HUGO BLACK OF ALABAMA: HOW HIS ROOTS AND EARLY CAREER SHAPED THE GREAT CHAMPION OF THE CONSTITUTION

by Steve Suitts. Montgomery, AL: New South Books, 2005. 640pp. Cloth $37.50. ISBN 1-58838-144-7.

Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University, Email: Richard.Brisbin [at] mail.wvu.edu

pp.890-895

Because his biography of Justice Hugo Black ends in 1927 when the jurist departs Alabama for service in the United States Senate, Steve Suitts should perhaps have entitled his book “Hugo Black IN Alabama.” His book relates in depth how the extremely ambitious youngest son of a drunk from rural Alabama used his talents and social connections for both civic good and personal success until eventually he won election to the Senate. Indeed, what Suitts – a philanthropic foundation executive from Atlanta – provides is far and away the most thorough recounting of the experiences of any justice before he or she entered federal government service. In this respect its depth is even more than that found in outstanding judicial biographies, such as Albert Beveridge’s THE LIFE OF JOHN MARSHALL (1916-19), Alpheus Mason’s BRANDEIS (1946) and HARLAN FISKE STONE (1956), and Woodford Howard’s MR. JUSTICE MURPHY (1968).

Since these and most other judicial biographies focus on the judge’s years on the bench, law and courts scholars might regard Suitts’ book as a half-complete biography. Indeed, although Black is a popular subject, the book-length studies of him attend mostly or exclusively to the court years. Despite being hampered by the destruction of his papers, they often provide important insights into Black the Justice. These studies include traditional biographies by Howard Ball (1996), Gerald Dunne (1977), and Roger K. Newman (1997), the short biography by Tony Freyer (1990a), the studies of Black early in his judicial career by John Frank (1949) and Charlotte Williams (1950), books on Black and his judicial colleagues by Howard Ball and Philip Cooper (1992), Jeffrey Hockett (1996), Wallace Mendelson (1961), Mark Silverstein (1984), and James Simon (1989), the collections of essays on the justice edited by Tony Freyer (1990b) and Stephen Strickland (1967), and the insightful critical explorations of Black’s jurisprudence by Howard Ball (1975), James Magee (1980), and, especially, Tinsley Yarbrough (1971; 1989). Only Virginia Hamilton (1972) has previously written extensively on the young Hugo Black, but her study concentrated on his years in the Senate. Suitts’ biography also offers more accurate and balanced information on the young Hugo Black than do the initial draft of chapters for an autobiography by the justice and the diaries of his wife (Black and Black 1985).

Suitts’ study is best evaluated in two ways – as history, and as a contribution to political scientists’ study of the Supreme Court. As history, his is a study based on impressive research. Suitts has plowed through many archives [*891] for letters, official documents, and court transcripts. He has conducted his own interviews and used interviews collected by his mentor, Charles Morgan, Jr., and others with those who knew Black in Alabama. He has tracked down obscure government and fraternal organization publications and newspapers of the period. The result is not just a portrait of Black but of the political milieu in which was educated, practiced law, prosecuted crimes, and held his first judicial office. The wealth of information and detail is stunning.

However, at times there is so much detail on the political ins and outs and personalities in Clay County, Birmingham (Alabama), and Alabama state politics that the reader loses focus on key themes and ideas. Certainly many readers’ minds will cloud when reading the pages of details that Suitts offers on the Clay County political conflicts involving Black’s father, the convict lease system, Prohibition enforcement politics, or Democratic Party factions in Alabama and Birmingham politics from Reconstruction to 1927. Also, with so much detail and a cast of unfamiliar characters so large, the reader is constantly referring to the index to check back on who they were and what they believed or did.

Yet, shining through the book’s dark mass of detailed information are key points about the education of a justice. First, by offering great detail on how race fit into Black’s private legal practice, Suitts deliberately exposes how deeply Alabama law entrenched racism in the body politic and how corporations used legalized racism to make profits. In Chapters 7 and 9 he offers stunning illustrations of these practices in just two of Black’s personal injury cases – the cases of Mary Minard and Henry Lewis. Black commonly defended African American clients, fought the use of largely black convicts as virtual slaves in the mines, and supported the biracial United Mine Workers union. Yet, as Chapter 7 recounts, he was willing to use the work “nigger” over and over in the Minard trial of 1919. As Suitts notes, the word was simply socially acceptable parlance.

The reader therefore is forced to confront the racial crudity and injustice of Southern whites in the theater that was the Alabama courtroom. Although Black fought more for fairness in the courtroom than most other Alabama judges and lawyers, he could not escape a culture resting on the principle of white supremacy. Indeed, he seems to have accommodated himself to this culture. He nibbled at the edges of its legitimacy with some of his courtroom arguments for black plaintiffs and his brief service in judging African American defendants in police court, but he never confronted its proponents in other political contexts. Nonetheless, by reading about the reactions of other persons to his arguments, the reader realizes why southern justice brought on the great Supreme Court civil rights and criminal procedure decisions of the 1950s and 1960s. Indeed, several sections of the book are among the best introductions to the legalized oppression that Southern legislators, judges, and juries visited upon the black population.

Second, by service as a plaintiff’s attorney and as a police court judge, Black learned the evils of exploitative corporate capitalism. Especially as [*892] Suitts recounts in Chapter 8, Black witnessed how capitalists break strikes and workers’ support for unions, take advantage of prison labor to reduce wages, and force individuals into poverty and desperate acts. Unlike Southern traditionalists, however, he did not regard capitalism as an intrusion on the hallowed patriarchal rule of the best class. Instead, as Suitts points out in Chapter 7, Black learned that capitalism is the abuse of the weak and ill-educated, furthers the oppression of blacks, and undermines democracy. He thus developed a far more progressive economic mentality than many other Southern politicians of his era.

Third, the reader finds that Black reacted to his father’s alcoholism, as well as his active practice of a moderate – not fundamentalist – Baptist religion, by adopting a puritanical personal code of behavior. Suitts discusses how Black’s concern with moral rectitude and ethical rigidity leads to a law and order mentality in criminal cases – with no special favors for the wealthy, whites, or the politically connected – and a monomaniacal support for Prohibition. In Chapters 5 and 10, Suitts also asserts that Black’s support for Prohibition is linked to his desire for civic righteousness and social and personal discipline and an end to official corruption. In this respect Black discloses an allegiance to the jeremiad against corruption and unrighteousness found in various guises throughout American political history.

Finally, although he downplays it, Suitts reveals that Black was a man of exceeding ambition. To further his ambitions, he courted influential people, joined and led every white fraternal and civic group, and married above his class. He undertook an enormous legal practice and social calendar to make money and, especially, to draw attention to himself. His striving was so tenacious that, as Suitts argues in Chapter 9, Black joined the Ku Klux Klan because of the interpersonal and business contacts and friendships it provided, not because of its racist, anti-Semitic, and anti-Catholic program.

What emerges from Suitts’ biography is a picture of a man who thinks in ways affected by Southern racism but who is not an avowed racist. He is an ambitious puritan who distrusts both traditional elites and corporate capitalists. Obviously these values push Black in several ways. As with Black’s efforts in discussing why he joined the Klan, they force him into inconsistent positions that he either obscures or cannot explain to others. Nevertheless, Suitts leaves the notion that Black believed all his actions rested on principle. He depicts Black as an idealist endeavoring to achieve more than personal glory; he wanted to be a responsible, “good citizen” who practiced an ethic of civic responsibility. He wanted peace, tranquillity, and social order. He also expected others to practice the same ethic. That is why he went after the evils associated with drink, greed, and lack of due process for African American litigants. Victory over these would advance his social ideal – a social ideal he would later locate in the text of the Constitution.

Despite the historical depth of the book, political scientists who study the Supreme Court will find that Suitts spends little time linking Black’s early years to his subsequent behavior on the Court. Most of the linkages he does [*893] draw are brief and not especially insightful: Black’s racial attitudes contributed to his later commitment to racial justice; his economic values help explain why he was supportive of unions and the poor; his courtroom experiences explain his attention to fair criminal procedures in cases from BETTS v. BRADY (1942) through GIDEON v. WAINWRIGHT (1964) and beyond. Yet, this reader finds in Black’s early life a concern for rights and fairness for both races in the COURTROOM but not nearly the same concern for exercises of rights that produce confrontations and civic disorder. What Suitts calls Black’s concern for civic responsibility and his law and order or “peace and tranquillity” approach to crimes presage the hostility he would show toward demonstrators in the sit-in cases such as BROWN v. LOUISIANA (1966) and ADDERLEY v. FLORIDA (1966; see also Black 1968, at 53-58). Additionally, his support for Prohibition and moral uprightness prefigures what Yarbrough (1971, 1989) called Black’s legal positivism, the literalism that marks opinions such as his dissent in BARENBLATT v. UNITED STATES (1959), and his statement of his constitutional principles in A CONSTITUTIONAL FAITH (1968).

Finally, Suitts provides little psychologically-based assessment of the development of Black’s views on race, order, and rights. Black’s puritanism and hostility to privilege, his definition of service as a good citizen, and his ambition seem to have both psychological sources and effects that are not discussed in Suitts’ traditional, fact-oriented biography. Also, Suitts’ discussion of Black’s need for friendships and sense of personal isolation, a theme of Chapter 12 and the Epilogue, entitled “Benediction,” pose interesting questions about Black’s early inability to challenge Southern ways and the mixed messages he sent about government power and dissent when a justice during the turbulent 1960s. Consequently, I do not think that Suitts has definitively explained how Black’s “Roots and Early Career Shaped the Great Champion of the Constitution.” These caveats aside, Suitts still has produced an impressive piece of scholarship that illuminates not only the education of a justice but almost forgotten harshness and brutality of Southern law and politics in the age before Hugo Black joined the Supreme Court.

REFERENCES:
Ball, Howard. 1975. THE VISION AND THE DREAM OF JUSTICE HUGO L. BLACK: AN EXAMINATION OF A JUDICIAL PHILOSOPHY. University, AL: University of Alabama Press.

Ball, Howard. 1996. COLD STEEL WARRIOR: HUGO BLACK. New York: Oxford University Press.

Ball, Howard and Phillip J. Cooper. 1992. OF POWER AND RIGHT: HUGO BLACK, WILLIAM O. DOUGLAS, AND AMERICA’S CONSTITUTIONAL REVOLUTION. New York: Oxford University Press.

Beveridge, Albert J. 1916-1919. THE LIFE OF JOHN MARSHALL. Boston: Houghton Mifflin Company. [*894]

Black, Hugo L. 1968. A CONSTITUTIONAL FAITH. New York, Knopf, 1968.

Black, Hugo L and Elizabeth Black. 1985. MR. JUSTICE AND MRS. BLACK: THE MEMOIRS OF HUGO L. BLACK AND ELIZABETH BLACK. New York: Random House, 1985.

Dunne, Gerald T. 1977. HUGO BLACK AND THE JUDICIAL REVOLUTION. New York: Simon and Schuster.

Frank, John Paul. 1949. MR. JUSTICE BLACK, THE MAN AND HIS OPINIONS. New York: Knopf.

Freyer, Tony Allan. 1990a. HUGO L. BLACK AND THE DILEMMA OF AMERICAN LIBERALISM. Glenview, IL: Scott, Foresman/Little, Brown Higher Education.

Freyer, Tony Allan, ed. 1990b. JUSTICE HUGO BLACK AND MODERN AMERICA. Tuscaloosa, AL: University of Alabama Press.

Hamilton, Virginia Van der Veer. 1972. HUGO BLACK: THE ALABAMA YEARS. Baton Rouge: Louisiana State University Press.

Hockett, Jeffrey D. 1996. NEW DEAL JUSTICE: THE CONSTITUTIONAL JURISPRUDENCE OF HUGO L. BLACK, FELIX FRANKFURTER, AND ROBERT H. JACKSON. Lanham, MD: Rowman & Littlefield Publishers.

Howard, J. Woodford. 1968. MR. JUSTICE MURPHY: A POLITICAL BIOGRAPHY. Princeton: Princeton University Press.

Magee, James J. 1980. MR. JUSTICE BLACK, ABSOLUTIST ON THE COURT. Charlottesville: University Press of Virginia.

Mason, Alpheus T. 1946. BRANDEIS, A FREE MAN’S LIFE. New York: The Viking Press

Mason, Alpheus T. 1956. HARLAN FISKE STONE: PILLAR OF THE LAW. New York: Viking Press.

Mendelson, Wallace. 1961. JUSTICES BLACK AND FRANKFURTER: CONFLICT IN THE COURT. Chicago: University of Chicago Press.

Newman, Roger K. 1994. HUGO BLACK: A BIOGRAPHY. New York: Pantheon Books.

Silverstein, Mark. 1984. CONSTITUTIONAL FAITHS: FELIX FRANKFURTER, HUGO BLACK, AND THE PROCESS OF JUDICIAL DECISION MAKING. Ithaca: Cornell University Press.

Simon, James F. 1989. THE ANTAGONISTS: HUGO BLACK, FELIX FRANKFURTER AND CIVIL LIBERTIES IN MODERN AMERICA. New York : Simon and Schuster.

Strickland, Stephen Parks, ed. 1967. HUGO BLACK AND THE SUPREME COURT: A SYMPOSIUM. Indianapolis, Bobbs-Merrill. [*895]

Williams, Charlotte. 1950. HUGO L. BLACK: A STUDY IN THE JUDICIAL PROCESS. Baltimore, Johns Hopkins Press.

Yarbrough, Tinsley E. 1971. “Mr. Justice Black and Legal Positivism,” VIRGINIA LAW REVIEW 57: 375.

Yarbrough, Tinsley E. 1989. MR. JUSTICE BLACK AND HIS CRITICS. Durham: Duke University Press.

CASE REFERENCES:
ADDERLEY v. FLORIDA, 385 U.S. 39 (1966).

BARENBLATT v. UNITED STATES, 360 U.S. 109 (1959)

BETTS v. BRADY, 316 U.S. 455 (1942).

BROWN v. LOUISIANA, 383 U.S. 131 (1966).

GIDEON v. WAINWRIGHT, 372 U.S. 355 (1963).

© Copyright 2005 by the author, Richard A. Brisbin, Jr.

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THE PERFORMANCE OF HUMAN RIGHTS IN MOROCCO

by Susan Slyomovics. Philadelphia: University of Pennsylvania Press, 2005. 288pp. Cloth. $55.00 / £36.00. ISBN: 0-8122-3858-3. Paper. $24.95 / £16.50. ISBN: 0-8122-1904-X.

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

pp.885-889

The protection of human rights in the modern world is increasingly promoted as an international effort, relying on universal norms derived from sources such as regional and international human rights declarations and conventions. Violations of human rights in the many forms that occur within individual nation-states, from physical torture of prisoners to psychological assaults on the families and friends of those who have disappeared, are assessed as much against these international standards as against domestic laws. This approach can indeed be beneficial, as it may raise the standards of behavior and accountability to which all governments and officials should be held in the treatment of their citizens.

What can be lost in this “macro” approach, however, is an appreciation that the individual and collective experiences of torture and other human rights violations can vary considerably among the nation-states in which these events occur, each with their own cultural, religious, legal and political histories. If human rights abuses are to be publicly recognized and officially acknowledged as a prerequisite to ending such practices, these experiences must be exposed to the public sphere through the types of “performances” that can best be understand in the context of those specific histories. Susan Slyomovics makes this clear in her engaging and enlightening description of efforts by prisoners and other victims to open to the public square the story of human rights abuses in post-colonial Morocco.

Best read as a series of stories and vignettes, the book depicts the variety of forms in which the victim/storyteller seeks to translate and communicate the intensely personal experiences of torture and abuse. For example, in the second chapter entitled “Disappearance,” various forms of expression are used by victims, their families and friends, as well as the perpetrators, to give meaning to the word itself and to the experience of being disappeared. Poetry, interviews, and books are utilized to overcome the difficulty in uncovering layers of thought and emotion. The increasing number of publications of these stories has led to reluctant official acknowledgement of previously hidden history and events, though such acknowledgement is often followed by offers of indemnification and other measures that seek to constrain further revelations by silencing victims’ voices.

Similarly, the pilgrimage of victims and families to prisons such as Tazmamart, one of the most notorious secret detention centers, can be an effective public performance. The author relates how, upon arrival of the pilgrims at the site, a lone guard swears that no one [*886] remains in the prison, but the physical barriers to the pilgrims’ entry belies the truth of that statement. Through such actions the officially denied history of human rights abuses can be uncovered.

THE PERFORMANCE OF HUMAN RIGHTS IN MOROCCO is at its best when the letters and poems of those who experienced imprisonment and torture are revealed. The selections in the third chapter, “Prison,” effectively convey the determination of the political prisoners to make known the facts and truth, necessary before the “page can be turned” on this era. Particularly poignant are the excerpts from Salah El Ouadie’s novel, THE BRIDEGROOM, expressing the intensity of the personal experience of torture that is often lacking in more “objective” accounts and statistics. Writing as therapy is well-illustrated in the excerpts from a book by Maria Charaf, widow of Amine Tahini who died of torture at the infamous Derb Moulay Cherif prison, where she herself was also imprisoned. The oral tradition of Arabic poetry is especially appropriate within the context of Moroccan culture for such expression, and Slyomovics provides excellent examples. She reveals how poetry, which remains in the cultural memory, can be an effective counterpoint to the official records of the police, judicial, and prison systems, which through editing or outright falsification often subvert the truth.

The details of the Moroccan government’s arbitrary and violent actions against dissident groups provide a useful context for the theme of public performance. In the chapter on Islamist political prisoners, she relates how during the 1980s Islamists who opposed the government and its policies had divided themselves into two groups: those working within the system and those operating clandestinely. Yet little distinction was made by the government in its response to their activities, and both groups were subject to the same summary policies. Moreover, the prison populations of “Group 71” and “Group 26” were augmented by the arrests of family members and others who knew of but were not part of the groups. Those subject to abuse thus came from a variety of backgrounds. Here artwork, clandestine prison photographs, trial records, and letters form the basis for the chronicles of their experiences. Like the Marxist prisoners, the Islamists formed organizations and committees in prison, despite the primitive conditions, in which these performances could be designed and shared. Hunger strikes, such as those that took place at Safi Prison, constituted another form of performance that was used to project the message of deprivation and abuse.

The importance of language and words, both as tools of torture as well as the response to it, is made evident throughout the book. The chapter entitled “Rānī nimḥik: Women and Testimony” reveals how words are used to try to extinguish the psychological sense of the individual, especially that of women. Encapsulated in the oft-used phrase “I will erase you,” political prisoners were given new and different names, and women were given male names to further suppress their identities. Women often fought back with new forms of language; the story of Fatna El Bouih relates the interesting act of communicating in prison by placing fingers on bodies in place of forbidden verbal speech. The model of [*887] Scheherazade expands from the feminine viewpoint to a broader one representing the powerless, imprisoned, and disappeared, and women increasingly assumed responsibility for exposing the fates of their imprisoned male relatives, beginning with the 1977 sit-in at the al-Sunnah mosque in Rabat.

The legibility theme reappears throughout the text. To the oft-cited metaphor of “turning the page” on this period is added the importance of the family passbook as tangible evidence of individual and family existence. Confiscation of the passbook means the person no longer exists; removal of a birth record means a family member did not exist.

The descriptions of the construction and uses of the various “spaces” of Casablanca, created by the French to control public activity and later turned into centers of public resistance, first to the French colonizers and then the Moroccan government, are vivid. The 1981 Casablanca uprising began as a collective demand for economic justice, in particular inadequate housing and employment opportunities, that took place in the city’s public squares. Despite the harsh reaction of the authorities, with widespread arrests, the public expression of opposition was carried forward into other venues. What took place in the courtrooms during the trials of the demonstrators would be familiar to an American critical legal scholar: the opening of the courtroom by defendants and their lawyers as public space in nontraditional (and officially improper) forms, such as mock trials, demonstrations by spectators, speeches to the media, and refusal to acknowledge the judicial authority of the judges. Legal testimony became opportunities for personal performances.

Interspersed throughout these stories is an outline of the historical and political context of the Moroccan government’s efforts to suppress political dissent through intimidation, detention, and various forms of torture. This context is a colonial past in which French methods of control over the population, such as the garde à vue procedure that allowed police and other authorities wide latitude in the grounds, lengths, and conditions of pretrial detentions of suspects, were adopted and continued by the regime following independence in 1956. That the post-colonial regimes of Muhammed V and Hassan II were authoritarian, using torture and other forms of abuse to suppress dissent and opposition, and have been forced into reluctant and incomplete admission of this history through the types of performances described here, is made abundantly clear.

The book’s first chapter, an introduction to the Moroccan legal system (“Law and Custom”), outlines the development of the country’s laws and procedures, and discusses the Indemnity Commission as the instrument of the government’s efforts to redress the history of abuses. As noted earlier, it is important to understand the story of human rights within the particular cultural, religious, legal and political context of a particular society, and an opening chapter that establishes the contours of context is appropriate. The discussion encompasses a wide range of human rights law: decisions of American federal courts under the Alien Tort Claims Act (the FILARTIGA case), decisions of regional human rights [*888] tribunals (the VELÁSQUEZ RODRÍQUEZ case), Islamic (Shari’a) law and Berber customary law, the Nürnberg war crimes trials, the Anglo-American cause of action in tort and writ of habeas corpus, French colonial legal procedures and post-colonial Moroccan criminal procedure. Because so much is covered here, the relationship between and significance of these various sources of law in post-colonial Morocco is sometimes unclear. For example, the definition of a tort as “a wrong inflicted regardless of intention” (p.31) is incomplete, and its relevance to Moroccan law is uncertain; in fact many torts require proof of intent, including most that arise from human rights cases (such as FILARTIGA) brought under the (specifically American) Alien Tort Claims Act – itself an act that provides American courts with jurisdiction, not with a standard or norm of substantive international law, which must be derived from other sources. The brief introduction to post-independence Moroccan law and legal procedure, as a combination of French civil law and Islamic personal status law, begins on page 23, well after discussion of particular procedural aspects of that system, such as garde à vue and the writ of habeas corpus – the latter of which is a specifically Anglo-American procedure. It might better be placed at the beginning of the chapter. The role and significance of Islamic law is also unclear; Slyomovics correctly notes on the one hand that Islamic law during the twentieth century was relegated primarily to personal status law under the authority of Islamic courts (p.23), and elsewhere states that it (along with Berber customary law) was shunted aside and replaced. However, Islamic law in the pre-colonial and colonial Morocco context, consisting both of the Shari’a and Berber customary law, is then later revisited within the discussion of remedies for more recent human rights violations; have Islamic law and courts in fact made recent inroads into new areas of substantive and procedural law? The reader is left with interesting insights into some of the legal issues at stake, but with an impression that all law – international, American, French, Islamic, customary, and regional practice – is relevant to the protection of human rights in the Moroccan legal system. Limiting the discussion to the specific criminal procedures applied in Morocco during and after the French colonial period, along with relevant forms of redresss, such as Moroccan courts and indemnity commissions, could perhaps more effectively establish the relevant legal context without attempting to explore the entire range of domestic, foreign, and international human rights law that might potentially apply.

Nevertheless, this is a small problem of context in an otherwise extremely effective portrayal of the author’s main theme. Governments in the Islamic world have, since the rise of the Ummayad dynasty, often been authoritarian, corrupt, and brutal, but they were restrained by the force of Islamic law and the religious/legal scholars who developed and interpreted it, and who mediated between the people and the government. Morocco’s unique heritage of tribal customs, Islam, French colonial domination, and post-colonial membership in the world of modern nation-states makes it a fascinating study of the process of coming to terms with a recent history of government-sponsored human rights abuses, so that (to cite from the title of the final chapter) [*889] “Never This Again.” Professor Slyomovics’ insights into the performance of human rights in that country both provide outsiders with an important understanding of the process, and itself may even contribute to it.

CASE REFERENCES:
FILARTIGA v. PENA-IRALA, 630 F.2d 876 (2nd Cir. 1980).

VELÁSQUEZ RODRÍQUEZ CASE (Honduras), 4 Inter-Amer. Ct.H.R. (ser.C) (1988).

© Copyright 2005 by the author, Mark Welton.

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SANCTIONING RELIGION? POLITICS, LAW, AND FAITH-BASED PUBLIC SERVICES

by David K. Ryden and Jeffrey Polet (eds). Boulder, CO: Lynne Rienner Publishers, 2005. 237pp. Hardcover. $59.95. ISBN: 1-58826-319-3. Paper. $22.50. ISBN: 158826-343-6

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

pp.876-883

SANCTIONING RELIGION? POLITICS, LAW, AND FAITH-BASED PUBLIC SERVICES examines the legal issues raised by President Bush’s faith-based initiative, a program central to Bush’s domestic agenda.

The faith-based initiative has its origins in a little-noticed provision to the 1996 Welfare Reform Act, “charitable choice,” mandating that religious groups have equal access to federal funds to deliver social services. Government funding of social services programs run by religious organizations is not new, but funding has previously been confined to those religious organizations that can and do separate their participation in government funded programs from their religious missions. “Charitable choice” removes the separability requirement, thereby opening participation to smaller and more overtly faith-based groups and religious congregations. President Bush praised the transformative powers of religion, but consistent with “charitable choice” held that proselytizing is forbidden.

The faith-based initiative immediately generated considerable controversy, first because it has been perceived as a threat to a core Establishment Clause principle – the prohibition against government-sponsored religious indoctrination – and second, because it allowed exemptions from anti-discrimination laws, thus opening the specter of widespread hiring discrimination.

David K. Ryden and Jeffrey Polet bring together eight case studies of faith-based programs, ranging in purpose, operation and organization, some fitting the traditional model and others not. Thus, they vary in the legal issues they bring up. They represent the work of scholars from an array of different disciplines and, to some extent, from different viewpoints. Ryden and Polet provide a short introductory chapter and brief summaries before each of the collection’s Parts. They also have written a chapter presenting the historical, political and legal background of the faith-based initiative, and a concluding chapter that provides their own views of the constitutional issues involved. Ryden also wrote one of the case studies and collaborated on a second.

The objective, set out in the introductory essay, is to generate a more thoughtful, tempered assessment of the constitutionality and propriety of the faith-based initiative, in contrast to the current public debate, which in the editors’ view has been too theoretical and characterized “by simplistic, overblown rhetoric.” This is accomplished by providing an empirical basis for assessing the faith-based initiative, a methodology that leads to a more realistic and tempered debate. [*877] They take pains to point out the varied nature of the case studies and perspectives regarding the initiatives’ constitutionality and wisdom. Specifically referring to faith-based initiatives, Ryden and Polet indicate that they themselves disagree regarding “their wisdom as policy, and their constitutional soundness” (p.7). One could easily infer from this introduction that a well-balanced airing of the issues will follow, where the reader is left to draw objective conclusions, although some of the language in the essay hints otherwise. For example, the editors mention “litigation involving the validity of antireligion state constitutional clauses” (p.8) with no indication that “antireligion” is a loaded word – one that separationists (myself, included) do not accept as valid. They also write that constitutional doctrine is often premised on a “rather thin” vision of religion, again a legitimate position for an advocate, but not one accepted by both sides of the issue.

In Chapter 2, Ryden and Polet place the initiative in a broader legal, historical and political context. They summarize the current state of the law, offering three observations. First, support for the separation principle that initially informed the Court’s Establishment Clause jurisprudence has eroded. Second, after the Court’s most recent cases, few barriers remain to government funding used for religious purposes, as long as money is channeled through individuals. Therefore, voucher programs would almost surely be upheld. Finally, they correctly note that a plurality of the current justices would almost surely end the distinction between direct and indirect funding.

Ryden and Polet also present an historical overview of church-state relations and the Supreme Court’s moving position, and, in these areas, I think their presentation conveys subtly approval of the shift away from the separation principle. First, they describe the separation principle as being developed later and eroding earlier than it actually did, which might lead readers to underestimate its historical weight. Contrary to the editors’ assertion, separation antedated the Warren Court – EVERSON was decided in 1947. Judicial support for the principle was overwhelming in the first twenty years after EVERSON. The chapter includes a comment from a 1963 concurrence by Justice Brennan suggesting that, by that date, he had already shifted away from separation. However, Brennan’s comment was, in fact, part of a larger discussion of why state- sponsored school prayer violated the Constitution. Brennan clearly subscribed to the no-aid-to-religion view of the Establishment Clause throughout his tenure. I was also troubled in Chapter 2 by the use of terms that can have multiple meanings, such as “neutral” and “accommodation,” without defining them in context. The section also has inaccuracies – separation antedated the Warren Court, as mentioned above, and ABINGTON TOWNSHIP v. SCHEMPP was decided in 1963, not 1970 as the chapter indicates.

The historical account in Chapter 2 is also imbalanced, in my view, because it emphasizes the religiosity of the public, describes various religious influences on policy, and includes comments supporting the importance of religion to democracy, while giving only the slightest attention to historical factors favoring separation. For example, when considering the colonial period, the role of religious conflict as a motivation for [*878] separation is given little weight. The editors skip over the disestablishments occurring in the states during the founding period. Similarly they cite Tocqueville’s observations regarding the importance of religion in American life and to American democracy, but they do not mention his belief that the importance of religion was a by-product of separation—i.e., that religion flourishes under separation.

I have a much more positive view of the case studies that begin at Chapter 3, although even those expressing reservations about the constitutionality of the faith-based initiative do not fully develop the case against them. Among the eight studies, five support government faith-based partnerships, and three do not.

Starting from the law as it has currently been written and understood by today’s Court, Sheila Kennedy identifies three Establishment Clause problems that she believes are common to all faith-based programs operating in the areas of criminal and drug rehabilitation. First, they proselytize. Religion is seen as necessary to transform lives, without which rehabilitation would be difficult. Second, especially in prisons, there are often no secular alternatives. Third, though voluntary in theory, there are incentives to participate. Kennedy identifies other concerns as well, such as accountability. The government cannot assure that its funds are properly and effectively used without some monitoring, but monitoring may unduly intrude on the religious autonomy of the organization, in violation of the Free Exercise Clause. Kennedy suggests that there is no way to correct most of these defects. In the end, the reader is left with programs that appear effective but unconstitutional. Possible alternatives to faith-based programs to achieve the same goals in this area are not discussed.

David Ryden examines a government-funded, faith-based work-to-welfare program run by Good Samaritan Ministries in southwestern Michigan. GSM, a “social services organization, supporting a network of approximately eight Christian churches of various denominational affiliations in the southwestern corner of Michigan” (p.54), served as an intermediary between the government, the churches delivering social services, and the clients. He looks particularly at Project Zero, a Michigan pilot program important in Michigan’s work-to-welfare efforts, successfully moving all of its clients into the work force. Using Project Zero as an example of programs funded by GSM, Ryden details how secular services – e.g., training in financial management, assistance in child care, finding employment, and so on – were joined to a mentoring program that included a religious message. Though participation in the mentoring program was optional, there were no secular alternatives.

Project Zero reflects the GSM approach more generally. According to Ryden, the Michigan program favors Christianity and openly uses religion as a motivational force to change behavior. It thus fails the Establishment Clause’s neutrality test, and it advances religion. He identifies two different types of problems, structural and substantive. Questions of access, equal treatment, and non-endorsement fall into the structural category and are amenable to correction. Substantive concerns, like encouraging religious conversions, are not, and they reflect a tension between the philosophy behind “charitable choice,” the notion that religion has [*879] transformative power, and the prohibition against proselytizing. There is also potential tension between the law and constitutional principle. As Ryden notes, “[t]he critical question is whether the inevitable extension of religion is constitutionally objectionable, given the success in achieving the secular purpose of reduced welfare dependency” (p.65). This is an insightful discussion in its highlighting of the tensions within the “charitable choice” legislation, and between “charitable choice” and constitutional principle, including discussion of the direction a further reinterpretation of the Establishment Clause might take.

Heidi Roland Unruh and Jill Witmer Sinha, studied a welfare-to-work program run by Cookman United Methodist Church, an African-American church located in a minority community. Many of the same issues are present here, but there are some important differences as well. There is clearly a faith component and a Christian message to the program, but the church seems more open to providing services without a religious component. The issue of church-state entanglement and of discriminatory hiring is more clearly drawn than in the earlier essays.

Unruh and Sinha present a generally favorable picture of this program, finding many benefits to government partnering with local churches in minority communities. They contend that the churches are effective in reaching welfare recipients. The churches are trusted participants in the community, an advantage not enjoyed by government workers. Moreover, church-affiliated workers are likely to expend extra energy for low pay in the service of God. Although these authors are clearly supportive of this faith-based program, they do acknowledge a number of tensions with the state over measurements of success and disbursement of funds.

Free exercise issues appear throughout the book but are the central focus of cases discussed in Part II. A brief overview by Ryden and Polet begins with the tension between the Establishment and the Free Exercise Clauses. The discussion moves next to the claim that legal concerns, presumably arising from the Establishment Clause, discourage religious organizations from seeking government funds. They conclude with a list of free exercise and free association questions, raised by government efforts to regulate religious organizations, and present a list of questions arising from concern for religious liberty.

This discussion makes important points and raises some key questions. For example, do publicly-funded religious entities have a free exercise right to engage in religious hiring? Would a decision requiring Catholic Charities to cover contraception for its employees cause it to withdraw from providing government-funded social services? Ryden and Polet claim it would have such an effect but do not provide specific evidence.

Again, I have some reservations about what is missing. It is not enough to demonstrate that forcing Catholic Charities, or other religiously-affiliated government-funded public service programs, to offer contraceptive coverage violates their religious missions. Framing the issue fairly also requires a fuller discussion of the opposing position – that not providing contraceptive coverage discriminates against women, as the California brief [*880] argued. I think it also worth mentioning their observation that, “[p]ersons sympathetic to religion tend to see the Free Exercise Clause as controlling, while more secular thinkers tend to think the opposite” (p.85). The clear implication here is that separationists are by definition “secular,” or not “sympathetic” to religion. However, separation is often supported by religious individuals, many of whom are also strongly committed to free exercise rights.

The two studies that follow are done by authors who have a very different view of how free exercise conflicts should be resolved. John Orr gives greater weight to the claims of the religious organizations; Melissa Rogers favors equal protection concerns. Both studies are worth reading, particularly for what they reveal about the conflicts and competing arguments. Rogers gives a fuller account of the competing interests.

John Orr analyzes the California Supreme Court’s decision in CATHOLIC CHARITIES OF SACRAMENTO v. SUPERIOR COURT OF SACRAMENTO COUNTY (2004). The Women’s Contraceptive Equity Act required any organization providing medical insurance to offer coverage for contraception, but it allowed an exemption for “religious organizations,” defined as those engaging in sectarian hiring, sectarian distribution of services and sharing of religious message. Such organizations are what the Supreme Court has called “persuasively sectarian.” Catholic Churches were granted exemptions; Catholic Charities, a religiously affiliated organization delivering secular services, was not granted an exemption. Catholic Charities claimed in court that its rights were violated under both the US Constitution’s Establishment and Free Exercise Clauses and the California Constitution. One claim was that, in deciding what was religious, the state violated the Establishment Clause. Catholic Charities also argued that California had targeted them. The California Supreme Court, however, ruled against them. Orr is critical of the decision, and indicates that the case might ultimately be decided by the US Supreme Court. He also points out that Catholic Charities could have prevailed had it claimed an exemption under Title VII of the Civil Rights Act.

Orr draws a number of lessons from this. Catholic Charities is in a bind. If it continues to differentiate its religious and secular activities, it will compromise the religious teaching that contraception is not permissible. If it withdraws from delivering these services, it will compromise its religious teaching requiring social service to the poor. This places the case “at the center of the debate that relates to the privatization of religion and to the restriction of religious practice in a pluralistic society” (p.103).

Although these issues are important, Orr fully engages neither the argument over how free exercise should be defined, nor how courts or legislatures should reconcile religious practices that conflict with equality values. His discussion of a purported conflict with the Establishment Clause is not only incomplete but weakened by his characterization of Justice Stevens’ concurrence in CITY OF FLORES v. BOERNE (1997) as the majority opinion. Still, this is a valuable study. Apart from its contribution to the dialogue over church-state relations, it has great potential as a tool for teaching about the effects of precedent and the shaping of legal strategy. [*881]

Melissa Rogers’ essay takes a very different position. The specific legal issue, the constitutionality of religious hiring, is different but presents similar questions. She considers the issues raised by religious hiring in the context of the debate regarding whether Congress should amend the Head Start program to allow religious organizations to discriminate on the basis of religion in federally funded employment. She begins with the observation that religious hiring in federally funded organizations is a new issue both for Congress and the Court. The Title VII, 702 exemption to the nondiscrimination requirements of the Civil Rights Act and the Supreme Court’s decision in CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. AMOS (1987) upholding that provision do not resolve the issue of religious hiring in federally funded programs. In what follows, Rogers broadens the discussion in three important ways. First, she offers a fuller account of potential Establishment Clause problems generated by religious hiring, starting from the proposition that, even under the Supreme Court’s much changed reading, the Establishment Clause is still understood to prohibit “the financing of religious indoctrination.” Allowing religious hiring of teachers increases the likelihood that religious content will enter the classrooms, but even if they do not, government financing gives the appearance of an unconstitutional endorsement. Second, she responds to the argument that an allowance is justified here for much the same reasons the Court in AMOS upheld a similar exemption granted religious organizations from Title VII. In that case, however, there was a burden on a religious organization to predict which of its jobs “a court might view as secular” (p.112.) Head Start does not raise such a difficulty – as a government-funded program, all of its jobs have to be secular. Finally she gives much more attention to the equality issues. Her solution is to split the difference—to continue the exemption that religious organizations enjoy from equal employment provisions of Title VII, unless the organization receives government funding.

The essays in Part 3 return to the examination of specific programs, and Ryden and Polet present a useful introduction to the essays that follow. This section of the book considers the question, “to what extent should constitutional analysis be enriched or informed by practice and theory” (p.125)? It is an interesting question, but I am not sure why it is relevant only to the cases in this section. The editors’ remarks on the specific case studies are useful, as they alert the reader to the issues they consider important and that might otherwise be overlooked.

Frank A. Pryor III and David K. Ryden write about the experiences of some black churches in the Philadelphia area. Their piece differs somewhat from the earlier one by Unruh and Sinha. Black churches are in many respects a special case. They are both better connected to the local community and to politics than other churches, but they are more suspicious of government, given their traditional role in challenging the prevailing power structures. Moreover, in comparison to other churches, they tend to be relatively lacking in congregational resources and, thus, more in need of government financial support. In addition, they have had specific concerns that the Bush initiative was [*882] motivated by politics, designed to gain African-American votes and to diminish the opposition of the Black community toward the Republican agenda. Many African-Americans were particularly angry over the 2000 presidential election, which they perceive to have been stolen as a result of race discrimination at the ballot box. As Pryor and Ryden show in this very interesting essay, the faith-based program created splits in Black leadership, most particularly between church and traditional civil rights leaders. Although some church leaders also expressed constitutional concerns, for many the prospect of needed government money trumped other issues. It is ironic that Republican economic policies exacerbated the situation in Black communities, that the Republican faith-based initiative provided some but not equivalent relief from this, and the relief was credited to the Republicans who then benefited politically. The study also shows that the programs were infused with faith, as one might expect in church-run programs, and there is no evidence that anyone within the community was concerned. However, Pryor and Ryden do not show that proselytizing is necessary for effectiveness, nor do they suggest how one might assess effectiveness of the various church programs.

In her essay, Mary C. Segers directly speaks to some of these issues. Segers studied New Jersey’s initiative, which, like the federal program, tapped the faith community to help deliver social services. It specifically disallowed proselytizing. It was supported by members of the clergy and had interfaith orientation. There is no indication that it is less effective than the more faith-infused Philadelphia programs. In fact, there are very little data on effectiveness provided in any of this material.

The final case study, by Joyce Keyes-Williams, looks at a faith-based program run by A Tranquil Place, a mega-church in Oakland, California. While the size of the church makes it possible to be more attentive to legal requirements for beneficiary choice, overall the program looks much like those examined in earlier essays. The author does, however, place some of the conflicts and vagueness in the law in somewhat sharper relief. For example, she specifically notes the ambiguity in the word “proselytizing,” the inherent conflict between respecting the religious character of providers and beneficiaries, as well as conflicts between government funding and church autonomy. As she observes, the law “appears to be at odds with itself” (p.164). In the end, she judges the program to do good things without much harm—indicated by the absence of recipient complaints.

The concluding chapter, by Ryden and Polet, is part summation and part argument. I found their summary to be quite useful. The heart of this chapter is their argument for a reinterpretation of the Establishment Clause, one that would allow government to use religion to advance secular purposes, even if government action also advances religion. They openly acknowledge the faith-based initiative requires such reconsideration, an effect that has been consciously obscured by its proponents. They also defend religious hiring.

While I think there are a number of positive points to this section, Ryden and Polet do not present a sustained constitutional argument. Rather, they offer some insights regarding the case that might be made. So, for example, [*883] they assert that, because it is transformative, religion best serves social goals that require fundamental behavioral changes. They may be right, but this claim is based purely on anecdotal evidence, and even the evidence that could be derived from their case examples is not systematically used. I was left wondering whether the New Jersey faith initiative that barred proselytizing was less effective than those that used it.

Supporters of President Bush’s faith-based initiative will love this book. I have serious concerns about such programs, but overall, I liked the book as well. The case studies provide an empirical basis for looking at programs and thus add a useful dimension to discussion of the faith-based initiative. However, the apparent success of a social program that proselytizes does not prove that the proselytizing component is necessary to reach this goal. And, even if it could be shown that a faith component is necessary to the success of particular programs, it does not follow that our understanding of the Establishment Clause should be changed. There may indeed be potential benefits if the bar to aiding religion were lowered, but the potential costs should be weighed against them, and such costs are not addressed in this book. For example, many separationists are members of minority religions and fear being treated as less than full and equal members of the community. Without such further development, I think it is unlikely that those who now oppose the faith-based initiative will change their minds.

CASE REFERENCES:
ABINGTON TOWNSHIP v. SCHEMPP, 374 US 203 (1963).

CATHOLIC CHARITIES OF SACRAMENTO v. SUPERIOR COURT OF SACRAMENTO COUNTY, 32 Cal.4th 527, 10 Cal.Rptr.3d 283 (2004).

CITY OF FLORES v BOERNE, 521 U.S. 507 (1997).

CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. AMOS 483 U.S. 327 (1987).

EVERSON v. BOARD OF EDUCATION, 330 U.S. 1 (1947).

LOCKE v. DAVEY, 540 U.S. 807 (2003).

MITCHELL v. HELMS, 530 U.S. 793 (2000).

ZELMAN v. SIMMONS-HARRIS, 536 U.S. 639 (2002).

© Copyright 2005 by the author, Caren G. Dubnoff.

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FROM MADNESS TO MUTINY: WHY MOTHERS ARE RUNNING FROM THE FAMILY COURTS – AND WHAT CAN BE DONE ABOUT IT

by Amy Neustein and Michael Lesher. Boston, MA: Northeastern University Press/University Press of New England, 2005. 320pp. Cloth. $26.00. ISBN: 1-58465-462-7.

Reviewed by Alice Hearst, Department of Government, Smith College. Email: AHEARST [at] email.smith.edu

pp.872-875

The vast majority of Americans, in their lifetimes, will engage with the formal world of law and the judicial system primarily in matters related to the family: marriage, divorce, child custody, property division, and often probate are the stuff of everyday life. Yet anyone who has contact with the family court system as a scholar, a professional, or a party to an action knows that the system is deeply flawed. Family law generally ranks low in the legal hierarchy; it is sexier (and considerably more lucrative) to practice the law of mergers and acquisitions than to deal with clients whose lives are stressed and whose resources are often limited. Passions run high, stories are murky and situations are messy. Family courts are by and large understaffed and personnel poorly trained; they rely in turn on an army of professionals who are often equally under trained or inadequately supported. But the failures of the system often fall beneath public notice; injustices, when they occur, are individual and thus not often the stuff of media exposés.

FROM MADNESS TO MUTINY is a book that tries to draw attention to the human scale of those injustices. It takes as its arena an even smaller corner of the family court world: custody disputes in which a mother accuses a father of sexual abuse of a child. Amy Neustein’s and Michael Lesher’s central argument is that in such cases, mothers routinely find the tables turned with the result that they are labeled hysterical or vindictive women whose actions are themselves harmful to their children. In such cases, the authors assert, mothers are more likely than not to lose custody of their children, often to the very father they have accused of sexual abuse. The problem, they argue, lies in the very structure of the family court system, where inadequacies in one dimension augment inadequacies in another. Judges, who are either weakly prepared to understand issues associated with the sexual abuse of children or biased from the outset against women who levy such accusations, rely on unsupported scientific opinions or the judgment of insufficiently trained professionals and auxiliary personnel who share their biases. Other features peculiar to family law amplify defects in the system. Confidentiality provisions intended to limit the unnecessary public display of information about parties’ private lives, and especially concerns about protecting minors, for example, insulate judges and other actors from the kind of scrutiny that might otherwise force more accountability and sounder decision-making. As a result, Neustein and Lesher argue, it should not be surprising that mothers do not trust the system either to treat them fairly or, more [*873] importantly, to protect their children, and often flee the system altogether.

On many levels, there is extraordinary merit in the claims the authors make. Judges can be tyrannical, support personnel can act without brakes on their personal biases, and women and children in particular are likely to experience mistreatment. There are, unfortunately, serious shortcomings in how this book makes its case.

Neustein and Lesher contend that they are engaging in a form of sociological inquiry called “ethnomethodology,” in which they look at what actors in the family court system do and say in their everyday actions. In theory, they observe how family courts and related personnel come to construct and understand family and parental fitness by examining the public records containing these actors’ explanations for their actions. Then, through interviews, Neustein and Lesher assess mothers’ strategies to make sense of this structure to produce their own understandings of how the system works. After explaining the methodology, the authors then devote a number of chapters to each of the actors in the system: judges (“robed rage”); court appointed representatives for the child (“lawless law guardians”); child welfare personnel (“anti-social services”); and expert witnesses (“mental health quackery”).

The fundamental problem with this book is that the authors presume from the outset that family courts commit “acts of institutional violence” (p.37) every time a mother raises a claim of sexual abuse by a father. The bitterness in this book makes it difficult to assess its claims, especially because there is very little attempt to set out information about each case in any systematic way. Much of the information taken from transcripts to suggest that judges and family court auxiliaries have ignored clear evidence of sexual abuse is disturbing to say the least, and there have obviously been substantial miscarriages of justice with dire consequences for both children and parents. But it is difficult to determine whether the authors looked at five cases, ten or two hundred, and it is virtually impossible to get a sense of the context of each case.

To protect the privacy of the parties, the authors have not provided case names, although there are frequent references to trial transcripts, copies of which one would have to assume are on file with the authors. Often, it seems, Neustein and Lesher refer to the same case in several chapters, although it is difficult to determine when the citations are vague or non-existent, as on p.44, where the authors cite a case in which a judge restricted a mother’s access to her children based upon a “ ‘shameful display’ of anger toward social workers” without attribution. It simply is not clear how widespread the problem is, because the reader cannot determine to which cases the authors are referring.

Nor does the book follow up any of the cases: from reading the book—and this appears to be the claim of the authors—one would conclude that the entire family court system is absolutely unregulated and that all of the actors, from judges to social workers to experts, deliberately collude to demonize women and injure children. Yet, given some of the citations to appeals courts and to legislative hearings, there has been some action to hold judges accountable and to [*874] consider reforms in the system; none of that follow-up information is provided. What has happened to judges whose behavior has been reported to judicial conduct boards, which exist in every state? To what extent have organizations responsible for running family courts—the National Council of Juvenile and Family Court Judges, for example, or state judicial administration offices—developed training in these areas? The manner in which the book is written suggests that any time a mother raises concern about sexual abuse in any court in the nation, she will be labeled hysterical or vindictive, but it would be interesting, in a scholarly analysis, to have solid factual information about how widespread the problem is and what reform efforts have been suggested or enacted.

For example, one of the major issues for the authors has been the widespread reliance of courts and auxiliaries upon the claims of psychiatrists, Richard Gardner and Arthur Green, both of whom developed theories that mothers in custody disputes were likely to fabricate claims of sexual abuse and program children to lie about abuse. As the authors note, both Green’s and Gardner’s work—and the work of other “experts” who have discounted claims of sexual abuse—have been severely criticized by the wider therapeutic community. The authors claim, however, that courts have been impervious to these critiques and have continued routinely to rely on this sort of specious science to punish mothers, repeating their criticism of Green and Gardner in virtually every chapter of the book. Again, there may be truth in these allegations, but it is not clear from the book how widespread the reliance on this sort of bad science has been, nor does it present hard evidence to support the authors’ claim that courts have continued to invoke these theories, despite the proven worthlessness of the theories.

In the Introduction, Neustein and Lesher assert that their intention is to show how mothers make sense of the everyday actions of courts and auxiliary personnel. In various places in the book, there is direct reference to how mothers have interpreted these events. For the most part, however, the authors themselves have done the interpretation and concluded that the system is riddled with incompetence or malevolence.

This is a book that is intended to incite public anger at the inequities of the system—and it is, indeed, a system in woeful need of reform. Many of the reforms, suggested in the concluding three chapters, are worth consideration; indeed, many of these ideas have been in circulation for some time. It may be true, for example, that the confidentiality of family court proceedings shields ineptitude or spite, and that procedural safeguards could limit the arbitrariness that seems to be part and parcel of the system. Likewise, it makes eminent sense to develop ethical guidelines for law guardians. It also makes sense to suggest that attitudes must be fundamentally changed—that family law should not be relegated to the backwaters of the legal system, for example, and that judges should receive training in how to evaluate both the substance and source of mental health expertise. But the anger expressed in the book wears thin: instead of presenting a complete picture and allowing the reader to draw his or her own conclusion, the [*875] authors’ style generates suspicion on its own; the reader is left trying to figure out what has not been said. And that is a shame, since the style should not cover up some very cogent critiques of the system.

© Copyright 2005 by the author, Alice Hearst.

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REVOLUTION BY JUDICIARY: THE STRUCTURE OF AMERICAN CONSTITUTIONAL LAW

by Jed Rubenfeld. Cambridge: Harvard University Press, 2005. 252pp. Hardcover. $39.95 / £25.95 / €36.90. ISBN: 0-674-01715-3.

Reviewed by Kyle L. Kreider, Political Science Department, Wilkes University, Wilkes-Barre, PA. E-mail: Kreider [at] wilkes.edu

pp.867-871

In graduate school, a friend of mine, who happened to be a public opinion specialist, asked what I found so fascinating about studying constitutional law and the Supreme Court. Sensing frustration in his voice, I asked him what about constitutional law and the Court he found so disconcerting. His response was indicative of one of the popular criticisms levied against the Supreme Court – American constitutional case law fluctuates year-to-year, decade-to-decade, because it is all based upon the personal and political predilections of those sitting on the Court. What is “good law” – or constitutional – today, may not be “good law” tomorrow. In essence, my friend’s complaint was that the interpretation and reinterpretation of the U.S. Constitution is not pegged to a standard theory of constitutional interpretation. REVOLUTION BY JUDICIARY is a valuable piece of scholarship on constitutional interpretation that sets out to explain why it is that “American constitutional case law has almost nothing to say about what judges are supposed to be doing when they go about the business of interpreting the Constitution” (p.4). In the end, Jed Rubenfeld presents a compelling and logical explanation of constitutional interpretation and the structure of constitutional law that, I believe, goes a long way in responding to those who share my graduate school friend’s concerns.

Rubenfeld breaks the book into three sections. The first, “The Structure of Constitutional Law,” sets sail on the deep and choppy waters of constitutional interpretation by arguing that “American constitutional law has in fact conformed to a determinate interpretive structure” that, until now, has been “largely or even completely unrecognized” (p.12). While pragmatists, realists, and deconstructivists have given up on a coherent theory of constitutional interpretation, Rubenfeld writes, there is a “framework within which to evaluate episodes of radical reinterpretation,” which “emerges from the deepest democratic commitments of constitutional law” (pp.12-13). In short, in crafting a commitment-based theory of constitutional interpretation, Rubenfeld seeks to rescue the American constitution from both originalism and the “living document” theories.

Rubenfeld sees an important distinction in constitutional law that others up to this point have not recognized. There is both an understanding of what a constitutional right prohibits and what it does not prohibit. He labels the first the ‘Application Understanding’ and the second, the ‘No-Application Understanding.’ The Application Understandings are “its foundational or core applications” (emphasis in original) (p.14). This distinction in constitutional law is important for Rubenfeld because [*868] No-Application Understandings are intentions at best, and not commitments. Further, it is not intentions that should matter to us (and Supreme Court justices) but the commitments of our Constitution’s framers. Rubenfeld remarks that “[t]he point of constitutional law is to hold the nation to its self-given, fundamental commitments over time, and discharging this task requires courts to distinguish, as they have, between commitments and intentions” (p.15). The Application Understandings are important because they serve as the foundation for interpretive, or doctrinal paradigms. Judges acknowledge and apply the core constitutional principles in paradigm cases. Paradigm cases are not built upon No-Application Understandings, leaving justices the power to reject or neglect such understandings.

Those interested in the application of Rubenfeld’s theory of constitutional interpretation to Supreme Court doctrine would find Chapters 2 (rights) and 3 (powers) most helpful. Chapter 2 would help constitutional law professors when faced with the inevitable student question: “How can we square the original intent of the free speech clause – prohibiting seditious libel laws and prior restraint – with the situation we are in now where everything from advertising and falsehoods concerning public persons to pornography and profanity are given some level of First Amendment protection?” This is only a problem, Rubenfeld claims, if we concentrate on original intent rather than the framers’ commitments. Of course, this is a trap many of us fall into. When a No-Application Understanding (what a clause did not prohibit) is violated (for example, nudity moving from unprotected to protected speech), the question is not whether it violates original intent but whether it violates the framers’ commitments. Take the Equal Protection Clause and BROWN v. BOARD OF EDUCATION (1954) as another example. BROWN, no doubt, violated the original intent of the Fourteenth Amendment (it was not intended to apply to segregated public schools). However, as Rubenfeld argues, segregated schools in the mid-1950s can be said to have violated the anti-inferiorization principle developed in the paradigm-case reasoning of STRAUDER v. WEST VIRGINIA (1879), and the anti-caste principle from Justice Harlan’s dissent in PLESSY v. FERGUSON (1896). Judges, in short, “are not bound by [the] original No-Application Understanding” (p.46).

So, how does the Application and No-Application Understandings distinction work in the case of governmental powers? Rubenfeld uses the spending power, the commerce clause, and separation of powers as examples. According to Rubenfeld, the Application Understanding of the spending power, deciphered by examining the common understanding of both Madisonian and Hamiltonian views, reveals that the spending power “enabled Congress to raise and spend revenue to carry out its various enumerated powers, such as establishing post offices, maintaining a navy, or coining money” (p.51). This core Application understanding still holds sway in modern constitutional law, even as the No-Application Understandings (the clause does not apply to domestic improvement appropriations, for example, and it prohibits federal government coercion of state appropriations) are debated and [*869] either accepted and rejected in the courts. The No-Application Understandings change; the core Application understandings do not.

As for the commerce clause, Rubenfeld posits that the core Application Understanding was that Congress could regulate activity that obstructed interstate commerce. Rubenfeld arrives at this conclusion by pointing out that it was universally understood that Congress’ commerce power extended to bridges that might obstruct “navigable water” (p.54). The bridge is within Congress’ power due to its capacity to obstruct interstate commerce. Therefore, in holding that the “commerce clause allowed Congress to regulate activity that, ‘in the aggregate,’ threatened ‘substantial’ harm to interstate commerce, even if the activity was ‘itself local’ and hence not an instance of interstate commerce” (p.54). WICKARD v. FILBURN (1942) is a case example applying the core Application Understanding of the commerce clause. The core Application Understanding and the paradigm case of WICKARD have led the Court to reject the No-Application Understanding that the commerce clause did not allow Congress to regulate the production of goods. Following from the core Application Understanding and the WICKARD Court’s logic, Congress can regulate the production of goods (i.e., labor), if in the aggregate it has a substantial effect on interstate commerce.

Section II, “Commitment, Intention, and Self-Government,” is the theoretical exposition of how commitments are different from intentions and why it matters for constitutional law. The analysis of Court doctrine and jurisprudence has been left behind for philosophy. Though a crucial part of the book, it is not for the faint-hearted, intellectually weak . . . or sleepy. To his credit, Rubenfeld warns the reader of what lies ahead and, with his use of examples from our everyday lives and a charming writing style, creates an easier read. In it, he attempts to answer the question that will be on the mind of every reader at this point: Why is it that justices adhere to the Application Understanding and continue to reject original No-Application Understandings? The answer lies in the difference between commitments and intentions. The short answer is that commitments create obligation; intentions do not. After all, intending to take your kids to the ice cream store is less binding than committing to take your kids to the ice cream store. This matters for constitutional law because written constitutions “are supposed to be obligatory, requiring special justification before contrary action is allowed” (p.77). Even popular will (democracy) should not be able to override the commitments entered into by the framers, who are now dead. Democracy and constitutions conflict.

Rubenfeld’s answer to the “paradox of commitment” lies in the “capacity for self-government” (p.88). Freedom can be living for here and now – the present – but it can also mean over time. Rubenfeld argues “an autonomous self is one that can give itself, and act on, a certain kind of exclusionary reason. Autonomous agents are those able to give themselves, and to act on, reasons of the kind we create when we make a commitment” (p.92). Self-governing is not being “free” each and every time you [*870] make a decision; rather, it is being sufficiently autonomous to make and follow commitments. Rubenfeld gets around the rationality problem (“how can one be ‘free’ if his/her present desires are overridden by commitments?”) by positing that autonomy is an end in itself, something to be valued not because of what it gets you but because it is an end in itself: it gives “our lives shape, meaning, and purpose over time” (p.95). The nexus between commitments and intentions and Application and No-Application Understandings, and the subject of Chapter 5, is that Application Understandings create commitments, while No-Application Understandings do not.

The third section, “Constitutional Law Today,” seeks to explain how the Rehnquist Court interprets the Constitution and to what extent its decisions follow the principles laid out in the book. Just like the Lochner Court had an anti-anti-capitalist agenda, Rubenfeld observes that the Rehnquist Court has an anti-anti-discrimination agenda. For Rubenfeld, the reasoning in UNIVERSITY OF ALABAMA v. GARRETT (2001) (the Eleventh Amendment precludes states from being sued by their own citizens to enforce provisions of the Americans with Disabilities Act) and BOY SCOUTS OF AMERICA v. DALE (2000) (the First Amendment’s freedom of association allows the Boy Scouts of America to discriminate against homosexual Scout leaders by denying them membership) is devoid of any logic, just like LOCHNER v. NEW YORK (1905). The Court’s anti-anti-discrimination principle is also evidenced in its commerce clause (U.S. v. MORRISON), affirmative action (ADARAND CONSTRUCTORS, INC. v. PENA), and religious exemption (EMPLOYMENT DIVISION, OREGON DEPARTMENT OF HUMAN RESOURCES v. SMITH) jurisprudence. Rubenfeld concludes with an analysis of three “transformative decisions” (p.184) – LAWRENCE v. TEXAS (2003), U.S. v. LOPEZ (1995), and GRUTTER v. BOLLINGER (2003) – and asks whether “the Court’s decisions are justifiable according to paradigm-case reasoning” (p.184). He finds GRUTTER to be “well supported by paradigm-case reasoning” (p.196), LAWRENCE not to be (there is an “absence of paradigm-case reasoning” (p.190)), and LOPEZ to be partially supported by paradigm-case reasoning. This last chapter would be of interest to professors of constitutional law or those even mildly concerned with the Court’s privacy, commerce clause, and affirmative action jurisprudence.

While Rubenfeld’s position on the Rehnquist Court and a handful of their decisions makes for a fascinating read, the scholarly contribution of this book is found in his commitment-based theory of constitutional interpretation, the subject of the first two sections. Though I strongly believe Rubenfeld’s book is a must read for every professor of constitutional law, questions certainly linger. For example, scholars, justices, and even founding fathers, have commented that certain principles or values underlie the constitution’s provisions. Is this popular strand of non-interpretivism different in principle from Rubenfeld’s commitment-based theory of constitutional interpretation? To say there are commitments in the Constitution sounds extremely similar to saying the framers had in mind various [*871] principles and values when they crafted the Constitution. It is possible that the difference rests in the fact that previous thinkers have not clearly articulated the philosophical distinction between commitments and intentions and why this is important for constitutional democracy. However, if that is the only difference, Rubenfeld needs to say so explicitly. Aside from these minor points, REVOLUTION BY JUDICIARY has clearly established Rubenfeld as a leading contemporary thinker in constitutional interpretation whose ideas will help shape this field for some time.

CASE REFERENCES:
ADARAND CONSTRUCTORS, INC. v. PENA, 512 US 200 (1995).

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

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

EMPLOYMENT DIVISION, OREGON DEPARTMENT OF HUMAN RESOURCES v. SMITH, 484 U.S. 872 (1990).

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

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

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

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

STRAUDER v. WEST VIRGINIA, 100 U.S. 303 (1879).

U.S. v. LOPEZ, 514 U.S. 549 (1995).

U.S. v. MORRISON, 529 U.S. 598 (2000).

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

WICKARD v. FILBURN, 317 U.S. 111 (1942).

© Copyright 2005 by the author, Kyle L. Kreider.

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DOES GOD BELONG IN PUBLIC SCHOOLS?

by Kent Greenawalt. Princeton, NJ: Princeton University Press, 2004. 296pp. Cloth. $29.95 / £18.95. ISBN: 0-691-12111-7.

Reviewed by Thomas F. Powers, Department of Political Science, University of Minnesota Duluth. Email: tpowers [at] d.umn.edu

pp.863-866

This is a useful book for anyone wanting to understand the intersection of religion, public education, and constitutional law in the United States, probably especially educators and education policy-makers. Kent Greenawalt surveys a wide array of legal controversies arising in the context of America’s public schools and takes up the thorny questions in that policy sphere with an unfailing commitment to being fair to both (or all) sides in every controversy. He is a thoroughly knowledgeable, conscientious guide to a complex subject.

Greenawalt has been teaching at the Columbia University law school since 1965. He is a University Professor and a past U.S. Deputy Solicitor General (1971-1972). His father argued ZORACH v. CLAUSON (1952) before the Supreme Court (arguing against “release time” for religious students in public schools – the decision went the other way). Greenawalt has written seven previous books, five with Oxford University Press (this is his second with Princeton). Two earlier books, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE and PRIVATE CONSCIENCES AND PUBLIC REASONS treated in a more focused way specific questions pertaining to the liberal understanding of religion. This is a more practical book, considering more issues and treating them more legally than theoretically.

To repeat, throughout Greenawalt goes out of his way to be meticulously fair, especially to the position of religious conservatives, as he traverses the complex maze of cases and controversies that fall under the heading of religion in the public schools. The spirit of the book as a whole is well captured by its closing paragraph: “As virtually all our chapters illustrate, some issues are easy to settle from a constitutional point of view, but others are extremely difficult, calling on us to evaluate them from a fair and generous appreciation of the religious diversity of our society and the central place of religious liberty in our constitutional order. There is no last word on this subject” (p.187). Greenawalt does not see it to be his task here to provide a new theory of religion and politics or any “final” interpretation of the religion clauses of the First Amendment.

Though informed by the work of contemporary academic political theory (he begins with a chapter mining the insights of Stephen Macedo, John Tomasi, and Amy Gutmann), Greenawalt is on the whole content to follow the general drift of the Court’s First Amendment holdings, taken as a whole, on questions of public education. “[G]ood educational practice in the United States should be substantially guided by the values of the religion clauses” (p.153). Without following the [*864] Court’s every step, he returns again and again to its decisions (or sometimes the lack of them) to assess prayer or moments of silence in school settings, access to public school facilities for religious groups, the debate over creationism and evolution, how public schools should deal with teaching subjects that touch on religion, directly or indirectly, and the religious free exercise and free speech rights of students and their parents in the context of the public schools. At important points, Greenawalt acknowledges the influence of Warren Nord’s 1995 book, RELIGION AND AMERICAN EDUCATION. (Appropriate to a book on public education, Greenawalt does not here discuss the many cases dealing with aid to religious schools.)

But of course the “values of the religion clauses” to which Greenawalt would point us are notoriously contested, not to say hopelessly so, as a result of the political debate over them between champions of (roughly) separationism and accommodationism. While striving to be fair at every point, Greenawalt leans to the former point of view. He has no quarrel with the LEMON test and he often finds himself in agreement with the Court’s progressives and with Kennedy and O’Connor, but rarely if ever cites the opinions of the Court’s conservatives. He follows well-known political theorists on the left but rejects originalist readings of the First Amendment (which would surely permit, for example, prayer in school) as courting “disaster” (pp.43-44).

What ultimately holds this complex book together is Greenawalt’s own considered opinion of the many different legal controversies that arise in the world of public education. Thus, it is primarily a normative/prescriptive work that proceeds almost entirely within the confines of existing legal debate. It is written in the style of many law review essays (some of the material here reworks the same).

To get a sense of the book as a whole, it is useful simply to list the different positions he takes on various issues. While prayer in public schools is not acceptable, moments of silence may be, at least if undertaken in a proper spirit. Symbols in public schools that effectively endorse religion (religious murals or, say, a depiction of the Ten Commandments) are not acceptable. Religious music may be part of a public school program, if it tends neither to promote nor inhibit religious views. Aspects of religious holidays may be observed, as long as they “have become secular” (p.55). Religious students should have equal access to public school facilities, although the question of public funds and the meaning of the Court’s holding in ROSENBURGER v. RECTOR (1995) in particular is open to question. While conceding that religion does not receive the attention it deserves as a topic in several relevant classroom subjects, Greenawalt nevertheless insists that public schools must avoid at all costs appearing to teach religion. “The obvious remedy for religion’s present neglect is for schools to say more about it, while withholding judgments about religious truth” (p.86). On the question of evolution, Greenawalt stakes out a “middle course” between teaching Biblical creationism on the one hand and denying religion any voice in the science curriculum on the other. Teaching creationism is, in effect, teaching religion and so should be avoided. But it [*865] is acceptable to teach the limitations of evolutionary theory, to raise questions about the evidence for it, and to suggest that “intelligent design is one conceivable component of a full theory of how complex life developed” (p.117). Similarly, teachers addressing religious topics in the classroom should be guided by a certain wariness and avoid, above all, the extremes of teaching religion as true on the one hand and openly attacking it on the other. Sex education, for example, should affirm respect for GLBT students (without necessarily endorsing any particular sexual lifestyle), but teaching pre-marital abstinence as the only acceptable approach to sexual matters would be effectively to teach an impermissibly religious point of view. Religious dress for teachers is almost certainly protected as a matter of free exercise right, but dress codes for students have been consistently upheld by the courts.

I found myself agreeing with Greenawalt most of the time. But the questions he treats are hotly contested, and it is not clear that an approach guided above all by a commitment to an even-handed moderate-left view of the questions is superior to more harshly partisan positions taken by either side in current debates. In a way, the more partisan positions are more interesting and useful because they press hard questions furthest and expose problematic premises to the light of day. While this book does cover a lot of ground, practically and legally, it will nevertheless appeal mainly to those who begin by agreeing with its author’s sense of things.

It is also tempting, given the controversial topics he considers, to want him to address bigger questions he leaves alone. One could read this book and not know that religious liberty has come under considerable and sustained fire in recent years, and one would like to know the ground of the confidence Greenawalt evinces in his moderate-left interpretation of the religion clauses (see, e.g., Carter 1993; Fish 1997; Gedicks 1995; Owen 2001; Smith 1995; Sullivan 2005). For an argument that goes to fundamentals, one will need to look elsewhere (beginning, to be sure, with Greenawalt’s own books on religious conviction and conscience).

Such considerations probably do not amount to criticisms of this book, which certainly rises to the highest standard one could expect of legal writing on public policy matters. Greenawalt does a good job leading anyone unfamiliar with the issues through a complicated legal, practical, educational, moral, and political thicket. Even someone who disagrees with him will learn here the outlines of both this area of the law and the debates about it.

REFERENCES:
Carter, Stephen L. 1993. THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION. New York, NY: Harper.

Fish, Stanley. 1997. “Mission Impossible: Settling The Just Bounds Between Church and State.” 97 COLUMBIA LAW REVIEW 2255-2333.

Gedicks, Frederick Mark. 1995. THE RHETORIC OF CHURCH AND STATE: A CRITICAL ANALYSIS OF RELIGION CLAUSE JURISPRUDENCE. Durham, NC: Duke University Press. [*866]

Greenawalt, Kent. 1991. RELIGIOUS CONVICTIONS AND POLITICAL CHOICE. New York, NY: Oxford University Press.

Greenawalt, Kent. 1995. PRIVATE CONSCIENCES AND PUBLIC REASONS. New York, NY: Oxford University Press.

Nord, Warren A. 1995. RELIGION AND AMERICAN EDUCATION. Chapel Hill: University of North Carolina Press.

Owen, J. Judd. 2001. RELIGION AND THE DEMISE OF LIBERAL RATIONALISM: THE FOUNDATIONAL CRISIS OF THE SEPARATION OF CHURCH AND STATE. Chicago, IL: University of Chicago Press.

Smith, Steven D. 1995. FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM. New York, NY: Oxford University Press.

Sullivan, Winnifred Fallers. 2005. THE IMPOSSIBILITY OF RELIGIOUS FREEDOM. Princeton, NJ: Princeton University Press.

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

ROSENBERGER v. RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA, 515 U.S. 819 (1995).

ZORACH v. CLAUSON, 343 U.S. 306 (1952).

© Copyright 2005 by the author, Thomas F. Powers.

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SPEAK NO EVIL: THE TRIUMPH OF HATE SPEECH REGULATION

by Jon B. Gould. Chicago: University of Chicago Press, 2005. 224pp. Cloth. $48.00. ISBN: 0-226-30553-8. Paper. $19.00. ISBN: 0-226-30554-6

Reviewed by Brian Pinaire, Department of Political Science, Lehigh University. Email: bkp2 [at] lehigh.edu

pp.857-862

Jon Gould, Assistant Director of the Administration of Justice Program and Assistant Professor in the Department of Public and International Affairs at George Mason University, has written an important and much needed new book. Although previous work on the topic of campus hate speech codes (e.g. Milton Heumann’s and Thomas Church’s excellent HATE SPEECH ON CAMPUS) has addressed the basic contours of the debate and provided intriguing case studies, Gould’s work is the first to systematically address the phenomenon of campus speech codes on a national level, with particular attention to tracing the roots, resilience, and importantly, the resistance of such policies in institutions of American higher education. Readable, balanced, free of jargon, and comprehensive in scope, this book is a must read for scholars of the First Amendment and legal mobilization and is sufficiently accessible for use in upper level undergraduate courses in civil liberties and law and society.

In this work, Gould asks several questions: Why, he wonders, did hate speech regulation emerge in the late 1980s? And why did it arise within those institutions – colleges and universities – most intimately attached to principles of open expression and academic freedom? Moreover, how is it that prohibitions on hate speech have become the norm, rather than an outlier in our society – even in apparent defiance of the putative power of authoritative legal institutions? Finally, what has this process taught us generally about the basis for constitutional law and the place of free expression in our society?

Such questions, and Gould’s empirically rich answers, force us to think beyond what he labels the “conventional story of modern hate speech regulation.” This story, he rightly observes, is the product of anecdote and the hyperbolic accounts of opponents of speech codes (e.g. Dinesh D’Souza or David Horowitz) who “decry a vast movement of political correctness in which a postmodern army of liberal academics arose to advance their political manifesto on as many college campuses as possible.” Indeed, he notes, filling out the account of the conventional wisdom on such regulation,

opponents have largely viewed the speech codes through the rubric of political mobilization. A cohort of liberal academicians—those raised on the civil rights and women’s rights movements—were said to be extending the civil rights laws by punishing discriminatory words as well as deeds. However, because their views had little support in the political or legal processes of the Reagan administration, activists allegedly retreated behind the gates of their ivory towers to enact on campuses what they could not [*858] accomplish in wider society. Indeed, most descriptions of the hate speech “movement” reflect concern that a rising “totalitarian mindset” on campus would spill over into larger society and champion politically correct dogma. (p.3)


And yet the problem with this account, despite the ease with which it might be uttered on talk radio or other such outlets, is that it is, quite simply, wrong. The actual genesis of hate speech regulation is more complex and involves a wider range of motives, actors, and interests than is depicted by such a facile account.

In fact, what Gould finds through his quantitative study at a random sample of 100 colleges and universities and qualitative investigation involving in-depth interviews and archival research, is that there are actually three distinct motives for the speech codes extant in higher education today. First and foremost, Gould demonstrates, while “[i]n each case relativist or multicultural theory spurred the speech policies, . . . the pivotal actors were top collegiate administrators acting on instrumental motives,” motives which often appeared to be symbolic offerings of appeasement in the wake of a racial incident on campus (p.5). A second motive implicates what Gould refers to as “normative isomorphism,” or the “academic version of ‘keeping up with the Joneses,’” whereby codes were crafted as a response to a kind of institutional peer pressure within mainstream higher education. Finally, Gould found that at a smaller number of schools, speech regulations were crafted by student services administrators who genuinely supported the institution of such policies. This final group, he offers, is probably the closest to the traditional explanation put forth by speech code opponents, but it both constitutes a small percentage of schools and more importantly was the function of administrative, not student or faculty-activist, efforts. If anything, Gould notes, “minority groups on campus were largely agitating for more tangible measures, including increased minority hiring and additional funding for scholarships, fellowships, and salaries,” while “[f]ew were outspoken advocates for hate speech policies” (p.5).

In making this argument, the book includes an Introduction, six chapters, and an Appendix detailing the research methods employed. Following an Introduction wherein he outlines his central claims and the significance of his conclusions, Gould offers the reader a history of contemporary hate speech regulation. Chapter 1 begins with an astute conceptual unpacking of both “hate” and “speech,” as they are employed in this discussion, and then reviews the fate of hate speech in the courts and the rise of college hate speech codes. He then proceeds with a helpful overview and reminder of some of the more prominent racial incidents on American campuses in the late 1980s and early 1990s, including a discussion of the backlash by campus conservatives, a review of the larger national political trends fostering resentment by whites and the campaigns that fed their animus (e.g. the Willie Horton ads, David Duke’s candidacy in Louisiana), the increased attention paid to multiculturalism on campuses and the growth of critical race studies as an academic movement, and finally an acknowledgement of the strange bedfellows (e.g. the Left/liberal split and [*859] the ACLU’s ideological alliance with conservative groups) that kept comfort with each other while these battles were being waged in the courts of law and public opinion. Putting this all together and forecasting much of the argument to come, Gould announces that, despite the ostensible setbacks, “[h]ate speech not only lives, it has triumphed” (p.41). That is, despite its apparent defeat and unconstitutional status, colleges have ignored, side-stepped, or resisted judicial opinions. In the process, these policies have “taken on a larger meaning, creating symbolic rights that have filtered out to society as a whole” (p.41), thus surpassing the “wildest fears of its opponents” and becoming “an accepted norm in American society” (p.6).

Chapter 2 addresses the “theoretical implications” of this research and situates the previous chapter’s historical schema within the larger scholarly debate over the nature, distinctions, and interactions between law, legal rules, and social norms. After discussing the “social construction of free speech law,” Gould engages the primary theme of this chapter: the “practical understanding and popular meaning of constitutional norms in civil society” (p.43). An appreciation for such norms – comprising what he generally refers to as “mass constitutionalism” (as distinguished from its counterpart, the “formal Constitution”) – apprises us of the myriad ways that legal concepts, values, and rules are reinterpreted, rearticulated, and reengineered outside the formal mechanisms of the law (i.e., courts). Such an argument, drawing upon the work of Gerald Rosenberg (THE HOLLOW HOPE), Patricia Ewick and Susan Silbey (THE COMMON PLACE OF LAW), and Stuart Scheingold (THE POLITICS OF RIGHTS), among others, does not necessarily disparage courts as agents of social change; rather, it contends, for example, that the broader exercise of constitutional construction “occurs within civil society as a whole, particularly among influential, nongovernmental institutions” (p.51).

An enterprise of “legal meaning-making” of this sort acknowledges the power of courts, but it also looks to social understandings and cultural practices for insight. It takes seriously the realities of noncompliance with court rulings, and it acknowledges that a range of actors and “societal consensus” (p.65) have the power to shape the impact of judicial determinations. Gould concludes the chapter by presenting an intriguing model – a series of concentric circles – portraying the relationship between formal law and social pressure, and he introduces the concept of “extra-judicial legal mobilization” (EJLM), a kind of activism that blends elements of both legal mobilization and traditional political activism, but which addresses itself more to “attitudes and behavior than it does the formal law” (p.71). Such mobilization, which he admits is more of a “mind meld” (“reflecting contemporaneous, collective beliefs and action or advocacy to advance legal change” (p.71)) is well-suited for nascent movements when those dissatisfied with law or social structures are just beginning to organize and connect with one another, as well as efforts within civil society designed to shape public opinion or overcome the power of official institutions.

In Chapter 3 Gould discusses the rise of hate speech codes. Here, he presents in [*860] more detail his research methods and offers his primary response to the critics’ contention that speech codes were the function of organized leftist activism on campus, motivated by identity politics, bent on thought control through speech regulations, and utilizing a version of the mobilization model (EJLM) sketched out in the preceding chapter. Using a random, stratified sample of 100 four-year schools, Gould finds that nearly one-third of American colleges and universities adopted a hate speech code – categorized according to the type of policy instituted – between 1987 and 1992. Pressing further, Gould finds, through various quantitative methods, that two factors are consistently connected to hate speech codes: a school’s prestige and prior anti-apartheid activism (p.86). But, Gould wonders, is this causation or correlation? Does prior activism on campus pertaining to global political injustices constitute a “movement” or “mobilization” for restrictions on speech deemed offensive to groups based on immutable or other characteristics? As a college football guru is wont to say, “Not so fast!”

The real story is to be found in the qualitative research that complements the regressions. In a series of eight case studies (five of which are discussed pseudonymously), Gould looks to archival research and utilizes interviews with officials in administration in order to chart the course of development of such policies at these academic institutions. What he finds, as alluded to above, is that “speech codes were advanced by college administrators, top-level officials at that, who were largely acting on utilitarian or instrumental motives” (p.89), perhaps to diffuse unrest or respond to specific incidents – on their own and, significantly, on other campuses; possibly to ameliorate key alumni; quite often to walk in step with the decisions of other (elite) institutions; and even as a calculated effort to proactively discourage racial problems from developing. Moreover, far from the purported organized efforts at thought control, administrators often did not even necessarily view their policies as “speech” codes (preferring to view them as encouraging “civility” on campus), or they never really intended to enforce the policies – enacting them purely for symbolic purposes.

Chapter 4 takes up the fate of hate speech policies in the courts and offers an enlightening contrast to the fate of sexual harassment policies, ultimately concluding that, while the two domains of law are analogous, the courts’ disjointed treatment of the two is primarily due to the “political, social, and cultural pressures that face judges” (p.123). With an initial overview of the fate of both campus speech codes and sexual harassment claims in the courts, Gould discusses the four traditional theories set forth to explain the disparity (colleges exceeded the reach of their policies in enforcing them; the speech/act distinction in the law; the difference between employment and educational settings; and the heightened importance of speech in academic environments).

Finding none of these to be compelling, he offers his own alternatives to explain the inconsistency between racist and sexist speech, suggesting first that the more energetic and organized support for sexual harassment policies may have influenced their outcomes in court. Second, he proposes that the framing of [*861] these codes as issues implicating “freedom of speech” (as opposed to “antidiscrimination” or “equality”) may have sealed their fate. Moreover, and regarding the third alternative explanation, there is a long history of restrictions against sexuality in American culture and thus this frame trumps what might plausibly have been a counterclaim of “free expression” by alleged offenders.

In Chapter 5, Gould reminds us of an all-too-often-forgotten reality: court rulings are not self-enacting or enforcing and social and political actors are often noncompliant or even, as is the case here, outright subversive, as in the decision by colleges and universities to make their policies more – not less – restrictive in the wake of court rulings finding them offensive of the First Amendment. In fact, by 1997 nearly one-half of American institutions of higher education had hate speech policies – an increase of nearly 30% since 1992 when the Supreme Court addressed the issue, while only 2% removed offending policies during this period. Moreover, the number of schools that outright banned offensive speech – the most constitutionally suspect policy – tripled during this period, a phenomenon observable in both public and private institutions. Noncompliance might have taken a more passive form – wherein officials kept the policies in place for utilitarian reasons (ease, symbolism, unlikely potential for court challenge) – or a more active form, wherein college officials either attempted to maneuver around court opinions or endeavored to redefine the meaning of the very constitutional norm invoked to prohibit the speech policies.

Chapter 6 concludes with a broader look at how the debates on college campuses have extended to civil society generally. For Gould, this demonstrates the power of informal law and the effects of mass constitutionalism, as public opinion has come to support such policies and other institutions (e.g. the news media and internet service providers) have now also subscribed to the tenets and precepts animating speech codes – meaning in the end that “[t]he triumph of hate speech regulation . . . is the success of a competing legal system in the face of formal law” (p.187).

Such a thought-provoking and insightful account raises a few questions in closing. First, while I too rely on interviewing as a research method, it is always possible that your subjects are telling you what you seem to want to hear. Gould did triangulate his approach with various methods in order to confirm interview findings, but in talking to university officials, one would not necessarily expect them to admit to being steamrolled into speech policies by activist pressure groups on campus. Any college administrator with a sizable ego – which, by my count, would be approximately all of them – would likely insist that they were in charge of events and were channeling energies on campus at all times. College presidents, in other words, are likely the same as American presidents and would be expected to claim credit for anything that could potentially be construed as responsible, courageous, visionary, trail-blazing, or even sensitive – after the fact.

Second, I wondered about the exact nature of the critics’ claims of organized activist pressure. To be sure, there is some rhetorical value to imprecision in [*862] such accusations of “bias,” “thought control,” and the like; but I wonder whether those sounding such a call really envision localized, tangible pressure groups on individual campuses, or whether they actually have in mind some kind of amorphous national conspiracy of politically correct energies that finds university codes of conduct as its only outlet. Throughout the book, Gould rightly wonders who these activists are to which critics attribute this mobilized energy for speech codes. This makes me wonder, as well – who do they really think is responsible for these policies? Do they actually believe that campus radicals pressed for such policies, or does that just make for a compelling sound-bite (like the “liberal media”) that is not easily subject to disconfirmation?

Finally, I was left curious as to the process for how the conventional (mis)understanding of the origins of hate speech codes came to be, at least, the temporarily dominant narrative. Gould does a fantastic job of debunking such assertions – and yet they are hard to dislodge. Why? Are the critics so adept at manipulating the media or controlling outlets of communication? (Here a link might be made to William Haltom and Michael McCann’s excellent analysis in DISTORTING THE LAW.) Is there some ironic twist on Gould’s theory of “mass constitutionalism” that allows the critics to persuade the public to accept myths, rumors, and canards over facts? Hate speech regulation may have triumphed, as Gould persuasively argues, but why is it that the critics’ account of the origins of such regulations has triumphed? Such questions may not be answerable, but at least SPEAK NO EVIL provides a place to start this important discussion.

REFERENCES:
Ewick, Patricia, and Susan Silbey. 1998. THE COMMON PLACE OF LAW. Chicago: University of Chicago Press.

Haltom, William, and Michael McCann. 2004. DISTORTING THE LAW. Chicago: University of Chicago Press.

Heumann, Milton, and Thomas Church, with David Redlawsk (eds). 1997. HATE SPEECH ON CAMPUS. Boston: Northeastern University Press.

Rosenberg, Gerald. 1991. THE HOLLOW HOPE. Chicago: University of Chicago Press.

Scheingold, Stuart. 1974. THE POLITICS OF RIGHTS. New Haven: Yale University Press.

© Copyright 2005 by the author, Brian Pinaire

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THE PSYCHOLOGY OF RIGHTS AND DUTIES: EMPIRICAL CONTRIBUTIONS AND NORMATIVE COMMENTARIES

by Norman J. Finkel and Fathali M. Moghaddam (eds.). Washington DC: American Psychological Association, 2005. 305pp. Hardcover. $69.95. ISBN: 1-59147-166-4.

Reviewed by: Jeffrey E. Hecker, Matthew W. King, and Kelly Patten, Department of Psychology, University of Maine. Email: Jeff_Hecker [at] umit.maine.edu

pp.850-856

In THE PSYCHOLOGY OF RIGHTS AND DUTIES: EMPIRICAL CONTRIBUTIONS AND NORMATIVE COMMENTARIES, editors Norman Finkel and Fahali Moghaddam endeavor to address important questions about the definitions of, and relationships between, rights and duties. In the introductory chapter they note that the well-known line of psychological research on “bystander intervention,” triggered by the Kitty Genovese murder, produced some interesting findings about people’s understanding of their personal duty. Unfortunately, this line of research faded away and very little psychological research on rights or duties has been carried out since bystander intervention studies were popular in social psychology. In the aftermath of September 11, 2001, including the passing of the Patriot Act and the “War on Terrorism,” important questions about rights and duties spring to mind. Does the government of one country have the right to invade another in order to hunt down terrorists because of its duty to protect its people? Does the government’s duty to protect its citizens supercede citizens’ personal rights? In the context of recent events, the editors make a strong case for renewed attention from psychologists to basic questions about rights and duties.

Scholars and social commentators note an increase in calls for the protections of the rights of individuals and the various groups to which they belong (e.g., women, gay, children, mentally ill, disabled, and so on). The editors point out that there are important empirical questions about rights and duties to which we do not know the answers. “Does this predominance of rights talk actually mean that there is a neglect of duties? Does talk in fact translate into problematic actions for the citizenry such that people fail to act on duties to other people, to groups, and toward the government, and vice versa?” (p.5).

Finkel and Moghaddam describe three goals for their text. The first is to aggregate empirical research about rights and duties produced by psychologists from around the world. The second is to strengthen the interchange between psychological research and other disciplines that have struggled with questions of rights and duties. The third goal is “to identify promising questions for future research.” In the service of these goals, the editors asked contributors to address at least one of three sets of questions (19 questions in total). The first set has to do with basic questions about rights and duties including their justification, how they are influenced by culture, and people’s understanding of them. The second set [*851] of questions focuses upon the relationship between rights and duties, and the third set, with duties and rights as independent constructs.

In Parts I and II of this edited volume, the contributers summarize empirical findings regarding rights, duties and culture (Part I) and the relationship between rights and duties (Part II). Part III includes commentaries on the empirical chapters by scholars from the so-called normative disciplines: philosophy, history and political science, as well as a final commentary by the editors.

Part I: Empirical Contributions on Rights, Duties and Culture

In Chapter 2, Dario Spini and Willem Doise describe their program of research on the social representation of human rights. Spini and Doise provide an interesting and succinct historical chronicle of rights and duties which laid the groundwork for their research, developed within the context of social representation theory. “Social representation theory analyzes the intervention of patterns of social regulations and communications in the way individuals describe and explain social issues they are confronted with” (p.28). Within this theoretical framework, Spini and Doise summarize findings concerning cross-cultural beliefs about individual rights. Much of the work looks at how individuals in various cultures view the 30 articles of the United Nations Universal Declaration of Human Rights (which is reprinted as Appendix A of the book), and how well these articles represent beliefs held about rights and duties.

Doise’s and Spini’s research supports the hypothesis that there are shared categories of rights and duties cross-culturally. Similarly, the categorizations produced by philosophers and legal experts and those discovered through empirical investigation of the lay public share many features.

Doise and Spini conclude the chapter with a discussion of how their findings relate to the second set of questions raised by the editors, those having to do with the relationship between rights and duties. They interpret their findings as indicating “a primacy of rights over duties in declarations” such as the United Nations Universal Declaration. Duties tend to be specified in law and enforced by states, whereas rights tend to be defined more abstractly. Finally, their surveys suggest that citizens view the state as having a greater role in socioeconomic rights than in individual rights and duties.

Siegfried Hoppe-Graff and Hye-On Kim describe a cross-cultural study of the understanding of rights and duties in adolescents from Germany and South Korea in Chapter 3. This chapter is presented as an empirical journal article. The researchers surveyed 261 German and 235 South Korean adolescents (ages 12 to 16) using sentence completion and open-ended questions about rights and duties, as well as who “lays down” rights and duties.

To summarize briefly, the authors find similarities and differences in the ways German and Korean youth understand rights and duties. The differences are consistent with what one might expect in adolescents coming of age in collectivist (Korean) versus individualistic [*852] (German) cultures. For example, the German youth emphasized the importance of obeying laws and rules in their thinking about duties, whereas the Koreans emphasized the inner experiences associated with duties (e.g., obligations, responsibility, respect).

Although the authors did not explicitly address the questions put forth by the editors, their findings clearly have implications for the first set of questions regarding cultural influences on rights and duties.

In Chapter 4, Moghaddam and Riley describe a cultural theory of the development of rights and duties and present three propositions drawn from their theory:

  1. Common to the human experience are a number of biological and functional conditions that give rise to primitive social practices, social behaviors that are universal and essential for the survival of individuals.
  2. The development of language in children is associated with the learning of cultural interpretations of primitive social relations, such as turn taking, as involving rights and duties.
  3. In relationships that are (a) changing, so that the norms and rules of behavior are uncertain or (b) adversarial so that the conflict is actual or very possible, those with equal or less power will give priority to rights and those who enjoy greater power will give priority to duties (pp.78-79).


In the first half of the chapter, the authors summarize empirical evidence consistent with these propositions.

The second half of the chapter presents the findings of three empirical studies which are representative examples of research on some of the central aspects of the authors’ theory. The first two studies survey American and Iranian adults about their attitudes toward rights and duties of adults and children. The third study is a survey of American, Chinese and Russian adults and illustrates some similarities across cultures about perceived features of rights and duties.

The chapter concludes with Moghaddam and Riley attempting to address four of the questions presented in Chapter 1. The organization and content of this chapter do not flow logically or hang together particularly well. The authors’ attempt to address the four questions at the conclusion of the chapter really does not draw upon or integrate the material discussed earlier.

Chapter 5, by Winnifred R. Louis and Donald M. Taylor, addresses questions about rights and duties from the social-psychological perspective of group norms. They review the literature on intergroup relations and argue that the social-psychological literature does not support the proposition of universal rights and duties. Rather they “present a strongly relativistic account of rights and duties” (p.106).

Louis and Taylor review the literatures on the influence of group norms on individual behavior, citing classic social psychology experiments and discussing the processes by which norms influence behavior. The authors also describe how the relative amount of rights versus duties rhetoric is related to whether advantaged or disadvantaged groups [*853] initiate the discussion. They argue that duties talk by advantaged groups serves the function of delegitamizing dissident groups.

In the conclusion to their chapter, Louis and Taylor address seven of the questions posed by the editors in Chapter 1, citing the social psychology literature to support their responses, and, unlike the preceding chapter, the authors’ responses follow from the literature reviewed earlier in the chapter.

Section II: Empirical Contributions on the Relationship Between Rights and Duties

In Chapter 6, Tyler discusses empirical research on Americans’ sense of duty with respect to obeying their government institutions. He begins by presenting the argument made by some authors that Americans, as a culture, are completely rights-focused, overly protective of our individual freedoms and resistant to responsibilities to the rest of society. His thesis is that Americans, in fact, do have a sense of duty that is evinced in a willingness to follow rules and regulations. He argues, with empirical support, that Americans tend to feel a duty to obey their government even when the rules conflict with their personal beliefs, so long as they perceive the rules to have been derived fairly and impartially. In fact, they empower their governments to make rules that restrict their freedoms, based on a belief that only a body with authority over everyone is able to solve social problems and ensure that all citizens contribute their fair share. Tyler discusses a number of bases for Americans’ sense of duty in this regard. For instance, people may tend to feel unclear about their duties to others and experience a fear that, in this litigious society, their actions may be misinterpreted. Allowing the government to define our duties to each other creates a sense of legitimacy and normalization. Americans, Tyler argues, are not negligent of their duties to others by doing nothing more than obeying the law, because the law defines a fair level of responsibility. Tyler’s arguments are clearly and convincingly presented, supported with a number of illustrative case examples.

In Chapter 7, Finkel addresses the relationship in American legal thinking between black-letter law – the law as it is officially codified – and commonsense justice – the dynamic sense of fairness underling public opinion of how the law should operate. His discussion centers on a narrative analysis of research where ordinary citizens were charged to make a personal assessment of some of the most controversial court cases in American legal history. In doing so, he attempts to explicate the relationship between black-letter law and commonsense justice. The relationship revealed through this research, Finkel observes, is that the two perspectives differ on a number of grounds, most notably in their decision-making process, either through examination of precedent and strict interpretation or based on a moral evaluation of fairness according to current societal standards. The empirical results suggest that, in general, participants reasoning from the perspective of commonsense justice disagree with the historical decisions reached by judges and justices. Finkel expounds on these findings to reveal Americans’ implicit sense of ethical duty and how black-letter law and commonsense justice operate as [*854] effective checks and balances to each other.

Finkel’s arguments reflect a high level of analysis, at times made more dense by a somewhat legalistic writing style. The sections of the chapter do have a logical thread that unifies them, but the train of thought may not be entirely clear on the first read. Finkel’s thesis, however, is valuable and in accord with the goals of the book to explore public perception of rights and duties and provide a basis for normative commentary.

In Chapter 8, Philip J. Moore, Stephanie Spernak, and Enid Chung, utilize the context of the doctor-patient relationship to address several key questions posed in the book’s introduction: what is the nature of rights and duties, what is the relationship between them, and how do they change over time? They selected the doctor-patient role because of its centrality in American culture and its usefulness as a model for examining these questions. As they indicate, it is a relationship whose focus and power balance have changed over time, thus providing a useful example of right and duty evolution. Moore, et al., describe a number of doctor-patient relationship models that have been ascendant at different points in the history of modern medicine. The original emphasis was on the duties of the physician and the physician’s authority to direct the course of treatment unilaterally, but the relationship has evolved to today’s consumer model where patients’ rights are paramount and doctors are held accountable for all that they do. The authors demonstrate, however, that there are still discrepancies between patients’ expectations of their rights and how doctors practice their duties, regardless of how rights are legislated at the official level, which has led to increasing patient dissatisfaction. The authors conclude with a normative commentary on how the doctor-patient relationship reveals the symmetrical nature of rights and duties, and a call for a more interpersonally-focused model of medicine that will even that balance.

Moore and colleagues have a clear and accessible writing style, making for a well-organized chapter, although the concluding commentary digresses somewhat from the original context before returning to the final arguments. Overall the chapter fits well with the purpose and goals of the book, grounding a discussion of rights and duties in an important aspect of American society.

In Chapter 9, Stephen Worchel provides an analysis of how rights and duties define individuals’ places within groups and the location of both those individuals and groups within the larger culture. Grounding his commentary in the social psychology literature, Worchel explores the fundamental paradoxes inherent in group membership, such as the individual’s struggle for acceptance and uniformity while simultaneously trying to maintain an independent sense of self, which is pitted against the group’s interest in conformity and loyalty, something that can only be done effectively by allowing group members to develop their unique identities. Worchel describes how individuals and groups exist in a reciprocal relationship, with individuals negotiating rights in exchange for fulfilling duties to the group, and with groups negotiating to limit the rights of individuals so as to advance the interests and survival of [*855] the group. This relationship between individuals and groups, Worchel asserts, exists in the cultural context, with cultures defining the fundamental structure on which rights and duties are defined – individualistic cultures emphasize individuals’ rights over the group’s, while collective cultures emphasize the opposite. Worchel uses this discussion to advance his argument against the existence of “universal” human rights, insisting that essential rights of individuals change across time and culture and cannot exist independently of the disparate groups that fulfill different duties to its members.

Worchel provides a thorough and convincing argument for the inclusion of social psychology in any consideration of individual and group rights and duties. His approach emphasizes the theoretical, at the expense of empirical support except in the abstract. His anecdotal examples, however, are relevant and helpful in understanding his points. What he does do well is construct a framework of group dynamics that will provide a useful basis for future research, thus aligning his chapter with the goals of the book.

Part III: Normative Commentaries

Part III begins with a commentary by the renowned philosopher, Rom Harre’ (Chapter 10) who is critical of the book’s editors and contributors for not explicitly discussing the ontology of rights and duties. Harre’ notes that much of the empirical work on rights and duties discussed is really about “the ways in which people talk about their obligations and the demands they can make on others” (p.223).

Harre’ presents four questions for students of rights and duties:

  1. What is the source of the obligations that the talk of duties and rights seem to create?
  2. Is there a discourse rule requiring that the assertion of the existence of a right entails the assertion of the existence of a corresponding duty, and that the assertion of a duty implies the existence of a corresponding right? In other words, is there a universal, context-independent correspondence between duties and rights?
  3. Are there any concepts of rights and duties found in the discourse of all human societies in which social order is discursively managed? Are there universal duties and rights? Are they applicable only to human beings?
  4. Does informal duties and rights talk dominate or give way to formal discourse concerning rights enacted by legislative bodies? How is the transition from informal to formal managed? (pp.225-226).


Harre’ concludes his commentary calling empirical researchers to task for reifying “right” and “duty,” for treating these words as if they are entities. Harre’ notes that the more important question is functional: “What are these words being used for?”

In Chapter 11, Thomas Haskell brings an historian’s perspective to the issues of rights and duties. Haskell acknowledges the editors’ point that “rights talk” currently dominates western culture; while talk of duty, particularly to God and [*856] country, were more common in earlier periods. He disagrees with the book’s editors, however, in their view that rights have superceded duties. Haskell writes, “Contrary to what Finkel and Moghaddam seem to believe, I see no reason to suppose that the overall results of this steady expansion of rights has been a general shrinkage of constraints” (p.247).

Haskell points out that the increase in rights for one segment of the population is usually associated with greater constraints (duties) on others. “Women and minorities have no doubt experienced a loosening of constraints over the past century and a half, but that goal was achieved by imposing on all the rest of us constraints that did not previously exist” (p.247). Haskell sees rights and duties as being “different aspects of a single package of rules governing human interaction in some specified situation” (p.248).

The third normative commentary is from a political scientist, Thomas Spragens, Jr. (Chapter 12). Spragens offers an interesting discussion of the relationship between empirical beliefs and moral validity, cautioning that because something is empirically shown to be acceptable or right to a majority of people, does not make it morally right.

In the final chapter, the editors revisit questions of the universality of rights and duties, the relationship between rights and duties, and the methods employed in cross-culture research.

The editors of this volume have largely achieved the goals they set. The empirical chapters summarize relevant research literatures and provide direction for future empirical research. The normative commentaries are provocative and encourage cross-disciplinary thinking. For scholar interested in studying the psychology of rights and duties, the volume provides a jumping off point. The book would also be useful for graduate level courses in the psychology of justice, social psychology, social justice or cross-cultural psychology.

Taken as a whole, the book represents an important contribution. The content is varied, ranging from the concrete to the theoretical and philosophical, ensuring that readers with a wide range of reasons for reading the book will find something of interest. It is likely that those who read it will obtain an improved perspective on our understanding of rights and duties in the 21st century.

Clearly, there is much room for psychological research into people’s understanding of rights and duties, the relationship between their perceptions of rights and duties and their actions and the implications of this work for broader efforts to defend human rights. THE PSYCHOLOGY OF RIGHTS AND DUTIES nicely summarizes the knowledge-base at this point in time. It is worth noting, however, as more a comment of the state of the art than on the quality of the contributions to this volume, that of the 19 questions posed in the first chapter, most are left unaddressed. Hopefully, this book will be an instigator for growth in this area of inquiry.

© Copyright 2005 by the authors, Jeffrey E. Hecker, Matthew W. King, and Kelly Patten.

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ISSUES IN INTERNATIONAL COMMERCIAL LAW

by Iwan Davies (ed.). Hampshire, England, and Burlington, Vermont: Ashgate Publishing Co., 2005. 246pp. Hardback. $124.95/£65.00/€114.00. ISBN: 0754624625.

Reviewed by Michael L. Rustad, Thomas F. Lambert Jr. Professor of Law & Co-Director of Intellectual Property Law Program, Suffolk University Law School, Boston. Email: profrustad [at] aol.com.

pp.847-849

Robert Kagan’s article in THE ECONOMIST entitled, “Old America v. New Europe,” explodes our assumption that Europe is a clapped-out old continent. The “new Europe” of the European Union is a mere teenager when one considers its cross-national commercial law framework. Professor Kagan notes how America’s political system is old as compared to the upstart European Community. The purpose of ISSUES IN INTERNATIONAL COMMERCIAL LAW is to introduce the reader chiefly to European commercial law developments, although there is some coverage of comparative commercial law. The volume is composed of a collection of essays submitted to the JOURNAL OF INTERNATIONAL COMMERCIAL LAW.

Most chapters make comparisons between the commercial law of the countries of New Europe and Old America. Editor Iwan Davies divides the commercial law essays into three parts: “Credit and Security,” “Contractual Issues,” and “International Commercial Regulation.” Although most chapters are about private commercial law, there is some coverage of public law topics such as insolvency proceedings and cross-border criminal law enforcement.

A number of the chapters focus on the domestic commercial law of the United Kingdom, Lithuania, and Argentina without considering cross-border transactions. In Louise Gullifer’s chapter on quasi-security interests, the comparisons are between Uniform Commercial Code Article 9 style systems of perfecting security interests and the more formalistic approach of England and Wales. Professor Smaliukas’ descriptive chapter is largely about perfecting security interests in Lithuania. Davies’ article primarily considers the patent regime and intellectual property registries found in England and Wales. While he makes comparisons between US and UK law, there is no guidance on how the international business concern would go about perfecting security interests. Ryder’s historical analysis of the development of credit unions in Great Britain and the United States is concerned essentially with the ineffective regime in the United Kingdom.

The Part on Contract Law would have been of greater value had it covered international sales law or the law of services rendered in the cross-border environment. Although security interests may be important, the law of international sales is the gravaman of international commercial law. I have [*848] taught courses in private international law from a comparative perspective at the University of Lund in Sweden every other summer since 2000. Last summer I taught International Contract Law in Mexico City for the University of San Diego. My American and European students (Swedish, Czech, Serbian, and German) have responded well to the comparative approach to international comparative law. Because this book does not cover international sales law in any depth, it is not suitable as a law school text.

This book would be a good supplemental text in comparative commercial law courses, if it covered a broader range of topics. Most international commercial law texts used in law schools would require extensive coverage of the Convention for the International Sales of Goods (1980) (CISG) and other UNCITRAL projects not examined in this work. A decade ago no commercial law text covered CISG in a conventional sales course, but in the last five years, a quiet revolution has occurred in the teaching of sales law in American law schools. Increasingly, courses present sales law from a national and an international perspective, and the current edition of most commercial casebooks cover the CISG in great detail. Elizabeth Macdonald and David Poyton’s chapter, “E-Commerce: Recognizing the Context,” is the most relevant to international contract law. With the development of the Internet, ancient doctrines of contract law such as the mailbox rule will need to be revised (p.157).

International commercial law is evolving at a rapid pace. The e-commerce chapter in this book is already out of date, since the Brussels Convention has been displaced in most European Union countries by the Brussels Regulation as of March of 2003. Lawyers representing businesses will be interested in the discussion of the home court rules now found in Articles 15 through 17 of the Brussels Regulation (pp.164-165). In the United States, the minimum contacts framework determines personal jurisdiction; whereas bright-line rules, such as “home court” rules, are found throughout New Europe. American law professors will be interested in a number of topics covered in this book. The chapter on electronic commerce covers issues relevant to sales law, such as the Brussels Convention and the Rome I Convention on choice of law. Rome I validates the parties’ choice of law but has special non-waivable protection for consumers. Companies in the United States need to learn about the Unfair Terms Directive in e-commerce transactions (p.167).

Political scientists and other social scientists will find this book to be a difficult read and of limited relevance. Davies’ chapter is the only piece to cover any jurisprudential concepts in any detail. However, there may be an audience for the book outside the law school and liberal arts markets. Foreign lawyers need to understand cross-border credit and security interest issues, e-commerce law, international trade law, and international money laundering regulations. Sophisticated American lawyers and law students need to understand the origin of credit union law, the law of the sea, international navigation rights, and perfecting security interests in the UK. Foreign business lawyers would be interested in knowing the similarities and differences between Article 9 [*849] and the UK secured transactions. American e-businesses targeting Europeans will need to comply with European Directives, such as the Distance Selling Directive and Products Liability Directive, covered in Macdonald’s and Poyton’s “E-Commerce: Recognizing the Context” (Chapter Seven). Similarly, American business lawyers need to understand European provisions for jurisdiction and judgments (Brussels Convention) and Choice of Law (Rome I Convention). Transnational commercial law norms are developing rapidly. Just as in the era of pie poudre courts, it is now possible to identify transnational commercial law legal norms. Cross-border commercial law fosters standardized commercial practices throughout Europe and the world.

REFERENCES:
Kagan, Robert. 2003. “Old America v. New Europe.” THE ECONOMIST, Feb. 20.

Whitehead, Alfred North. 1927. SYMBOLISM. Cambridge: Cambridge University Press.

© Copyright 2005 by the author, Michael L. Rustad.

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THE ABOLITION OF ANTITRUST

by Gary Hull (ed). New Brunswick, NJ: Transaction Publishers, 2005. 176pp. Cloth. $39.95. ISBN: 0-7658-0282-1. Paper. $24.95. ISBN: 1-4128-0502-3.

Reviewed by Scott E. Graves, Department of Political Science, Georgia State University. Email: polseg [at] langate.gsu.edu.

pp.843-846

Although the title of THE ABOLITION OF ANTITRUST makes clear its prescriptive conclusion, it may obscure the proper audience for the book. In the Introduction, editor Gary Hull promises economic, historical, and moral critiques of antitrust, and the book is divided into three parts reflecting these dimensions. However, the chapters devoted to the economics and legal history of antitrust are less up-front than the two chapters addressing the moral issues raised by antitrust. None of the essays offers a sincere attempt to assess the alleged harms antitrust law is intended to contend with or its effectiveness (or lack thereof) in dealing with those harms.

The title of the last chapter, “Antitrust is Immoral” written by Hull, could usefully serve as the title of the book itself, since even the chapters purportedly concerned with other objections focus on the incompatibility of antitrust law with fundamental philosophical principles. Almost all of the authors, therefore, remain at a high level of abstraction. Readers expecting a serious engagement with the efforts of judges, administrators, and economists over the last century to define and identify anticompetitive behavior will be disappointed. Those anticipating a provocative treatment of the philosophical issues raised by the existence of antitrust offenses will find plenty to satisfy.

Gary Hull is identified on the back cover of the book as, among other appointments and positions, coeditor of THE AYN RAND READER. Although readers less than enthusiastic about Rand’s philosophy might, as a consequence, approach this book with some skepticism, this detail alone does not justify that attitude. However, copious references to Rand’s works are made throughout the book and some essays lean rather heavily on citations to Objectivist texts. The back cover also indicates that the book was “[d]esigned for the uninformed but educated layman,” but readers unfamiliar with Rand may be frustrated by references to arguments that are more grounded in epistemology or ethics than economics and are not adequately explained. Having to supplement the text with appropriate supporting materials makes this book more suitable to an economic philosophy class than an economics or law course.

Like most edited volumes, the chapters vary in quality, but are quite consistent conceptually. Part One, dedicated to the economics of antitrust, begins with a concise and accessible essay by Dominick Armentano, reprinted from a 1999 publication. Armentano addresses conditions and practices alleged to erect illegal barriers to entry, such as product differentiation, advertising, and predatory practices. The essay clearly [*844] explains several widely accepted criticisms of mid-20th century antitrust policy crafted to protect competitors, rather than competition, often at costs to consumers, but assumes perfectly revealed consumer preferences in order to argue that firm practices, decried as anticompetitive, actually serve competition. Armentano uses the FTC’s ready-to-eat cereals case to demonstrate the erroneousness of the product differentiation offense, a popular but curious example for antitrust critics, since the case was unsuccessful before the administrative law judge and the commission. Demonstrating the flaws in a successful prosecution would make a stronger case for the abolition of antitrust. Armentano’s critique of antitrust proponents is a bit dated as well. There are only two citations in the essay published less than 20 years ago, and both are to the author’s previous works.

The second chapter, by John Ridpath, republished from THE OBJECTIVIST FORUM, begins with a castigation of antitrust laws from Ayn Rand and is the most reliant on Rand’s work (fiction and non-fiction) for its substance. Ridpath is primarily concerned with the “metaphysical and epistemological” errors of Frank H. Knight upon which antitrust law is based. The chapter is brief, stridently condemning the fictions that underlie antitrust law such as the unreality of perfect competition models and the “Kantian false dichotomy between reality as it really is, and reality as it appears to us” (pp.21-22). Although it appears in the economics section, the chapter’s substance is philosophical and is actively hostile to economic modeling.

The last chapter in Part One, by Richard M. Salsman, is original to this volume and is probably the most crucial, explaining several concepts and conclusions vital to all the essays. Salsman also dispels any notion the reader might have that the collection is conventionally pro-conservative, as he criticizes classical, Austrian, and neo-classical economists like Adam Smith, Ludwig von Mises, and Milton Friedman as vigorously as socialist thinkers. Along with a condemnation of perfect competition theory, Salsman argues that false notions of profit have distorted economics for centuries, justifying the tragic injustice of antitrust. The two are related, as under pure perfect competition (an unattainable ideal, all economists agree) there are no economic profits, as markets achieve allocative efficiency and drive prices down to average marginal costs.

Salsman’s essay suffers from several conceptual confusions, such as his mistaken understanding of how economists define profit. He claims that under perfect competition theory, profit is the difference between price and the variable cost of production, which he equates with the marginal cost (p.30). Since this excludes fixed costs, all businesses incurring fixed costs must necessarily operate at a loss. But marginal cost is not the same as variable cost, and economic profit (distinct from accounting profit, although Salsman refers to both interchangeably as “profit”) is the difference between price and the sum of average variable cost and fixed cost or the cost function at a given quantity. Marginal cost is not even the average total cost; it is the derivative of the cost function with respect to quantity. Perfect competition theory [*845] naturally seems bizarre under such a misapprehension.

Crucially, Salsman rejects both the labor and utility theories of value in favor of a theory of value rooted in intellectual labor (p.47). Consistent with the individualist commitments of Objectivism, Salsman accuses neo-classical economics of allowing heroic entrepreneurs to vanish and “deifying the consumer” (p.41) by locating value in the subjective utility of buyers, the willingness to pay. Ironically, Salsman’s preferred theory of value causes consumers to disappear and even characterizes consumption as “the destruction of wealth” (p.46). Equating production and profit leads to peculiar statements like “[a] firm that produces more also profits more, since the two are synonymous” (p.51). The essay also fails to distinguish between profit and surplus, referring to both as “profit.”

The next two essays are grouped as the legal history of antitrust. The first, by Eric Daniels, traces the history of monopoly from 17th century England to the passage of the Sherman Act in 1890. Daniels notes the shift in the general understanding of monopolies from government-protected grants of exclusive economic rights to the accumulation of private economic power the Sherman Act was enacted to address. The shift does not date exactly to 1890, however, as 26 states had already passed laws regulating restraint of trade before the Sherman Act was passed (Gellhorn and Kovacic 1994). Daniels explains the checkered history of the common law’s protection of free trade against state-sponsored monopoly, but neglects the roots of modern antitrust in the medieval common law proscription of “forestalling,” defined as “all unlawful efforts to raise prices” (Letwin 1965, at 33).

More fundamentally, the separation of political and economic power maintained by Daniels and Thomas A. Bowden in Chapter 5 does not take into account the unprecedented consolidation of wealth and productive capacity made possible by the growth of the modern corporation and the industrial revolution. Economic power, based on contractual relations, is ultimately backed by the coercive power of the courts to enforce contracts. Government enforcement of contractual obligations requires close consideration of the voluntariness and oversight of contracts and the externalities of contractual arrangements, which neither of these essays acknowledge. More than one author refers to Joseph Schumpeter, but there are no mentions of Berle and Means.

The final two chapters of the book provide the clearest statements of why antitrust policy is illegitimate by squarely challenging the moral basis of government intervention in productive decisions. Harry Binswager’s essay introduces several of the standard objections to theories of market failure and unfair competition raised by neo-classical economists without the formalization, rigor, and nuance of Robert Bork, for instance, who recognized the anticompetitive potential and predatory practices of Microsoft, while Binswager defends Microsoft (Bork 2003). Binswager, and Hull in the last essay, both indict antitrust for violating principles of Randian ethics that demand the primacy of the individual as understood by Objectivism. [*846] All authors in the collection concur explicitly or implicitly that any profits, even monopoly profits, are earned legitimately by entrepreneurs, so the loss of consumer surplus does not justify government intervention.

Binswager explicitly rejects the social welfare, wealth-maximization foundations of economic policy as “altruism-collectivism” (p.140). Salsman’s essay, the most self-sufficient in the book, concludes by stating the assumption that successful production of profit follows from freely competitive practices (p.55) and the moral case against antitrust is similarly based on the assumption that profits result from valorous market success. Without honestly confronting the possibility that this might not always be the case, the argument for abolishing antitrust presented here merely begs the question.

REFERENCES:
Bork, Robert. 2003. “HIGH STAKES ANTITRUST: THE LAST HURRAH?” In Robert W. Hahn (ed). HIGH STAKES ANTITRUST. Washington, DC: AEI-Brookings Joint Center for Regulatory Studies.

Gellhorn, Ernest, and William E. Kovacic. 1994. ANTITRUST LAW AND ECONOMICS. St. Paul, MN: West Publishing.

Letwin, William. 1965. LAW AND ECONOMIC POLICY IN AMERICA. Chicago: University of Chicago Press.

Rand, Ayn. 1999. THE AYN RAND READER. Gary Hull (ed). New York, NY: Plume.

© Copyright 2005 by the author, Scott E. Graves.

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MILITARY TRIBUNALS AND PRESIDENTIAL POWER: AMERICAN REVOLUTION TO THE WAR ON TERRORISM

by Louis Fisher. Lawrence, Kansas: University Press of Kansas, 2005. 296pp. Cloth $35.00. ISBN 0-7006-1375-7. Paper. $16.95. ISBN 0-7006-1376-5.

Reviewed by Craig Hanyan, Professor Emeritus, Brock University, St. Catharines, Ontario, Canada. Email: chanyan [at] brocku.ca

pp.834-842

In a 1986 judgment, the Court of Military Appeals “emphasized that ‘Command influence is the mortal enemy of military justice’” (Everett 2001, at 26). “Unlawful command influence” by superior officers has concerned American military jurists acting under the evolving Uniform Code of Military Justice that Congress established on 5 May 1950. Yet ultimate control lies with other than uniformed Americans. Article II, Section 2 of the United States Constitution specifies that the president shall command the armed forces of the country. Given civilian leadership, and the power of Congress to define law by statute, restraints on inappropriate command influence in military justice should both reach to and extend from the very top.

Louis Fisher, surveying the development of military justice, nevertheless warns us that “unchecked executive power always poses a threat to individual rights and liberties” (p.xii). A specialist in the separation of powers in the Research Service of the Library of Congress, Fisher has contributed to an understanding of the growing authority of the U.S. president. Recently (2000; 2004), he tracked the diminution of legislative fiscal power and the increasing power of the executive to lead the nation into armed conflict. In MILITARY TRIBUNALS AND PRESIDENTIAL POWER, he focuses not so much on courts-martial as on the military tribunals and commissions that are less firmly governed by federal law and by the codes of military justice that the Congress has created. Fisher finds that these tribunals, which, with the Civil War, became consistently distinct from courts-martial, have served as vehicles for military and presidential encroachment on the equitable rights of both civilian Americans and of foes of the United States. Cloaked by the war powers of the executive, this encroachment has been most visible during times of national stress. He presents his case by exploring the function of the tribunals, the response of the judiciary to the issue of their operations, and the political setting of both of these facets of the problem.

More than one-third of MILITARY TRIBUNALS AND PRESIDENTIAL POWER concentrates on legal developments that followed the attacks of 11 September 2001. He begins earlier. Chapters on the “Law of War” and “American Precedents” establish the nature of military justice of the antebellum republic. The founders of the republic committed the nation to legislatively created martial law. They denied that the nation had endowed the executive commander-in-chief with monarchical power to make law for the [*835] army and navy. Just as Article 1, Section 8, of the Constitution gave Congress the power to declare war, it also gave the legislature the power “to define . . . Offences against the Law of Nations.” Earlier, in that spirit, George Washington had looked to the Congress to revise Continental military regulations, and he believed that state laws, where they existed, should address the misdeeds of civilians who trafficked with the enemy. Winfield Scott assumed a similar legal posture. During the Mexican War General Scott faced the problem of disciplining disorderly American volunteers and errant Mexicans. In vain, he sought federal legislation that would update and improve the 1806 statutory Articles of War but was obliged to impose rules of his own. Doing that, he distinguished between tribunals, which enforced those rules, and courts-martial that sat on cases addressed by the Articles of War. Subsequently, the Supreme Court agreed with Scott’s judgment. It gave ample warning that neither the military nor the president could presume to create courts of standing outside of the United States. That power lay with Congress. There were exceptions to Congressional control in the antebellum republic. Fisher explores Andrew Jackson’s maintenance of martial law in New Orleans after the battle that saved the city and then Jackson’s role in the trial, and more to the point, the execution of Alexander Arbuthnot and Robert Ambrister. Such exceptions merely “left a shadow of illegitimacy over executive power” (p.40).

Fisher traces the next phases of development through his chapters on “The Civil War” and “Codes of Modern Warfare.” At the beginning of the struggle to save the Union Lincoln moved gingerly to suspend the writ of habeas corpus and sought Congressional approval for this emergency measure. Congress approved and subsequently gave Lincoln the power to suspend the writ. Meanwhile, military leaders acted under him to set up tribunals to deal with infractions that could not be addressed by courts-martial. At their best, guided by statute, they “emphasized the need for strict procedures” that reflected the procedural rules of courts-martial (pp.48-49). Lincoln overturned tribunal decisions that he found defective or unduly harsh.

Of course, there were abuses during these years: Chief Justice William H. Rehnquist (1998, at 74) has concluded that too often “martial law was the voice of whichever general was in command.” After the murder of Lincoln, military tribunals acted harshly, with less restraint. The trials of Henry Wirz, commandant of the Andersonville prison, and the eight charged with Lincoln’s murder illustrate this shift. Fisher imputes the ultimate responsibility for the hanging of Wirz and of Mary Surratt to President Andrew Johnson: final authority over death or imprisonment rested with him. In 1866, on the other hand, the Supreme Court appeared to offer protection from overreaching military-executive authority. On a petition of habeas corpus, in EX PARTE MILLIGAN, it freed a citizen of Indiana, who had been condemned to hang by a military tribunal even though the civilian [*836] courts were open to try him. Yet the victory for civil jurisdiction had limits. A substantial minority on the Court held that Congress had the right to authorize military commissions when civilian courts were open. Moreover, Congress soon “passed legislation to limit the [Supreme] Court’s jurisdiction to hear cases involving military law” (p.59), and, thirdly, military tribunals sat in the South during Reconstruction. Fisher’s exploration of the history of civil liberty during the Civil War is necessarily less nuanced that of Mark E. Neely, Jr. (1991), but he clearly concurs with Neely’ s judgment that “war and its effect on civil liberties remain a frightening unknown” (p.235).

Thereafter, in “Codes of Modern Warfare” MILITARY TRIBUNALS traces a basically twofold and potentially divergent development. First came General Orders No. 100, the executive order composed largely by Francis Lieber of Columbia College. These orders set guidelines for the Union army. These attempted to humanize conflict without denying military necessity. It has been judged that here “for the first time a government issued instructions to its army relating to its conduct in the field, which purported to be expressive of generally accepted practice, and on which it was in fact based” (Green 1985, at 87). In turn, Lieber’s jus in bello had marked influence on international law. Later, the aging 1806 Articles of War underwent change that pointed in a somewhat different direction. While Lieber stipulated the authority of Congress over this statutory body of military law, he also recognized an international common law of war that fell under executive authority and guided military commissions—tribunals. The revised Articles of War embodied these creatures of executive power in the 1920 National Defense Act, gave them concurrent jurisdiction with courts-martial, and empowered the president to define procedures and, insofar as he deemed practicable, to impose rules of evidence consistent with those that obtained in federal district counts. The looseness meant that those rules could stray from federal rules of evidence and the international standards that Lieber had helped to foster.

This brings us to the chapter on the “Nazi Saboteurs” and to EX PARTE QUIRIN (1942), explored in a previous book by Fisher (2003). In MILITARY TRIBUNALS he early tells us that this World War II development illustrates “the same concentration of power in the executive branch . . . found in . . . the military tribunals authorized by President George W. Bush” (p.61). In 1942, a wartime military tribunal could hush up the fact that the apprehension of the saboteurs had rather less to do with FBI sleuthing than with the fact that one of the Germans had betrayed their mission. Moreover, secrecy and a vigorous application of the death penalty would also deter other spies. President Roosevelt, citing statutory authority and his power as commander in chief, issued a proclamation that denied the Germans access to civilian courts and established a seven-man tribunal to try the men under the “laws of war” rather than the strictly defined procedures of a court martial. The Judge Advocate General would join the Attorney General in prosecution rather than act as reviewer of the case: final review would lie with the President, who had already judged the men unworthy of proceedings in a civil court.

Counsel for the defendants maneuvered the case before the Supreme Court, petitioning for a writ of habeas corpus. The Court did not produce its full [*837] opinion rejecting their plea until after six of the men had been executed. The appellants elaborated on EX PARTE MILLIGAN and, to emphasize the law making power of Congress, cited in U.S. v. HUDSON & GOODWIN (1812), to deny that the law of war, as a species of common law of crimes, could be applied to the defendants: not only had Roosevelt acted contrary to MILLIGAN, he had legislated, creating an offense ex post facto and assuring its application by rigged procedure. Fisher observes that: “Without the proclamation, the maximum penalty for sabotage in time of war could not exceed 30 years. In the case of espionage, the death penalty was not mandatory. Roosevelt’s proclamation allowed the death penalty if two-thirds of the tribunal agreed, even though Article of War 43 required a unanimous vote for a death sentence” (p. 109). The executive had changed the rules drastically.

The Supreme Court denied habeas corpus. By enacting the Articles of War and recognizing jurisdiction of military tribunals, Congress had adopted the species of common law that they were understood to apply. “Unlawful combatants,” such as those not in uniform, were subject to military tribunals, and the case of Milligan, a civilian and a citizen, did not apply. Fisher explores subsequent criticism faulting the proceedings in QUIRIN and concludes that the government wisely retreated. The United States collaborators of the 1942 saboteurs went before the civil courts, and the Roosevelt administration intruded less in the 1945 tribunal that sat in judgment of two German spies who had arrived in 1944.

Fisher concludes that “in other military actions during World War II and in the years immediately following, the U. S. government gave little thought to procedural safeguards or principles of fundamental justice” (p.129). Under “Other World War II Tribunals,” he delves into the period of martial law in Hawaii, where “every violation, from the most serious violent crimes to curfew violations and dog-leash infractions, was prosecuted in military courts with no conformity to normal constitutional requirements of due process” (Scheiber and Scheiber 1990, at 238), mostly before provost courts. He explores the deprivation of the rights of Japanese-Americans, and cases arising during the American occupation of Germany. Here the reader perceives that, once the sense of conflict waned, the judiciary slowly reasserted its authority to restrain executive branch power and defend due process, but not always at the Supreme Court level. Two cases, those of General Tomoyuki Yamashita and the Vietnam war trial of Captain Ernest L. Medina, illustrate another shift—a shift away from command responsibility for atrocities. Also the chapter touches on the D.C. Circuit decision in EISENTRAGER v. FORRESTAL (1949) and the Supreme Court reversal thereof in JOHNSON v. EISENTRAGER (1950), quite relevant to the last third of the book. The lower court held that enemy agents tried and convicted abroad by a military tribunal had a right to a writ of habeas corpus. The Supreme Court disagreed, observing that the lower court decision gave enemy aliens Fifth Amendment rights denied to Americans in service. Fisher notes, however, that “American soldiers tried by court-martial have more procedural [*838] protections than aliens tried by military tribunal” (p.156).

In Chapter 7, “9/11: A Nation at War,” MILITARY TRIBUNALS tracks the proposals set forth by the Bush Administration to deal with aliens who threaten to commit, or who had committed, acts of terror. Changes in the administration’s position came as a result of State Department, Congressional, international, public and professional criticism—and perhaps because an election was in the offing. Bush’s executive order of 13 November 2001 echoed the Roosevelt proclamation of 1942, even though it addressed a much more numerous and less clearly defined population, aliens all, and Attorney General John Ashcroft held that foreign terrorists could not avail themselves of constitutional rights. The American Bar Association, however, observed that many aliens in the United States should have due process protections, and the rules of procedure should be consistent with those laid out in the International Covenant of Civil and Political Rights. The National Association of Criminal Defense Lawyers concluded that the President had legislated penalties, and for ex pos facto infractions, at that. Military lawyers at Guantánamo argued that the lack of a proper appeals process endowed the President with “monarchical powers.” The State Department preferred that the United States honor the Geneva Conventions, particularly the third, which addressed the treatment of prisoners of war and which the administration did not wish to regard as legally binding. Military lawyers, who had been largely brushed aside by the Bush Administration, could have guided the thinking of the Attorney General’s office, in which civilian lawyers toyed with redefining the nature of torture. As it was, “the shoddy quality of the agency legal memos [dealing with torture], combined with their shock effect on the American public and other nations, forced the administration into a retreat” (p.208). Even before the abuses at Abu Ghraib became public, the administration had tightened up tribunal procedures and improved the appeals process. Fisher discusses the abuses and the memoranda after touching on the improvements.

The reader therefore has the abuses fresh in mind when proceeding to the chapter on “Judicial Process against Terrorists.” In spite of the administration’s treatment of military tribunals, we find ourselves in civil court. Here MILITARY TRIBUNALS follows closely the secretive trial of Zacarias Moussaoui, indicted 11 December 2001, but whose objectives eluded precise definition. Fisher traces the extensive give and take between the government and Judge Leonie M. Brinkema, who sought to give the defendant some vestige of the Sixth Amendment right, if not to “a speedy and public trial, then “to be confronted with the witnesses against him,” in this case captured al Qaeda figures who had undergone interrogation.

Moussaoui, an alien, had his days in court. Lousiana-born Yaser Esam Hamdi, captured in Afghanistan and defined as an “enemy combatant,” synonymous with QUIRIN’s, “unlawful combatants,” was denied counsel and failed to find a remedy before the Fourth Circuit. In June 2004 the Supreme Court, eight to one, “rejected the government’s central argument that Hamdi’s detention was quintessentially a [*839] presidential decision not to be reevaluated and second-guessed by the courts” (p.225). Fisher finds that “several of the plurality’s judgments and prescriptions were shallow and contradictory” (p.225). Boiled down, they directed that Hamdi’s status be determined by a neutral arbiter. Hamdi, however, did not go before a military panel or any other executive commission: the government instead released him to Saudi Arabia.

In the case of Jose Padilla, also American-born, the Second Circuit drew on YOUNGSTOWN CO. v. SAWYER. That decision was construed to deny a president’s capacity, without clear statutory authority, to override the Non-Detentions Act of 1971, which had repealed the Emergency Detentions Act of 1950. Although the HAMDI Court displayed deference to QUIRIN, the Second Circuit pointed out that Germans had admitted their status: Padilla had made no such admission. The court had decided in Padilla’s favor, and the case went to the Supreme Court as RUMSFELD v. PADILLA, which, to use Fisher’s verb, “ducked” (p.237). Without giving proper notice to Padilla’s attorney, the government had moved the man from New York to South Carolina. The majority of the court decided that the correct respondent to the habeas corpus petition must be Padilla’s military jailer in South Carolina. Fisher notes that “if anyone was doing forum shopping to gain advantage it was the government, not the petitioner” (p.238).

As the Guantánamo detainees came before the courts, EISENTRAGER was at first held to exclude their right to petition for a writ of habeas corpus. So ruled the D.C. Circuit in AL ODAH v. UNITED STATES in March 2003. The Ninth Circuit disagreed in GHEREBI v. BUSH, handed down in December 2003. The decision deemed it desirable that the government have the power to prevent terrorist attacks, but American legal values denied abusive use of the power over citizens and aliens. In April 2004 the Supreme Court agreed to hear consolidated cases from the D.C. Circuit, and in a 6-3 decision of 28 June 2004 in RASUL v. BUSH ruled that EISENTRAGER did not exclude aliens. The government responded by establishing a Combatant Status Review Tribunal, argued that aliens held outside of the United States should not have constitutional rights, and proceeded to bring those designated as enemy combatants before tribunals. Yet at least “executive judgments and actions were now more open to scrutiny by another branch” (p.252).

Fisher rightly admonishes us that inter armes silent leges “describes the past, [but] it does not deserve to be adopted as a principle of constitutional government” (p.260). He observes that the principle is nevertheless very much with us. Presidents have worked:

a stunning transformation from a republican form of government, characterized by legislative control and a vigorous system of checks and balances, to a system of military tribunals that concentrates power in the executive branch and particularly in the presidency. . . . It is a form of government that the framers would find repugnant. The . . . national security decisions issued by the Supreme Court on June 28, 2004, restored a semblance of judicial supervision, but they represent only a first and halting step in checking presidential power (p. 253). [*840]

A step in the other direction has followed, however, demonstrating the power of the courts to move elsewhere. In HAMDAN v. RUMSFELD, decided 15 July 2005, after MILITARY TRIBUNALS was published, the D.C. Circuit Court of Appeals held that the tribunals were an appropriate expression of executive power: they are fully justified under the Authorization for Use of Military Force (2001), by QUIRIN and IN RE YAMASHITA (1946). Justices A. Raymond Randolph and John G. Roberts, with Senior Judge Stephen F. Williams concurring, rejected Salim Ahmed Hamdan’s appeal to be tried my a court martial, where he would be present to face his accusers. Their decision points to the relevance of another path that should have been explored by Fisher in MILITARY TRIBUNALS. Conceivably, this path had begun with U.S. v. CURTIS-WRIGHT (1936), or indeed, the PRIZE CASES (1863), both omitted here from Fisher’s “Index of Cases (pp.271-273), but the first of which is clearly cited in QUIRIN (317 U.S. 1, 43). In CURTIS-WRIGHT, Justice Sutherland provided a strong statement of the plenary powers of the president in foreign affairs, powers that did not depend on Congressional delegation. This not only enhanced executive authority. It has, over time, pointed toward the diminution of the Charming Betsy canon, which held that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains” (MURRAY v. THE SCHOONER CHARMING BETSY, 6 U.S. [2 CRANCH] 64 [1804], 118). In HAMDAN, the Court of Appeals rejected the conclusion of the District Court that “the 1949 Geneva Convention conferred individual rights enforceable in federal court” (Randolph and Roberts, at 10), Article VI, Clause 2 of the Constitution notwithstanding.

MILITARY TRIBUNALS does not cover the state-level militia jurisprudence of the early republic or the not irrelevant “renditions” that have of late dispatched putatively dangerous individuals to uncomfortable locations abroad, such as the case Maher Arar of Canada. Its coverage is nevertheless focused and detailed, and it should find use in courses dealing with a number of facets of American law. The author’s views, however, along with those of Neal K. Katyal and Laurence H. Tribe (2002), should be weighed against other sources. Lieutenant Colonel John M. Bickers of the Department of Law of the U.S. Military Academy contends that “military commissions offer an advantage over other criminal trials that outweighs all of the other potential benefits: their complete focus on the truth-seeking function.” He observes that “half of the Bill of Rights directly affects trials,” and “often does so in order to advance . . . liberty interests beyond the vital one of ensuring that a trial accurately assesses guilt or innocence” (2003, at 926). Curtis A. Bradley and Jack L. Goldsmith, both of whom have recently served as executive-branch counselors, hold that “although the laws of war inform the boundaries of what the AUMF authorizes, that simply means that as a general matter the AUMF authorizes no more than what the laws of war permit, not that it incorporates law-of-war prohibitions” (2005, at 2097). The work of these three men informed the Court of Appeals in HAMDAN. [*841]

MILTARY TRIBUNALS and the thinking in HAMDAN must be viewed in the context of the “liberty interests” of both American citizens and aliens who might better bring out the truth about themselves when allowed to confront their accusers. Moreover, as the work of Louis Fisher has reminded us, judicial processes are not to be separated from political processes. The development of a judicial ethos that eschews confrontation in the search for truth can contribute to a political ethos that denies citizens the right to confidently confront command authority that can even be fatuous as well as abusive. Finally, MILITARY TRIBUNALS and HAMDAN must also be viewed in the context of the vital rules-based international system fostered by the United States and Great Britain following on the Atlantic Charter of 1941. If one, or indeed, both of the architects of that increasingly important and beneficent system eschew due process and international obligations, including the rules of jus ad bellum, the chaos engendered in Iraq may replace the slow and intellectually responsible effort to foster world order.

REFERENCES:
Everett, Robinson O. 2001. “The 50th Anniversary of the Uniform Code: A Historical Look at Military Justice.” 16 CRIMINAL JUSTICE 21-28.

Bickers, John M. 2003. “Military Commissions are Constitutionally Sound: A Response to Professors Katyal and Tribe.” 34 TEXAS TECH LAW REVIEW 899-932.

Bradley, Curtis A. and Goldsmith, Jack L. 2005. “Congressional Authorization and the War on Terrorism,” 118 HARVARD LAW REVIEW 2047-2034.

Fisher, Louis. 2000. CONGRESSIONAL ABDICATION ON WAR AND SPENDING. College Station, TX: Texas A&M University Press.

Fisher, Louis. 2003. NAZI SABOTEURS ON TRIAL: A MILITARY TRIBUNAL AND AMERICAN LAW. Lawrence, KS: University Press of Kansas.

Fisher, Louis. 2004. PRESIDENTIAL WAR POWER (Revised edition). Lawrence, KS: University Press of Kansas.

Green, Leslie C. 1985. ESSAYS ON THE MODERN LAW OF WAR. Dobbs Ferry, NY: Transnational Publishers.

Kaytal, Neal K. and Tribe, Laurence H. 2002. “Waging War: Deciding Guilt,” 111 YALE LAW JOURNAL 1259-1310.

Neeley, Mark E., Jr. 1991. THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES. New York: Oxford University Press.

Rehnquist, William H. 1998. ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME. New York: Alfred A. Knopf.

Scheiber, Harry N. and Scheiber, Jane L. 1990. “Constitutional Liberty in World War II: Army Rule and Martial Law in Hawaii, 1941-1946,” 3 WESTERN LEGAL REVIEW 341-378. [*842]

CASE REFERENCES:
AL ODAH v. UNITED STATES, 321 F.3d 1134 (D.C. Cir. 2003).

EISENTRAGER v. FORRESTAL, 174 F.2d 961 (D.C. Cir. 1949).

GHEREBI v. BUSH, 352 F.3d 1278 (9th. Cir. 2003).

HAMDAN, APPELLEE v. RUMSFELD, ET AL., APPELLANTS (D.C. Cir. 2005 No. 04-5393) [http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf].

HAMDI v. RUMSFELD, 124 S.CT. 2633 (2004).

JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950).

MILLIGAN, EX PARTE, 71 U.S. 2 (4 WALL.) 2 (1866).

MURRAY v. THE SCHOONER CHARMING BETSY, 6 U.S. (2 CRANCH) 118 (1804).

PADILLA v. RUMSFELD, 352 F.3d 695 (2d Cir. 2003).

PRIZE CASES, 2 BLACK 635 (1863).

RUMSFELD v. PADILLA, 124 S.CT. 2711 (2004).

RASUL v. BUSH, 124 S.CT 2686 (2004).

QUIRIN, EX PARTE, 317 U.S. 1 (1942).

UNITED STATES v. CURTIS-WRIGHT EXPORT CORP. 299 U.S. 304 (1936).

UNITED STATES v. HUDSON & GOODWIN, 7 CRANCH (11U.S.) 42 (1812).

YAMASHITA, IN RE, 327 U.S. 1 (1946).

YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952).

STATUTES:
Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

© Copyright 2005 by the author, Craig Hanyan.

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THE TIMES AND TRIALS OF ANNE HUTCHINSON: PURITANS DIVIDED

by Michael P. Winship. Lawrence, KS: University Press of Kansas, 2005. 184pp. Cloth. $35.00. ISBN: 0-7006-1379-x. Paper $14.95. ISBN: 0-7006-1380-3.

Reviewed by Ken I. Kersch, Social Philosophy and Policy Center, Bowling Green State University (fall 2005), and Politics Department, Princeton University. Email: kkersch [at] princeton.edu.

pp.824-833

One of the paradigmatic artifacts of twentieth century constitutional liberalism is the civil liberties narrative, a sort of moral parable in which a pure-of-heart member of a powerless or minority group, or the holder of unpopular political or religious views, oppressed by the majority or the state itself, courageously fights back – often, in court – in the process teaching us the values of dissent, toleration, and courage. Such narratives ring truest in contexts in which the substantive views held by the dissenter are either approved of by those who tell these stories, or where the threat that their challenge poses is not taken to be genuinely serious. They ring less true in contexts where significant numbers of people (or the relevant policymaking elite) is convinced that the dissenter’s views are immoral or barbaric, and that the threats they pose are real.

THE TIMES AND TRIALS OF ANNE HUTCHINSON, the latest installment in the University Press of Kansas’s Landmark Law Cases and American Society series (edited by Peter Charles Hoffer and N.E.H. Hull), is part of a growing body of revisionist work on civil liberties that succeeds by taking a paradigmatically simple civil liberties morality tale, and complicating it. In most twentieth century treatments, Hutchinson (1591-1643), a charismatic and unorthodox puritan dissenter ultimately tried, excommunicated, and banished from the Massachusetts Bay colony, has been presented as the first great American dissenter (in a line leading through Mollie Steimer, Lillian Gobitis, and onwards), as an early proponent of the rights of individual conscience against the state, and as a proto-feminist unbowed by the insistence that she submit by strong men in positions of power. Calling many of these accounts “little more than polemic” (p.158), and drawing upon (and abridging) his deeply researched study, MAKING HERETICS: MILITANT PROTESTANTISM AND FREE GRACE IN MASSACHUSETTS, 1636-1641 (Winship 2002), Michael Winship, an historian at the University of Georgia, offers us a Hutchinson in context, explaining what the events leading up to her excommunication looked like in their own time, rather than as one of the symbolic texts of twentieth century liberalism. Such an approach, needless to say, complicates things.

To succeed in this endeavor, Winship needs to bring modern readers into the “recondite theological debates” of the Puritans, where most people’s lives (including Hutchinson’s) were centered on questions of God and salvation (p.158). As a consequence, this book ends up being to a significant extent [*825] about Puritan theology and political thought, which necessarily entails a broader cast of characters than Hutchinson herself. Winship argues that Hutchinson was only one of many important figures in this controversy, and he gives those others more than equal time (Hutchinson, in fact, is off-stage for much of the book, and the account of her trial does not begin until two-thirds of the way through).

Winship’s account begins in Elizabethan England, where Anne Marbury (Hutchinson) is born amidst fears of a Roman Catholic plot. At the time, many Englishmen and women – dubbed “puritans” by their critics – were criticizing the Queen for not promoting ministers able and willing to preach powerfully and passionately enough to save souls, and for being insufficiently aggressive in cleansing the Church of England of Roman Catholic rites. Anne Marbury’s minister father, a member of the most radical puritan sect, the Presbyterians, refused to conform to what he took to be the established church’s aberrant practices. In doing so, he argued not in the name of religious liberty, but in the name of theological truth. From an early age, Anne was given a first rate religious education conducive to seeing that truth, including a deep command of the Bible.

The question of “how she could know if she had been saved and would go to heaven” was central to Anne’s life, as to that of all Puritans, who grappled with it while looking out on the world as “a vast cosmic drama, revealed . . . by the Bible” (p.12). In a manifestation of his justice, God (according to Calvinist doctrine) had predestined that most of humanity would go to hell. In a manifestation of his mercy, however, he had also predestined that a small group of the elect would go to heaven. God created the world to “enact this plotline,” covenanting with Adam (and Eve) that as long as they continued to obey God’s will, they and their progeny would continue in perfect happiness (the covenant of works) (p.13). Adam and Eve, however, broke the covenant (which, technically remains in effect) ensuring that all of humanity would be tainted by original sin. Ever since – in a theological point that would be central to the controversy in Massachusetts – the path to hell would be paved by fallen people striving vainly to be saved by their own piety and deeds, their good works. On the other hand, the elect were to be spared hell, not because of anything they did, but by virtue of the covenant of God’s free grace, in which Christ, through his sacrifice on the Cross, assumed the guilt and punishment that these sinners rightly deserved.

Puritans believed that God’s pardon for the elect took place during their lifetime (justification) and that, in its aftermath, a new holiness would follow (sanctification). People could maintain “legal obedience” to God’s laws, though they had not been justified. One of the major disputes of the time amongst puritans involved whether it was possible for one to distinguish between righteous behavior stemming from legal obedience and righteous behavior stemming from holiness – that is, from sanctification. To be able to do so, of course, was to be able to know if one was amongst the elect and had been saved.

The minister of Boston, Lincolnshire, John Cotton (1585-1652) became [*826] famous for his distinctive view that, to answer this question, one should foreswear intense self-scrutiny in search of signs of sanctification in favor of apprehending the delivery of “a personal message from God carried by the Holy Spirit” (“The Seal of the Spirit”) through the medium of a Biblical verse. Many other puritans took Cotton’s teachings on this point to be dangerous, “delud[ing] people into neglecting holiness in pursuit of a sort of mystical bliss, with grave personal and social consequences” (p.16). While still in England, Hutchinson became assured of her salvation through the path set out by Cotton, but shortly thereafter descended into a spiritual crisis over whether she may have been deluded by the teachings of the Antichrist. As she wrestled with these questions as part of a wrenching personal ordeal, Hutchinson and other puritans were increasingly despairing of the possibility of ever reforming the Church of England, and agonizing about turning “separatist” by renouncing it. In the wake of Charles I’s crackdown on Puritanism, Hutchinson, who emerged from her crisis with renewed confidence in her religious views, emigrated with her husband and children to Massachusetts. Even as she was crossing the Atlantic, she was boldly warning fellow passengers that ministers on the boat were preaching false paths to salvation (ominously citing Christ’s speech of John: “I have many things to say but you cannot hear them now.”) (p.20).

Boston, Massachusetts – to which Cotton and others from his church and the surrounding area had immigrated – was then a city of eight hundred, run according to puritan “discipline,” where “virtually every institution within society, from the government to the courts to the schools, to the family,” as well as the churches, was charged with the “maintenance of the moral and spiritual fiber of society.” “Discipline required punishment . . . to maintain order, teach evil of sin and heresy, and avoid God’s wrath, in the form of plagues, famines, invasions, and other disasters.” Its ultimate purpose, however, was not to condemn but “to knit together a Christian community in what puritans understood to be harmony and love” (p.21). Within the various churches (which were not easy to join, as they required application and proof of justification) discipline was an ongoing, active process. Church legal proceedings were an important part of the process of both disciplining and rehabilitating and restoring sinners. Puritans believed that each church was self-governing, and none should have authority over any other. At the same time, the colony (under the leadership of governor John Winthrop) created its own court system, which – understandably in a context in which sin and heresy were thought to have worldly consequences – did not draw clear distinctions between sin and wickedness and ostensibly secular felonies and misdemeanors. These courts also set the admission of wrong and rehabilitation and reintegration as animating goals.

Hutchinson was a known figure in the Massachusetts from the beginning, with Winthrop reporting that “her ordinary talke was about the Kingdome of God,” and that she led women and men both in discussions about the states of their souls “at least as effectively as any minister” (p.33). Much of Winship’s book chronicles the rise in early seventeenth century Massachusetts of what many at [*827] the time saw as “strange theological opinions” on the path to salvation, the bitter divisions these fostered, and the ensuing charges of antinomianism (the belief that those that God has saved out of a manifestation of his love rather than fear of punishment are free from the power of his laws – which risked liberating them from the obligation to struggle against sin), familism (the belief that Christians under the illumination of the Holy Spirit could enjoy perfect union with God – which risked liberating them from the commands of the Bible), and other heresies and blasphemies which Puritans were convinced could bring down upon the struggling colony the impending wrath of God. Winship weaves accounts of the theological positions of key figures in the colony – Roger Williams, James Cotton, Thomas Shepard, John Wheelwright, Henry Vane, Jr., and (later) Hutchinson – with shrewd readings of their personalities, ambitions, strategies, and shifting social standing in the community, in altering contexts. And he charts the clashes between these ministers and their followers, as they intersected with questions of both church and non-church governance, and the relationship between the two.

The central controversy in which Hutchinson became embroiled, the “free grace controversy” (what one colonist later referred to as “Hell’s Cataracts . . . of Errors”) broke out in 1636 (p.137). In that, the relentlessly combative minister Thomas Shepard argued that the mild-mannered and well-liked minister of the Boston Church, John Cotton’s, approach to salvation subtly encouraged revelations which invited listeners to abandon the Bible and end up as familists. Hutchinson, who at the time was closer to the Cotton side in this dispute, launched incendiary charges of her own in the other direction, alleging that “all of Massachusetts’s ministers except Cotton and Wheelwright [a follower of Cotton’s] dangerously taught a covenant of works . . . [encouraging them] to look to their own holiness rather than to Christ for assurance of salvation” (p.46). Early on, however, she was very careful and sly about the ways in which she alleged that the ministers preaching was “not according to the gospel” (p.51) – presenting her views as open questions rather than assertions (as Shepard kept boring forward, she became increasing outspoken and defiant in her views, to the point where Cotton actually made his peace with Shepard).

It fell to Governor Winthrop to deal with these clashes, which involved not only worldly matters of statesmanship and prudence (including mediation), but also the substantive support, through non-church discipline, of truth over error (since error meant the end of the Christianity, and divine retribution for the colony). Winthrop, Winship reports, was “more tolerant and patient than Massachusetts’s most severe leaders” (p.56). But he drew the line at approving the appointment of what he took to be the familist-leaning Wheelwright as a minister (along with Cotton) to the Boston Church. In publicly attacking the prickly Wheelright while doing so, Winthrop crossed a line in a legal context in which insults were considered criminal offenses against the public peace and in which church members were charged with loving, and not attacking one another. This, of course, angered the members of the Boston Church. Ministers who agreed [*828] with Winthrop about Wheelwright’s familist tendencies, of course, supported the move as necessary. These developments prompted a cascade of “slashing sermons” in which the “Boston doctrines” of the “Cotton party” were denounced from other pulpits in the strongest terms. Wheelwright defended himself in a defiant sermon alleging that the teachings of his opponents were the work of the Antichrist. Ominously, he described those teachings in terms that applied to the doctrines expounded by nearly every other minister in Massachusetts.

Strictly speaking, these were church matters, outside the purview of the state. But the line between the two was far from clear. In something akin to the legal doctrine of ultra vires, it was understood that the law might apply if Wheelwright was speaking not as a minister of God, but as a heretic. In the winter of 1637, a group of ministers brought charges against Wheelwright to the (non-church) General Court of Massachusetts, and a trial ensued, steps later defended by Winthrop in his “Apology” as appropriate in light of Wheelwright’s “sedition and disturbance of the publicke peace” (p.69). Wheelwright may have been a prickly and defiant man, hard to like. But his prosecution on doctrinal grounds touched uncomfortably close to Cotton, who was both well-liked and esteemed. And Cotton came to Wheelwright’s defense, subtly but clearly warning that, in effect, an attack on Wheelwright was an attack on him. The Court, which was both insistent on its way, yet self-evidently worried about the reaction to its verdict, found Wheelwright guilty of sedition (for preaching a contentious sermon on a day designated for reconciliation) – but not of heresy. Wheelwright’s supporters, however, were unmollified, and drew up a “remonstrance and Petition” against the Court, a very dangerous move in which such a rebuke to authority, if not phrased in appropriately deferential tones, could be taken as a rebuke of God himself (and thus a prompter of divine retribution). The petition, Winship explains, “was an offer to the Court to make amends for passing an illegitimate sentence under the influence of Satan” (p.75). In a gesture of immense forbearance – and prudent statesmanship – Winthrop responded to the petition with his “Apology” explaining (and justifying) the Court’s actions. This conciliatory gesture, however, had little effect. Henry Vane, the man of the highest aristocratic standing in the colony, and a supporter of Wheelwright, had close connections back in England to the King’s Court, and made moves towards having the General Court’s charter revoked, and intimated that it might be an appropriate time to have the King replace Winthrop with himself. It took all of Winthrop’s political skills to keep this “tinderbox” of contention from igniting into a conflagration that would destroy the fledgling settlement (not to mention deposing him from office).

Historians, Winship tells us, have used the petition protesting the verdict of the General Court in the Wheelwright trial as evidence of the power of the “Hutchinsonians” in the colony at this time. “[B]ut,” he explains, “while it is safe to assume that any follower of Hutchinson would be a follower, in a way, of Wheelwright, there is no reason to assume the reverse. Compared with Hutchinson, Wheelwright was a theological moderate.” (p.76). In the [*829] aftermath of the Wheelwright verdict, key members of the Boston Church veered toward increasing doctrinal extremism. Amongst those in the ascendancy at this point was Hutchinson, a believer in immediate revelations, who began delivering theological lectures to about sixty to eighty Bostonians twice per week (out of a population of one thousand). Sensing a waxing menace, the General Court aggressively began to police the admission of immigrants to the colony to weed out those who might, at this dangerous moment, swell the numbers of the increasingly radical and defiant Boston Church. This, of course, infuriated Cotton and his followers: as they saw it “[t]he magistrates had no problem in admitting blasphemers and profane persons…. But they drew the line at true Christians” (p.87). Frustrated and concerned for their future in Boston, Vane and Cotton made overtures to Roger Williams to arrange for the purchase of land for Boston Church members from the Narragansett Indians. When this deal fell through, Vane left Massachusetts for England (threatening that he would, in due course, return as Governor-General).

At this point, a group of ministers (including Shepard), with the backing of the colony’s non-church officials, called a synod at which they hoped to clarify Christian doctrine on the proper path to salvation – reaffirming the truth, and compiling a list of errors. An interesting turn occurs here, for it is at the Synod (in which Governor Winthrop played an active, but unofficial, mediating role) that Cotton signed on to the list of errors, in the process separating himself from the radicals (like Hutchinson) who had heretofore been associated with his Boston Church. The Synod’s final statement may have been “a masterpiece of equivocation,” (as Winship characterizes it), but it served to reconcile Cotton (along with many of his followers) with the colony’s other ministers (and its government). It also deprived the radicals of their most common line of defense: that they were merely following Cotton’s teachings. With neither Vane nor Cotton to defend her, Hutchison was now a prime target of official efforts to bring the turmoil of the free grace controversy in Massachusetts to a close.

Like Wheelwright before her, Hutchinson was brought to trial in the General Court for sedition, but not heresy, an unusual move, since Hutchinson, though a familiar figure, befitting her status as a women, had stayed out of the public debates, not engaged in any formal preaching, and avoided formal public statements (such as in the General Court or the signing of the Wheelwright “remonstrance and Petition”). The General Court was reduced to charging that she had “harboured” and “countenanced” those who had engaged in these seditious activities (p.105). Hutchinson defended herself with a subtlety and intelligence that was arresting (and, no doubt, to many, Mesphistophelean). Amongst her many clever moves, she suggested that Winthrop had had full powers to put down her puritan conventicles “by authority” if they were troublesome (thus placing him in the role of Laud and the Church of England vis-à-vis the Puritans, whose place she claimed for herself). She all but bested Winthrop in his cross-examination (though jousting with Deputy Governor Dudley, a legal expert, was more difficult). As the trial proceeded, she worked up not only [*830] sharper and sharper arguments, but also a steam of intense theological conviction and incandescently righteous anger. Despite this “extraordinarily bravura performance” (p.111), however, along the way she had all but sealed her conviction: in plain sight, she propounded self-evidently unorthodox views on the path to salvation (inviting a heresy conviction), and she publicly threatened the Court and the colonial authorities (inviting a sedition conviction). After witnessing this performance, Winship argues, it became suddenly apparent to Winthrop that, far from being an obscure off-shoot of the controversy in which Cotton, Wheelwright, and Vane were the driving forces, Hutchinson had been “the ringleader” of the entire agitation, which he now understood as a broad-ranging “sinister conspiracy of heretics [that] had been plotting the ruin of Massachusetts” (p.113). Since Vane was rising in prominence in England, and Cotton had made his peace with his former antagonists, Winthrop’s decision to blame the entire episode on Hutchinson was a savvy political move, most conductive to moving the colony forward (it also affected the subsequent historiography of the episode, which follows Winthrop’s reading – a historiography that Winship here corrects). As a political matter, Hutchinson’s conviction brought the free grace episode in Massachusetts to a close.

And yet the colony remained a tinderbox. For the trial had broadly publicized the extent of Hutchinson’s heresy. Many saw Satan himself as walking amongst them (“Had this sect gone on awhile,” Winship quotes one colonist at the time as saying, “they would have made a new Bible”) (p.119). The General Court at this point felt compelled to disarm many of the colonists, and to move the community’s store of gunpowder and ammunition to safer ground. Hutchinson, who while under house arrest and receiving a stream of visitors (she became pregnant while in jail), set herself to expounding ever bolder theological flights which were familist enough in their outlines that even John Cotton took notice (at this point it was reported that Hutchinson even went so far as to deny the moral basis of the Sabbath). As her moderate supporters dropped away, the Church’s own disciplinary process came into play, setting the stage for a second (church) trial for heresy. Interest was intense, and the audience was large. The proceedings focused on Hutchinson’s teachings concerning Christ, the body, and the soul, as well as her antinomianism. At that trial, the deferential and diplomatic Cotton tried to lead Hutchinson towards acknowledgment of error, and thus towards reconciliation and healing. And the implacable Shepard sought to unmask the starkness of her heresies. Hutchinson gave encouragement to Cotton at various points throughout. But, in the end, she remained defiant, and even contemptuous. The sentence was excommunication. “Better to be cast out of the Church than to deny Christ,” she responded (p.135).
Hutchinson then left Massachusetts, continuing her teachings, which tracked an increasingly radical trajectory (she began questioning the Trinity, for example), first in New Hampshire, and subsequently in what is today the Bronx, New York, where in 1643, she and most of her family were massacred by Indians (one of her descendents, George W. Bush, is currently the President of the [*831] United States) (p.146).

In chartering the diaspora of the free grace controversy, Winship explains the ways in which it had “a major impact . . . on the cultural geography of New England” (p.143). Other ministers embroiled in the fight set out to found the New Haven Colony, Connecticut, and Rhode Island. Many of the dissenting views of these “exiles” from Massachusetts Bay ultimately dovetailed with the newly developing Quakerism. Cotton stayed, and reconciled himself with Massachusetts Bay. His descendents – especially his grandson, Cotton Mather – played a significant role in defining the distinctive Puritanism of that colony. By the early eighteenth century, Massachusetts itself became more accepting of preachers with diverse teachings of the path to salvation: in an especially “progressive” step, for example, they made property, rather than church membership, the basis for the franchise. (Winship notes that Massachusetts nevertheless was the last state to abolish an established church (1833), and the last state to imprison someone for seditious blasphemy) (p.147).

Winship’s book is a first-rate work of history (though those who devote their careers to the period will doubtless have their quibbles). It is clearly written, and, in remarkably few pages, does an excellent job of introducing readers to the politics and theology of the Massachusetts Bay colony (and Puritanism more generally), as well as of situating Hutchinson within that context. In the work from which this book is derived (and presented here, in abridged form) Winship made a major revisionist contribution to our understanding of New England Puritanism – chiefly by positioning Hutchinson as one of many figures involved in this broader trans-Atlantic theological and political dispute. In the process, he effectively challenges feminist-inspired accounts that presented the trial of Hutchinson as chiefly involving the efforts of a male power structure to put down a powerful and highly intelligent woman, whom they took to be unusually threatening on account of her sex (as a student of the pioneering feminist historian of colonial and early American history, Mary Beth Norton, also a teacher of mine in graduate school, Winship is not out to discredit feminism, but simply to correct the effects of some of its ideological excesses). It seems very clear from Winship’s scholarship, for example, that the authorities were every bit as threatened by Wheelwright and Vane (males both) as they were by Hutchinson.

For law and courts scholars, however, Winship’s book has the defect of its virtues. By virtue of so successfully transforming the traditional historical understandings of the context of Hutchinson’s trial, Winship effectively deprives that trial of its status as a didactic parable, which is the purpose for which many political scientists and legal scholars will want to use it, especially when teaching undergraduates. If Hutchison is not a proto-feminist and proto-civil libertarian, who is she? And if the men persecuting her are not crusading sexists and religious zealots (or not any more so than she is), who are they? Having a deep grasp of the historical context will not be helpful in this regard.

Is this a hopeless case? Perhaps sensing [*832] the problem, Winship (at the behest of his editors?) throws in a few paragraphs at the book’s beginning and end collapsing the story back into the familiar paradigms by drawing a parallel between the actions of Hutchinson’s opponents and efforts of today’s “evangelical political right” associated with George Bush to break down the wall of separation between church and state. He then abruptly presents the dangers of such efforts as the “lesson” of Hutchinson’s trial, characterizing it as providing a unique window on Puritanism’s “long-enduring legacy of high intellectual endeavor, visionary zeal, and coercive, moralistic evangelism” (p.150), as evidenced in the Religious Right. There is certainly some truth to this, and some sort of analogy there. But the analogy may be a lot fuller than Winship’s gratuitous (if mercifully brief) rant seems to apprehend. Suffice it to say that flights “of high intellectual endeavor, visionary zeal, and coercive, moralistic evangelism” that he associates in these paragraphs with Puritanism are not now, and have never been, the sole province of America’s political right.

None of this is to say that there are no “lessons” to be derived from Hutchinson’s story. There are certainly all sorts of dynamics at work here that will be familiar to civil liberties and law and society scholars, especially if one looks at it as implicating more than simple matters of legal doctrine concerning free speech and the separation of church and state. Winship transports us into a world in which the threat felt by the propagation of ostensibly heretical doctrine – in a colony that believed in divine wrath, and that was perched precariously on the edge of a howling wilderness – is very real (which, in the age of terrorism, is a more realistic setting for debating issues of freedom than contemporary civil libertarian bedtime stories, which typically imply that, to the un-hysterical, the threats are minimal, and the choices are easy). In such fearful circumstances, and in a community with a relatively clear set of unifying substantive commitments, we see that the right to “dissent” is not valued particularly highly (in other words, it is a luxury of consensus and safety). On the other hand, nipping dissent in the bud presents its own problems. This is very clear from Winship’s fascinating account of John Winthrop’s efforts to navigate these treacherous waters in a perpetually shifting political context in which both the public peace, and his political power, are threatened. We watch, rapt, as Winthrop does his best – both by resorting to law, and outside of it – to restore social harmony while remaining as true as possible to his religious convictions. His successes and his failures in dealing simultaneously with the visionary Hutchinson, the hell-bent Shepard, and the conciliatory Cotton is a case study in the challenges of prudent leadership in the face of potentially radically de-stabilizing dissent. The efforts at the Synod to draft a list of errors in a way that will satisfy all parties and end the controversy will also ring contemporary to anyone seeking to bring an end to an unusually bitter dispute through some form of textually-articulated agreement. Winship’s account of the refusal of the colonists to accept what they take to be unjust prosecutions and verdicts, and the way in which the colonial authorities attempt to deal prudently with that challenge to their authority (including threats to [*833] replace the prosecuting executive and withdrawing the jurisdiction of the court) will also prove instructive to modern readers.

For those willing to move away from questions of whether Hutchinson should have had the “right” to speak her mind (the standard contemporary civil libertarian question) to the broader political question of how a prudent political leader, in a complicated context of multiple institutional power centers, belief systems, and personalities, and social hierarchies, might best deal with the situation – that is, as law in politics, and law in society, as opposed to as a civil libertarian morality tale – the book is eminently teachable. It is short, and comes with a helpful glossary, chronology, and bibliographical essay (there are no source notes: for those, readers are referred to Winship’s more comprehensive scholarly study). It situates the “trials” of Anne Hutchinson appropriately in her “times,” and, as such, gives the formal legal proceedings their due – but not more than that. It is through studying such contexts closely that we can derive the most genuinely useful lessons about contemporary civil liberties.

REFERENCES:
Winship, Michael P. 2002. MAKING HERETICS: MILITANT PROTESTANTISM AND FREE GRACE IN MASSACHUSETTS, 1636-1941. Princeton, NJ: Princeton University Press.

© Copyright 2005 by the author, Ken I. Kersch.

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THE EUROPEAN UNION: A POLITY OF STATES AND PEOPLES

by Walter van Gerven. Stanford: Stanford University Press, 2005. 416pp. Cloth. $70.00. ISBN: 0804750637. Paper. $27.95. ISBN: 0804750637.

Reviewed by David Schultz, Graduate School of Management, Hamline University. Email: Dschultz [at] hamline.edu.

pp.821-823

A spectre is haunting Europe—the spectre of the European Union. As evidenced by recent events, the European Union (“EU”) ghost stands at its Rubicon. Since 2000, the EU has dramatically enlarged, only recently adding ten new members thus significantly increasing its size and the complexity of governance. The EU is also contemplating additional members, including Turkey and more former east block nations, raising concerns about cultural and economic asymmetries across the continent. The EU has proposed adoption of a new constitution that would further diminish the sovereignty of the current member states, implicating more questions about governability and democracy within the union. Finally, recent “no” votes on the Constitution in France and the Netherlands raise concerns regarding the EU’s future.

Van Gerven’s THE EUROPEAN UNION examines and addresses perhaps the two most fundamental questions regarding the viability and future of the EU: First, which form of government is most appropriate for a united Europe? Second, whether “the European elites that have been responsible for a steadily expanding European integration in the last fifty years are ready to leave the future of European integration in the hands of the people” (p.359)? Both issues, not surprisingly, can be collapsed into one basic query asking whether the EU and its institutions are ready for democracy.

Critics of the current EU often point to what has come to be known as the “democracy deficit,” arguing that the EU is elite-driven, its most powerful institutions are confusing to understand, and that some – e.g., the Commission – are not elected, while the Parliament is elected but lacks real power. Thus, a recurrent complaint is that democratic governance, transparency, and accountability are minimal. One rationale for the proposed constitution is that it will address the deficit, but van Gerven wonders whether it is up to the task of providing the appropriate solutions to the problems currently haunting the EU.

THE EUROPEAN UNION provides a serious and cogent overview of the evolution of the EU to the present. The first chapter describes the three pillars of the union: The three treaties that make up the European Community creating an internal common market; creation of a common foreign and security policy; and cooperation on criminal. The chapter also seeks to detail and describe EU institutions and to engage readers in an interesting discussion of whether it is a trans- or super-national entity, or a single unified state. Van Gerven argues that the goal of the EU is not to be a [*822] state (p.38) but some other form of body politic in search of democratic legitimacy.

Moreover, the first chapter provides an overview of the values that hold the EU together. Here van Gerven looks to find common values that unite the member states and how the law thus far has evolved. He considers, for example, whether there are core European values about human rights and dignity that provide a basis for unity in the absence of a common language or cultural tradition among member states.

Chapters Two through Six expand upon the discussion of legal values, offering extended analysis of various legal principles that van Gerven sees as important to the EU. For example, Chapter Three provides a fascinating exploration of the meaning of rule of law, or Rechtstaat. The emphasis is upon trying to show how the concept of judicial review within the confines of the rule of law is one of the defining traits of the EU. Other legal values that are discussed include accountability (Chapter Two), human rights and legal certainty (Chapter Three), equality and social justice (Chapter Four), and open government (Chapter Five). Within each chapter sub-themes are presented, giving the reader in the first five parts of the book an excellent and comprehensive overview of the requisite ideas influencing current EU law and institutions. Finally, the author, in seeking to clarify many of the points of EU law, provides numerous comparisons to American constitutional law decisions in a way that compares favorably to the work of other scholars (e.g., Goldstein 2001).

The book changes direction with Chapter Six, in which van Gerven presents a solid and understandable discussion of the proposed EU constitution. He seeks to show how the constitution builds upon existing institutions, values, and law that are discussed in the first five chapters. However, in Chapter Seven, the author asks one of the big questions: what form of government should the new EU have? In seeking an answer, van Gerven undertakes a grand tour of comparative politics theory and discussion. He contrasts parliamentary from separation of powers systems, those with and without bicameralism, strong and weak presidents, two versus multiparty systems, and majoritarian versus consensual decision-making processes, with comparisons of the British, German, and American constitutional systems. The point is to understand differences in output among political and constitutional systems and to determine which is the most appropriate for the EU. Comparativists, or those interested in a review of comparative politics theory, will find the analysis quite useful.

Finally, in Chapter Seven, the author concludes that the EU constitution should provide for a parliamentary system with a strong executive, that strong parties linked to a united Europe are needed, and that consensual decision-making processes are preferred to the simple majoritarianism of the United States. Although the proposed EU constitution embodies many of these recommendations, van Gerven notes some deficiencies and proposes more changes. In sum, he concludes to argue that, while the new constitution moves [*823] the EU in a democratic direction, there are still some problem areas.

THE EUROPEAN UNION thus is several great books rolled into one. It is terrific on describing the EU and its proposed constitution. It offers keen comparative analysis of legal regimes in United States and the EU. It presents fascinating discussion of comparative politics theory as it relates to state or institution building, and it appraises the new constitution in light of the demands of democracy and what scholars have learned about state building. In bringing all these issues together, the book should be of interest to a range of readers.

Nonetheless, I have some criticisms. First, there is what one could call a “Hegelian” problem with the book. Van Gerven seems to imply that the new EU constitution is the apotheosis of European history and traditions. Although he presents a critical analysis of the constitution, he also conveys an effort to defend it from critics who argue that the new EU system of governance still suffers a democracy deficit.

Second, although van Gerven notes important questions regarding democracy and what might happen if the people do not support it, he does not really engage the topic. While the book was published before the recent “no” votes on the constitution, one cannot help but ask where the EU is headed if the people ultimately do reject it. Is the EU dead, or will the charter be redrafted for another try?

Finally, the reader is still left wondering whether the new constitution addresses the democratic deficit problem and whether the goal is to become a unified state. THE EUROPEAN UNION thus raises the right questions and directs readers towards interesting analysis, yet it leaves unaddressed some of the tough problems that haunt Europeans as they debate their future.

REFERENCES:
Goldstein, Leslie Friedman. 2001. CONSTITUTING FEDERAL SOVEREIGNTY: THE EUROPEAN UNION IN COMPARATIVE CONTEXT. Baltimore, MD: The Johns Hopkins University Press.

© Copyright 2005 by the author, David Schultz.

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LAW OF DEMOCRATIC GOVERNANCE (2 vols.)

by Gregory Tardi. Toronto: Carswell, 2004. Vol. 1: PRINCIPLES, Softcover. 200pp. US$52.00/CDN$90.00. ISBN 0-459-24149-4. Vol. 2: JURISPRUDENCE, Softcover. 1221pp. US$68.00/CDN$120.00. ISBN 0-459-24150-8.

Reviewed by Yu Xingzhong, Department of Government and Public Administration, The Chinese University of Hong Kong. Email: xzyu [at] cuhk.edu.hk

pp.817-820

This two-volume work, by Gregory Tardi, is an interdisciplinary and comparative study of authoritative decisions in Canada and other jurisdictions relating to issues of democratic governance. Tardi discusses the role of law in the democratic conduct of public affairs. The first volume, PRINCIPLES, discusses general principles derived from an examination of court judgments, rulings by the Speaker of the House of Commons, as well as other binding decisions dealing with matters of Governing. It also deals with the relationships among law, public administration and politics, focusing on the role of law in administering public affairs. The second volume, JURISPRUDENCE, contains case studies illustrating the principles developed in the first volume. The cases are mostly Canadian and some are from other democratic jurisdictions, such as Great Britain, France, the European Union and the United States. This is an effort not only aimed at exploring a new branch of law, but also employing a new style of writing. It is like a casebook with much fuller explanations.

The book covers an extensive array of issues including definition of the basic concepts of political law, relation of, and relative influence among, law, policy and politics, legal elements of democracy, sovereignty, legitimacy and governance, elections, parties, campaigning and political promises, choice of the appropriate instrument for governance, integrity of the legislative system, legality in government management, litigation of political law issues, and legal accountability to democracy.

According to Tardi, the basic concepts of political law include the most fundamental notions in democratic governance – law, policy and politics. Despite the innate ambiguities of these terms, Tardi employs them in their broadest but countable sense. Thus, law includes the supreme law, the constitution, the statutes, regulations and other statutory instruments. It also includes the decisions of courts, tribunals and other similar bodies. Policy designates a written instrument of public administration that is less than legal in nature and developed by the non-political or non-legal institutions of the state and intended to be binding on those institutions and officials. Policy encompasses a plethora of directives, guidelines, manuals and other such texts. Politics, another illusive term, has been given enumerable substance, including a number of political instruments of governance, such as the constitutions of political parties, party campaign platforms and manifestos, the Speech from the Throne or its equivalent in [*818] other jurisdictions, the Budget, and other such texts and pronouncements. The pith and substance of political law comprises the various interactions, linkages and mutual influences among these three families of instruments – the legal, the policy-based and the political. The study of political law examines these instruments at both the macro and micro levels, treating them as branches of the social sciences, as well as the basic types of instruments used in the conduct of government.

As Tardi made it clear elsewhere, “political law” is the interdisciplinary study dealing first with the interaction among law, public policy and administration, and politics, and second, with the influence of law on the other types of instruments of democratic governance. The approach taken in the study of political law incorporates the elements of constitutional and administrative law with public administration and political science. It goes beyond earlier treatments of “law and politics” by considering jointly all the disciplines relating to governance along a single continuum and by exploring how they interact to complement, or conflict, with each other.

An obvious question would be whether political law could justifiably be a branch of law that deserves serious and systematic study. Much of the substance that the study of political law purports to cover has been traditionally dealt with in constitutional and administrative law. If that is the case, why bother to have a separate discipline called political law to study the same substance? Although there is some substantive overlap among political, constitutional, and administrative law, some issues are pertinent primarily to political law and are difficult to be covered either by constitutional law or administrative law. For instance, organizational laws like that of political parties, campaign finance regulations, gift-giving to government officials, martial laws, election law, constituency law, legislative law, civil rights law, and so on. These laws are political by nature, but neither constitutional law nor administrative law can be a proper host for them under many regimes. Political relations are not always constitutional or administrative. In that sense, political law as a branch of law or a discipline of study is well justified. As democratic governance grows and the study of political law develops, there will surely emerge new political relations that may enrich such a discipline.

Another question, perhaps much more substantial, concerns how the venerable concept of the rule of law figures in the whole landscape of political law? As Tardi makes it clear, good governance not only involves law, but also policy and politics. Then, is there any priority among the three? Tardi’s answer is that the analysis of the influences on, and forces in, the conduct of public affairs means that political law is more concerned with the role of law than are traditional studies of the rule of law. The study of political law is a reflection of the increasing legalization of politics and public administration, especially in an era dominated by written constitutions. The use of political law is to demonstrate that in democracies, good governance involves respect not only for civil and political human rights, but also for its natural counterpart, the accountability of public institutions and officials. Thus, the study of political law [*819] neither devalues the rule of law nor substitutes for it.

In the field of political law, practice comes before theory. Long before a systematic theoretical exploration such as that offered by Tardi came into being, lawyers of various countries were engaged in the practice of political law, especially of laws regulating lobbying, financing of campaigns for public office, the passage of ballot measures, gifts to public officials, and almost any interaction between the private and public sectors. Political lawyers represent corporations, trade associations, initiative campaigns, candidates for public office, and officeholders before various regulatory agencies.

An historical argument can also be made in favor of the study of political law as an independent branch of legal study. In analyzing laws of mankind, Hugo Grotius classified positive laws into political, civil, and criminal law. Jean Jacques Rousseau thought that it was necessary to have political law for regulating problems of the sovereignty vis-à-vis the state. Charles de Montesquieu classified positive law into three categories: political law, civil law and international law. He held that there should be law governing the relationships between the ruler and the ruled—political law. The political law, as Tardi is eager to explore, is concerned with democratic governance, has more extensive scope, and is based on empirical study of real and authoritative cases.

There are those who believe that political law is necessarily artificial and imposed by the state and that ultimately it is incompatible with common law which grows naturally from the practice of private individuals from bottom up. Tardi is well aware of this tension and argues that the interdisciplinary focus of political law study is deliberately different from either a purely legal analysis of the relevant case law or an analysis exclusively grounded in political science or public administration. It takes both enacted instruments of governance and judicial cases seriously as the constituents of political law and merges the two into an integrative whole.

As the Honourable John M. Reid points out in his Forward, politicians, legislators, civil servants, lawyers and judges all alike would probably find this book helpful in their work relating to political law. For those interested in developing legal systems, LAW OF DEMOCRATIC GOVERNANCE presents an excellent reference. In such systems, many new social, legal and political relations are emerging, but without adequate legal regulation. Tardi’s work provides valuable reference for addressing these issues in a developing legal system.

REFERENCES:

Barry, Donald D. and Howard R. Whitcomb. 1981. THE LEGAL FOUNDATIONS OF PUBLIC ADMINISTRATION. St. Paul: West Publishing Co.

Dworkin, Ronald. 1986. LAW’S EMPIRE. Cambridge: Harvard University Press. [*820]

Dyzenhaus, David. 1999. RECRAFTING THE RULE OF LAW: THE LIMITS OF LEGAL ORDER. Oxford: Hart Publishing.

Ely, John Hart. 1980. DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW. Cambridge: Harvard University Press.

Finer, Samuel E. 1997. THE HISTORY OF GOVERNMENT FROM THE EARLIEST TIMES. Oxford: Oxford University Press.

Friedman, Lawrence M. 2002. AMERICAN LAW IN THE 20TH CENTURY. New Haven: Yale University Press.

Grotius, Hugo. 1814. ON THE LAW OF WAR AND PEACE. Translated by A. C. Campbell. London. Oxford Press.

Hayek, Friedrich A. 1979. LAW, LEGISLATION AND LIBERTY: VOL. III THE POLITICAL ORDER OF FREE PEOPLE. Chicago: The University of Chicago Press.

Montesquieu, Charles de. 1949. THE SPIRIT OF THE LAWS. New York: Hefner Press.

Posner, Richard A. 2003. LAW, PRAGMATISM AND DEMOCRACY. Cambridge: Harvard University Press.

Rousseau, Jean Jacques. 1997. THE SOCIAL CONTRACT AND OTHER LATER POLITICAL WRITINGS. Cambridge: Cambridge University Press.

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

Tardi, Gregory. 1992. THE LEGAL FRAMEWORK OF GOVERNMENT: A CANADIAN GUIDE. Aurora: Canada Law Book Company.

Tushnet, Mark. 2003. THE NEW CONSTITUTIONAL ORDER. Princeton and Oxford: Princeton University Press.

© Copyright 2005 by the author, Yu Xingzhong.

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PRO BONO IN PRINCIPLE AND IN PRACTICE: PUBLIC SERVICE AND THE PROFESSIONS

by Deborah L. Rhode. Stanford, CA: Stanford University Press, 2005. 256pp. Cloth. $55.00. ISBN: 0804751064. Paperback. $21.95. ISBN: 0804751072.

Reviewed by Mark C. Miller, Associate Professor and Chair, Department of Government, Clark University. Email: MMiller [at] clarku.edu

pp.814-816

Deborah L. Rhode’s new book on pro bono work by the legal profession in the United States is a wonderful collection of original research on the topic. The book is unique in that it includes research on why lawyers do or do not perform pro bono work, research comparing pro bono work across different professions in the United States, and research comparing such work among lawyers in different countries. It is a very useful volume.

Rhode has long been an advocate for increased pro bono work by lawyers and law schools in the United States. As she stated in an earlier book, “Pro bono contributions have been responsible for many of the nation’s landmark public interest cases and have helped millions of low income families meet basic needs” (Rhode 2000, at 37-38). She begins this new book by stating, “Much of what passes for “pro bono” is not aid to the poor or to public interest causes, but either favors for friends, family, or clients, or cases where fees turn out to be uncollectible. The bar’s pro bono activities are, in short, a reflection of both the profession’s highest ideals and its most grating hypocrisies” (p.1).

The first chapter discusses both American and European historical traditions of court-appointed counsel for the poor. It includes a very interesting discussion of the legal challenges associated with forcing attorneys to take court-appointed cases. The first chapter also talks about the history of voluntary pro bono activities in the U.S., as well as the encouragement that the American Bar Association has issued to its members. The first chapter also discusses current pro bono expectations and programs at law schools. It does not, however, mention government provided legal services for the poor, focusing instead on the history of pro bono work provided by private sector attorneys.

The second chapter examines the rationale and need for pro bono activities among lawyers in the United States and discusses key reasons why some lawyers oppose it. For classroom purposes, this chapter is not as good as the Katzmann edited volume (1995) in framing the debate about whether pro bono work should be voluntary or mandatory for lawyers. I find that my students clearly want to debate the question of whether such work should be mandatory for individual lawyers, law firms, law students, or for anyone in the legal profession. The third chapter examines various aspects of general research on altruistic behavior. Both of these chapters are quite interesting. [*815]

The fourth chapter is a fascinating look at pro bono work among various professionals in the United States, including the fields of medicine, engineering, and business. I am not familiar with other studies that make comparisons across the professions as this chapter does. The fifth chapter is an equally exciting assessment of pro bono work among lawyers in various countries, including the United Kingdom, Australia, and China. I think the book would have been strengthened by looking at other options for providing legal services to the poor, such as the Canadian practices of having the government pay private sector attorneys (much like Medicare and Medicaid in the U.S.) and including legal services in collective bargaining agreements. Thus Canada has a fairly low level of pro bono work because the society has chosen to meet the legal services needs of the poor in other ways. Nevertheless, these chapters are true gems.

The sixth and seventh chapters report the findings of two innovative empirical studies. The first looks at a survey of lawyers in the U.S. to see why they do or do not provide pro bono services. This chapter is very rich in data. One part of the survey asked lawyers about their general views concerning pro bono work, while the second part assesses the factors that increase or decrease the amount of work an individual lawyer performs. The most important variables were personal satisfaction and a sense of professional obligation. Awards by employers had the least impact on an attorney’s decision to provide pro bono services. The largest negative influence was a lawyer’s workload demands from their paying clients. Rhode concludes that, “All too often, official workplace policies and informal practices played a major role in discouraging public service commitments” (p.152). The last empirical chapter of the book examines programs in law schools. Again, this chapter is rich in data. She concludes that law schools need to do much more to encourage pro bono work among their students.

The final chapter presents an agenda for reform. Rhode argues that “[c]ompared with other nations and other professions, the American bar has a distinguished record. Yet compared with the unmet need for legal assistance and attorneys’ own ethical codes, considerable progress remains to be made” (p.166). While she stops short of suggesting that public service work be made mandatory for lawyers in the U.S., she does support efforts to require that law schools, law firms, and individual lawyers report their pro bono hours to the bar association, and she also offers a variety of other suggestions.

This book is clearly an important addition to the literature on pro bono activities among lawyers. The book raises a number of key issues, but undergraduate students might need more context than the book provides in order to understand the ongoing debate about legal services for the poor in the United States. Rhode’s clear and crisp writing style, however, makes the book quite accessible to non-specialists. I expect that I will use it in my senior seminar on Lawyers and American Politics, because it raises a number of useful issues for debate. Those already familiar with the issues surrounding pro bono legal services in the United States will find the book very valuable. [*816]

REFERENCES:
Katzmann, Robert A. (ed). 1995. THE LAW FIRM AND THE PUBLIC GOOD. Washington, D.C.: Brookings Institution.

Rhode, Deborah L. 2000. IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION. New York: Oxford University Press.

© Copyright 2005 by the author, Mark C. Miller.

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STUDIES IN LAW, POLITICS AND SOCIETY

STUDIES IN LAW, POLITICS AND SOCIETY, Volumes 32-33, by Austin Sarat and Patricia Ewick (eds). Amsterdam: Elsevier, 2004. Volume 32: 248pp. Cloth £63.50/€95.00/$95.00. ISBN: 0-7623-1097-9. Volume 33: 235pp. Cloth £63.50/€95.00/$95.00, ISBN: 0-7623-1109-6.

STUDIES IN LAW, POLITICS AND SOCIETY: AN AESTHETICS OF LAW AND CULTURE, Volume 34, by Andrew Kenyon and Peter Rush (eds). Amsterdam: Elsevier, 2004. 304pp. Cloth £59.99/€86.95/$94.95. ISBN: 0-7623-1151-7.

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

pp.811-813

The three books reviewed here are part of the series STUDIES IN LAW, POLITICS AND SOCIETY, which encompasses Volumes 19 through 37 to date. Previously, the series ran under the titles, RESEARCH IN LAW AND SOCIOLOGY and RESEARCH IN LAW, DEVIANCE, AND SOCIAL CONTROL. According to the publisher’s web site, the current title denotes the broader focus of recent volumes, which have emphasized legal thought, institutions, and practices together with the intersection between these topics.

Volume 32 contains two parts and a total of six chapters. Overall, the authors focus on “interdisciplinarity” in legal scholarship and on legal institutions and legal policy. Though most chapters deal with topics associated with American law, Yuksel Sezgin’s chapter assesses legal confrontation between state and society in Israel. The sole contribution employing social scientific methods appears to be by Jacqueline Goodman, who claims that mothers and children have become trapped “in a war zone between anti-welfare state ideologues, angry fathers fighting the concomitant shift in child support from public assistance to private responsibility, religious zealots intent on crossing the church and state divide by imposing their biblical beliefs on secular society, and a legal paradigm of gender neutrality reflecting these political forces” (p.182), resulting in an increase of single mothers losing custody of children.

Volume 33 includes three parts and a total of six chapters. The scholars in this book examine creative approaches in legal theory and jurisprudence, the place of identity in diverse times and places, and distinctive interpretations of legal practices and events. The most interesting section appears to be Part II, featuring chapters by Katherine Franke and Imani Perry. Franke investigates anti-homosexual policies and laws. She demonstrates how President Robert Mugabe of Zimbabwe has used homophobic policies to solidify his leadership. Further, she probes how the Hosni Mubarak government in Egypt is running homosexual show trials as a method for revising the nation’s court system. Perry contends that Jim Crow laws and segregation were perpetuated as much by property and contract private law as by the Supreme Court’s decision in PLESSY v. FERGUSON. [*812]

Volume 34 of the series differs in several ways from the two previous ones. First, the editors of this book are Peter Rush and Andrew Kenyon. They not only include a Preface, but likewise co-author the initial chapter. Second, most of the chapters in this text emanate from the 11th International Conference of the Law and Literature Association of Australia, held at the University of Melbourne Law School in 2002. Third, the book encompasses four parts and a total of fourteen chapters, making its total length about seventy-five pages longer than either of the previous volumes reviewed here. The overall theme of this volume is practices of representation and their relation to judicial and cultural formations. Topics covered traverse such disciplines as medicine, cinema studies, literary criticism, philosophy, historiography, visual studies, and art.

The most fascinating and lucid chapter in Volume 34 is “Sovereign Contempt,” authored by Peter Hutchings. He asserts that certain movies made over that last seven years “form a composite of some key issues: the tendency to expand the reach of states beyond their borders, together with the tendency toward the shrinking of national borders; and the ever more intense internal scrutiny of a state’s own citizenry in response to perceptions of foreign threats” (p.270). After reviewing two of the movies, The Siege (1998) and Behind Enemy Lines (2001), Hutchings notes that changes in conceptions of the state and sovereignty—particularly following the terrorist attacks against America on September 11, 2001—have consequences for law.

Over the last decade, several books have been published on the social and political aspects of law—e.g., Abel (1995), Nader (1997), Grana, et al. (2001), Vago (2002), and ISSUES IN LAW AND SOCIETY: SELECTIONS FROM THE CQ RESEARCHER (2001). While the Abel text is shorter than any of the volumes in the STUDIES IN LAW, POLITICS AND SOCIETY series, the Nader, Vago, and CQ Press books are longer; the length of the Grana, et al. book is approximately the same as Volumes 32 and 33 of the series. The Nader, Vago, and Grana, et al. studies all cover the subject matter in cross-nationally. Of those above, the Nader book utilizes the case study method most extensively, though the material is relatively limited to dispute settlement and conflict resolution.

The STUDIES IN LAW, POLITICS AND SOCIETY series books reviewed here have some shortcomings. Neither Volume 32 nor 33 contain a Preface; none of the volumes contains a conclusion which could synthesize the chapters. The difference in the number of chapters and overall length between Volumes 32 and 33 on the one hand and Volume 34 on the other is stark. Nonetheless, the series editors and publisher should be commended for promoting nontraditional approaches to examining the law.

REFERENCES:
Abel, Richard L. (ed). 1995. THE LAW AND SOCIETY READER. New York: New York University Press.

Grana, Sheryl J., Jane C. Ollenburger, and Mark Nicholas. 2001. THE SOCIAL CONTEXT OF LAW. Upper Saddle River, NJ: Prentice-Hall. [*813]

ISSUES IN LAW AND SOCIETY: SELECTIONS FROM THE CQ RESEARCHER. 2001. Washington: CQ Press.

Nader, Laura (ed). 1997. LAW IN CULTURE AND SOCIETY. Berkeley: University of California Press.

Vago, Steven. 2002. LAW AND SOCIETY. Upper Saddle River, NJ: Prentice-Hall.

CASE REFERENCES:
PLESSY v. FERGUSON, 163 US 537 (1896).

© Copyright 2005 by the author, Samuel B. Hoff.

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LAW ON THE SCREEN

by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (eds). Stanford: Stanford University Press, 2005. 288pp. Cloth $50.00 ISBN: 0-8047-5162-5.

Reviewed by Lori Maxwell, Department of Sociology and Political Science, Tennessee Tech University. Email: LMMaxwell [at] tntech.edu

pp.806-810

With their recently-published LAW ON THE SCREEN, Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, have edited a must-read for a broad range of interdisciplinary scholars. Their unique contribution is to focus on both the representation of law in film and its reception by movie-going audiences. Moreover, they delineate promising research avenues in this relatively nascent area of film and law study and detail a literature review of the pioneering scholars in the field. The only problematic areas deal with conceptual clarity generally, and the methodology and assumptions within some of the essays. I will focus first on the Introduction and call for future scholarship and then evaluate each of the essays in the order they appear in the text. Most of the contributors are Professors of Law, but Shapiro is a Political Scientist, Smoodin is Professor of American Studies, and Waldman is a Professor of Mass Communications, respectively.

Sarat, Douglas, and Umphrey clearly establish the target audience and assist future scholars with a literature review but allow potential problems by not fully defining the terms “screen” and “law.” To begin, LAW ON THE SCREEN is clearly written for researchers. The editors state that their purpose is to “broaden the focus” of law and film research (p.4). They reiterate this at the conclusion of the opening section in issuing a call to those who are willing to traverse the “large terrain ripe for scholarly inquiry” (p.20). The unique nature of the work is that it appeals to such a diverse array of academic disciplines: film scholars, law professors, political scientists, sociologists, historians, race and/or gender scholars, criminal justice scholars, and others. Additionally, the Introduction offers would-be researchers a Who’s Who of previous scholars, referenced both within the text and in a treasure trove of endnotes that are worth the time to read.

However, while the literature review is clear and cogent, the two key concepts embodied in the very title of the text are a bit vague. The editors are unclear in what they mean by “screen.” All of the essays focus on the movie screen. And yet, when one reads the Introduction, this is not explicit. For instance, in the first few sentences one finds: “the proliferation of law in film, on television, and in mass-marketed publications has altered and expanded the sphere of public life” (p.1). Later, one is told that there are many ways we socialize our legal knowledge, “none more important than film (and) television” (p.2). When the reader concludes the text, confusion remains as to whether the authors are implicitly advocating future television research [*807] because they mention it, or they are rejecting it via their failure to incorporate a study of anything other than film.

This is much less of a problem, however, than the cavalier treatment of the word “law.” Certainly Stanford University Press did not expect the authors to detail the seven major categories and four subsequent pages of supplemental definitions found in BLACK’S LAW DICTIONARY. Nevertheless, it poses analytical problems to use the word “law” in six essays to refer simultaneously to gender, race, courtroom rulings, tort law, regime change, testimony, symbols of law (e.g., police and the old West), law as spectacle, the “delinquent milieu,” and camera angles (p.62). Fortunately, Michael J. Shapiro demonstrates how this pitfall can be avoided, as will be addressed shortly. However, the first essay is by Orit Kamir.

Kamir’s essay addresses the tension between a society’s need to move on after regime change and an individual woman’s need for justice from the rapist who tortured her under the old regime. Moreover, it contains a brilliant illustration of feminist criticism as a subtext within the broader work that could spark a lively debate in a gender and politics course.

Interestingly, however, he admits his assumptions up front regarding the strong influence of film on individuals in our society. Unfortunately, no methodology is extant to substantiate his assertions that “films are overwhelmingly influential, playing a key role in the construction of individuals and groups in contemporary society” (p.30). He adds that they “can be extremely effective in molding public actions and reactions,” as well as “provoking a host of emotive responses and powerful impressions” (pp.30-31). These are strong claims that need to be supported.

Kamir does highlight key areas for future research, however. Following the lead of Felman and Laub (1992), he insists that being able to testify is empowering for women who are victims of rape or the atrocities of civil war. They argue that “the therapeutic process of narration, constitution, and reclaiming of the traumatic memory . . . manifests itself in testimony” (p.41). I would also add that Kamir’s discussion of the role of Truth Commission has potential viability for women in Afghanistan or Iraq today, where they could at least tell their stories on the record if the possibility of prosecuting rapists is no longer viable.

As mentioned previously, Michael J. Shapiro does an extraordinary job of clearly delineating the term “law” in his analysis. Specifically, Shapiro juxtaposes Foucault’s “delinquency milieu” with the racial politics of post WWII Los Angeles through the vehicle of Denzel Washington’s portrayal of Easy Rawlins in Devil in a Blue Dress. And yet, Shapiro explains to the reader up front that the “delinquency milieu” is but one way in which he evaluates the “law.” He is also cognizant of the “legal” ramifications of Reconstruction (p.85), the “law” as a reflection of the “economics of slavery” both for all blacks and for Easy’s character (p.87), the “legal” connotations between the panoptical and spatial/friendship links [*808] (p.84), and the current racial trouble in Los Angeles (p.85), as well as others.

Moreover, he does not simply present the “law;” he demonstrates how it is evident in the film. For instance, he discusses how Denzel Washington’s brilliant use of fluidity of motion when in the black parts of town contrasts with his “stride stiff and tentative” in the white part of town to reflect the economic history of the “law” (p.97). Also, Shapiro points out that the screenplay deviates from the novel, where the white policeman arrives in the black bar dressed in all white – a “startling appearance” representing both Jim Crow “laws” and the “law” of the cop as the delinquent milieu (p.85).

Richard K. Sherwin’s essay highlights the exciting interdisciplinary nature of this book, as well as his broad mastery of subjects. He is as comfortable discussing psychoanalytical theory as he is philosophy, equally conversant with Greek tragedy and postmodernism. As a political scientist, I was most excited that Sherwin was viewing the film as “spectacle.” More specifically, he explores the “legal spectacle, or a ‘jurisprudence of appearances, [where] law remains in force but lacks in significance’” (p.13). Viewing material as spectacle is a current and relevant area of political research. Note Bruce Miroff’s “The Presidency and the Public: Leadership as Spectacle,” in Nelson’s THE PRESIDENCY AND THE POLITICAL SYSTEM. And, Larry Sabato, the most well-known scholar in our field to focus on the spectacle, refers to the media in many instances as the “feeding frenzy” – the “spectacle without equal in modern American politics” (Sabato 2000, at 1).

Sherwin, though, seems to overstep when he predicts – based upon the homicidal/suicidal dream sequence of an individual film, Mulholland Drive – the total collapse of civilization as we know it by anticipating a “new paradigm for law” (p.131). In this new paradigm, Sherwin assumes the “collapse of the now ‘outmoded’ modern nation-state” (p.130). More surprisingly, he predicts “newly emergent political entities such as . . . the multinational terror network” (p.130). These terror networks, “may embody a transitional stage in which . . . fragmentation, decay, and ruin . . . and unresolved death anxiety prefigure more thoroughly reformulated political regimes” (p.130). One wonders how this methodology could possibly be replicated.

Jennifer L. Mnookin focuses on the inherent tension in the documentary form of filmmaking, which presumes a truthful representation but may be at its core undertaken as a means of advocacy (pp.154-155). In following two critically-acclaimed HBO films that highlight the “West Memphis Three,” whom many believe to have been imprisoned without sufficient proof of guilt, Mnookin yields groundbreaking results that could serve as a map for research into so-called reality television. Mnookin finds, for instance, that above and beyond the potential ramifications of advocacy (which was demonstrated with only about twenty percent of viewers leaving theaters convinced of guilt), that HBO may well have influenced the very outcome of the trial itself. HBO paid the families and lawyers and this may have negatively affected the defendants. Moreover a critical piece of evidence – possibly even the murder weapon itself – was given to an HBO cameraman by [*809] someone many believe to be the actually killer! Additionally, she points out how the film then took on a life of itself with numerous high profile celebrities embracing the cause of the young defendants, and fundraisers and websites popping up to support them. Thus, Mnookin demonstrates in her piece what Kamir assumed in his, that film can, as seen in this one instance, have tremendous impact and yield audience response.

Diane Waldman’s essay is an illustration of the synthesis between the editors’ Introduction and her plea for limited use of corrective criticism. Sarat, Douglas, and Umphrey, in their literature review, make clear that one of the pioneers in this field is David A. Black, who describes how “law” is often portrayed in the context of the courtroom setting. Waldman, too, works from Black; however, she challenges him as well. Black rejects the notion of corrective criticism – attempting to critique a fictional film to correct facts or make it more plausible (p.202). She believes that, by correcting errors in fictional films intended to represent real events, one can trace the financial interests that drove the production, the marketing elements that influenced the spin of the film’s release, as well as the impact these external agents have on audience reception. She went back to accused polluters and the people who actually suffered from the environmental pollution and cancer as presented in A Civil Action to evaluate their response to the film. Her results are fascinating. The polluting company in question tried to access advance copies of the film and has subsequently established a web site – ostensibly for spin control but in which they impugn themselves (p.223). Furthermore, the dying words of children were attributed to the wrong families (p.209). Thus, corrective criticism seems a valuable tool to evaluate interest groups.

Finally, Eric Smoodin’s analysis of the fan mail sent to Frank Capra upon the release of Mr. Smith Goes to Washington is an intriguing snapshot of responses to Jimmy Stewart’s character. Smoodin’s analysis as to why the climate of the late 1930s bred distrust for insiders in Washington, but a high level of support for an outsider who is a true patriot, is unique and raises many questions for future research for political scientists who have often evaluated the allure of the Washington “outsider.” Due to lack of data, political scientists have historically attributed political alienation and loss of political efficacy to the post-Vietnam and Watergate eras. But these letters seem to indicate that American citizens were feeling it much earlier and seeking a hero to save them from corruption and gridlock. They found the hero in Mr. Smith and vicariously through Capra as well. Smoodin also hints at the pedagogical value of LAW ON THE SCREEN when he notes that this “film is a scene-by-scene primer in American law” (p.232). However, his methodology, which is well presented, is unlikely to be accepted by political science journals because it is highly subjective in attempting to evaluate underlying motivations of audience response through the “rhetoric of reception” (p.237). The closest thing in our discipline would be a content analysis.

In conclusion, Sarat, Douglas, and Umphrey have put together a valuable text with broad interdisciplinary appeal [*810] to both researchers and classroom instructors in LAW ON THE SCREEN. The literature review is helpful, and the target audience is clear, although it extends beyond the scope envisioned by the authors. The terminology needs clarification, but editors often choose to “let a thousand flowers bloom” intentionally in early works to promote inclusion. Nevertheless, each author is free to define his/her own usage of terms, as Shapiro does so well. Some assumptions are made regarding audience response and methodology, but overall the essays are well-done and enlightening. I applaud the call for scholarship by the editors and their choice of unique essays, and I echo their appeal to journal editors to begin publishing this type of research with more frequency (p.22).

REFERENCES:
Felman, Shoshana, and Dori Laub. 1992. TESTIMONY: CRISES OF WITNESSING IN PSYCHOANALYSIS, LITERATURE, AND HISTORY. New York: Routledge.

Nelson, Michael (ed). 2000. THE PRESIDENCY AND THE POLITICAL SYSTEM. Washington D.C.: Congressional Quarterly Press.

Sabato, Larry J. 2000. FEEDING FRENZY ATTACK JOURNALISM AND AMERICAN POLITICS. Baltimore: Lanaham Publishers, Inc.

© Copyright 2005 by the author, Lori Maxwell.

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RESTORING FREE SPEECH AND LIBERTY ON CAMPUS

by Donald Alexander Downs. Cambridge: Cambridge University Press, 2005. 318pp. Cloth £25.00 / $28.99. ISBN: 0-521-83987-4.

Reviewed by Elizabeth Ellen Gordon, Department of Political Science and International Affairs, Kennesaw State University. Email: egordon [at] kennesaw.edu .

pp.802-805

In his book RESTORING FREE SPEECH AND LIBERTY ON CAMPUS, Downs addresses the suppression of free expression by left-leaning political forces within the academy. While he acknowledges that universities have often struggled against censorship from the right and from outside the campus, he claims that from the 1990s onward, there has been a trend toward internal “politically correct” suppression, and it is no more justified than the traditional brand. To make his points, Downs employs the case study methodology and goes into a great amount of well-documented detail in discussing episodes where free speech was threatened at UC-Berkeley, the University of Wisconsin-Madison, Columbia University, and the University of Pennsylvania. He definitely sides with those feeling threatened by speech or conduct codes on campus; in fact, as he quite openly admits, he was actively involved in the free speech movement at Wisconsin in the 1990s. In no way is he detached from his subject, although he thoroughly and conscientiously lays out the facts in each situation and often interviews – or more often attempts to interview – people active on the other side of the issue.

The four case studies are chosen, according to Downs, “to show different forms of the politics of civil liberty on campus.” The first case study focuses on the politics surrounding Columbia’s sexual misconduct policy, which was instituted in 2000. The policy’s goal was to encourage victims to come forward with their charges, but Downs argues that the new policy presumed guilt and robbed the accused of their rights to due process. In the next case study, Downs describes the race-based agitation at Berkeley spurred by the passage of California’s Proposition 209, which ended affirmative action programs in university admissions. Next he turns to the University of Pennsylvania’s code of conduct (or speech code, depending on one’s point of view) that gained notoriety after the infamous “water buffalo” case, in which a Jewish male student likened a raucous gathering of African-American female students to the aforementioned animal. Whether or not the remark was racist was unclear, but the University chose to aggressively pursue the matter as a violation of the school’s racial harassment code, thereby igniting a free speech backlash. The last case study examines the free speech movement that arose at the University of Wisconsin in response primarily to a controversial faculty speech code that many saw as overly broad. The code made punishable “expressive behavior” that is commonly seen as demeaning by members of a number of demographically defined groups. In determining culpability, intention was seen as less important than subjective [*803] impact. Downs recounts the growth of an anti-code movement and its ultimate success in convincing the faculty senate to abolish the code.

In all four of these cases, Downs’ perspective is that the anti-free speech policies and actions are more pernicious than the problems students and administrators attempt to mitigate through their use. He is critical of the other side’s argument that speech is actually a form of conduct and should be treated as such. Instead, Downs insists that speech is just speech, and that speech being allowed to operate with few impediments is critically important for the intellectual development of all in academia. For him, the free exchange of ideas is crucial to the mission of universities generally. He states that “a problem arises when philosophical and political differences are dealt with not by discussion and debate but by the recourse or reference to coercive, punitive measures and powers that in effect ‘criminalize’ disagreement,” a theme he explicitly cites as “perhaps the single most important point in this book.”

Downs shows that these anti-free expression forces are rooted in critical theory and related academic perspectives, and he freely takes swings at their assumptions. He decries the tendency of these campus movements to turn political disagreements into personal attacks, and muses that “[p]erhaps this tendency is the natural outcome of a philosophy that invariably considers ideas the mere masks of power,” one of critical theory’s major premises. He continues: “If ideas are primarily derived from power, then bad ideas are seen as the products of bad people.” This linkage, however, ignores the fact that personal attacks in politics are hardly the exclusive domain of the radical left. Anyone tuning in to right wing talk radio even for a brief period of time would be exposed to multiple personal attacks on their opponents, without any similar underlying philosophy.

Downs’ criticism of left-wing campus movements certainly has some justification, and he chooses case studies that demonstrate how insensitive remarks and careless classroom practices can be exaggerated for political gain. However, he does not seem to take into account to any great extent the justification for the “political correctness” movement in the first place: that policies neutral on their face favor those in power. While one may argue that absolute free speech protects the minority voice, it is not hard to argue the converse, that free speech in many ways advantages the group with the loudest megaphone, the biggest soapbox, the most bountiful budget, and the endorsement of the powerful. Without a doubt, codified protection for the minority sometimes results in injustice, but it is also apparent that allowing an intellectual free-for-all without a supporting culture of tolerance disadvantages those already arguing from a disfavored position. Clearly he calls for just such a culture of tolerance, but the reality is that our society is not yet blind to or especially tolerant of the differences celebrated by identity politics. Leveling the playing field in a deeper sense is the underlying motivation for these PC movements.

It is important to remember, too, that what Downs discusses here is free [*804] speech as a norm or ideal more than a legal imperative. He is addressing university-level politics, rules and procedures. While the outside world of courts and laws sometimes intrudes in these campus controversies (which Downs does not advocate), the main actors in his case studies are students, campus groups, campus media, faculty and administrators, and to a lesser extent, outside pressure groups and outside media. That the campus environment focuses and intensifies political conflict is not surprising. Activist students who are often young, unencumbered, and experimental, tend to take larger social complaints and craft them into campus issues because the campus is a much smaller arena than American society at large. If they do not feel empowered (yet) to change their nation, then perhaps students feel they can actually do something about racism, sexism, sexual harassment, lack of opportunities for minorities, and so on, at the campus level. Under such conditions, students can easily go overboard. And certainly, Downs is less critical of student activists in his case studies than of faculty and administrators who either go along with the students’ distorted claims or do nothing at all. He admits his own initial reluctance as a faculty member at Wisconsin to take a stand against the speech codes, and describes the circumstances that moved him to action.

An underlying theme throughout the book is the expansion of conflict: the decision about how to bring new interests into a dispute, when to do it, who to bring in and the consequences thereof. Downs argues that the wider society is more supportive of free speech than the universities, and that “going public” is not a betrayal but a necessary step if “the institution is betraying its principles . . . and attempts to address the problem internally prove futile or unproductive.” He first favors informal dispute resolution of these situations, mostly without institutionalized rules or procedures, except where real harm or intimidation has occurred. (Of course, what constitutes “real” harm or intimidation is precisely the matter in dispute.) Likewise, he argues that a climate of civility on campus should be established informally, through example, through policies promoting tolerance, and “through nourishment of informal networks of mutual respect and support.” While all this is admirable, Downs possibly underestimates the partisanship and divisiveness of contemporary politics. When our top political leaders and media figures eschew civility daily in support of what they consider to be righteous causes, can we realistically expect college students to do better with little more than polite guidance from faculty and administrators?

It is interesting to note that all his case studies are from large, elite research universities. One wonders if the same forces are at work in other kinds of colleges and universities in this country, including those with a teaching focus, or those with smaller, closer-knit student bodies, or those with mostly conservative student bodies. Is the dilemma he discusses really just the problem of institutions where students read critical theory and follow faculty steeped in the praxis model of empowerment? On many campuses, it is more common to hear faculty complain about lack of student activism in any direction than about such activism run amok, and a backlash against anything [*805] perceived as “politically correct” is well underway, and has been for some time. Given these considerations, and the conservative national political climate, this book is likely to seem less provocative to many undergraduate readers than their professors might expect.

© Copyright 2005 by the author, Elizabeth Ellen Gordon.

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ELECTING JUSTICE: FIXING THE SUPREME COURT NOMINATION PROCESS

by Richard Davis. New York: Oxford University Press, 2005. 224pp. Hardback. $28.00/£16.99. ISBN: 0195181093.

Reviewed by Wendy L. Martinek, Department of Political Science, Binghamton University. E-Mail: martinek [at] binghamton.edu .

pp.797-801

In the wake of the failed nomination of Robert H. Bork to the Supreme Court by President Reagan, a taskforce of distinguished members of the legal profession, public officials, and other notables was convened under the auspices of the Twentieth Century Fund with the purpose of examining the modern confirmation process. Characterizing it as rife with controversy and contention, the taskforce disapprovingly concluded in its report, JUDICIAL ROULETTE, that “the confirmation process has come dangerously close to looking like the electoral process” and went on to recommend reforms that would reduce what the taskforce perceived as the pernicious effects of politicization. Numerous scholars and commentators, both before and after publication of JUDICIAL ROULETTE, have made similar observations regarding politicization of the process in the modern era and proffered their own reforms. In his new book, ELECTING JUSTICE, Richard Davis also sees numerous commonalities between Supreme Court selection and electoral politics. But, whereas the Twentieth Century Fund taskforce and others have decried this state of affairs, Davis recommends embracing it fully by restructuring the process to explicitly and directly involve the electorate in the selection of Supreme Court justices.

In truth, this recommendation is but one of several that Davis makes – albeit the one that represents the most radical departure from the status quo. The others are more incremental. Some are targeted at the presidential side of the process. For example, he recommends that presidents eschew a thematic approach when selecting a nominee. By thematic approach Davis means things like the pledges of Presidents Nixon and George W. Bush to appoint strict constructionists and President Clinton’s expressed preference for those with political experience. The author also enjoins presidents to eliminate the personal interview of prospective nominees or, at the very least, to keep them private. Other reforms are directed at the Senate. Senators are exhorted to approach hearings as an investigation, rather than an inquisition. They are further urged to take steps to limit the length and repetitiveness of hearings. None of these recommended incremental reforms are particularly novel; many have been articulated in previous scholarship (e.g., Maltese 1995) and championed by other commentators (e.g., JUDICIAL ROULETTE). But, clearly, Davis’ preferred reform is a variant of the electoral process.

This recommendation comes near the end of this engaging and thought-provoking book. Davis implies clearly that something is seriously amiss in the [*798] current system by the title of his introductory chapter: “A Broken Process.” He juxtaposes the ideal model, where “the president chooses the most qualified individual and the Senate confirms such a person promptly,” with the current reality in which “Supreme Court nominations have become public pitched battles involving partisans, ideological groups, single-issue groups, and the press” (p.4). To understand how this state of affairs came into being, Davis begins in Chapter 1 with a review of the traditional participants in the process (the president, the Senate, and the nominees). For presidents, an appointment to the high court is a momentous event with policy implications that extend far into the future. The high profile nature of such nominations is, in a sense, a double-edged sword. Securing confirmation in a tough battle can antagonize the Senate. Failing to do so, however, conjures up an image of presidential weakness in the public eye. Davis goes on to argue that the Senate, too, has a lot riding on how presidential nominations to the Court are handled. The press, interest groups, and constituents can bring enormous pressure to bear on senators, given how consequential these nominations are now perceived to be by these three sets of actors. In fact, Davis sees understanding their motivations and actions to be crucial for understanding the contemporary process.

In Chapter 2, Davis offers a concise but informative overview of the mechanics of the process. This includes presidentially-related factors, including selection criteria—e.g., ideology, merit, friendship—and models of presidential management—the constituency model, which “gratifies the expectations of the president’s core constituency” (p.61), versus the consensus model, in which “the president finds a nominee who appeals across party lines—a moderate who is palatable to both liberal and conservative groups” (p.63). Davis also addresses issues of institutional jealousy between the Senate and the president, as well as the role of partisanship and ideology.

In Chapter 3, the author offers his take on how the process became broken. To do so, he invokes E.E. Schattschneider’s theory regarding enlarging the scope of conflict as a tool for those seeking a particular outcome to explain why external forces (e.g., interest groups, the media, and the public) have assumed such prominence in confirmations. In particular, Davis identifies several motivations for inside players (president and Senate) to enlarge the scope of the conflict over the confirmation of Supreme Court nominees. The first such motivation is divided government, which “has provided an opportunity for sustained, meaningful opposition to the president” (p.79). The resurgence of congressional power, too, has encouraged senators to consider enlisting external actors as a way to pressure the president. And, finally, the expanded role of the Court in policy making has served to prod internal players to expand the scope of conflict, thereby enlisting external players as a strategy to boost their chances of winning. Davis draws attention to the motivations of external players, too. The Court’s expanded role in policy making, the democratization of the process, and enhanced expectations of transparency in government have prompted interest groups, the media, and the public to become increasingly involved in the process. [*799]

Davis does not see these external actors in salubrious terms. Interest group involvement has “helped turn Supreme Court nominations into major battlegrounds for competing interest groups” (p.95) and injected substantial sums of money into the process. The media’s involvement has meant that the focus—of the White House, the Senate, interest groups, and the nominee—is on image: “Each player attempts to employ the media to shape the image of the process and the nominee” (p.101). Increased participation of interest groups and the enlarged role of the media combine to foster greater involvement by the public. Interest groups frame nominations to make them newsworthy events and the increased news coverage stimulates public interest. “The combination of news coverage, group appeals (which stimulates more news coverage), and polling facilitates public opinion as a factor in judicial selection. The public is legitimated as a player by other external forces that seek to shape and use public opinion to support their efforts” (p.103).

Chapters 4 and 5 are devoted to an elaboration of the roles played by the new (external) actors and the contemporary process, respectively. Davis makes a compelling argument that the contemporary process is all about image making. Echoing Maltese’s THE SELLING OF SUPREME COURT NOMINEES, Davis draws attention to the importance presidents place on creating and controlling (if possible) the image of their nominees. Given how critical image is to ultimate success or failure, the personal histories of nominees become terribly important. Whether the personal saga is one of overcoming poverty to achieve success (e.g., Clarence Thomas) or surmounting gender discrimination en route to a distinguished career (e.g., Ruth Bader Ginsburg), life stories (or, at least portions of them) are key components in nominees’ images. The White House does not, however, have the final say regarding a nominee’s image. Interest groups, too, seek to shape the image of nominees. Opposition groups attempt to do so to counter the nominee’s image as proffered by the president’s team. Even supportive groups join the battle over image-making. And, both presidents and interest groups develop strategies for using the press to communicate their preferred images of a nominee.

With this background in mind Davis moves on to make recommendations for reform. Most of the reforms, as noted above, have been advocated by others already, and virtually all distill to Terence’s admonition in ANDRIA: “Moderation in all things.” For example, presidents should not be hasty in making a nomination, but neither should they be dilatory. The Senate should weigh the qualifications of nominees carefully but not take too long in doing so. And, nominees should not be forced to state their personal views but should be free to articulate their opinions if they so desire. The really interesting recommendation is for constitutional revision that entails direct public involvement. Davis is not wedded to one particular model of public participation. One alternative would be to have the president nominate a set of candidates who then appear on the general election ballot. The Senate’s role under this plan would be to serve in an advisory capacity. Once elected, justices would no longer serve for life, but set terms of office, staggered such that no more than [*800] one or two positions would come up for election at one time. Another alternative would be to have presidential nomination and Senate confirmation, with the proviso that the Senate’s confirmation would require ratification by a popular vote. A variation on this plan would be to require a general vote whenever a nominee receives less than sixty votes in the Senate.

Davis argues that, although election-based reform may be “unsettling,” it is not new given that most states select members of their courts of last resort via some sort of electoral means. He is also mindful of the potential criticism that the general public is simply not fit to make such decisions. Nonetheless, such changes as direct election of senators, primary elections, and initiative and referenda procedures, he asserts, have democratized other selection processes with no ill effect. Further, voters must make important decisions regarding the suitability of other candidates for positions with significant impact on public policy. Thus, Davis questions why it should be different for members of the Supreme Court.

The crux of Davis’ argument is that the current selection method for the Supreme Court is a de facto electoral process already, so why not make it a de jure electoral process. It is entirely unclear, however, that his preferred answer will really serve as a solution. Certainly, making the formal outlines of the process reflect what currently happens in practice would be a solution—of sorts. But threaded throughout the book is the implication that the process is inappropriately shaped by interest groups and the media. Those actors, in effect, serve to moderate (distort?) public participation. That really seems to be the problem to which the author is seeking a solution. Will electing judges change that? The evidence with regard to the role of interest groups and the media in presidential and legislative elections suggests otherwise. Even so, there are other arguments favoring conversion of the selection of justices from an appointive to an elective one. Democratic principles and theories of representation might be marshaled in support of such reform. But, as a solution to ameliorating the influence of interest groups and the media, election of Supreme Court justices would likely fall far short of its goal.

ELECTING JUSTICE is an eminently readable book, which compares favorably to Mark Silverstein’s JUDICIAL CHOICES and John Maltese’s THE SELLING OF SUPREME COURT NOMINEES in terms of engaging ideas and clarity of expression. It also traces much of the same history as those two books. All three authors – Davis, Silverstein, and Maltese – see institutional revision as important to address politicization of the current process. Davis differs from Silverstein and Maltese in the heavier emphasis he places on the role of external actors. In an important way, Davis’ view regarding the role of interest groups (one of the external actors he identifies) echoes the arguments made by Bell in WARRING FACTIONS. Bell writes, “Interest group participation in the confirmation process has created a more contentious environment for presidential nominees. Recognizing that the confirmation process is another opportunity to push their policy agenda and appease their members, interest [*801] groups now use Senate confirmations to shape public policy and to punish or reward senators for their decisions” (2002, at 154). Although Bell’s focus is the confirmation process for lower federal courts and executive branch positions, her words could easily have been penned by Davis.

ELECTING JUSTICE offers a useful and accessible tour of the current confirmation process, ultimately leading to a series of recommendations to fix perceived problems. Although the majority of those recommendations might be considered tinkering at the margins, Davis also includes the suggestion that Supreme Court justices be elected, which is sure to be controversial. This volume would be an ideal choice for an advanced undergraduate course on judicial politics and perhaps as a supplementary text for a seminar on presidential and/or legislative politics. Davis’ book is a “good read” and is thought-provoking, to say the least, and it merits the attention of anyone interested in the politics of staffing the bench.

REFERENCES:
Bell, Lauren Cohen. 2002. WARRING FACTIONS: INTEREST GROUPS, MONEY, AND THE NEW POLITICS OF SENATE CONFIRMATION. Columbus: Ohio State University.

Maltese, John Anthony. 1995. THE SELLING OF SUPREME COURT NOMINEES. Baltimore: John Hopkins University Press.

Silverstein, Mark. 1994. JUDICIAL CHOICES: THE NEW POLITICS OF SUPREME COURT CONFIRMATIONS. New York: W.W. Norton & Company.

Terence. [1629] 1972. ANDRIA. Trans. Joseph Webbe. Menston: Scolar Press.

Twentieth Century Fund. 1988. JUDICIAL ROULTTE. New York: Priority Press Publications.

© Copyright 2005 by the author, Wendy L. Martinek.

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