governments. He strongly supported the rule of law as well, though his version of the concept is different from that of more recent commentators.

Finkelstein has done non-specialists a service by collecting, in one place, a variety of readings that make close analysis of Hobbes’ ideas on these and other subjects readily available. HOBBES ON LAW is organized efficiently around a variety of topics: legal theory; natural law and natural right; equity; contract; punishment and compensation; self-defense, revolution, and the duty to obey the law; and international law. Each topic is represented by a selection of articles and something of profit can be learned in each section.

I want to assure potential readers that none of the articles in this volume are a [*1002] waste of time; anyone who wants to learn more about Hobbes’ views on the law can read them all with profit. However, rather than saying something about each article (there are 26 of them), I will instead concentrate on the interpretations that I found most useful in correcting the common errors in analysis I cite at the beginning of this review. Inevitably, this will seem to favor some authors and some topics above others, but I hope this review will lead interested scholars to a closer reading.

“If I remember right, Hobbes was the first legal positivist. He’s like Austin or Hart; he sees laws as commands from governments.” As the readings in the first section of HOBBES ON LAW make clear, this commonly held opinion is actually controversial. It is true, as all the contributions point out, that Hobbes did see civil laws as commands. But that is by no means the end of the story. Only M. M. Goldsmith follows the more conventional script of seeing Hobbes as a precursor of modern legal positivism. Other perspectives differ, mainly in how they treat Hobbes’ account of the relationship between civil and natural law. Mark Murphy sees Hobbes as more akin to medieval natural law theory, comparing his theory of law closely to Thomas Aquinas’. By this view, Hobbes, unlike modern legal positivists, asserts the existence of natural law and gives it a considerable role to play in determining which commands are lawful. David Gauthier’s essay, on the other hand, portrays Hobbes as a contract theorist in law as well as politics. Gauthier takes Hobbes to argue that when we contract with each other to establish a sovereign, the contract is based on a priori recognition of natural laws; predispositions apprehensible by reason that form the basis of social peace. As he points out, both here and in a later essay on Hobbes’ views on natural law, Hobbes goes to considerable pains to delineate natural laws. Gauthier also holds, however, that while Hobbes thought everyone could apprehend natural law through an application of reason, without a sovereign it has no practical application. The natural right to self-preservation prevails instead. If a sovereign has been established, however, then natural law will be given enforceable form in the sovereign’s commands; civil law will “contain” natural law. Hobbes, then, is not a theoretical legal positivist since we can acknowledge natural laws that have force beyond the coercive power of the state (since God gave us reason, they must be His commands and we are obligated to obey them), but that he is a practical one in that those laws can only have force as a sovereign’s commands, commands that we have contracted with each other to obey. However, perhaps David Dyzenhaus and Robert Ladenson are closer to the truth in their contributions. Both assert that Hobbes is sui generis as a legal theorist and that trying to identify him with other schools of thought is an interesting, but ultimately fruitless exercise.

“Yes, he is a contract theorist too, but you probably heard in class that his ideas about the social contract are just a justification for setting up a sovereign authority.” Here our protagonist is somewhat closer to the truth, but, again, the complexities of Hobbes’ thought go far beyond such a simple presentation. The dilemma in which Hobbes finds himself when he begins to talk about contracts and the establishment of [*1003] sovereignty is well described in the essays in Part 4 of HOBBES ON LAW. Robinson Grover’s essay lays out the problems with Hobbes’ views clearly. Hobbes says we “covenant” with each other to create a sovereign in a state of nature. We keep to these covenants because it is in our interest to do so; getting a reputation for being unreliable is socially dangerous and violates the law of nature that we should seek peace. But asserting this makes the entire argument for creating a sovereign superfluous; why have a sovereign to enforce contracts if everyone lives up to their promises anyway?

The essays by M. T. Dalgarno and Larry May try to find a path out of this conundrum. Both see the sovereignty as a three step process. First, individuals in a state of nature, seeing that their position is dangerous, must consent to an initial agreement to transfer their natural right to govern themselves to a third party, a sovereign. In a second step, individuals will contract with each other to obey the sovereign, a contract that only becomes effective on the first party to the agreement when the other party agrees to obey as well. The third step is the establishment of an actual sovereign, what May calls a constitutional contract, binding all parties to a sovereign third party established through majority vote. As Dalgarno says, this allows both the obligations that citizens have to each other to obey the sovereign and the lack of limits on sovereign authority Hobbes insists on to coexist. These qualifications do not get Hobbes out of the difficulties Grover describes, but, again, the advice given to our inquiring student has turned to be too simple by half.

“The rule of law? I’m guessing that your class decided that Hobbes wouldn’t have gone along with the idea; limits on the sovereign wouldn’t appeal to him.” As the essays in Part 6 of HOBBES ON LAW show, this may be the most common error made about Hobbes’ thought. As both Larry May and Clare Finkelstein show, Hobbes does allow for a right to resist sovereigns, a right built on his assumption that no rational individual can give up the right to self-preservation. Reconciling this with a sovereign whose commands we have obligated each other to obey is not easy. The solutions suggested by these authors are slightly different. May interprets Hobbes to hold that, once a social contract is made, individuals have an obligation to obey all sovereign commands that seem likely to preserve the social peace that was the contract’s object. The contract, in other words, has established a public will that cannot be gainsaid. On the other hand, however, there are many areas where public will does not reach and self-preservation may be threatened. Here individuals have no obligation to obey commands; indeed, quite the contrary. Finkelstein sees Hobbes as holding that rationality is pragmatic in nature; i.e. that it depends not on the rationality of particular acts, but on judgments of the rationality of courses of action. Pragmatic rationality combined with the right to self-preservation becomes a tool to use against sovereigns who by their actions undermine the protection presumed by the social contract. In short, our natural right to self-defense becomes a bulwark against tyrannical rule.

And what of the rule of law? In a pair of linked essays, Jean Hampton and Michael Zuckert contend very different [*1004] positions on this question. As Hampton points out, Hobbes’ ideas are not congruent with constitutionalist visions of the rule of law. For instance, Hobbes would have thought the institutional convolutions involved in the American constitution a waste of time; what actually counts in making the rule of law work is to have a single sovereign will behind it. All law demands interpretation, and only a public will can make such determinations. Hampton suggests that Hobbes’ views pay insufficient attention to the need for institutional restraints. Zuckert, in reply, points out that Hampton’s interpretation of Hobbes does not see that he was first and foremost committed to the rule of law; it is at the center of his vision of the social contract. The constitutionalist views of his great protagonist Locke allow more sources for extralegal moral judgments concerning the law, but Hobbes did allow a role for both natural right and natural law in considering justifications for legal obligations. Further, both Hobbes and Locke agree that moral judgments concerning policy, however grounded, must be expressed and interpreted in legal terms and using legal processes. The two sides of this debate, then, are not as diametrically opposed as they seem.

“Yes, it’s a pretty uncomplicated view of law and government.” If there is nothing else we can learn from HOBBES ON LAW, it is that Hobbes is very far from a simple thinker and that his views are very far from the impressions of his theories in common circulation. Further, I have barely scratched the surface here. Entire sections of interesting work on Hobbes’ thinking on issues of capital punishment, natural law, equity, and international law are not addressed in this review. Finkelstein’s editorial eye has covered and evaluated a vast amount of research on all these topics. While I am not expert enough on Hobbes research to judge her final decisions, I can say that she has selected very interesting and well written articles for her book. I found HOBBES ON LAW a challenging, but useful read. I will never teach or think about him in the same way again.

I must now end with a regret. Finkelstein has written a single editorial introduction to the articles that addresses some of the major concerns in research on Hobbes and the law, then presents brief summaries of the essays in each part. Non-specialist readers of HOBBES ON LAW would have benefited greatly from more detailed editorial treatments at the beginning of each topical division. I suspect that Finkelstein was not given the opportunity to do this. Obviously, the publisher has made every effort to reduce costs; the book consists of re-prints of articles from various sources and not even the fonts of the originals have been changed. I realize that HOBBES ON LAW is aimed at a limited audience, but its usefulness could have been significantly enhanced by slightly more liberal publishing values.

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© Copyright 2005 by the author, Tracy Lightcap.

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ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS

by Lee Epstein and Jeffrey A. Segal. New York: Oxford University Press, 2005. 192pp. Cloth. $23.00/ £13.99. ISBN: 0-19-530021-1.

Reviewed by Richard L. Pacelle, Jr., Department of Political Science, Georgia Southern University. Email: rpacelle [at] georgiasouthern.edu.

pp.998-1000

At the appropriate age (and, truth be told, maybe a little beyond that), I would anxiously anticipate the second or third week of the month because that was when the new Batman and Superman comic books would reach the local pharmacy. Occasionally, there would be a real treat when the two super heroes would team up in a special edition issue. So, it was with the adult equivalent of that great anticipation that I read this book by Lee Epstein and Jeff Segal. There is little doubt that they are two of the most prominent public law scholars of their cohort and so this alliance of Batperson and Superperson (I will leave it to you to decide which is which) would have a great deal of promise. Sure, these two had collaborated previously (in DC, I mean AJPS 44:1), but most of their joint ventures had other coauthors, making them more like the Justice League of America with the Flash, Wonder Woman, Green Lantern, and Hawkman joining forces with the Caped Crusader and the Person of Steel. This time they are on their own and true to form, Batperson and Superperson deliver.

What makes this collaboration all the more intriguing is that Epstein and Segal are the standard bearers (the latter along with Harold Spaeth, of course) for different approaches to the study of judicial decision making. If anything, this book finds itself much more on the attitudinal side of the debate than the strategic. That was perhaps a little curious because the authors find that as tenure increases, justices demonstrate diminished levels of support for the ideological positions of the presidents who selected them. They offer some good explanations for that decline, most notably the change of the mix of issues that confront the Court. But it seems possible that strategic considerations could explain, at least in part, the migration of Harry Blackmun, the constant centrism of Sandra Day O’Connor, and the overall general trends. At the least, these changes might suggest as the Justice League, I mean Epstein, Segal, Hoekstra, and Spaeth (1988) showed that the attitudinal model is not inviolate.

This book combines the best features of past studies on judicial appointments. There are anecdotes to enrich the narrative combined with all manner of empirical results and tables. The book will be a valuable resource for scholars and instructors. It is also very accessible for students and citizens interested in the judicial branch. In addition, this well-written book has the added virtue of being very timely. The authors discuss the rising levels of partisanship over lower court nominations and the recent compromise that averted the so-called nuclear option. The book went to press before John Roberts, Harriet Miers, and [*999] Samuel Alito were nominated, but the events that have transpired for the first two and are unfolding for the third are certainly consistent with the expectations the authors establish throughout the book.

Epstein and Segal start with the premise that politics governs the selection process and always has. The authors underline the dominance of politics by labeling factors like experience and judicial temperament as constraints on the president’s selections. They show that Congressional attempts to increase the size of the judiciary (at all levels), split circuits, or change processes are, at their roots, political decisions covered in thinly veiled normative platitudes about enhancing the efficiency of the legal apparatus.

For a short book, there is a great deal here. Any reader who does not comb carefully through the excellent footnotes will not reap the full benefits. While the focus, for a variety of reasons, is trained more on Supreme Court appointments, there is significant attention to the Courts of Appeals and the District Courts (though more of the former than the latter). The authors shift seamlessly between the motivations of and constraints on the president and those that face senators.

Epstein and Segal do not confine their analysis to those residing or working on Pennsylvania Avenue. They examine the role played by the American Bar Association, noting with some delight, how the group, once considered a staid, conservative reactionary organization, has morphed into a perceived liberal monolith. They note how Presidents Nixon and Clinton attempted to manipulate the ABA for their own purposes. The proliferation of interest group activity, typically cited as evidence for the increased politicization of the process, is placed into its broader context.

The book is organized by the stage of the process rather than level of the court. After setting the constitutional and political context for judicial appointments, Epstein and Segal take the readers through the motivations for and creation of vacancies, the prelude to nominations, and the confirmation process. As a result of this approach, discussions of the Supreme Court, Court of Appeals, and District Court appointment processes are interspersed throughout. And it works. One of the major strengths of the book is that the authors conclude the analysis by raising and addressing the “so what?” question. They examine what happens once the judges and justices ascend the bench. The focus shifts to whether presidents got what they intended when they nominated their candidate. Once again, the rich narrative is bolstered by empirical findings.

There are a few minor concerns, such as some sloppy editing. There are also a handful of substantive questions that a reader might have after finishing the book. Most notably, Senatorial courtesy gets relatively short shrift. The conventional wisdom (supported by the authors) is that it applies to senators of the president’s party only. But Epstein and Segal refer in a few places to blue slips and the objections of senators from the opposite party, without further explanation. The nominations of Hugo Black and William Rehnquist (to be Chief Justice) provide strong support for [*1000] the broader arguments the authors are making, but some of the more interesting elements of those cases are not considered. Though a number of biographies and studies of the period assert that Franklin D. Roosevelt nominated Black largely to embarrass and diminish the Court, that is not addressed. The authors note the broad approval of Antonin Scalia by the Senate, partially as a function of whom he replaced and his perceived qualifications. But like the broad acclaim for Chief Justice John Roberts, Democratic senators had another target: Rehnquist in the case of Scalia, and whomever might replace O’Connor and tip the Court in the case of Roberts. Would Scalia have received the same support if he were the sole nominee and headed for the center seat? The discussion of “the switch in time that saved nine” is also noteworthy. In their constitutional law book, Epstein and Walker (2004, p. 442) assert that Owen Roberts’ switch in the face of pressure exerted in the wake of Franklin Roosevelt’s attack was exaggerated and that the case had been decided prior to the announcement of the Court packing plan. That story is conspicuous by its absence. The bottom line is that these are a few minor quibbles and hardly detract from the excellence of this book.

In the end, Epstein and Segal do not advance a new paradigm or reinvent the study of the appointment process. But they do argue that things have not changed as much as conventional wisdom might have us believe. They draw together a wealth of research and empirical findings from a plethora of studies, many of which they authored, and fold them into a compelling narrative that examines all levels of the judiciary. It is clear that Gotham City and Metropolis remain safe.

REFERENCES:
Epstein, Lee, Valerie Hoekstra, Jeffrey A. Segal, & Harold J. Spaeth. 1998. “Do Political Preferences Change? A Longitudinal Study of U.S. Supreme Court Justices.” 60 JOURNAL OF POLITICS 801-818.

Epstein, Lee and Jeffrey Segal 2000. “Measuring Issue Salience.” 44 AMERICAN JOURNAL OF POLITICAL SCIENCE 66-83.

Epstein, Lee and Thomas Walker 2004. CONSTITUTIONAL LAW FOR A CHANGING AMERICA: INSTITUTIONAL POWERS AND CONSTRAINTS (5th ed). Washington D.C.: CQ Press.

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© Copyright 2005 by the author, Richard L. Pacelle, Jr.

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THE POLITICS OF CONSTITUTIONAL REVIEW IN GERMANY

by Georg Vanberg. Cambridge, UK: Cambridge University Press, 2005. 208pp. Cloth. $70.00/£40.00. ISBN: 0-521-83647-6.

Reviewed by Kenneth Holland, Department of Political Science, Kansas State University. Email: kholland [at] ksu.edu.

pp.993-997

Georg Vanberg, one of a relatively small number of American political scientists specializing in comparative judicial politics, sets out in this study to test the limits on the power of courts to make public policy. He conducts an empirical analysis of decisions of the German Federal Constitutional Court. This court is arguably the most powerful and respected constitutional court in the world, following in sheer power the U.S. and Canadian Supreme Courts. His data include a statistical analysis of judicial decisions and interviews with both Constitutional Court judges and members of the Federal German Parliament, or Bundestag. Vanberg’s conclusion is that German high court judges think strategically. They do not simply interpret the constitution or enact their policy preferences into law. Before issuing decisions, the judges examine carefully their political environment. Their primary goal is to see their judgments enforced. The fear of legislative snubbing is a powerful constraint on judicial action in Germany. Vanberg discovered that the most important ally of the Court when it confronts legislative resistance is public opinion. If an issue has little salience for the German people, or if it is too technical or abstruse, the Parliament will feel free, if it cares strongly about it, to ignore the Court’s judgment. If, on the other hand, the constitutional issue presented is not complex and the public has a firm opinion on it, the Bundestag is considerably more likely to comply with the Court’s decision striking down a statute as unconstitutional. Legislators have a powerful incentive, drawn from their accountability to the electorate, not to ignore the public’s support for decisions handed down by the Constitutional Court. This alignment of the Court’s constitutional jurisprudence with the public will is the principal source, according to Vanberg, of the institution’s independence and legitimacy. Because the Court cannot afford to make too many unpopular decisions, Vanberg concludes that judicial power is in fact consistent with democratic theory, because the judges, if not directly accountable to the voters, are indirectly so due to their fear of legislative non-compliance.

An excellent example of the role of public opinion as a resource for the Constitutional Court occurred early in its history. In a 1952 showdown between the Federal Parliament and the Constitutional Court over ratification of two treaties, the government of Konrad Adenauer completely backed off efforts to defy a decision of the Court after facing a public backlash, motivated by attachment to the independence of the judiciary. The single most important explanation for the victory of the judiciary in this institutional conflict, says Vanberg, was the reaction of the [*994] media to the threatened legislative non-compliance. The treaty episode is reminiscent of the fate of President Roosevelt’s court-packing plan, announced in 1937 in an effort to influence the decisions of the Supreme Court by adding five new justices to its membership. The media presented the President’s plan as an attack on the rule of law and the independence of the judiciary, public opinion turned dramatically against the proposal and the administration withdrew it.

Vanberg’s primary objective in undertaking the study was to qualify some of the overly generous assessments of judicial power found in the political science literature (Holland, 1991; Landfried 1992). He echoes Alexander Hamilton’s characterization of the judiciary in The Federalist #78 as “the least dangerous branch” of government because courts lack the power to tax, appropriate money, command the armed forces or make laws. Vanberg also criticizes the attitudinal theory of judicial behavior, as exemplified in the work of Segal and Spaeth (1993), for asserting that judges enact their personal policy preferences into law. This theory ignores the fact, says Vanberg, that courts are strategic institutions that respond to their environment and that seek to maximize their effectiveness as institutions. The environment in which courts act, he says, conditions the exercise of judicial power. Vanberg relies on rational choice theory, which postulates that actors are conscious decision makers who act in ways they believe will maximize their welfare. His conclusions reinforce the findings of Gerald Rosenberg (1991), who argues that courts in the United States are constrained in either initiating or preventing changes in public policy when legislatures have strong preferences that run counter to those of the judges.

The author’s methodology is sophisticated. He employs a triangular approach, combining game-theory, statistics, interviews with judges and legislators, and traditional jurisprudential analysis. Public support inhibits parliamentary defiance of a Constitutional Court judgment, he says in his model, when the Court’s decision is aligned with public opinion and when citizens are likely to become aware of any attempt at evasion by the legislature. He refers to the latter condition as a transparent environment. The popular media, including newspapers and television broadcasts, largely decide whether the people become conscious of a judicial decision and thus whether the environment is transparent or opaque. Other important players are interest groups that have a stake in implementation of the judicial ruling. These stakeholders are likely to bring the attempted legislative evasion to the media’s attention. In industrialized democracies with relatively undeveloped civil societies and no tradition of an independent media, such as Russia, the environment is less transparent, and governmental refusal to implement court judgments is more likely. The model predicts that evasion is most likely when the opposite two conditions are met: the public is unaware of legislative defiance, and there is no public support for the Court’s decision.

Vanberg’s model fits best in countries with multi-party systems, where there is real competition among parties for electoral support. Parliamentary [*995] majorities are less likely to resist a judicial order, popular with the people, when they think that non-compliance will cost them significant numbers of votes in the next election. The data reveal widespread public support for the Constitutional Court as an institution. Therefore, whether Parliament attempts to resist compliance with a judicial decision typically turns on how transparent the defiance is to the public.

Vanberg’s analysis of the limits on judicial power is not easy to generalize since he examines the behavior of one court in a single country, the German Constitutional Court. He also does not explain clearly how it is that a constitutional court could invalidate a law that is popular with both the legislature and the people. A feature of the United States Supreme Court is that, during its periods of intense activism, it defies both Congress and the public. Examples include the conservative Court that struck down the major legislative pieces of President Franklin D. Roosevelt’s New Deal during his first term, even though the legislation found to be repugnant to the Constitution by the justices had overwhelming support from both the Democratic majority in Congress and the American voter. Likewise, the liberal Court led by Chief Justice Earl Warren in the 1950s and ’60s invalidated state laws requiring prayer in public schools, laws that enjoyed wide support in legislatures and public opinion. Vanberg observes that outright parliamentary defiance of the German Constitutional Court is more common than defiance of Supreme Court rulings by state and federal legislatures in the United States. A 1995 German Constitutional Court decision banning the display of crucifixes in German schools, for example, was ignored by the Bavarian parliament. States in the U. S., by contrast, have complied with a similarly unpopular federal Supreme Court decision banning prayer from public schools.

The reason for the higher level of parliamentary deference evidenced by the German Constitutional Court in the face of threatened parliamentary non-compliance in comparison with the U. S. Supreme Court is the fact that the latter tribunal enjoys a higher level of diffuse support with the American people. This general support exists even when there is little specific support for a particular judgment (Easton 1975). In other words, due to more than two centuries of public support for the Supreme Court as an institution and its strong association in the public’s mind with the highly valued principle of the rule of law, the American High Court can afford to make unpopular decisions without fearing effective legislative resistance at either the state or federal level. The U. S. Supreme Court has had 150 years more than its German counterpart to deposit legitimacy “chips” in its emotional bank account with the people and political institutions that it can cash in when it is necessary to render an unpopular decision. The German Federal Constitutional Court is less than sixty years old and has not had time to develop the same degree of diffuse support among the German people. Interviews with the justices revealed a consciousness on their part of the Court’s weakness in direct confrontations with the government, especially if the judicial ruling would require a large expenditure by the government likely to lead to increased levels of taxation. The Parliament, in [*996] fact, has ignored repeated efforts by the Constitutional Court to force changes in the laws regulating the financing of political parties. As a reflection of its awareness of its limitations in such face to face confrontations with the legislature, the German Constitutional Court has developed a tool not available to its American counterpart—it can declare a law incompatible with the constitution as opposed to declaring it null and void. Such a ruling does not have retroactive force and gives the legislature an indefinite period of time in which to revise the offensive statute.

Vanberg posits that a legislative majority will choose to defy a judicial decision on a constitutional decision only if it is likely to prevail in a showdown with the court. During the 1950s, however, Southern legislatures continued to pass laws supporting racial segregation in the face of federal Supreme and lower court decisions demanding desegregation of the public schools in their states. Democratic legislators voted for such evasive legislation not because they thought that they could defy the federal courts in the long run but because there remained strong support among their constituents for the status quo. The noncompliance of the Bavarian parliament with the FCC’s crucifix decision is another example, says Vanberg, of situations where resistance to the courts is sometimes politically advantageous for legislators.

Vanberg’s view of courts as strategic actors responding to incentives and constraints within their environment shares with the attitudinal theory reductionism, the tendency to move away from the arguments made by judges in their opinions to justify their decisions and to explain decisions by reference to other causes, namely game-playing or attitudes of individual judges. The danger in all reductionist analyses of judicial decision-making is that, if people widely accept that judges are motivated primarily by political or personal motives, the very legitimacy of judicial power is open to question and public support, on which legislative and executive compliance ultimately rests, will erode. It is a dilemma common to political science as a discipline, most of whose practitioners are committed to both liberal democracy and the search for the truth, even if those truths undermine the very institutions they highly value.

THE POLITICS OF CONSTITUTIONAL REVIEW IN GERMANY is a welcome addition to the theoretical and empirical literature on the growing power of the judiciary in advanced industrial democracies. Vanberg’s analysis wisely reminds us that even in countries committed to constitutional government judicial power faces severe restraints, restraints that have their roots in the nature of democracy itself.

REFERNCES:
Easton, David. 1975. “A Re-Assessment of the Concept of Political Support.” 5 BRITISH JOURNAL OF POLITICAL SCIENCE 435-57.

Holland, Kenneth (ed.). 1991. JUDICIAL ACTIVISM IN COMPARATIVE PERSPECTIVE. New York: St. Martin’s Press.

Landfried, Christine. 1992. “Judicial Policy-Making in Germany: The [*997] Federal Constitutional Court.” 15 WEST EUROPEAN POLITICS 50-67.

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

Segal, Jeffrey, and Harold Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. Cambridge: Cambridge University Press.

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© Copyright 2005 by the author, Kenneth Holland.

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ORIGINALISM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY

by Johnathan O’Neill. Baltimore: Johns Hopkins University Press, 2005. 296pp. Hardcover. $55.00. ISBN: 0-8018-8111-0.

Reviewed by Susan Burgess, Department of Political Science, Ohio University. Burgess [at] ohio.edu

pp.989-992

In ORIGINALISM IN AMERICAN LAW AND POLITICS, historian Johnathan O’Neill provides a compelling narrative of originalism in American constitutional law and theory from the founding period through the end of the 20th century. In doing so, he offers a provocative plot line that tracks the historical rise, fall and resurrection of originalism, as well as an intriguing analysis of its longevity that draws heavily on new institutionalist literature in political science. I begin with his plot line:

In the beginning, there was original intent.

O’Neill argues that, beginning with the Founding, and up until roughly the turn of the twentieth century, everyone took for granted that the way to interpret the Constitution was to refer to the written text and to the intention of its framers. Interpreters were blissfully ignorant of other forms of constitutional argument. Thus, the first sentence of his book reads: “Before the triumph of modern judicial power in the twentieth century, constitutional interpretation was understood as the ascertainment and application of the fixed, unchanging meaning of the written Constitution” (p.12). Sure, there was contestation, but it was not about whether the founders should be authoritative. Rather, disagreement centered on whether the founders intended the Constitution to be read narrowly or broadly. Constitutional authority stemmed from the popular sovereignty generated through ratification, with framers’ intent emerging as a limitation on institutional power. Heroes include Madison, Marshall, and Story.

Then came legal realism, the forbidden fruit.

For O’Neill, legal realism creates a “fundamental rupture” that opens up a whole new form of legal consciousness, tempting judges and scholars to renounce their heretofore unselfconscious faith in un-theorized originalism. The Edenic period preceding legal realism is presented as a norm against which all subsequent periods are measured. Thus, O’Neill argues that “the idea that interpretation was something other than a search for intent or that a judge could balance competing policy goals or ‘update’ the living Constitution to his view of contemporary requirements was almost never heard before the late nineteenth century” (p.15). Among the many evils attributed to legal realism are the living Constitution, liberal legalism, unfettered judicial power generally, and the Warren Court specifically – all of which hold in common the original sin of ignoring intent. The cast of characters includes Holmes, Pound, and all the usual [*990] suspects associated with the triumph of the New Deal and Warren Court jurisprudence. O’Neill argues that the rupture occasioned by legal realism “undermined nothing less than the traditional rationales for democracy, judicial review based on a written constitution, and the rule of law” (p.30).

Accordingly, the rest of the book explores various attempts to resurrect originalism and restore tradition, but alas, by the end of the story we are forced to conclude that there is no getting back to the Garden. There is, however, much to explore east of Eden as originalism wanes following the advent of legal realism, particularly during the New Deal period, and then waxes in the wake of BROWN, Raoul Berger’s “explosive” GOVERNMENT BY JUDICIARY, the creation of The Federalist Society, and the rise to power of Attorney General Edwin Meese during the Reagan years.

Despite substantial gains, originalism wanes once again with the failed Bork nomination, so much so that some believed that the Bork debacle signaled “the final victory for the living Constitution,” concluding that “liberal legalism seemed to have weathered the originalist storm” (p.184). Nevertheless, originalism rose yet again in the 1990s, led by a whole new cast of characters, including political scientist Keith Whittington whom O’Neill credits with offering a more theoretically rigorous and less polemical form of originalism than Berger and Bork. By this time, even liberals like Cass Sunstein and Bruce Ackerman have joined the fold, reflecting “the success of originalists in continuing the debate about the relevance of history, the role of judicial review, and the nature of constitutional change” (p.201).

Despite these academic conversions, O’Neill concedes that originalism’s influence on the Court “was not as deep” (p.205). As Thomas Keck has also concluded in his excellent book, THE MOST ACTIVIST SUPREME COURT IN AMERICAN HISTORY, O’Neill notes that no matter how loudly contemporary conservatism bangs its originalist drum, it does not necessarily serve to “roll back modern judicial power or the legal liberal precedents of the Warren and early Burger courts” (p.153). Ironically, it appears to support both, yielding a conservative court that supports an activist and, at least to some extent, a liberal agenda on abortion, affirmative action, and gay rights (not to mention the political thicket of BUSH v. GORE).

Grounding the analysis of his story in historical new institutionalism, O’Neill argues that originalism is “too fundamental to the American constitutional order to be wholly expunged, even as modern judicial power ascended” (p.37). As both John Brigham and yours truly have noted elsewhere, originalism has had a great many lives in American politics, often returning to the fore well after some have written it off as long since dead (Brigham 2003; Burgess forthcoming 2006).

According to O’Neill, originalism has not died off because it expresses “the traditional liberal constitutionalist idea that law must have authoritative, foundational content before its application” (p.213). Too much moral argument or instrumentalism “threatens [*991] the regime’s attempt to secure order and stability by using words to distinguish law from politics” (p.214). However, he concedes, that “The Warren Court demonstrated that the modern liberal ontology of rights (or autonomy) and equality are [also] part of the constitutional order and will sometimes drive judicial decisions in spite of other conceptions of the regime, even if such decisions cannot be readily reconciled to either the original understanding of foundational texts or the conceptions of the regime held by the Court’s critics” (p.215). As Ronald Kahn has argued in his fine book, THE SUPREME COURT AND CONSTITUTIONAL THEORY, that these decisions became settled law suggests that they are not alien to the constitutional order. This helps explain their perhaps surprising persistence during the Rehnquist period. Despite his staunch advocacy of originalism, O’Neill is forced to conclude that “American constitutional jurisprudence is best described empirically as an amalgam of plural modalities of argument that depend on competing conceptions of legal authority, which are never wholly able to displace one another” (p.212).

Rather than ending there, O’Neill makes one last bid for originalism. Because his story started with the Garden, it perhaps makes sense that it would end with a nod to the apocalyptic overtones of Hobbes, along with a call for withstanding political pleas for justice in the name of maintaining order, stability, and a more distant, and thus more authoritative written law. Stating that modern constitutionalism “was birthed in the desire to gain a measure of order and stability at the expense of continued direct and sometimes bloody confrontation with divisive questions of ultimate justice,” he argues that “originalism partakes of the conservatism inherent in the constitutionalist attempt to achieve order and stability by creating some distance between written law and political aspirations based on more direct appeals to justice, nature, rights, or class” (pp.216, 215).

Following this logic, a fundamental constitution seems necessary to hold off the end of (this regime’s) times. Thus, O’Neill argues: “Only the passage of time will permit judgment of whether the arrival of originalism on the scene is the first step toward returning to a more traditional conception of the American constitutional order . . . . [or] [i]t is quite possible that instead it is the last gasp of that order” (p.215).

Hobbes notwithstanding, I would argue that logical necessity is not the same as political necessity. And political necessity may well dictate a continued need for justice and rights. While such talk may not accord with the more genteel discussion which O’Neill believes characterized the period before legal realism, there is no particular reason to believe that it will plunge us into the abyss. There is a world of (political) space between Eden and the Apocalypse. And that, I would argue, is a good thing.

REFERENCES:
Berger, Raoul. 1977. GOVERNMENT BY JUDICIARY. Cambridge: Harvard University Press.

Brigham, John. 2003. “Original Intent and Other Cult Classics.” 11 PEGS JOURNAL: POLITICAL ECONOMY OF THE [*992] GOOD SOCIETY 13-17.

Burgess, Susan. 2006 (forthcoming). “Who’s Your Daddy? Legitimacy, Parody, and Soap Operas in Contemporary Constitutional Discourse.” 2 LAW, CULTURE, AND THE HUMANITIES.

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

Keck, Thomas. 2004. THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM. Chicago: University Press of Chicago.

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

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

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© Copyright 2005 by the author, Susan Burgess.

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GREENING NAFTA: THE NORTH AMERICAN COMMISSION FOR ENVIRONMENTAL COOPERATION

by David L. Markell and John H. Knox (eds). Stanford: Stanford University Press, 2003. 344pp. Hardcover. $45.00. ISBN: 0-8047-4604-4.

Reviewed by Geoffrey Wandesforde-Smith, Emeritus Professor of Political Science, University of California, Davis. Email: gawsmith [at] ucdavis.edu.

pp.984-988

Not long ago, another reviewer faced with the prospect of writing about the literature on trade and the environment began by observing that the topic had been discussed ad nauseam. Why, he wondered, would anyone want to read what he had to say on this subject, let alone read yet another book about it (Pauwelyn 2004)? It was and remains a very good question. Indeed, it would be difficult to overestimate the rate at which books, as well as other publications, on trade and the environment proliferate.

Sometimes the object really is to try to say something new and profound about trade and the environment (Copeland and Taylor 2003). But the subject now also appears with some regularity in the tables of contents of books with different, much more wide-ranging, and generally synoptic concerns. Some of them are simply trying to keep track of what has already been written and said about one or another principal trade liberalization regime (Sampson and Whalley 2005). Some seek to put trade and environment relationships in the context of economic globalization and its impacts; on national environmental policies, for example (Wijen, Zoeteman and Pieters 2005). And still others strive to show how an appreciation for trade and environment is an integral and necessary part of the study of global environmental politics, where important theoretical and empirical interests in political science, international relations, and environmental studies ought to intersect (Dauvergne 2005).

An argument might be made (Barkin 2003) that all this thinking and writing about trade and the environment has created a sense of movement and direction – a sense that over time we are learning some new and important things about the ways in which trade liberalization regimes affect environmental quality. If that were true, of course, then the lessons might quickly be applied to good effect. In fact, however, the number of careful and detailed studies of how trade regimes actually work turns out to be surprisingly, one might even say alarmingly, small. Or, to put it another way, the ease and frequency with which pundits prognosticate about what may, or may not, be the next big turn in the trade and environment debate are probably good indicators of a general scholarly unwillingness to roll up the sleeves, pull down the eye shades, and do the hard and painstaking work that might advance trade and environment research.

We owe an immense debt of gratitude, then, to David Markell and John Knox, who have pulled together in the present volume a series of original, empirical [*985] analyses of the workings of the North American Commission on Environmental Cooperation (CEC). The CEC was created in 1993 by an international agreement completed to operate alongside of, and to leaven the imagined environmental impacts of, the North American Free Trade Agreement (NAFTA). The protracted and contentious negotiations on NAFTA itself were concluded the previous year.

Markell and Knox approach their subject from a privileged position. They are among the ten out of seventeen contributors to this book who either have or have had a direct relationship to one or another aspect of the CEC’s work. Markell, now the Goldstein Professor of Law at Florida State University, was formerly the first director of a unit within the CEC Secretariat that receives citizen submissions on enforcement matters. Knox was a participant from the State Department in the negotiations leading to the creation of the CEC, before he joined the Dickinson School of Law at Pennsylvania State University.

Overall, the quality and standing of the contributors is unusually high. The care and sensitivity they use in analyzing their own experience and other relevant data is superb. The stories they tell are important and in most cases fascinating.

So, why does this book get such short shrift in the large and growing literature on trade and the environment I alluded to at the outset? David Vogel, for example, one of the founders of trade and environment studies, gives the book one quick passing footnote reference out of forty-three in the very latest addition to what strikes me as an increasing over-supply of synoptic essays (Vogel 2006). And, in the citations in the trade and environment chapters of the edited collections previously referenced, Markell and Knox and their contributors are conspicuous by their absence.

The all-too-easy explanation would be that Markell and Knox published their book with the Stanford University Press, which is known for astonishingly high academic standards but does not rank among the most well-publicized or widely read university presses in America. But truth to tell, it is the picture painted by the Markell and Knox book that is the problem. It is not an altogether hopeless picture. But, if you are looking at the world through lenses honed to highlight exciting and readily achievable ways to identify and grapple with the environmental impacts of free trade regimes, the road ahead looks very, very daunting. In the one set of international agreements most obviously structured to give voice, expression, and effect to the environmental implications of trade liberalization the outputs add up to a very thin gruel.

The book is divided like Roman Gaul into three parts. After an introductory essay in which Knox and Markell review the history and structure of the environmental side agreement to NAFTA, and in which they stress the potential the CEC had to be “much more than window dressing” (p.12), the initial part of the volume is an attempt to evaluate the CEC as a regional environmental organization. The first of the four constituent chapters explains how the CEC honed its broad mandates to tackle just about any environmental issue in North America into a more limited set of tasks that added up to a feasible cooperative work program. In [*986] substantive terms, the CEC Council and Secretariat chose to work in four general areas, including biodiversity conservation and the relationships between pollutants and health. Other chapters take up some of these subjects in more detail.

For evaluative purposes, however, Knox and Markell ask how well the cooperative work program met two goals. One involves what is called, rather clumsily, the “upward harmonization of domestic environmental standards” (p.304). The other seeks to improve the way the signatory states identify and coordinate their responses to transboundary or continental environmental issues. The judgment on the first score is that the CEC has made a difference, and not just in Mexico. Advocates of tougher standards who found their way blocked in Mexico, for example, realized they could make progress by participating in CEC processes. And in Canada CEC’s work on pollution release and transfer registries led to their being better understood and more effectively used by NGO and governmental actors.

So, the messages here are fairly clear. The good news is that CEC as a regional environmental organization set in motion research, analysis, information sharing, and deliberative processes that enabled established actors to re-evaluate and realign the ways they dealt with each other, and with some positive effects. The bad news is that CEC only had the resources to set things moving in a more positive direction in a tiny fraction of the myriad problems a cooperative CEC work program might have tried to address.

The second part of the book examines various aspects of the work the CEC has done to respond to environmental concerns with economic integration. To what extent, for example, has CEC actually assessed the environmental effects of NAFTA? Has the CEC succeeded as a trade and environment organization by injecting environmental considerations into the work of the institutions created by NAFTA? And most importantly, perhaps, has CEC worked effectively to prevent pollution havens by improving the enforcement of domestic environmental laws?

Looking across the five chapters that throw light on these questions, the good news, again, is that a small number of CEC initiatives have had some positive results. Studies have been made, frameworks developed, symposia held, funds disbursed, and citizen complaints received. This is all to the good. But when you add it all up over nearly a decade of experience there is not very much of it. And, set against the long list of things that should be done, might be done, and need to be done, the level of accomplishment is exceedingly modest.

The most memorable chapter, I think, in this part of the book is the one by Kevin Gallagher (pp.117-132). One might take some comfort from the fact that Mexico under NAFTA has not become a pollution haven by attracting foreign investment in polluting industries. That is the finding of one of the other chapters in the book, and of other studies. But where, Gallagher asks, is the joy in this result?

Overall, levels of environmental quality are not improving in Mexico. There is scant evidence of either willingness or [*987] capacity to deal with the factors that could yield improvements. Indeed, “plant-level environmental inspections peaked in 1993, at the height of the NAFTA debate, and have been declining ever since, and . . . spending on environmental protection has dropped 45 per cent over the same period” (p.303). “Mexico,” Gallagher writes, “was not equipped to steer the benefits of economic integration into increasing environmental protection” (p.125).

Could a fully equipped environmental institution like the CEC help Mexico turn this situation around? Gallagher has some good things to say about the CEC and especially about its ability to realign relationships among policy actors in ways that are also identified in the first part of the book. In the last analysis, however, he doubts that an institution with a total budget of nine million dollars can have much of a positive impact, no matter how energetic, entrepreneurial, and politically savvy it is, on a set of problems that cost the Mexican government more than forty billion dollars a year.

The third part of the book looks at the role of the CEC as a forum for civil society. Here, the formal mechanisms established by the environmental side agreement to give individuals the ability to participate in the work of the CEC are of special importance. They include the processes by which American, Canadian, and Mexican citizens, and NGOs representing those citizens, can trigger investigative reports by the CEC Secretariat into allegations that a signatory of the side agreement is failing effectively to enforce its environmental laws. They also include the work of the Joint Public Advisory Committee, which can give advice to the CEC Council on all aspects of the CEC’s work.

There are five chapters in this part of the book. In some ways they are the most fascinating, because the CEC has little ability to influence policy except by developing and expressing what the book calls an authoritative voice. As we have seen, the CEC does not wield substantial resources, and it cannot shape policy outputs through adjudication. The way the CEC interprets and uses its mandate to ensure public participation in its affairs is crucial, therefore, to its success. That much having been said, however, the devil is in the details and, once again, the contributors to this book do a magnificent job of peeling away the layers of political and procedural complexity that lie beneath a seemingly simple proposition. The treatments by Kal Raustiala (pp.256-273) and David Markell (pp.274-298) of the citizen submissions process are especially worth reading, in my view.

But at the end of the day, as the saying goes, you really have to be a legal and political process aficionado to persevere with this book and to find value in the conclusions it draws. Knox and Markell mince no words. There is more than a little irony, they observe, in the fact that their contributors sharply question the effectiveness as a trade and environment organization of an institution born out of the political ferment over NAFTA. The CEC has not created an environmental voice in the NAFTA institutions. The contributors to their book also agree that there are real limits to believing in the CEC as a model that might be emulated in other trade contexts, such as the proposed Free Trade Area of the [*988] Americas. So, to resort again to the vernacular, where’s the beef?

The CEC and the processes associated with it can help mobilize constituencies needed to strengthen environmental regulation in Mexico, and in Canada, and presumably in the United States, as well. The CEC can, if it uses its scarce resources wisely and makes strategic choices, develop and publicize information that shifts the balance of power among competing interests. The CEC can facilitate networking. It can provide financial support for some (not many) groups and objectives. It can make public participation in international law processes more meaningful and effective. These are all process considerations, all process values, and all considerations that can carry weight even if they are divorced from the trade context.

Knox and Markell see a role, then, for a “freestanding environmental agreement along the lines of the [environmental side agreement] . . . likely to provide the same kinds of benefits to other regions that the CEC has provided to North America” (p.311). This is not the kind of clean, simple, and efficient device for making forward progress likely to appeal to synoptic students of trade and the environment narrowly understood. But it has a complicated, messy, procedurally convoluted air of truth about it that seems to me well-matched with the realities of international law and policy, and I like it.

REFERENCES:
Barkin, J. Samuel. 2003. “Trade, Sustainable Development, and the Environment.” 3 GLOBAL ENVIRONMENTAL POLITICS 92-97.

Copeland, Brian R., and M. Scott Taylor. 2003. TRADE AND THE ENVIRONMENT: THEORY AND EVIDENCE. Princeton: Princeton University Press.

Dauvergne, Peter (ed). 2005. HANDBOOK OF GLOBAL ENVIRONMENTAL POLITICS. Northampton, MA: Edward Elgar Publishing.

Pauwelyn, Joost. 2004. “Recent Books on Trade and Environment: GATT Phantoms Still Haunt the WTO.” 15 EUROPEAN JOURNAL OF INTERNATIONAL LAW 575-592.

Sampson, Gary, and John Whalley (eds). 2005. THE WTO, TRADE AND THE ENVIRONMENT. Northampton, MA: Edward Elgar Publishing.

Vogel, David. 2006. “International Trade and Environmental Regulation.” In Norman J. Vig and Michael E. Kraft (eds). ENVIRONMENTAL POLICY: NEW DIRECTIONS FOR THE TWENTY-FIRST CENTURY, 354-373. Washington D.C.: CQ Press.

Wijen, Frank, Kees Zoeteman, and Jan Pieters (eds). 2005. A HANDBOOK OF GLOBALISATION AND ENVIRONMENTAL POLICY: NATIONAL GOVERNMENT INTERVENTIONS IN A GLOBAL ARENA. Northampton, MA: Edward Elgar Publishing.

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© Copyright 2005 by the author, Geoffrey Wandesforde-Smith.

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ABOUT GUILT AND INNOCENCE: THE ORIGINS, DEVELOPMENT, AND FUTURE OF CONSTITUTIONAL CRIMINAL PROCEDURE

by Donald A. Dripps. Westport, CT: Praeger Publishers, 2003. 320pp. Hardback. $85.95/£48.99. ISBN: 0275977307.

Reviewed by Adil Ahmad Haque, Law Clerk to the Honorable Jon O. Newman, United States Court of Appeals for the Second Circuit. Email: adil.haque [at] aya.yale.edu.

pp.979-983

In ABOUT GUILT AND INNOCENCE, Donald Dripps analyzes more than a century of case law and synthesizes many of the positions and techniques he has developed over the course of his career. The result of his efforts is a distinctive and distinguished contribution to both constitutional law and criminal procedure.

The first three chapters follow Supreme Court case law through three periods of doctrinal development. In the first period, the procedural provisions of the Bill of Rights are broadly construed and strictly enforced against the federal government, while the states are subject only to discrete directives of fundamental fairness. In the second period, the procedural provisions are selectively incorporated against the states; the law governing state and federal officials merges; and both regimes are weakened as judges narrow and contort language and history to accommodate the felt necessities of law enforcement. In the third period, conservative balancing replaces bright-line rules, and law enforcement interests are privileged over the interests of individual defendants. Chapter Four traces the law of police interrogation through each period and features an incisive analysis and original critique of MIRANDA v. ARIZONA (1966).

Chapters 5 and 6 complete the case against earlier doctrinal frameworks and lay out Dripps’ instrumental theory of due process under the Fourteenth Amendment. The instrumental theory insists that searches and seizures must reliably result in crime prevention or criminal prosecution, that trial procedures must reliably result in accurate verdicts (with a preference for acquittal of the guilty over conviction of the innocent), and that arrest and detention must be narrowly tailored to serve compelling state interests. Dripps proposes a contingent exclusionary rule to remedy constitutional violations. Under this rule, courts may present officials with the choice to either proceed without illegally obtained evidence or pay court-calculated monetary damages. The final chapter draws on the instrumental theory as well as Equal Protection principles to frame a number of reform proposals directed at eyewitness identification, the use of police informants, pretrial depositions, and racial discrimination.

The first five chapters are lively and perceptive, often dazzlingly insightful; the remainder is provocative and interesting, but somewhat less than wholly satisfying. Dripps devotes large portions of the first and second chapters to his attack on the textual and historical foundations of selective incorporation, [*980] but the textual and historical case for his instrumental theory is presented in a single paragraph (p.142). The third, fourth, and fifth chapters explain how authoritarian judges can arrive at a desired result by weighing the general value of truth-seeking against the interests of a particular (typically guilty) defendant in walking free, yet in the single paragraph acknowledging that his instrumental theory is addressed to a conservative judiciary Dripps simply professes his faith that this too shall pass (p.187). Dripps’ contingent exclusionary rule is designed to reduce pressure on judges to favor the government in suppression hearings but, since the same psychological dynamic is said to result in narrow constructions of constitutional provisions, his proposed remedy could rehabilitate the very theory of selective incorporation he opposes. Dripps denies that his instrumental theory of due process encompasses equal protection (pp.108-09), but does not pause to consider the implications of this distinction for the doctrine of reverse incorporation (BOLLING v. SHARPE (1954)). Finally, Dripps does not engage at length with competing reform proposals; even readers who are convinced that the instrumental theory is preferable to existing doctrine might wonder whether superior alternatives are available elsewhere.

Dripps rejects incorporation of the procedural protections of the Fourth, Fifth, and Sixth Amendments, supports incorporation of the substantive protections of the First and Eighth Amendments, but he prematurely terminates his brief attempt to reconcile these two positions (pp.152-55). Dripps ultimately claims that his argumentative burden is only to defend disincorporation of the procedural provisions. Incorporation of the substantive provisions, he writes, “ha[s] at least some support in text and history, and [is] overwhelmingly confirmed by precedent” (p.154). This is cold comfort, since “some support in text and history” is not enough to save the procedural provisions, and since just five pages later Dripps describes a process by which settled precedent can be legitimately overturned when no longer supported by a current majority.

Dripps argues that the procedural provisions cannot be “fundamental,” because investigative procedures that reliably result in prosecution or prevention, as well as trial procedures that reliably result in conviction of the guilty and exoneration of the innocent, give the autonomy, privacy, and dignity of criminal defendants all the respect they deserve (pp.105-07). The degree of suspicion adequate to justify a search may depend on the privacy and dignity interests implicated by the type of search, but not, according to Dripps, by the object of the search. Dripps’ proposed cleavage of criminal procedure from substantive criminal law is surprising considering his earlier suggestion that the requirements of the former derive from the structure and function of the latter (pp.101-02). Yet criminal procedure should not, on his view, respond to the substance of the law enforced.

In response to Dripps’ content-neutral vision of criminal procedure, the remainder of this short review touches lightly on two procedural provisions—relating to unreasonable searches and seizures as well as to compelled self-incrimination—which may provide [*981] content-based constraints on the enforcement of criminal prohibitions, reflecting values not adequately protected by the substantive provisions alone.

Presumably, a just criminal law will prohibit wrongdoing but will not unduly restrict morally important activities. Furthermore, a just criminal law will only punish those forms of wrongdoing that invade rights which must be vindicated or cause harms which must be prevented. Under the Constitution, morally important liberties are protected by the various guarantees of enumerated and unenumerated rights, while the Eighth Amendment ensures that punishment promotes legitimate penal interests in retribution and harm prevention. Substantive Due Process under the Fifth and Fourteenth Amendments synthesizes these constraints in the requirement that prohibition of a protected activity must be justified by reference to a legitimate state interest (Haque 2005).

There are, however, forms of wrongdoing which, though deserving of punishment, should not be criminalized or punished because investigation and prosecution would unacceptably infringe upon personal privacy. Similarly, there are forms of punishable wrongdoing which, for the sake of preserving personal liberty, should not result in arrest and pretrial detention.

The Fourth Amendment was framed against a background of common law tort remedies (Amar 1997), and this indicates that the concept of reasonableness is best understood not as an epistemic concept but as a moral concept. A reasonable search is not merely a reliable search—one which enjoys a high ex ante probability of uncovering evidence of legal guilt—but a justified search—one which appropriately balances individual and state interests. Eighteenth century courts were apparently willing to balance the intrusiveness of a challenged search against the seriousness of the suspected offense (Rosen 2001, at 36-37, 78), and the Supreme Court has at times claimed to adhere to the same method (e.g., WYOMING v. HOUGHTON (1999)). Ironically, Dripps rejects the Fourth Amendment’s warrant requirement but embraces probable cause (an evidentiary standard) rather than reasonableness (a moral standard) as the constitutional touchstone for searches and seizures.

Interestingly, a substantive understanding of Fourth Amendment reasonableness is suggested by Justice Douglas’ opinion in GRISWOLD v. CONNECTICUT (1965). Douglas does not assert the moral permissibility and value of non-procreative sex, and on that basis argue that it should receive constitutional protection. Douglas in fact indicates that restrictions on the manufacture or sale of contraceptives would be permissible even though they would burden the disputed activity. Rather, Douglas indicates that the search of the home for evidence of the underlying offense is per se unreasonable, because such a search intrudes too deeply into marital privacy (GRISWOLD, at 486-87).

Though the suggested reading cuts against Dripps’ content-neutral vision of criminal procedure, it provides a strong foundation for his claim that “[t]o permit the police to inflict a sanction in the investigative process that no court could [*982] impose as a sentence would violate” due process (p.106). Finding that the Fourth Amendment permits custodial arrest upon probable cause of any illegal act, the Supreme Court has upheld a custodial arrest for an offense (failure to wear a seat belt) not punishable by imprisonment (ATWATER (2001)). More recently, now-Chief Justice and then-Judge John Roberts found that it is constitutionally (but not morally) reasonable to arrest a 12 year-old girl for eating a single french fry in the Washington, D.C., Metro (HEDGEPETH (2004)). The reliabilist reading of the Fourth Amendment poses as much of a threat to Dripps’ above-quoted principle as to the privacy interests protected by the proposed understanding of constitutional reasonableness. Dripps invokes “minimal substantive due process” to address restraints on liberty not narrowly tailored to serve compelling state interests (p.144), but it remains unclear why this judicial technique is preferable to the reasonableness inquiry directed by the constitutional text.

More speculatively, it is possible that the prohibition on compelled self-incrimination, whatever its original rationale, favors the manifest pattern of criminality over the subjective pattern (Fletcher 1978). By obstructing punishment of acts whose wrongfulness depends on an agent’s motivating reasons, the prohibition insulates from effective prosecution the myriad forms of “mendacity, selfishness, treachery, greed, cruelty, hypocrisy, [and] cowardice” (Katz 2002, at 455) that are certainly wrongful and arguably deserving of punishment but probably should not be subject to the criminal process. Morality pervasively regulates our motivations as well as our actions; the criminal law must do so selectively or risk greater oppression than prevention.

Despite apparent limitations of the instrumental theory as well as unexamined attractions of selective incorporation, ABOUT GUILT AND INNOCENCE remains an outstanding book. Its doctrinal analysis is clear and compelling; its proposals are thoughtful and interesting, and its exposition is elegant and engaging. The book is a credit to its author and a model for the field.

REFERENCES:
Amar, Akhil Reed. 1997. THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES. New Haven: Yale University Press.

Fletcher, George P. 1978. RETHINKING CRIMINAL LAW. Boston: Little, Brown.

Rosen, Jeffrey. 2001. THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA. New York: Vintage.

Haque, Adil Ahmad. 2005. “Lawrence v. Texas and the Limits of the Criminal Law.” Working Paper, available on Social Science Research Network (SSRN), http://ssrn.com/abstract=616942 (October 25, 2005).

Katz, Leo. 2002. “Villainy and Felony.” 6 BUFFALO CRIMINAL LAW REVIEW 451-82.

CASE REFERENCES:
ATWATER v. CITY OF LAGO VISTA, 532 U.S. 318 (2001). [*983]

BOLLING v. SHARPE, 347 U.S. 497 (1954).

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

HEDGEPETH v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, 386 F.3d 1148 (D.C. Cir. 2004).

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

WYOMING v. HOUGHTON, 526 U.S. 295 (1999) (Scalia, J.).

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© Copyright 2005 by the author, Adil Ahmad Haque.

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DAVID HACKETT SOUTER: TRADITIONAL REPUBLICAN ON THE REHNQUIST COURT

by Tinsley E. Yarbrough. New York: Oxford University Press, 2005. 324pp. Cloth $29.95/£17.99. ISBN: 0-19-515933-0.

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University. Email: jvile [at] mtsu.edu.

pp.976-978

The year 2005 is likely to mark a significant turning point for the U.S. Supreme Court. Since Tinsley Yarbrough of East Carolina University wrote this biography of David Souter, John Roberts has replaced William Rehnquist as Chief Justice, and George W. Bush has nominated Samuel Alito to replace Sandra Day O’Connor as an associate justice after Harriet Miers withdraw her name from consideration. Miers’ lack of a paper trail accentuated questions about her constitutional competence and her close ties to the president. The failed Miers nomination highlights the difficulty of confirming candidates whose judicial philosophy is relatively unknown.

In this context, Yarbrough’s biography of David Hackett Souter is especially timely. As the quintessential “stealth candidate,” Souter’s positions were so unknown when George H.W. Bush nominated him that, even after 15 years of service, some constitutional observers may still be fuzzy about his views. Souter remains best known as one of a troika of justices (the others were Sandra Day O’Connor and Anthony Kennedy) who, citing the importance of stare decisis, voted in PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (1992) to retain the “central holding” of ROE v. WADE (1973).

As the subtitle of his biography reveals, Yarbrough makes a convincing case that Souter is a “traditional Republican,” or “common-law” justice on a more untraditional and conservative Court. At one point Yarbrough calls Souter “a judicial conservative, not a political conservative” (p.196). Yarbrough shows why more outspoken political conservatives have regretted the nomination that has arguably kept them from reversing a number of precedents, most notably on abortion, that they had hoped to change.

When he was eleven, Souter’s family moved from Melrose, Massachusetts, where he was born in 1939, to a modest home in East Weare, New Hampshire. Souter still enjoys spending his summers there surrounded by stacks of books, in a small community of neighbors who are almost as solicitous of his privacy as he is. A Harvard graduate and Rhodes Scholar, Souter was especially influenced by a distant relative, “Aunt” Harriet Moulton Bartlett, who was a medical social worker. Souter returned to Harvard for his law degree. He worked hard but, perhaps in part because he was a house proctor and freshman advisor, made little impression on most fellow law students.

After a brief stint in private practice, Souter successively worked as an assistant attorney general, a deputy [*977] attorney general, and as the Attorney General of New Hampshire before serving on the state’s superior court, the New Hampshire Supreme Court, and, very briefly, on the U.S. First Circuit Court of Appeals. Largely through the efforts of Republican Senator Warren Rudman (who rather seems to have enjoyed slipping past a more liberal nominee) and Bush aide, John Sununu, Souter made it to Bush’s short list for the Supreme Court to replace William J. Brennan in 1990. One of Souter’s primary assets was that his relative obscurity provided a smaller target than the prolix writings of more controversial earlier nominees, most notably Reagan’s Robert Bork. In retrospect, Souter’s prior willingness as attorney general to defend some of the more controversial actions (for example, lowering the flag to half staff on Good Friday) of conservative Governor Meldrim Thomson may well have obscured some of his own more liberal commitments.

Yarbrough thoroughly and effectively details Souter’s background, his years in the state attorney general’s office, his key decisions as a New Hampshire judge, the hearings over his confirmation, and his tenure on the Court. For inquiring minds who want to know, although he is a bachelor who gives Washington hostesses little opportunity to play the role of match-maker, Souter seriously dated women during his college years and is not gay. He dresses meticulously, enjoys hiking but is not especially athletic, is such a serious Episcopalian that, as a youth, he considered becoming a priest, drives run-down cars, is frugal, and has a good, albeit not rollicking, sense of humor.

Yarbrough considers just about every important aspect of Souter’s jurisprudence. He does a particularly good job describing Souter’s position in BUSH v. GORE (2000) –where he opposed Supreme Court review, acknowledged that existing standards for counting votes were inadequate, but opposed stopping the vote count. Yarbrough also emphasizes Souter’s adherence to strict separation of church and state jurisprudence in establishment cases and describes Souter’s acceptance of substantive due process rights. By categorizing Souter as a “constitutional nationalist,” Yarbrough ties his opinions on federalism issues to traditional Republican precedents. This reviewer senses something deeper. Souter certainly appears more deferential to liberal than to conservative precedents.

Yarbrough constantly draws parallels between Souter and John Marshall Harlan II, about whom Yarbrough has also written. The differences between the Warren and Rehnquist Courts make such comparisons difficult, but despite Harlan’s dissenting opinion in POE v. ULLMAN (1961) recognizing substantive due process, this reviewer thinks Yarbrough has overdrawn the comparison. Harlan’s vigorous dissents in the reapportionment cases, in the Pentagon Papers Case, and in incorporation cases dealing with the rights of criminal defendants suggest that Harlan was more conservative and more deferential to states’ rights than Souter has been.

The two justices did share a fundamental decency that, although hardly confined to males, biographers traditionally associated with “gentlemanliness.” Throughout his career Souter has [*978] consistently recused himself even from a number of cases where he could easily have explained any appearance of impropriety. Souter is a good friend to the children of his close acquaintances and was kind to his mother and to retired Justices William Brennan, who continued to keep an office at the Court after his retirement, and Thurgood Marshall, who had rather inappropriately questioned Souter’s credentials after Bush nominated him. He is a charmer who does not hold open grudges against justices who use personal invective, but he consistently not only avoids such invective in his own opinions but generally resists concurring in other such decisions, sometimes even to the extent of writing separate opinions.

Unlike some justices, Souter rarely gives outside speeches. He prefers summering in New Hampshire to giving seminars to earn extra money or influence audiences outside the courts. He treats his clerks, many of whom have become law professors, with decency and inspires great loyalty among them. Like Souter, they refused Yarbrough’s requests for interviews.

As unusual as it would be for a justice in good health to retire, Yarbrough raises the possibility that Souter, who prefers the joys of rural New Hampshire to those of the more urban Washington, D.C., and who can draw full retirement as of 2005, might consider stepping down early. Sandra Day O’Connor has been one of his closest friends on the Court, as has Ruth Bader Ginsburg. If Ginsburg were to follow O’Connor into retirement in the near future, she might hasten such a decision on Souter’s part.

Unless Souter releases a treasure trove of personal papers, he or his clerks begin giving interviews and writing personal memoirs, or he serves another fifteen years, Yarbrough’s biography is likely to be the definitive work on Souter for the foreseeable future. Yarbrough’s knowledge of Supreme Court opinions is extensive, and although he did not have access to Souter or his clerks, he interviewed a number of acquaintances. Students of the Supreme Court are fortunate to have such a thorough and balanced portrait of an otherwise largely elusive justice.

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

POE v. ULLMAN, 367 U.S. 497 (1961).

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

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

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© Copyright 2005 by the author, John R. Vile.

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THE LIMITS OF LAW

by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (eds). Stanford: Stanford University Press, 2005. 336pp. Cloth. $60.00. ISBN: 0-8047-5235-4.

Reviewed by Daniel E. Smith, Department of History, Humanities, Philosophy and Political Science, Northwest Missouri State University. E-mail: desmith [at] mail.nwmissouri.edu.

pp.972-975

As a graduate student years ago, I took a jurisprudence course with a focus on feminist jurisprudence. One day after class, somewhere between discussing the “totality” of Catharine MacKinnon’s theory of male dominance and Janet Rifkin’s discussion of law’s role in creating and sustaining patriarchy, a classmate of mine commented that “we construct ourselves through law.” My response, while perhaps a bit glib (and no doubt demonstrating an unfortunate lack of social skill), was nonetheless essentially correct: her statement represented an exaggerated notion of law. Certainly law as a system of rules is a tool of the sovereign, and whoever else can effectively use it to affect human behavior; but it is not the sole source of the social construct, nor even necessarily the most important source. Nor is law insulated from other sources, be they tradition, morality or economics. Regardless of which among the many definitions of law one embraces, it is inevitably restricted in its authority, its utility, and its impact; law is a bounded concept, which must be understood in terms of its limits— practical, theoretical, geographical, even temporal.

The six essays in THE LIMITS OF LAW are loosely connected by their focus on transition— political situations that the status quo of existing legal systems are ill-equipped to manage. The book is not, however, simply a collection of essays depicting the emerging field of transitional justice. Rather, the essays depict challenges faced by mature, stable legal systems, international and multi-national crises, as well as the paradigmatic “unjust to just political system” transition. Focusing on moments of transition, where law is limited in its efficacy, if not its very applicability, the essays “tell how law is challenged, frayed, and constituted out of contact with conditions that lie at the farthest reaches of its empirical and normative force” (p.17). Thus, the editors argue, law is not merely defined by limits, it is constituted, empowered and legitimated by limits; and it evolves and renews itself when these limits are pushed in times of crisis or transition. These insights, while hardly earth-shattering, are vividly illustrated in essays that are not only fascinating case studies, but highly sophisticated and extremely well-written jurisprudential arguments, enhanced by the editors’ artful discussion of how each author addresses empirical, normative and/or constitutive limits. Rather than illustrate the connection between each author’s thesis and the editors’ creative integration of the essays in the book’s introduction, I offer a few brief observations which will hopefully encourage others to read this collection. [*973]

Laura Dickinson’s essay, “Terrorism and the Limits of Law: A View From Transitional Justice” (pp.21-74), offers a compelling challenge to those who view terrorism as an extralegal problem demanding responses outside the limits of existing legal systems. Contrary to those who would suspend the rule of law to combat terrorism, whether due to moral or instrumental reasons, or because the evil confronted is beyond the capacity of law to mete out justice, Dickinson sees value in law’s expressive and discursive capabilities; and she finds potential in numerous forms of traditional and hybrid legal mechanisms to obtain justice, new behavioral norms, and dialogue amongst affected groups. The transitional justice framework is useful in challenging the widely-held beliefs regarding the limits of law, particularly American domestic law. However, many of the insights and innovations Dickinson mentions are not inevitably precluded in traditional law, or even domestic law. Many, if not all, of the benefits available through hybrid transitional justice mechanisms can be achieved in domestic proceedings as well, arguably even to the same degree; the differences appear to be differences of scope, not necessarily in form or structure. This is not true regarding international legitimacy, but it is regarding the descriptive and constitutive paradigmatic limits of law; examples can be found in domestic law, particularly in alternative dispute resolution initiatives and innovative administrative proceedings, where social and legal presumptions may be discarded or modified (Minow 1990).

David Dyzenhaus’ discussion of retroactivity, the Hart-Fuller debate and the Canadian Head Tax case, “The Dilemma of Legality and the Moral Limits of Law” (pp.109-154), is an ambitious essay, at times difficult to follow. The problem of retroactivity in transitional justice is a serious one, which raises the problem of limits in a similar fashion as Dickinson’s discussion of transitional justice and terrorism. The illustrations of this dilemma are particularly insightful – the “Nazi wife” case which spawned the Hart-Fuller debate, and the Head Tax case – and do not lend themselves to simple resolution. Dyzenhaus’ defense of Fuller’s position, and his critique of Hart’s separation thesis, is compelling, albeit somewhat lacking in clarity. In particular, while I appreciate the need for brevity, it might have been helpful to expand somewhat upon Fuller’s “internal morality of law,” its relationship to conventional morality, and the importance of this distinction to the criticism of Hart. Absent such discussion, the claim that laws are valid only insofar as they comply with “fundamental principles of legal order” (p.117) does not appear to be the equivalent of conventional morality; thus, the assertion of “morality on both sides of the dilemma” (p.144) may appear to be circular. Is the moral compulsion to obey law a product of law itself, or is it due to the commingling of law and morality in an effort to supplement or foster legitimacy for law? If the latter, the moral dilemma ostensibly posed by law is no different than any other moral dilemma and may exist independent of law. Fuller’s explanation is not sufficiently developed in the essay to clear up this concern.

John Torpey’s “Legalism and its Discontents: The Case for Reparations for Black Americans” (pp.75-108), and Bonnie Honig’s “Bound by Law? Alien Rights, Administrative Discretion, and the [*974] Politics of Technicality: Lessons from Louis Post and the First Red Scare” (pp.209-245), offer different visions of the intersection of law and politics. Torpey criticizes the reparations movement from both empirical/practical and normative perspectives. Not only is the effort unlikely to gain support amongst the majority – due to the temporal gap between the actual victims of slavery and today’s victims of slavery’s legacy – but the reparations movement has been unsuccessful in creating or sustaining a parallel political movement. In this regard, Torpey makes an argument not unlike Rosenberg’s (1991) regarding the courts’ capacity to effect social change. His claim, however, goes deeper in that he raises normative, rather than purely instrumental concerns with the use of law to achieve social change. While there is an almost natural propensity to seek redress in court – “The legal path is appealing because the political context is so frustrating” (p.99) – he laments the juridification of politics, citing Jennifer Hochschild’s concern that “using the court system to debate a deeply political and moral issue distorts the case for reparations by framing it in ‘legalese’” (p.100). Honig’s essay, while similarly illustrating the limits of existing legal rules and norms to respond to an issue outside its traditional limits, offers a more positive vision of law’s adaptability. Faced with a Justice Department bent on arbitrarily deporting thousands of immigrants following Word War I, Assistant Secretary of Labor Louis Post reinterpreted deportation legislation and applied constitutional due process rights to administrative proceedings decades before the U.S. Supreme Court followed suit. Honig depicts Mr. Post as utilizing a crisis situation to exercise administrative discretion, not merely subjecting himself to legal rules, but (arbitrarily) choosing to apply previously inapplicable legal rules; he thereby employed executive discretion to reconstitute the law. Interestingly, while the editors characterize Mr. Post’s actions as a dramatic illustration of reconstituting legal limits, such behavior is also reminiscent of relatively mundane legal interpretation by administrators and judges, a point Honig concedes in her concluding discussion of decisionism (pp.227-230). It might have been illuminating, therefore, to compare Mr. Post’s treatment of administrative due process with the Supreme Court’s recognition of the same in 1970. These two essays therefore illustrate how the intersection of law and politics creates opportunities for law to influence, and be influenced by, political issues and actors; in this way law’s “limits” are akin to the creative opportunities inherent in legal reasoning (Brandeis 1921).

The final two essays, Robin Wagner-Pacifici’s “The Conditions of Surrender: Reconstituting the Limits at Conflict’s End” (pp.155-208), and Adam Sitze’s “At The Mercy Of” (pp.246-308), work outside the traditional boundaries of law – outside the limits of the state, and beyond the very notion of the rule of law. Yet, the essays demonstrate how surrender and amnesty not only are informed by pre-existing law, but each serves to stimulate the emergence of legal rules and norms. Wagner-Pacifici depicts the act of surrender as submission to raw power; although there are rules and norms present, the act is in many ways a repudiation of the prior legal order, a void created by the dissolution of recognized legal authority [*975] (pp.157-159). She goes on to discuss the rituals and practices of surrender at length, concluding that these exercises serve to forge and codify new legal and political relations (p.199). Although many acts of surrender do not result in massive suspension of pre-existing legal rules regarding the internal laws of the defeated party, Wagner-Pacifici’s essay is remarkably insightful in its depiction of the most extreme cases (unconditional surrender) and in its explanation of what occurs between the victor and the vanquished, both in terms of ritual and in terms of recreating rule-governed relationships. Sitze’s theoretical discussion of amnesty, focusing on close readings of Kierkegaard and Arendt, is not grounded in practical politics as are the other five essays, and is understandably less accessible to readers not well-versed in the theorists he is studying. Nonetheless, presentation of forgiveness as an extralegal exercise of raw power completes the picture begun by Wagner-Pacifici and, to a lesser extent, Honig; the act of granting amnesty allows the sovereign, and therefore the law, to evolve beyond existing temporal and normative limits.

In sum, the essays collected in THE LIMITS OF LAW, and the editors’ well-crafted introductory essay, present “law” in all of its richness and complexity. While the role and power of law at times appears inflated, or equated with the concept of a political system, the editors to their credit eschew a single consistent definition of law, instead focusing on the overlapping limits – empirical/descriptive, normative/prescriptive and constitutive – that apply to whatever definition of law one might embrace. (One editorial note: It may be a flaw in the copy this reviewer received, but the notes to the introductory chapter are incomplete; the endnotes stop at 34 while the text references notes up to 51.)

REFERENCES:
Cardozo, Benjamin N. 1921. THE NATURE OF THE JUDICIAL PROCESS. New Haven: Yale University Press.

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

MacKinnon, Catharine. 1993. “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence,” in D. Kelly Weisberg (ed), FEMINIST LEGAL THEORY: FOUNDATIONS. Philadelphia: Temple University Press.

Minow, Martha. 1990. MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW. Ithaca: Cornell University Press.

Rifkin, Janet. 1993. “Toward a Theory of Law and Patriarchy,” in D. Kelly Weisberg (ed), FEMINIST LEGAL THEORY: FOUNDATIONS. Philadelphia: Temple University Press.

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

CASE REFERENCE:
GOLDBERG v. KELLY, 397 U.S. 254 (1970).

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© Copyright 2005 by the author, Daniel E. Smith.

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RECOGNIZING INDIGENOUS TITLE: THE MABO CASE AND INDIGENOUS RESISTANCE TO ENGLISH-SETTLER COLONIALISM

by Peter H. Russell. Toronto: University of Toronto Press, 2005. 450pp. Cloth $65.00/£42.00. ISBN: 0-8020-3863-8.

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

pp.968-971

“It arrived like a tidal wave on the beaches of a country whose legal profession was still dominated by the myth that judges are – or at least ought to be – apolitical eunuchs who spin their judgments entirely out of legal whole cloth” (p.5).

In these terms, Peter H. Russell sets the scene for his exploration of MABO – the famous Australian Indigenous land rights case which extended, in two segments known as MABO (No.1) and MABO (No.2), over ten years – and explains its particular interest to him as a compelling and multilayered instance of judicial politics at work. The MABO 2 judgment, deciding the substance of the claim, was delivered in 1993. Depending on the respondents’ political and ideological positioning in the country, it was greeted with either enthusiasm, muted approval (especially by those Aboriginal groups who saw clearly that the ‘victory’ was likely to remain symbolic), or horror. The decision “challenged the vision of their country held by many Australians – that it is a political society formed by British settlers which non-British immigrants and native people have been allowed to join” (p.6). Twelve years later its place in Australian settler-Indigenous relations is still under construction. Certainly it represents a legal victory for the complainants and their supporters who brought the case. Equally certainly that victory has not translated into anything like the significant political and practical gains that some hoped for and many more wished to subvert.

The cover image and the shape of this book locate one man, Eddie Koiki Mabo, at the heart of Russell’s exploration of indigenous resistance to English-settler colonialism. This is the man whose determination, Russell says, placed the question – ‘who owns Australia? – squarely within the political agenda of that nation for the first time. The challenge was to a presumption that, uniquely in English-speaking settler colonies, European arrivals had come into an empty land; “at the time of annexation Australia was without settled inhabitants or settled law” (p.255). Under this convenient fiction of terra nullius Australian settler society rested not on conquest but on a legal fiction through which a whole continent was effectively appropriated from its indigenous inhabitants. The majority in MABO (No 2) overturned (English) Privy Council and Australian precedents based on the assumption that Australia was entirely a colony of settlement. This classification defines the land as entirely unoccupied and in the case of Australia defines, by implication, the native inhabitants as not fully human; “Aborigines were not high enough in the scale of human evolution to count as [*969] societies with legal rights meriting recognition by their new European sovereign” (p.255).

Russell’s argument is that that in bringing this fiction to judicial determination MABO not only mounted an effective challenge to the fiction but also introduced Australia to the reality of judicial politics. He describes the MABO case as a belated awakening to legal realism – “the reality of judicial power and the inescapably creative nature of adjudication” (p.4). As a political scientist active in the field of constitutional law and judicial process since the 1960s, Emeritus Professor Russell draws on his deep and extensive knowledge of indigenous political and constitutional issues in Canada and the United States to examine issues of land, appropriation, and law in Australia and (for purposes of comparison, and to a limited extent) New Zealand. In particular, he goes in search of the local and international forces which produced the conditions under which the MABO ‘revolution’ could happen in Australia.

In a somewhat unusual strategy for a scholarly work in this field, the book contains two entwined strands – the life of Eddie Mabo and a wide ranging exploration of the politics of indigenous rights in settler societies. As such, it is a book which skillfully moves between the local and the global, the general and the particular, to place the significance of the legal determinations known as MABO into the deep (deep) context of several hundred years, four countries, and a range of international commissions and committees. This strategy, which may be said to have something in common with Clifford Geertz’ notion of anthropological thick description, is an interesting and successful way of investigating issues of constitutional politics and law. I found that it not only adds new and telling detail but, more importantly enriched my thinking about material with which I am for the most part quite well acquainted.

Russell describes developments and ideas from the international field of indigenous rights communities, for example the United Nations Working Group on Indigenous Populations and its meetings which bring together indigenous activists from around the world, to illustrate the kinds of ideas to which Australian judges may now be exposed. He suggests that together with their knowledge of significant decisions in other settler jurisdictions these are, even when they deny it, “a strong influence on how they perform their adjudicative role” (p.197). Optimistically he suggests that “the High Court’s decision in Mabo opens up a new way of thinking about Australia – a way of thinking that could enable Indigenous and non-Indigenous Australians to move beyond the settler state and share participation in a common but deeply pluralist political community” (p.197). Realistically he ends with the predication, based on the most recent judgments in Aboriginal land claims, that the courts, having reached the limit of judicial activism that might be tolerated in the current political climate, can deliver no more; political agreements are now the only conceivable route to substantive justice for Indigenous peoples in Australia, and under John Howard’s leadership these are unlikely to occur.

Russell has a fine grasp of the issues and paradoxes that bedevil attempts to assert, [*970] from within an imposed (and superseding) legal system, a conceptual construction of indigenous peoples’ rights grounded in and affirming, not in sameness but meaningful difference. He is able to explain them clearly and give a clear sense of just how significant, in litigation of this kind, is the difference between formal and substantive conceptions of equality. He eloquently makes the crucial point, which is so often disregarded in policy and public debates, that in certain circumstances (especially for indigenous peoples in settler societies) the right to be equal entails “protection of the right to be different” (p.212). Furthermore, he states clearly that “the ideal of equality as requiring identical rights for all citizens has been an ideological barrier to recognizing the distinctive rights of Indigenous peoples in all the English-settler countries” (p.212). In general he attributes the adoption of such a position to incomprehension rather than willful denial – an interpretation perhaps more charitable than some of the protagonists deserve. But the central point remains: such clarifications are valuable and deserve wide dissemination in scholarly and public debate.

There is, of course, always something to quibble about in even the most excellent book. So I would observe that the kind of epistemological position which accepts that facts can be “constructed through entirely different cultural lenses” hardly deserves a (pejorative?) attribution to the work of ‘postmodern deconstructionists.’ Anthropologists and sociologists of knowledge have a longstanding awareness that meaning is culturally constructed.

A second point of concern is an impression which may be created though the way in which New Zealand’s relatively small role in this account is usually to exemplify more desirable ways for settler societies to engage with Indigenous issues. Maori are, quite correctly, described as having made more progress than Aboriginal, Native American, or even First Nations people in their dealings with the settler state. Developments in Aotearoa may consequently seem, at times, more effective in securing Indigenous rights and just outcomes than those who live with the day to day effects of local racism, majority resentment, and political expediency would recognize; much depends on how bad things are elsewhere. As a prescription for the future, Russell’s generous endorsement of New Zealand’s experience as the model of a better way does not necessarily reveal the demonstrably flawed, difficult, and politically fragile nature of such arrangements. For example, since this book was written, new legislation extinguishing Maori customary rights to seabed and foreshore to vest “full legal and beneficial ownership . . . in the Crown” is a graphic illustration of lawmaking framed through political expediency under pressure from emotionally fuelled (white) majority opinion. Russell’s account of the history and aftermath of the MABO decisions similarly demonstrates that legal decisions on indigenous rights are inevitably and often desperately vulnerable to the political and economic fears, demands, (and prejudices) of the majority.

The clear and sparse writing communicates easily as it defines and explicates the issues through simple but [*971] never simplistic analysis and description. Unusually, for such a scholarly work, the characters come to life in a manner more common to fiction – indigenous complainants, lawyers, and judges all have recognizable points of view and feelings. The accessibility this gives to even quite abstruse points of constitutional law generates an energy and readability quite uncommon to the field. The book would, for this reason, as well as for its extensive coverage of the central issues of colonialism and aftermath for indigenous peoples in Canada, Australia, the United States, and New Zealand, teach very well at the undergraduate level, where it might provide the framework for a course, or alternatively contribute particular chapters for study. It could be the focus of a graduate proseminar session and would fit well into judicial process as well as indigenous rights courses. I would also, in fact, recommend it to anyone (inside or outside academia) who wishes to become better informed on significant political and constitutional issues for settler societies which will inhabit their geopolitical landscape for many years to come.

And finally, I note with interest how the proliferation of on-line (virtual) knowledge sharpens the mind to the pleasures of the real world book as object of pleasure. Pleasingly produced, with a wonderful cover photograph of its central character, this is just such an object.

REFERENCES:
Geertz, Clifford. 1983. LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY. New York: Basic Books.

CASE REFERENCES:
MABO v. QUEENSLAND (No. 2) (1992) 175 CLR 1.

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© Copyright 2005 by the author, Catherine Lane West-Newman.

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GOD vs. THE GAVEL: RELIGION AND THE RULE OF LAW

by Marci A. Hamilton. New York: Cambridge University Press, 2005. 408pp. Hardback. $28.00/ £16.99. ISBN: 0-521-85304-4.

Reviewed by Kevin R. den Dulk, Department of Political Science, Grand Valley State University. Email: dendulkk [at] gvsu.edu

pp.963-967

Marci Hamilton’s GOD vs. THE GAVEL will have a familiar ring to observers of the Supreme Court’s recent efforts to define the nature and scope of religious freedom. Her book is an extensive brief in favor of the well-known – and in many quarters infamous – U.S. Supreme Court decision in EMPLOYMENT DIVISION v. SMITH, which held that religiously-motivated conduct had no exemption from neutral, generally applicable law. That decision was a lightning rod for criticism, with prominent voices from across the ideological spectrum rejecting the Court’s reasoning as an invitation to greater governmental intrusion into religious life. Although at certain key points she resorts to assertions rather than arguments, Hamilton’s book is a lively, far-reaching, and relatively rare counterattack against SMITH’s numerous critics, and for that reason alone it is worth reading.

Hamilton’s argument in GOD vs. THE GAVEL is divided in two parts: first, an extensive survey of numerous examples of what she describes as religion-based behaviors that have resulted in harm to others with little or no legal accountability; and second, a constitutional and historical argument for subjecting such behaviors to the rule of law. In contrast to pre-SMITH legal doctrine, which held that the state may burden religion only for “compelling” reasons, Hamilton contends that “most law should govern religious conduct, with the only exception being when the legislature has determined that immunizing religious conduct is consistent with public welfare, health, and safety” (p.8). Her claim about the central role of the legislature, rather than the judiciary, in defining the boundaries of religious freedom is perhaps the most contestable and controversial assertion in the book.

Hamilton, who portrays her argument as a “180 degree” change from her earlier views, writes with the zeal and certitude of a new convert. She describes her previous support for a broader scope to religious freedom, including the pre-SMITH “compelling interest” doctrine, as “patently absurd” and “a product of the ivory tower” (p.274). Her conversion was triggered by her “education,” as she puts it, in the trenches of religious freedom litigation, which gave her a keen understanding of the harm religiously-motivated individuals and institutions can cause. The concept of harm, as well as what she variously calls the “common good,” “public good,” or “public interest,” play key roles in her new constitutional faith. For Hamilton, the public interest and avoidance of harm trump religious freedom whenever public policy and religion conflict. [*964]

Indeed, Hamilton’s concern with religion-based harm is so deep that she devotes Part One of the GOD vs. THE GAVEL, which comprises nearly two-thirds of the book, to a litany of religion at some of its worst moments. While she acknowledges that religion can be socially beneficial, she is convinced that Americans are reflexively deferential to religion and perceive it – wrongly, of course – as an “unalloyed good.” She trots out a host of metaphors, some of which border on the condescending, to describe this American myth: it is a pollyannish assumption (p.274); an “adolescent” belief (p.305); a “romantic” attitude (p.3). She insists that this “widespread” yet “baseless” presupposition is at the root of the American willingness to allow generous freedoms to religious institutions and individuals, even to the point of turning away when those religious entities harm others. She takes as her purpose “to persuade Americans to take off the rose-colored glasses” so they can see the need to hold religion accountable for the harm it can cause (p.3).

One might quibble with Hamilton about this claim about American attitudes toward religion in general. The roots of religious freedom at the founding lay in a profound suspicion that religionists of various faiths (not to mention skeptics and other non-believers) felt toward each other, resulting in a grand bargain whereby they recognized, as historian Sydney Mead (1963, at 35) once put it, that “the only way to get [religious freedom] for themselves was to grant it to all others.” Surely it is plausible to suggest that such interfaith suspicion continues to the present day, which argues against Hamilton’s repeated assertion that Americans overwhelmingly perceive religion as “inherently and always good for society” (p.274; my emphasis). Hamilton marshals little systematic evidence for that assertion.

Still, her basic starting point – namely, that religion is often responsible for harms that violate the “public good” – is hard to dispute, especially with chapter after chapter of illustrations in Part One. By her own admission, the harms she surveys are self-selected and non-random; they are meant for illustration, not generalization, and they are effective. She begins with children as victims of religiously-motivated harm, including not only the timely issue of clergy sexual abuse, but also faith-healing, abandonment, and other forms of neglect and ill-treatment. She moves from children to marriage (about which I have more to say below), then to land use, schools, the prisons and military, and finally housing and employment discrimination.

Hamilton chronicles many deep violations of human dignity by religious actors, but it is relatively non-controversial to suggest that government ought to have the power to restrict religious freedom to stop the neglect of children or to reduce an imminent threat of violence in prison. There are much more contentious conflicts where the claims of “harm” or the “public good” are up for grabs and the concepts cry out for clear definitions that Hamilton never provides. She invokes John Stuart Mill and other classical liberals as intellectual sources for her understanding of freedom and harm, and with good reason: Mill argued forcefully that government’s primary goal was to protect people from harm, religiously-motivated [*965] or otherwise. But Hamilton’s analysis suffers from a similar problem as Mill’s: identifying the boundaries of what counts as a “harm” in the first place.

Consider Hamilton’s discussion of marriage. On the one hand, she acknowledges that citizens “have every right to contribute their religious viewpoints to the public debate [about marriage] and to try to persuade leaders and fellow citizens that their ideas about social problems have merit” (p.50). On the other hand, she argues that marriage policy is intended to serve the “public good,” which elected officials “shortchange” when they “do not move the conversation off its solely religious bottom” (p.51). To use religious beliefs as the basis for one’s understanding of marriage is to argue for a “revealed legal regime, not a reasoned one” (p.54). But many religionists with traditionalist views of marriage would – and do – disagree. They insist that their view of marriage is supportive of the public good, not inimical to it, and they provide all sorts of reasons to buttress their claims. Without giving us a clear definition of “harm” or the “public good,” Hamilton cannot substantively distinguish a “reasoned,” more encompassing view of marriage from religion-based arguments that also invoke the public good.

Hamilton might respond that this misreads her purpose. He overall goal is to suggest that religious individuals and institutions must be held accountable to the law so that they do not engage in harmful activity, however defined. Part One of the book, she might argue, is simply a description of possible ways that religion may act against the public good; while readers might disagree about the nature and extent of religion-based harm, the sheer volume of Hamilton’s examples makes it difficult to dispute that such harm exists in some form. Yet harm and the public good emerge again as important concepts in Part Two, which contains the final two chapters, and again the problem of definition of terms rears its head.

The first chapter of Part Two is “intended to put to rest the pervasive – but misguided – belief that religious liberty at the time of the framing meant that religious entities were to be superior to the law” (p.239). Hamilton takes the reader on a tour of the decline in special religious “privileges” in the common law system from the twelfth century to the framing, and she does so in thirty-four pages. Suffice it to say that such a brief survey is unlikely to “put to rest” such a complex historical and constitutional matter. Moreover, I suspect that the targets of her inquiry might object to ascribing to them the belief that religion was superior to the law at the constitutional framing; they would undoubtedly suggest that the framers had in mind a broad conception of religious freedom as part of the rule of law that governed religious entities.

Nevertheless, Hamilton succeeds in drawing attention to the historical antecedents of what she calls the “no-harm” rule, without which we “choose liberty at the expense of order and . . . make society responsible for the harm [religious entities] can cause” (p.272). That historical treatment sets up the final chapter, titled “The Path to the Public Good,” where she makes explicit her constitutional argument for SMITH and its progeny and reaffirms her rejection of [*966] the RELIGIOUS FREEDOM RESTORATION ACT (1993) and other efforts to overturn or alter SMITH. For Hamilton, SMITH opens the “best path for religious liberty that preserves the public good,” which she terms “permissive legislative accommodation.” This kind of accommodation rests on three principles: first, “religious accommodation is a legislative, not a judicial, function” (p.295); second, “the accommodation must be consistent with the public good” (p.298); and three, “the legislative determination must be debated under the harsh glare of public scrutiny” (p.300).

Hamilton recognizes that her notion of a legislative rather than judicial role in fashioning exemptions from generally applicable laws will concern those who fear the impositions of a majoritarian institution on religious minorities. But she asserts that legislatures are not majoritarian institutions and that well-mobilized minorities often get their way in any event. Readers can draw their own conclusions about such claims. It is useful to note here, however, that Hamilton neither discusses nor even cites Louis Fisher’s excellent RELIGIOUS LIBERTY IN AMERICA: POLITICAL SAFEGUARDS, which both strengthens and weakens her argument simultaneously. Fisher’s scholarship buttresses Hamilton’s argument by describing the various ways that the legislative branch has afforded greater protection to religious freedom than even the courts would allow, thereby lending credence to Hamilton’s assertion that the legislative branch has the capacity and will to protect religious freedom. Yet Fisher’s work also weakens, or at least problematizes, Hamilton’s argument, since many of the exemptions the legislative branch has provided to religious groups, including the RELIGIOUS FREEDOM RESTORATION ACT, Hamilton’s bête noire, have not met her second principle, i.e., that exemptions must be in the “public interest.”

In fact, earlier in the book, during her discussion of RFRA and similar legislation, Hamilton seems to suggest that such legislation reveals the susceptibility of legislators to pressure from “narrow interests” – including religious interests – that are anathema to the public good. Hamilton acknowledges this possibility again in the final chapter, but seems satisfied that the addition of a third principle – that exemptions must be granted only after subjecting them to the “harsh glare” of public debate – will diminish the power of narrower interests. Readers will decide whether Hamilton’s trust in the power of the public glare is naïve, but a more fundamental problem from earlier in the book re-emerges here: the nature of public interest. Again, the reader is left wondering what the elusive public interest is, and how we would recognize a religious exemption as consonant with it (in contrast to a crude expression of “narrow interests”).

In the final analysis, however, wondering about the relationship of religion to the public interest is a worthwhile result of reading the book, even if the author herself does not fully define the relationship for us. GOD vs. THE GAVEL stands as a prominent example of a minority voice in a world of legal commentary that has been roundly critical of the SMITH decision, which itself raised the question of how public goals relate to religious behavior. [*967] Hamilton’s strong assertion of order and public good in the face of claims to individual religious freedom is precisely the sort of springboard that can generate useful discussion, both in our classrooms and the public at large.

REFERENCES:
Fisher, Louis. 2002. RELIGIOUS LIBERTY IN AMERICA: POLITICAL SAFEGUARDS. Lawrence, KS: University Press of Kansas.

Mead, Sydney. 1963. THE LIVELY EXPERIMENT: THE SHAPING OF CHRISTIANITY IN AMERICA. New York: Harper and Row.

CASE REFERENCES:
EMPLOYMENT DIVISION v. SMITH, 494 U.S. 872 (1990)

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© Copyright 2005 by the author, Kevin R. den Dulk.

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COLLISION COURSE: THE STRANGE CONVERGENCE OF AFFIRMATIVE ACTION AND IMMIGRATION POLICY IN AMERICA

by Hugh Davis Graham. New York: Oxford University Press, 2003. 260pp. Paper $16.95. ISBN: 0-19-516889-5.

Reviewed by Martin J. Sweet, Honors College, Florida Atlantic University. Email: msweet4 [at] fau.edu.

pp.959-962

Seeing NATIONAL REVIEW, COMMENTARY, and the WALL STREET JOURNAL on the back cover of the late Hugh Davis Graham’s final book lauding its contents may, but should not, give pause to scholars of law and policy development. In the first six chapters, Graham presents a fascinating tale of interest group politics, agency capture, iron triangles, strange political bedfellows, demographic shifts, and unintended consequences – and how each of these political elements weave their way through both affirmative action and immigration policy. As I explain below, this material is generally insightful, accurate, and compelling. The last chapter, however, is a strange ending to an otherwise fine piece of work. It is filled with unwarranted – or at least not compelled – moralizing conclusions that do not appear to follow from the evidence carefully marshaled in COLLISION COURSE. The ideological bent of the institutional reviews on the book’s jacket, however, should in no way dissuade those interested in law and policy development. In fact, this book is highly recommended to scholars of, and an ideal addition to courses on, American legal, and/or political development.

The main thrust of COLLISION COURSE is that both affirmative action and the liberalization of immigration policy in America are the products of similar civil rights ideologies, and many of the cases were championed by similar groups. Yet the mass immigration of Latinos and Asians and their inclusion as affirmative action beneficiaries has limited the possible gains for the primary target group of the program, with little or no opposition from African American affirmative action constituencies. Graham argues that benefits that should be accorded to deserving African Americans are being diverted to unintended beneficiaries.

Graham’s story of the origins and rise of affirmative action and liberal immigration reform is one of interest group politics (p.5). His version of how affirmative action policy began retells the story he related in THE CIVIL RIGHTS ERA. Graham also includes a review of Jonathan Skrentny’s (1996) interpretation, observing that the words “affirmative action” first appeared in the Wagner Act of 1935, to empower the NLRB “to take such affirmative action, including reinstatement of employees with or without back pay” (p.29), that Davis-Bacon presaged the Philadelphia Plan by including non-technical requirements (e.g., “prevailing wages”) in responsive government contract bids (p.29), and that the standard of review used by the courts in post-CROSON (1989) litigation came from the U.S. Department of Labor’s contract compliance regulations (p.73). Graham [*960] paints a picture of a liberal coalition that should have frayed when immigrants were included in affirmative action formulae, but that has largely remained united. Graham seeks to explain the causes and consequences of immigrant eligibility for affirmative action programs. While most of us have witnessed political activities that have been simultaneously anti-affirmative action and anti-immigration (consider California referendum history of the 1990s), Graham interestingly asks why pro-affirmative action forces never mobilized against immigrant eligibility for affirmative action.

Immigration policy prior to the 1960s utilized national origin quotas allowing mostly western and northern European immigration. These quotas – stemming from Progressive Era reforms - were antithetical to the same civil rights activists that would champion affirmative action policies developed by the Kennedy and Johnson administrations. Just as the ascendance of Republicans in the south hastened with the death of Democratic Senators, immigration reform was enabled by the death of House Immigration Committee Chair, Francis Walter, who had earlier co-sponsored legislation reaffirming the McCarran-Walter Act of 1952 (p.55). President Kennedy within one month of Walter’s demise sent his immigration bill to Congress – a bill that had been drafted two years earlier and kept under wraps. Kennedy’s death and Johnson’s priorities (civil rights, tax cut, and anti-poverty legislation) delayed Congressional action, but such delay also allowed the Democrats to amass larger majorities in both Houses, and Congress finally passed The Immigration and Naturalization Act of 1965. Interestingly, the 1965 Act was touted by liberals as largely symbolic, because it would not likely change the underlying fundamentals of immigration. Pro-labor forces, who may have feared competition for jobs from new arrivals, rejoiced over their efforts to increase the importance of the Act’s “family reunification” provisions, and to decrease the importance of occupational immigration. African-Americans defended the non-discrimination principles of the Act; and big business did not fear the Act’s reforms as civil rights reforms and population growth had already provided a new supply of labor. Both the WALL STREET JOURNAL and Senator Edward Kennedy proclaimed that this new Act would be conservative, leaving the existing system largely unchanged. Such wide-spread support dissipated when the unforeseen consequences of the Act became apparent.

The Immigration and Naturalization Act of 1965 provided a prioritized list of reasons to allow immigration, including employment needs, but largely focused on family reunification. What has transpired over the last forty years has been an effective 1-2 punch regarding the use of these priorities – assisted by immigration lawyers and word-of-mouth communication. New immigrants arriving under the employment priority have pursued citizenship and then routinely sent for their entire families. These same individuals have also used the family reunification provision to extend the reach of such exceptions. Scholars and journalists have documented what amounts to the wholesale importation of entire villages from Mexico and China (pp.118-119). According to Graham, this double-dipping [*961] on the priority list, combined with massive illegal immigration from Mexico, China, and elsewhere, has swamped many affirmative action programs – federal, state and local.

In Chapter 6, Graham returns to the question regarding why affirmative action programs include immigrant Latinos and Asians. Graham attributes their inclusion to (1) agency capture by officially designated minorities, thus serving political, rather than ideological interests (p.140), (2) a congruence with “justice” claims regarding affirmative action (p.150), and (3) pervasive implementation issues (e.g., local governments need “available” minority contractors to justify extension of the program, which gives political cover to local officials) (pp.150-152). He notes that several groups have petitioned for inclusion into the federal categories with mixed success (Indonesians – yes; Hasidic Jews – no; Iranians – no) (pp.147-148). But anti-affirmative action efforts have focused on the program writ large, rather than attempting to fence out particular groups.

In the last chapter, Graham attempts to digest the implications of his work, but this represents the weakest section of the book. Graham overlooks a burgeoning literature on the economic consequences of affirmative action, and instead constructs an argument based upon faulty logic. He declares that “elected officials at national, state, and local levels in both parties proved reluctant to offend the well-organized constituencies of the rights revolution” (p.165), that affirmative action “by and large . . . accomplished . . . [the] redistribution of jobs and income to African-Americans . . . and [expanded] the black middle class (pp.166-167). “[F]or poor blacks as well as for poor whites, affirmative action has been at best economically irrelevant and at worst harmful” (p.170). All of these are empirical claims that may be true, but do not match the evidence offered in the book. First, there are now in excess of 200 studies – most of which find little to show for affirmative action – which could have aided Graham in substantiating (or possibly refuting) his claims (Holzer and Neumark 2000). And second, Graham seems to have a short-term definition of “interests” in mind when deriding the inclusion of immigrant Latinos and Asians in affirmative action programs. While it is true that having fewer dollars, jobs, or admission seats available for intended affirmative action beneficiaries is a short-term loss, it is certainly possible that accepting immigrants into the beneficiary pool stems from a fear of opening debate about the inclusion of other sub-sets of groups, or from encouraging attacks upon the entire program. It may be more rational to lose a few dollars, jobs, or admission seats, than to risk losing them all.

COLLISION COURSE presents an important story of legal and policy development over the last forty years. Its detailed discussion of Congress, interest groups, the bureaucracy, and, to a lesser extent, the courts, presents an excellent example of “separate institutions, sharing power.” Graham brings to life many of the key concepts in American government, although the book would be most appropriate for advanced undergraduates in American Legal/Political Development and for graduate students. The faults I have noted should not dissuade anyone from [*962] using it in the classroom or in scholarship.

REFERENCES:
Graham, Hugh Davis. 1990. THE CIVIL RIGHTS ERA: ORIGINS AND DEVELOPMENT OF NATIONAL POLICY, 1960-1972. New York: Oxford University Press.

Holzer, Harry, and David Neumark. 2000. “Assessing Affirmative Action.” 38 JOURNAL OF ECONOMIC LITERATURE 483-568.

Skrentny, John David. 1996. THE IRONIES OF AFFIRMATIVE ACTION. Chicago: The University of Chicago Press.

CASE REFERENCES:
CITY OF RICHMOND v. CROSON, 488 US 469 (1989).

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© Copyright 2005 by the author, Martin J. Sweet.

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THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS, 1829-1861

by David P. Currie. Chicago: The University of Chicago Press (2005), 344pp. Cloth $39.00. ISBN: 0226129004.

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

pp.954-958

THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS is the third installment in University of Chicago law professor David Currie’s ongoing study of the history of constitutional deliberation in Congress. Each of these volumes sets out to explore constitutional debate and construction outside the Court generally, and within Congress specifically. The first volume gives an account of “the Federalist period, 1789-1801” (Currie 1997), and the second volume covers “the Jeffersonians, 1801-1829” (Currie 2001). Each of these works, including the present one, is the result of Currie’s having immersed himself in the congressional record from distinct historical periods and reporting extensively on the wide-ranging constitutional debates that took place in Congress during the period in question. Like its predecessors, DEMOCRATS AND WHIGS is mostly descriptive and will be most useful – perhaps indispensable - as a resource for the increasing number of scholars interested in the Constitution outside the Court.

According to the Preface, Currie initially intended to cover the “period between the inauguration of Andrew Jackson and that of Abraham Lincoln—from the Jacksonian revolution of 1829 to the outbreak of the Civil War” in a single volume, until he determined that he could “no longer carry it” (p.xi). He thus decided to report on this period in two volumes instead of one. There are two primary – and familiar – themes that emerge from the constitutional debates he encountered during this period: those involving national growth and economic matters on the one hand, and slavery on other. Currie found that most issues involving the former arose between 1829 and 1845, and most issues involving the latter between 1845 and 1861. Yet, as Currie illustrates throughout this book (and presumably in the forthcoming fourth volume as well), those chronological divisions are “not exact” (p.xi), and importantly, Currie recognizes that issues involving national growth and economic matters were hardly unrelated to those involving slavery (p.279). The choice itself says much about the constitutional issues facing the nation throughout the middle part of the nineteenth century, and the division along these categorical lines is vindicated by Currie’s able execution in this volume.

In any event, most of the constitutional controversies in DEMOCRATS AND WHIGS do occur during roughly the first half of the “Jacksonian period,” a period characterized by the partisan attempts of Democrats in both Congress and the White House to disassemble the “American System.” The American System, championed by Henry Clay and other nationalistic Whigs, consisted of a [*955] set of federal policies designed to promote and grow the U.S. economy, including among others, the national bank, protective tariffs, the disposition of public lands and improvements in infrastructure. By the time Andrew Jackson was sworn in as the seventh President of the United States, the American System was “in full flower . . . . Before Jackson left office in 1837, Clay’s entire system was in shambles” (pp.3-4). What is important for Currie’s project is that the dismantling of the American System was not simply the result of the Democrats’ ideological opposition to, or policy disagreements with, the Whigs and other nationalists – although those were surely at the root of the matter. Rather, the Jacksonian opposition was articulated in terms of constitutional principles and hence structured by the language of various constitutional provisions. In short, the Jacksonian Democrats articulated their opposition to the American System and Whiggish nationalism as part of a constitutional vision.

As its title indicates, much of the institutional focus of the book is on constitutional debates and deliberation in Congress. In some instances, Congress appears to be leading the constitutional debate and is followed by other institutions. For example, consider the case of the Wheeling Bridge. In PENNSYLVANIA v. WHEELING & BELMONT BRIDGE CO. (1852), the Supreme Court held that because the tallest steamboats licensed under federal law to navigate the Ohio River were unable to pass under the bridge at Wheeling during high floods, the bridge interfered with interstate commerce. The Court ordered that the bridge over the Ohio River at Wheeling be raised to accommodate those steamboats, or else it must be demolished. The bridge company turned to Congress and asked that the bridge be legalized through federal legislation. Rather than defer to the Court, Congress wasted no time taking up the issue and debating its own power to save the bridge. Congressional opponents made numerous arguments that Congress did not have the power to undertake “internal improvements,” that authorization of the bridge would benefit Virginia at the expense of Pennsylvania, and that Congress did not have the authority to override the Court decision (p.193). Nonetheless, later in 1852, Congress saved the bridge as part of a “postal appropriation law,” writing into the statute that the bridge was an “established post-road for the passage of the mails of the United States” (as quoted in Currie 2005, p.192). Rather than debate its commerce power, members of Congress viewed authorization of the bridge as a clear exercise of Congress’s power “To establish Post Offices and Post Roads,” under Article I, Section 8 of the Constitution. Pennsylvania challenged the congressional enactment, but the Supreme Court upheld the statue in a 6-3 decision (PENNSYLVANIA v. WHEELING & BELMONT BRIDGE CO. (1856)). Importantly, the justices “repeated” the constitutional arguments made in Congress in both the majority and dissenting opinions (p.193); thus, it was members of Congress who led the constitutional debate over federal power, and the Court followed.

While Currie keeps much of the focus on the role of Congress and the debates among members of Congress, it is striking how much of the book really describes constitutional deliberation in [*956] Congress as part of a dynamic and broader inter-institutional process. Many of the constitutional controversies in Congress were also being addressed by presidents and occasionally the Supreme Court. Clearly the expansion of federal power and the proper constitutional role of the national government in the economy were matters debated by members of all three branches of the federal government. Most importantly, from the moment Andrew Jackson was sworn into office in 1829, he led the Democrats’ efforts to scale back the role of the federal government, and he articulated the Democrats’ constitutional vision: halting the unconstitutional growth of the federal government by reducing its role in the national economy. Familiar to most is the battle over the national bank, with Jackson vetoing legislation that would have extended the charter of the Second national bank in 1832 (Chapter 3). Currie characterizes Jackson’s veto message as “uninspiring and bizarre” (p.60), but one in which several constitutional arguments were laid out against the bank. And, when Currie describes constitutional debates regarding the scope of congressional power over internal improvements such as the building the Maysville Road and improving rivers and harbors (Chapter 1), the manner of disposing of federal lands (Chapter 2), or the imposition of protective tariffs (Chapter 4), presidents (Jackson as well as his successors) were often, if not usually, leading the debates and framing the constitutional issues. Indeed, much of the constitutional debate described by Currie in this book is initiated or led by Presidents Jackson, Van Buren, Tyler, Polk, Taylor and Fillmore, with members of Congress following suit or standing in opposition. In some ways then, the title of this book is slightly askew – it is as much about how Congress participated in an inter-institutional process of constitutional deliberation and construction as it is about the Constitution in Congress only.

DEMOCRATS AND WHIGS is a first rate descriptive account of constitutional debates during the middle part of the nineteenth century. Hence, Currie succeeds once again. However, as a political scientist, I could not help wanting a lengthier conclusion (the concluding chapter is two pages long, pp.278-79). Although Currie’s purposes may not require additional analysis, there are many parallels that can be drawn between the constitutional developments and debates in (and out) of Congress during the Jacksonian regime and those during the current regime – parallels that cry out for considering Currie’s observations from a variety of analytical and theoretical frameworks of recent research from political science. Currie’s account fits quite well with recent works on “political regimes” and “political time” (e.g., Clayton and Pickerill 2004; Gillman 2004; Skowronek 1997; Whittington forthcoming 2006) and American Political Development and historical institutionalist approaches (e.g., Gillman and Clayton 1999; Orren and Skowronek 2004; Kersch 2004; Smith 1988). The relative roles of the Court and of extrajudicial institutions in shaping constitutional meaning and change have also been the subject of a growing political science literature (e.g. Gillman 2002; Graber 1993, 1999; McMahon 2004; Whittington 1999). In fact, Currie’s findings that Congress played an active and often times leading role in constitutional construction is in stark [*957] contrast to recent studies of the Constitution in Congress during more modern historical periods, including my own, in which members of Congress are found to be mostly deferential to the Court’s legalistic interpretations of the Constitution at the beginning and end of the twentieth century (Lovell 2003; Pickerill 2004). Undoubtedly, others will make even more connections to political science research on constitutional meaning and American political development.

REFERENCES:
Clayton, Cornell W. and J. Mitchell Pickerill. 2004. “Guess What Happened on the Way to the Revolution? Political Precursors to the Supreme Court’s Federalism Revolution.” 34 PUBLIUS 425-51.

Currie, David P. 1997. THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801. Chicago: University of Chicago Press.

Currie, David P. 2001. THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS, 1801-1829. Chicago: University of Chicago Press.

Gillman Howard. 2002. “How Parties Can Use the Courts to Advance their Agendas: Federal Courts in the United States.” 96 American Political Science Review 511-24.

Gillman Howard. 2004. “Courts are More Interesting than We Think: Elements of a New ‘Regime Politics’ Tradition in Public Law Scholarship.” Paper presented at the Annual Meeting of the American Political Science Association, Chicago, Illinois.

Gillman, Howard, and Cornell Clayton (eds). 1999. THE SUPREME COURT IN AMERICAN POLITICS: NEW INSTITUTIONALIST INTERPRETATIONS. Lawrence: University Press of Kansas.

Graber, Mark A. 1993. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” 7 STUDIES IN AMERICAN POLITICAL DEVELOPMENT 35-73.

Graber, Mark A. 1999. “The Problematic Establishment of Judicial Review.” In Gillman and Clayton (eds). THE SUPREME COURT IN AMERICAN POLITICS: NEW INSTITUTIONALIST INTERPRETATIONS. Lawrence: University Press of Kansas, 28-42.

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

Lovell, George. 2003. LEGISLATIVE DEFERRALS. Cambridge: Cambridge University Press.

McMahon, Kevin. 2004. RECONSIDERING ROOSEVELT ON RACE: HOW THE PRESIDENCY PAVED THE WAY TO BROWN. Chicago: University of Chicago Press. [*958]

Orren, Karen, and Stephen Skowronek. 2004. THE SEARCH FOR AMERICAN POLITICAL DEVELOPMENT. Cambridge: University of Cambridge Press.

Pickerill, J. Mitchell. 2004. CONSTITUTIONAL DELIBERATION IN CONGRESS: THE IMPACT OF JUDICIAL REVIEW IN A SEPARATED SYSTEM. Durham: Duke University Press.

Skowronek, Stephen. 1997. THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO BILL CLINTON. Cambridge: Belknap Press of Harvard.

Smith, Rogers M. 1988. “Political Jurisprudence, the ‘New Institutionalism,’ and the Future of Public Law.” 82 AMERICAN POLITICAL SCIENCE REVIEW 89-108.

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

Whittington, Keith. 2006 (forthcoming). POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY. Princeton: Princeton University Press.

CASE REFERENCES:
PENNSYLVANIA v. WHEELING & BELMONT BRIDGE CO., 54 U.S. 518 (1852).

PENNSYLVANIA v. WHEELING & BELMONT BRIDGE CO., 59 U.S. 421 (1856).

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© Copyright 2005 by the author, J. Mitchell Pickerill.

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