THE REHNQUIST LEGACY

by Craig Bradley (ed). Cambridge and New York: Cambridge University Press. 2006. 414pp. Cloth $80.00/£45.00. ISBN: 0521859190. Paper $35.99/£19.99. ISBN: 0521683661.

Reviewed by Steven Puro, Department of Political Science, St. Louis University. Email: puro [at] slu.edu.

pp.520-523

Craig Bradley has edited a “legal biography” of Justice William Rehnquist. He served as a law clerk when Rehnquist was an Associate Justice of the US Supreme Court, worked as an attorney at the U.S. Department of Justice, and he is currently a Professor of Law at Indiana University Law School. The collection went to press in September, 2005, near the time of Rehnquist’s death. THE REHNQUIST LEGACY assesses the Justice’s constitutional legacy through uncovering his dominant doctrinal dimensions in several different areas of constitutional law. The essays emphasize Justice Rehnquist’s main Supreme Court majority and dissenting opinions in four major sections: The First Amendment, Criminal Procedure, The Structure of Government, and The Scope of Fourteenth Amendment Rights. The eighteen essays show his jurisprudence to be complex and multifaceted, and the findings support established scholarly ideas of Rehnquist’s legal approaches. Among those established ideas is his narrow interpretation of the Bill of Rights, his inclination to limit the national government’s power to impose constitutional demands via the Fourteenth Amendment, and to grant greater leeway for states’ authority in federalism relations.

Justice Rehnquist began his service on the U.S. Supreme Court in 1972 and assumed the position as Chief in 1986, with the nineteen years marking one of the longest periods for a Chief Justice in the Court’s history. In this edited volume, central questions include: are there shifts in Rehnquist’s legal approach and goals concerning major constitutional issues?; is there a clear Rehnquist legacy?; and what implications occur if his doctrinal paths are taken to their logical conclusions?

Bradley relies upon leading legal scholars, overwhelmingly professors of law who provide well organized and clearly written approaches. The contributors present a variety of ideological perspectives concerning legal and constitutional policies. The essays are extensively documented, drawing especially from Rehnquist’s opinions and law review articles. This approach is consistent with the design of the edited volume, and readers should not expect analysis of attitudinal, rational choice, or strategic models of an individual Justice or the Court. Many essays will be useful for teaching law and constitutional issues. In judicial decision making instruction and scholarship, legal doctrinal analysis concerns cycles of continuity and change. Scholars could use a combination of these essays to examine the evolution of Rehnquist’s legal doctrine in areas such as originalism, [*521] judicial restraint, or principled constitutional interpretation.

Most essays are informative with well-developed perspectives not usually found in standard legal or constitutional law texts. The authors emphasize Rehnquist’s strong consistency in his constitutional views. For example, throughout his tenure, he maintained a new approach to federalism issues by giving states’ broader latitude in disputes with the national government. Fresh perspectives on these matters are presented in Mark Tushnet’s chapter on Rehnquist’s development of federalism doctrine. Tushnet characterizes Rehnquist’s ideas as following three main paths: Congress cannot regulate states’ traditional government activities; Congress cannot command state legislatures or executives to implement national policies; and national power may not enter certain areas which are left for state regulation. In cases concerning state authority other than federalism matters, Rehnquist granted a broad role to states in policymaking and a diminishing role to courts in interfering with the judgment of state or national legislative decisions. In commerce clause cases, his regular position was to moderate Congress’ legislative authority and to expand state sovereignty. Several essays demonstrate how Rehnquist’s views developed from minority to majority opinions, as with the federalism issues noted above. There are also instances where he was unable to achieve a majority view, such as his reading of the Sixth Amendment and MIRANDA warnings.

In general, essays find that Rehnquist did not fundamentally alter his established constitutional principles – e.g., opposition to ROE v. WADE (1973)) in the area of reproductive liberty. Another key part of Rehnquist’s legal thinking was his view of judicial supremacy in constitutional interpretation based upon a doctrine of limited government when addressing expansion of congressional power. Dawn Johnsen argues that Rehnquist’s opposition to ROE “was less about abortion per se than about his views on federalism, individual rights, and the appropriate institutional role of the courts, his legacy depends on a more general assessment of how the Court protects individual liberty from government interference under the doctrine of substantive due process” (p.323). He gave limited judicial protection to individual rights not enumerated with great specificity in the Constitution. Further, Rehnquist was a strong advocate of limiting Congressional power under the fifth section of the Fourteenth Amendment to enforce constitutional rights.

Rehnquist’s legal legacy is characterized through his preferred policy outcomes based upon the dominant direction of his opinions. For example, Richard Garnett suggests how Rehnquist drew free speech lines in RUST v. SULLIVAN (1991) “between the government as regulator, as subsidizer, and as speaker” (p.33). The essays rarely address interesting questions concerning whether Rehnquist was constrained by precedent, stare decisis, when addressing legal issues where he held strong opinions. The book could have given further [*522] attention to how other Court members affected evolution of Rehnquist’s legal doctrine. The edited volume leaves us with anaysis of Rehnquist’s doctrines in specific areas of the law but rarely shows connections across legal areas. A summary categorization of his legal thinking is needed and could have been achieved in a concluding chapter.

Relationships between conservative politics, conservative political thought and judicial restraint have been an important part of legal discussion during the Rehnquist Court years (1986-2005). Rehnquist’s general view of relations between the judiciary and other national government departments is that appointed federal judges should not impose rules of conduct upon popularly elected branches. In this argument, there seems to be no consistent link between his philosophy of judicial deference and a justice’s maintenance of consistent judicial attitudes. Earl Maltz, in a chapter considering commercial speech, argues that, if a judge regularly defers to the decisions of other governmental branches, it is difficult to see how that judge can maintain his/her own judicial approach. To be consistent, Rehnquist and other conservative Court members often engaged in a form of judicial activism by taking the initiative to invalidate decisions by Congress and state governments.

This book advances scholarly understanding of distinct dimensions of Justice Rehnquist’s decisions, with each essay focusing mainly on a single doctrinal area. For example, in exploring his legal approach, Daniel Conkle shows that the Justice Rehnquist crafted “Establishment Clause doctrine that makes indirect funding programs almost invulnerable to constitutional challenge” (p.77). Bradley, in a separate essay concerning the Fourth Amendment, demonstrates that the Chief Justice consistently called for limiting the rights of individuals vis a’ vis the state, especially in areas allowing criminal defendants to use the Fourth Amendment to challenge use of evidence against them. Rehnquist was not able to move the Supreme Court to develop a body of Fourth and Sixth Amendment rules to overturn, respectively MAPP v. OHIO (1961) or MIRANDA v. ARIZONA (1966). In Fourth Amendment jurisprudence he regularly joined majority and minority opinions that limited its scope, and with regard to the Sixth Amendment, he conceded the importance of MIRANDA when he wrote for the majority in DICKERSON v. U.S. (2000). For those looking for a broader examination of interactions among Justices during the Rehnquist era, one might want to read Mark Tushnet’s recent book (2005).

THE REHNQUIST LEGACY provides a good review of Rehnquist’s doctrinal analysis and changes that have occurred during his thirty-three year tenure on the Supreme Court. The various essays emphasize the Justice’s constitutional tests, his interpretations of core constitutional ideas, and how he modified those tests over time in a range of legal areas, including those associated with the Fourth Amendment, Establishment Clause, and federalism questions. Law faculty and social scientists, law students and advanced undergraduate constitutional law [*523] students will learn about Rehnquist’s broad decisional patterns and complex variations. The collected essays could provide next steps or additional areas of research concerning Rehnquist’s decisions and their doctrinal dimensions.

REFERENCES:
Tushnet, Mark. 2005. A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW. New York: W.W. Norton.

CASE REFERENCES:
DICKERSON v. U.S., 530 U.S. 428 (2000).

MAPP v. OHIO, 367 U.S. 643 (1961).

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

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

RUST v. SULLIVAN, 500 U.S. 173 (1991).

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© Copyright 2006 by the author, Steven Puro.

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FREE SPEECH AND DEMOCRACY IN ANCIENT ATHENS

by Arlene W. Saxonhouse. New York: Cambridge University Press, 2006. 246pp. Hardback. $70.00/£40.00. ISBN: 0521819857. eBook. $56.00. ISBN: 0511137915.

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

pp.517-519

Arlene Saxonhouse, a University of Michigan professor of Political Science and Women’s Studies, continues her research in ancient political thought and democracy in FREE SPEECH AND DEMOCRACY IN ANCIENT ATHENS. Her goal is to explore the democratic framework of government as a device for permitting free speech. Saxonhouse utilizes a variety of original documents to contrast the modern adaptation of free speech with that practiced in the self rule period of ancient Athens.

The text is divided into four parts, bordered by a Prologue and Conclusion. Part I includes the first two chapters. In Chapter 1, the works of Niccolo Machiavelli, John Milton, and John Locke on free speech are examined. The progression of the free speech clause in the American Bill of Rights is probed. Saxonhouse finds that the free speech designation was not a major issue in the debate for the amendment containing it. Further, the “separation of the people and its government, so much a part of our language today and so ingrained in our understanding of the freedoms affirmed in the Bill of Rights, has no place in the political culture of ancient Athens. The regime was the self rule of a democracy; it was not the liberal playing field of the individual protected by constitutional fences ensuring assorted rights claims against a potentially oppressive government” (p. 24). Chapter 2 presents the concept of democratic amnesia, or the replacement of a past-looking approach with a future-inspired framework. In doing this, the Athenian democratic regime removed the restraints of reverence, hierarchy, and aidos, shame, and replaced it with parrhesia, free speech.

Part II contains only Chapter 3. The intent here is to relate how shame inhibited unbridled speech and to differentiate shame from the concept of guilt. Part III encompasses two chapters. In Chapter 4, the practice of free speech in democratic Athens is highlighted. It should be noted that there were several exceptions to parrhesia in the Assembly. For example, noncitizens, debtors, those committing certain criminal acts, and those whose views were contrary to the well being of the city, were prohibited from speaking in the public forum. Chapter 5 details the trial of Socrates, the Greek philosopher who was executed for stating beliefs to his followers which were deemed threatening to the welfare of Athens.

Part IV covers the last three chapters. In Chapter 6, Saxonhouse discusses the limits on free speech in Athens imposed upon women and foreigners. Chapter 7 utilizes the writings of Thucydides, whose recordings of speeches in three democratic assemblies are presented. In [*518] each case, whether it be the Athenians’ debates over punishing the rebellious island of Mytilene or deciding to attack Sicily, or the Syracusans’ deliberation over whether they should prepare for an attack by the Athenians, the civic ideal of parrhesia falls short “when applied in the settings of democratic decision making”
(p.178). Chapter 8 transfers free speech from the political to the philosophical setting by examining the dialogues of Socrates and Protagoras, as told through the works of Plato. The juxtaposition of aidos with a questioning of the past still leads to a type of speech with boundaries on who could speak, when, and on the topics that could be discussed.

The Conclusion offers four paradoxes, partly as a parallel to the four stories found in the Prologue. The first paradox, between ancients and moderns, identifies the balance between free speech and order as a perpetual challenge for societies. The second paradox, between democracy and free speech, states that we need to heed the experience of the ancients so as not to practice speech without some limits. The third paradox, of Socratic philosophy and the democratic regime, declares that the location where speech is practiced can condition its use and effectiveness. Finally, the fourth paradox, that of shame and amnesia, reminds us that we can never escape speech possessing elements of both openness and reverence, even though eliminating the latter is the objective of a democratic regime.

Although the depth of examination of how free speech was practiced in an ancient community is unique to Saxonhouse’s study, other recent books have traced the history of free speech and probed its place in a democratic setting. Robert Hargreaves (2003) adopts a long-term perspective for investigating the subject. Juhani Rudanko (2003) employs fallacy theory to analyze American congressional debates over the Bill of Rights and the Sedition Act. Karla Gower (2002) scrutinizes the twentieth century development of free speech in the United States and Canada. Alternately, Cass Sunstein (1995) dissects disputes over free speech within a contemporary democratic framework. All except the Rudanko book devote more pages to the issues than the Saxonhouse text.

Saxonhouse offers much of interest to free speech scholars, but the book is not without some shortcomings. The organization of chapters is uneven. Further, the analysis of free speech in the American setting is brief, as only three Supreme Court cases are identified. While a complete coverage of cases is not expected, a more comprehensive overview of judicial decisions on free speech would have would have helped to elucidate understanding of its parameters. Finally, including the rules for speech by members of the U.S. Congress in their official capacity may have provided a fuller context with which to compare to the Athenian Assembly. Nonetheless, these areas of concern do not adversely affect the quality of Saxonhouse’s study. The material is meticulously researched and well presented. [*519]

The most obvious lesson we learn is that, regardless of the period in which it is practiced, free speech in a democracy is neither absolute nor arbitrarily inhibited. Instead, it is based on the combination of previous experience, present circumstances, and the characteristics of the polity.

REFERENCES:
Gower, Karla K. 2002. LIBERTY AND AUTHORITY IN FREE EXPRESSION LAW: THE UNITED STATES AND CANADA. New York: LFB Scholarly Publishing.

Hargreaves, Robert. 2003. THE FIRST FREEDOM: A HISTORY OF FREE SPEECH. Herndon, VA: Sutton Publishing.

Rudanko, Juhani. 2003. THE FORGING OF FREEDOM OF SPEECH. Lanham, MD: University Press of America.

Sunstein, Cass R. 1995. DEMOCRACY AND THE PROBLEM OF FREE SPEECH. New York: The Free Press.

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© Copyright 2006 by the author, Samuel B. Hoff.

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LAW WITHOUT JUSTICE: WHY CRIMINAL LAW DOESN’T GIVE PEOPLE WHAT THEY DESERVE

by Paul H. Robinson and Michael T. Cahill. New York: Oxford University Press, 2006. 336pp. Hardback $35.00/£19.99. ISBN: 0-19-516015-0.

Reviewed by Samuel T. Morison, Office of the Pardon Attorney, U.S. Department of Justice. E-mail: stm5 [at] georgetown.edu.

pp.510-516

The debate concerning the moral justification for imposition of criminal liability and punishment seems to be perennially mired in the philosophical standoff between the deontological and consequentialist camps, with partisans on each side pointing out the relative theoretical shortcomings of the other. Those with a deontological sensibility are thus inclined to argue (quite rightly it seems to me) that a purely utilitarian conception of crime and punishment might easily be used to rationalize infliction of punishment, either too much or too little, without a due regard for moral fault of the offender, however difficult that metric is to determine as a practical matter. The consequentialists, in their turn, counter (also correctly I think) that the quixotic attempt to preserve of a kind of cosmic balance between desert and culpability, by itself, is hardly a sufficient reason to tolerate the substantial social costs incurred by infliction of state-sponsored punishment, even on those who arguably deserve to be punished in some fashion. As Michael Corrado (2001) remarks, borrowing a metaphor from Wittgenstein, the debate has come to resemble the proverbial “fly trapped in the fly-bottle. We have found our way in, and cannot find our way out.”

If I have read them correctly, Paul Robinson and Michael Cahill’s new book, LAW WITHOUT JUSTICE, constitutes the latest attempt to break out of this particular conceptual muddle, though not, I suspect, in a way that will ultimately prove satisfactory to anyone with an intellectual stake in the debate. For the authors’ ambition is nothing less than to reconcile the deontological and consequentialist viewpoints, or at least to render the disagreement between them irrelevant, by advancing the empirical claim that the criminal justice system can most effectively facilitate the goal of inducing voluntary compliance with law, the purported objective of utilitarian-based theories, only to the extent that both doctrine and practice accurately reflect popularly held intuitions about the scope and limits of deserved punishment. By adopting this strategy, they hope to “obviate, as a practical matter, the deeper philosophical debate about whether these other commitments should trump desert. . . . Where it is possible to achieve the competing goal without deviating from desert . . . the unfortunate tradeoff can be avoided altogether” (p.18).

Given the intractable nature of the debate, this is a tall order, to put it mildly. In an effort to make good on the argument, the authors begin, perhaps inevitably in discussions of this sort, with the assumption that the legal system generally, and the machinery of the criminal justice system in particular, is driven by a single overarching goal or [*511] purpose, namely to see to it so far as humanly possible that “people get what they deserve,” no more and no less, in response to their actions. The pursuit of a backward-looking conception of justice in which desert is given pride of place in the assignment of liability and punishment, they contend, is “a fundamental reason (and perhaps the reason) that we have a legal system at all” (p.3), rather than any fear of the untoward social consequences that might ensue if we failed to consistently enforce established legal conventions.

This is certainly not meant to suggest that the standard utilitarian justifications of punishment — minimizing the incidence of criminal behavior through deterrence, incapacitation and rehabilitation — are not also worthy social goals. But the authors insist that such considerations, by themselves, do not constitute “freestanding justifications for having a criminal-justice system in the first place” (p.16). This proposition is put forward, moreover, as an empirical observation about the existing state of the law, rather than an inherently contestable normative assertion about the shape it ought to take. “[T]he overall contours of criminal-law doctrine,” they write, “make clear that the commonly shared intuition [about desert] is essentially accurate as a descriptive matter. That is, criminal law does typically try to do ‘justice,’ just as people want it to do” (pp.16-17).

Robinson and Cahill further contend that it is this unique feature of criminal law, namely “its ability to bring moral condemnation to bear” by stigmatizing the conduct of blameworthy offenders, that chiefly serves to distinguish the criminal justice enterprise from the imposition of “tort liability (or some other civil or private-law mechanism) to redress wrongful behavior” (pp.113, 16). From this perspective, doctrinal departures from an individualized conception of the desert principle — such as the imposition of strict liability for statutory rape despite the actual reasonableness of a particular defendant’s mistaken belief that the victim was above the age of majority — are problematic in terms of securing voluntary compliance, because they undermine “the very moral credibility that gives [criminal law] the normative force to influence people’s values and behavior” (p.113).

Hence, they argue that preserving “the criminal law’s moral credibility” by minimizing such deviations is “essential to effective crime control,” because the system relies crucially on the public’s perception that the law accurately reflects widely shared views of “appropriate prudential and moral behavior” (p.16). Conversely, the “greater the criminal-justice system’s deviation from [this conception of] desert, the more it undermines its own moral credibility with the community it governs and the less influence it will have in shaping community norms and in gaining cooperation and acquiescence in it operations” (p.128).

As the authors are keenly aware, of course, the criminal law is also rife with doctrines imposing relatively bright-line rules that deliberately depart in one way or another from a purely desert-based approach. The bulk of the book is thus [*512] devoted to a wide-ranging survey of such “deviation rules,” and explores the extent to which they should be revised to more closely track deep-seated beliefs about deserved punishment. Given the asserted normative priority of the desert principle, they contend that the “central questions that should drive the debate . . . are empirical and not normative,” namely the extent to which the “system would come closer to maximizing deserved punishment” with or without the rules in question (p.84). And, as one might expect from a couple of law professors, the abstract discussion is effectively punctuated with the examination of actual cases that usefully illustrate how the deviation rules operate in practice.

The deviation rules fall into two broad categories. Chapters 2-4 examine various substantive and procedural rules that accept, in principle, the normative priority of desert, but that “depart from the abstract demands of justice” for pragmatic reasons having to do with the real world implementation of the system (p.8). This category includes “the limitation or rejection of various exculpatory defenses or mitigation rules,” such as a reasonable mistake of fact or law, which is motivated by a concern that guilty defendants might otherwise manipulate the system to achieve unjust acquittals; the use of statutes of limitation and strict liability, which respond to concerns about human error and the inherent unreliability of evidence; and practices such as plea bargaining and witness immunity, “which are predicated on the claim that, given constraints on available time, resources, and fact-seeking capacities, the system can maximize justice overall by making compromises in individual cases” (p.26).

By contrast, Chapters 5-8 examine various rules that deliberately generate departures from the pursuit of desert and thus “reflect a decision, whether conscious or inadvertent, to sacrifice the interests of justice to advance some other goal” (p.8). This category includes the criminal law’s insistence on “clear, fixed, ex ante rules defining the conduct it prohibits,” which may be both over and under-inclusive, imposing underserved liability when “a blameless offender is punished” in order to vindicate “the clarity of the prohibition,” but precluding liability for certain immoral acts that “do not fall within any clearly established . . . prohibition;” the use of sentencing rules that increase penalties for repeat offenders, which may inflict “more liability than is deserved;” procedural devices, such as the exclusionary rule, that seek to preserve the fairness of the system “by imposing restraints on police and prosecutors to curb government misconduct,” thereby frustrating the imposition of deserved punishment; and the use of certain rules that “promote interests completely external to the criminal-justice system,” such as diplomatic immunity and the criminalization of regulatory violations (p.88).

Finally, Chapters 9-10 reiterate the authors’ agenda for reform, which aims “to eliminate, or at least reduce, the current system’s deviations from the desert principle.” The reforms likewise fall into two categories. The first set of [*513] reforms would involve changes internal to the criminal justice system, such as relaxing the artificiality of bright-line deviation rules by “shifting the burden of persuasion to the defendant” to prove facts that mitigate moral fault, and a more nuanced verdict system, “which could effectively condemn a defendant’s conduct while exculpating” him in appropriate circumstances, thereby preserving the law’s moral integrity without imposing undeserved punishment (p.9).

The second set of reforms would involve changes external to the criminal justice system, such as the use of civil remedies as a “means of dealing with official violations of rights [rather] than the current method of excluding reliable evidence in criminal proceedings,” the creation of “a distinct civil system . . . to impose liability for minor administrative violations and corporate wrongdoing,” and openly embracing a “system of post-criminal term civil commitment” for dangerous offenders (p.9).

Though many of these proposed reforms strike me as both sensible and humane, particularly if they can be implemented without a concomitant loss in deterrence, the theoretical basis of the argument remains unconvincing for several reasons. To begin with, Robinson and Cahill readily acknowledge that “various rights and protections . . . enshrined in the Constitution” are specifically designed “to prevent abusive or improper law enforcement or prosecution,” even though they also plainly frustrate the goal of giving the guilty the punishment they arguably deserve, which, they say, sets up a “tradeoff between individual liberty and substantively accurate results” (p.138).

But surely the constitutional concern for individual liberty is not merely a competing interest, on a par with, much less subordinate to, the desert principle. To the contrary, I would argue that the centrality to our political culture of such constitutional norms completely undermines the notion that the desert principle enjoys normative priority in governing the exercise of state power, punishment being the paradigmatic manifestation thereof. According to this view, the practice of punishment is rationally justified, if at all, as a mechanism for securing the rule of law, which is to say, a cooperative social venture in which each citizen’s right to act freely for his or her own purposes is protected from illegitimate interference, consistent with the comparable freedom of everyone else. In order to be morally justified, of course, the state’s treatment of an offender must meet several additional constraints, including satisfying the requirements of proportionality and equality. However, the purpose in virtue for which we establish criminal laws in the first place is certainly not to ensure that offenders get exactly what they deserve, whatever that is, but to instantiate (however imperfectly) the ideal of individual liberty within the rule of law. If this is a correct characterization of the American constitutional tradition, the infliction of punishment is a means, not an end, and the imperative concern to maximize the desert principle thus seems misplaced.

Furthermore, as we have seen, Robinson’s and Cahill’s program for [*514] penal reform is heavily dependent upon on a positive psychological claim, namely that popular intuitions about desert have, at a minimum, a fairly determinate and readily accessible content, which, in turn, is the ground of the law’s legitimacy and thus ought to inform legislative code drafters. Hence, the authors maintain, apparently on the basis of opinion surveys, focus group research and the like, that “laypersons generally . . . assume that criminal liability and punishment should depend upon a person’s moral blameworthiness” (p.4, n.6), and, more strikingly, that “nearly all of the time, nearly all of us would be in rough agreement about what it means to give a particular defendant what she deserves” (p.15). More specifically, they assert, inter alia, that “shared intuitions” support a relaxation of the insanity defense where the defendant could not reasonably control his behavior (p.41), that “most people share the view” that the provocation defense should be based on a subjective evaluation of what was reasonable to expect from the defendant under the circumstances (p.48), and that it “clearly conflicts with lay perceptions of justice” to punish attempts as harshly as completed crimes (p.134).

These claims are difficult to adjudicate, since the validity of this type of research depends upon a host of issues that are not specified in the text. As always, the devil is in the details. In any event, while Robinson and Cahill suggest that their approach has a certain democratic pedigree (p.21), this completely elides the fact that, constitutional rights aside, all of the substantive doctrines to which they object have been almost uniformly adopted in the large majority of American jurisdictions, and there is no good reason to believe that legislators are systematically mistaken about public sentiments concerning these issues. Indeed, the primary cause of the democratic tendency toward over-criminalization, which Philip Pettit (2002) has aptly termed the “outrage dynamic,” is precisely that legislators are arguably too responsive to public demands regarding penal policy, which need not necessarily “serve any instrumental purpose, so long as it effectively decries the deed and denounces the doer.”

For these reasons, it is difficult to credit the suggestion that such legislative judgments somehow fail to reflect accurately the average layman’s view, however partial or exaggerated, about the demands of retributive justice. Robinson and Cahill assert, for example, that recidivist statutes and sentencing guidelines that provide increased penalties for repeat offenders constitute “a system of cloaked preventative detention” that makes no pretense of “imposing just punishment for specified crimes” (pp.11, 4), but this is simply not true. In fact, I am not aware of any contemporary sentencing statute that stipulates a single, comprehensive rationale to justify its provisions. The Federal Sentencing Guidelines, which are typical in this regard, provide that, in addition to serving the goals of deterrence and rehabilitation, “[a] defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.” Likewise, the California three strikes law, which the authors [*515] admit enjoys widespread public support (p.4), provides that “[i]t is the intent of the Legislature in enacting [the statute] to ensure longer prison sentences and greater punishment” for repeat felony offenders, thereby incorporating both utilitarian and retributive justifications.

The debate would thus seem to turn, as the authors evidently concede (p.135), on the specific range of punishment to which repeat offenders are exposed. That is also a legitimate policy debate, to be sure, and while I am sympathetic to the claim that strict mandatory sentences often generate counterproductive and unjust results, that is quite different from saying that popular notions of desert fail to sanction the use of sharply increased penalties for repeat offenders, even for a series of relatively minor, non-violent property or drug crimes.

Finally, as Kyron Huigens (2000) has acutely observed (in reference to an earlier version of the same thesis co-authored by Robinson), the argumentative strategy is defective in any event, because it “implies that the criminal law operates under a pretense that its claims about fault are meaningful, with a wink and a nod to consequentialist theorists and a legal elite who know better. We do not impose criminal liability up to the logical limits of the consequentialist rationale because to do so would risk a popular backlash, but the criminal law, properly speaking, is agnostic about the moral intuitions that would drive this popular backlash.” This objection suggests that the integrity of the law is not dependent upon whether it happens to coincide with widespread intuitions about desert, as Robinson and Cahill would have it, but rather on the extent to which it is consistent with principled moral reasoning about the legitimate scope and limits of liability and punishment. Although it is perhaps a truism that some degree of public acquiescence is a necessary condition for the stability of any legal system, if popular attitudes conflict with our considered moral judgments and political ideals, the pedagogical responsibility of scholars and reform advocates is to attempt to persuade people to change their minds.

In this regard, moreover, an opinion poll is hardly a straightforward expression of the sensus communis, the impartial standpoint from which the rational evaluation of social norms is possible. After all, until fairly recently, a majority of the American electorate would have approved of the legal enforcement of a parochial conception of sexual morality. Nevertheless, in one of its rare forays into substantive criminal law, the Supreme Court has largely resisted this impulse on equal protection and substantive due process grounds, most recently in LAWRENCE v. TEXAS (2003), which, as everyone knows, struck down a criminal statute targeting homosexual sodomy. To the same effect, Huigens quotes H.L.A. Hart’s (1968) riposte to the idea that public opinion subtends the criminal law: “we do not dissociate ourselves from the principle that it is wrong to punish the hopelessly insane or those who act unintentionally, etc., by treating it as something merely embodied in popular mores to which concessions must be made sometimes. We condemn legal [*516] systems where they disregard this principle; whereas we try to educate people out of their preference for savage penalties even if we might in extreme cases of threatened disorder concede them.”

Indeed, Robinson and Cahill themselves remark, tellingly, that “[l]egal reform can be effective only as part of a larger agenda of education and societal awareness, including the public expression of disapproval by institutions other than the criminal-justice system. Criminal-law reform cannot be a substitute for public discussion, educational campaigns, and institutional programs” (pp.113-114). I quite agree, but then the effort to sidestep the normative debate over the justification of the criminal law is largely beside the point, since we are invariably in the position of having to decide whether our moral intuitions are rationally justified, all things considered, and thus worthy of being embedded in the penal code.

REFERENCES:
Corrado, Michael L. 2001. “The Abolition of Punishment.” 35 SUFFOLK UNIVERSITY LAW REVIEW 257-276.

Hart, H.L.A. 1968. PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW. New York: Oxford University Press.

Huigens, Kyron. 2000. “The Dead End of Deterrence, and Beyond.” 41 WILLIAM & MARY LAW REVIEW 943-1036.

Pettit, Philip. 2002. “Is Criminal Justice Politically Feasible?” 5 BUFFALO CRIMINAL LAW REVIEW 427-450.

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

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© Copyright 2006 by the author, Samuel T. Morison. The views expressed in this review are the personal opinions of the author and do not represent the official position of the U.S. Department of Justice.

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AMERICAN CONSTITUTIONAL LAW: INTRODUCTORY ESSAYS AND SELECTED CASES (14th ed)

by Alpheus Thomas Mason and Donald Grier Stephenson, Jr. Pearson/Prentice Hall, 2005. 744pp. Cloth. $105.20. ISBN: 0-13-117437-1.

Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.

pp.508-509

Professors are forever searching for the most updated texts and related materials for courses that are reliable and easily accessible; book publishers are forever seeking to supply them. Supply and Demand – the joys of the market. But perhaps like many colleagues all over the country, I plead guilty to the crime of “brand loyalty:” once I find a good, solid, and durable text from a publisher that I like, I stick with it through many editions until either a new one is no longer issued or some other publishing rep peels me away with a better product. Until that moment arrives, my rep usually knows whom to call when the latest edition of my standard texts come out.

I have taught Constitutional Law courses for nearly 10 years. Finding a text in this field which students will not find as dry as dirt is a task in and of itself. In that time, I have gone through about three or four updated editions of Mason’s and Stephenson’s AMERICAN CONSTITUTIONAL LAW: INTRODUCTORY ESSAYS AND SELECTED CASES. But the text has a longer more illustrious history. The first edition appeared in 1954 – the same year BROWN v. BOARD OF EDUCATION was decided. The Fourteenth Edition was released just after its fiftieth anniversary. To put it bluntly and rather crudely, this is a good product for any professor who is teaching introductory courses on the American legal system. It is accessible, thorough, unique in its approach, and timely given the updated material in the concluding chapter on freedom and security during wartime.

The text covers the waterfront of the American legal system in all of its basics: judicial review, organization of the court system, federalism, separation of powers, elections, commerce, criminal justice, property rights, the Bill of Rights, equal protection, and so on. In that sense, the text is solid. Yet what makes AMERICAN CONSTITUTIONAL LAW unique is the way the authors approach the subject matter. They mercifully refrain from overwhelming readers with long and lengthy chapters – or rather, long and lengthy discourses before the relevant cases are presented. This is why Mason and Stephenson subtitle the text “introductory essays and selected cases.” The background and contextual material in each chapter rarely exceeds 15 pages. The facts and nothing but the bare bone facts are presented before the selected cases are brought forth.

This frees up a good deal of space in each chapter for a wide variety of excerpted cases that address different aspects of the issue in question. For example, in Chapter Fourteen on Equal [*509] Protection, the authors delve into no less than six aspects of equal protection – suspect classification, racial discrimination, state action, gender discrimination, affirmative action, and cases dealing with an analysis of fundamental rights. The “essay” part of the chapter is roughly fifteen pages; the “selected cases” section barely twice that. In short, the chapters are manageable for undergraduate students who may be coming at this material for the very first time.

The text is framed nicely by the introductory and concluding chapters. The former is titled “A Political Supreme Court;” the latter “Security and Freedom in Wartime.” The thread that runs from beginning to end is not necessarily a new revelation, but in these times worth remembering: the courts are never divorced from politics no matter how hard they try. Not when George Washington was making his nominations to the first Supreme Court, and certainly not when the Court was deciding HAMDI amidst the Bush Administration’s pursuit of the war on terror in 2003.

HAMDI is addressed in the last chapter on freedom and security in wartime. The authors frame the argument within a discussion of the fragility of civil liberties and the USA PATRIOT Act. In a way, the chapter loops back and pulls together much of the material contained in previous chapters – issues of civil liberties, right to privacy, the power of the executive vis-à-vis the Congress and the American public, equal protection of the laws, and so on. And yet, underneath all of this lies the core unifying principle Mason and Stephenson seek to advance, which is to say that no matter how hard the courts try to divorce themselves from the political world, they consistently find themselves at the center of it.

For students, this is a lesson worth learning. Professors of political science teaching constitutional law who seek to convey this message will find AMERICAN CONSTITUTIONAL LAW a trusted companion.

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

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

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© Copyright 2006 by the author, Christopher Malone.

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RAPE WORK: VICTIMS, GENDER, AND EMOTIONS IN ORGANIZATION AND COMMUNITY CONTEXT

by Patricia Yancey Martin. New York: Routledge, 2005. 296pp. Hardcover. $125.00/£70.00. ISBN: 0415927749. Paper $29.95/£16.99. ISBN: 0-415-92775-7.

Reviewed by Sally J. Kenney, Humphrey Institute of Public Affairs, University of Minnesota. Email: kenne030 [at] umn.edu.

pp.503-507

Patricia Yancey Martin’s book brings the lenses of organizational sociology and the sociology of work to the question why society’s representatives continue to commit a “second assault” of rape victims as they go about their jobs more than twenty-five years after feminist activists documented this wrong and developed policies to remedy it. The book is chockablock with examples, from hospitals who refer to the victim as “the rape” and make her wait for hours in public waiting areas, to billing rape victims for the rape exam. The answer: their organizations require it. Martin’s work supplements cultural explanations of misogyny, sexism, or patriarchy with a structural analysis of how three different types of organizations respond to rape victims: the hospitals and medical personnel who conduct the forensic rape exam, the criminal justice system, including police officers, prosecutors, and judges, and the staff of rape crisis centers. Rather than examining what she labels rape work in isolation, or as part of a social movement, Martin situates it instead in its organizational context. Rape work—responding to a victim’s charge of rape, pursuing and punishing rapists, and educating society to prevent rape—takes different forms and is done by men and women in different organizational structures.

As we might expect of the co-editor of FEMINIST ORGANIZATIONS: HARVEST OF THE NEW WOMEN’S MOVEMENT, Martin invites us to go beyond the question of whether hierarchical organizations rather than collectives can be feminist, or whether feminists are irretrievably co-opted through engagement with the state. She dives into the messy empirical business of assessing the progress, obstacles, hidden successes, and failures of feminist organizations engaged in the day-to-day work of serving rape victims and making mainstreaming organizations deal with rape victims humanely while they seek to eradicate rape. For this task she is extremely well suited. As a sociologist of gender, she has been a pioneering scholar in studying and theorizing feminist organizations. As an engaged scholar and committed activist, she has been an active participant in the anti-rape movement since 1983, primarily, but not exclusively, in Florida. RAPE WORK, however, is neither the reflections of a participant-observer nor a selection of anecdotes of a small case study; rather, it brings all the rigor of quantitative sociology to the questions at hand, gathering and assessing evidence, weighing and analyzing possible explanations. Martin has interviewed rape workers. She has observed rape trials and interviewed judges, defense [*504] attorneys, prosecutors, and victim-advocates. She has conducted a fifty-state survey of rape crisis centers. And she has collected technical reports and statistics from researchers and state agencies that work on rape.

There are a number of surprises and interesting findings. Law enforcement officers, with the exception of a few Florida sheriffs, come off rather well. They are less villainous than feminists found them to be in the past. Doctors come off badly. While the women who work in rape crisis centers have feminist consciousness, in other organizational contexts—emergency rooms or police stations—Martin does not find gender predictive of whether one adopts a feminist approach to rape work. Such a finding shows the power of her organizational approach. Just as Rosabeth Moss Kanter argued in 1977, organizational context, rather than essential race or gender characteristics, explained behavior. Many police, despite having conservative attitudes toward gender roles, recognize the violation of rape as a crime. They are closer to victims than prosecutors and judges, focused on “making the case” or ensuring the rights of the accused. Medical personnel are so blinded by their organizational context dedicated to healing the sick and injured, rather than the “merely” traumatized, and are so averse to having to testify in court that these organizational imperatives trump any compassion one might expect from the healing profession and eviscerate basic human compassion. Only rape crisis workers can place top priority on serving victims rather than “building a case” or “healing the sick.”

Rape crisis centers (RCCs) are what Martin calls “unobtrusive mobilizers.” In the early days, RCCs had a contentious relationship with police and hospital employees whom they frequently publicly criticized. Given their core task of obtaining services for victims, however, trashing the others who did rape work was immediately apparent as counterproductive, and RCCs devote considerable effort to maintaining a good relationship with all in the cause of better service for victims. Working behind the scenes means they help give credit to others for policies they initiated and made happen, making it difficult to document their own contributions. Martin rejects a commonplace view that RCCs have been co-opted by working as system insiders, and she was also surprised to discover that, contrary to the assumption that they have abandoned their political work in favor of service delivery, they still identify political work—community education—as their single most important task (p.43). Freestanding RCCs do more political work than those imbedded in hospitals, legal justice organizations, or colleges and universities. RCCs see more victims than criminal justice personnel or medical staff. Given the poor record of prosecutions, could anyone in good conscience insist that a victim report the crime and press for prosecution? It seems obvious that low levels of reporting and low levels of prosecution create a vicious circle. The mission, “all we do comes from victims,” is to transform a rape culture, a much different frame from the other institutions who do rape work. Most rape crisis center workers are white, and [*505] many women of color see them as providing services for white women. Nevertheless, some rape crisis centers have focused on women of color and a handful have deliberately transformed themselves to take on anti-racism work.

Much has improved since second-wave feminists placed the mistreatment of rape victims on the public agenda, led by the women who created rape crisis centers (Bevacqua 2000). A movement to place rape exam “kits” in all emergency rooms and to train medical personal, especially sexually assault nurse examiners (SANE), to conduct rape exams rather than doctors who do not want to do them has been a success. Creating Sexual Assault Response Teams, multidisciplinary teams that coordinate rape work on behalf of victims and allow prosecutors to specialize and build up expertise, dramatically increase the effectiveness of police and prosecutors. Victim-advocates, funded by the Violence Against Women Act, like rape crisis workers, decrease the likelihood that victims will be mistreated. Lastly, feminists have succeeded in changing many public policies, such as the requirement that victims physically resist, the requirement that others corroborate their testimony, the charge to jurors that rape victims are likely to lie, and the practice of questioning victims about their prior sexual history and dress. Despite these successes, feminists feel only limited progress has been made in the treatment of rape victims—judges, medical personnel, defense attorneys, prosecutors, and police can still treat rape victims with contempt—and almost no progress has been made in ending rape altogether, even if women may now be more likely to report it.

In addition to calling for a shift in a simple condemnation of misogynistic practices and viewing these behaviors through an organizational lens, Martin calls upon organizations to “own rape work.” Owning rape means not trying to avoid rape work, or shunt it off on low-status workers, or defining it as women’s work. It means validating and comforting victims and bringing rapists to justice. It calls for training and most importantly, on-going rather than one-time training, not conditioning it on the presence of one enthusiastic employee.

The payoff of the large study as opposed to the single case study is that it displays the variation and offers the possibility of explaining it. Police and sheriffs departments differ significantly in how they treat rape victims despite identical missions. Hospitals and prosecutors, too, varied enormously. And the differences mattered to victims. Martin persuasively argues that only a system that has coordination among all who do rape work effectively serves victims. Rather than being co-opted by working within the system, RCCs can serve as the glue that ties rape workers together in an effective network. Martin’s study uniquely focuses on the system of rape work and shows why it matters if the police do not want to work with RCCs or if hospitals and police and prosecutors do not have productive functioning relationships. Responsiveness is not the same as centralization, Martin finds. However much these community networks determine the effectiveness of [*506] dealing with rape victims, they seem to matter little to the incidence of rape itself.

Although mixed-gender organizations often relegated rape work to women, they did not necessarily do it better than men; some men doing rape work had a feminist orientation, some women did not. (“Rape is the most highly cross-gendered felony crime [other than stalking] with men offending and women their targets” (p.25)). Many women, such as women jurors, judge rape victims harshly. Martin concludes that how victims are treated is more important than the gender of the person who processes them (p.169). As one might expect of an organizational sociologist who has focused on feminist social movements, Martin calls special attention to the emotional demands of rape work. Interacting with rape victims compassionately means taking on board their pain and injury. Prosecuting rapists means watching many go free as legal institutions “settle cheap.” Rape work leads to burnout, and thus organizations often rotate the work which diminishes the opportunities for developing skills and expertise. Emotional labor can entail expressing a compassion one does not feel or suppressing distress in order to fulfill a role. Rape workers may not only feel distress but anger at rape victims who do not cooperate with what they want them to do, or who make emotional demands on them.

If I had to offer a criticism of the book, it would be that Martin repeats herself, making the organizational point again and again (probably an asset in a teaching text), where I might have preferred simply to make points in the conclusion, introduction, and in the relevant part of the text. Moreover, the social scientific approach leaves less room for the voices of victims or the people who do rape work to really come through—I was left still curious about the people and organizations who do this work and wanting to know more about them as individuals and organizations.

I taught this book with much success in my graduate course on women, law, and public policy, but it would have fit equally as a compliment to James Q. Wilson’s book, BUREAUCRACY, in my course on the politics of public affairs. Placing rape work in an organizational context is a huge conceptual leap forward, not just for organizational sociology (showing why it is difficult to get the different institutions to cooperate with one another), but feminist sociology (understanding the difficulties of rape crisis centers). Understanding frames, rules, core tasks, and organizational missions illuminates both. Martin artfully combines the sophistication of a gender theorist, the social scientific expertise of an organizational sociologist, and the passion of an experienced and reflective activist.

REFERENCES:
Bevacqua, Maria. 2000. RAPE ON THE PUBLIC AGENDA: FEMINISM AND THE POLITICS OF SEXUAL ASSAULT. Boston: Northeastern University Press. [*507]

Ferree, Myra Marx, and Patricia Yancey Martin (eds). 1995. FEMINIST ORGANIZATIONS: HARVEST OF THE NEW WOMEN’S MOVEMENT. Boston: Temple University Press.

Kanter, Rosabeth Moss. 1977. MEN AND WOMEN OF THE CORPORATION. New York: Basic Books.

Wilson, James Q. 1989. BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT. New York: Basic Books.

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© Copyright 2006 by the author, Sally J. Kenney.

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GOVERNING WITH THE CHARTER: LEGISLATIVE AND JUDICIAL ACTIVISM AND FRAMERS’ INTENT

by James B. Kelly. Vancouver: University of British Columbia Press, 2005. 336 pp. Hardcover. $85.00. ISBN: 0-7748-1211-7. Paper $29.95. ISBN: 0-7748-1212-5.

Reviewed by David L. Weiden, Department of Politics and Government, Illinois State University. Email: dweiden [at] ilstu.edu.

pp.500-502

In GOVERNING WITH THE CHARTER, James B. Kelly has issued a major statement – perhaps the major statement to date – on the relationship between parliamentary democracy, the courts, and the Charter of Rights and Freedoms in Canada. This book will be required reading for those interested in the Canadian political process; however, there is also much to consider for the general legal scholar. For starters, Kelly challenges the court-centered view of judicial activism and develops a theory of legislative activism, which he argues is now the dominant mode of rights protection in Canada. Indeed, Kelly takes direct aim at the “support structure” thesis propounded in Charles Epp’s influential book, THE RIGHTS REVOLUTION (1998), asserting that the support structure model ignores the political and bureaucratic aspects of rights activism in parliamentary systems. Thus, GOVERNING WITH THE CHARTER is both a defense of the Supreme Court’s role in Charter jurisprudence as well as an articulation of a general theory of Canadian rights activism.

Kelly’s thesis is that criticisms of the judicial activism of the Canadian Supreme Court are misplaced, because the Court is not the dominant actor in Canada’s post-Charter political system. Indeed, Kelly contends that coordinate constitutionalism, wherein each political branch interprets the Charter on its own, is now the principal model of Canadian constitutional politics. According to Kelly, coordinate constitutionalism serves to strengthen, not weaken, Canadian democracy, as multiple forms of rights protection co-exist. Thus, the judiciary, executive and parliament each govern with the Charter by exercising scrutiny of legislation and ensuring that the framers’ intentions are protected. So, judicial activism coexists with legislative activism and bureaucratic activism in the modern Canadian democratic system. Kelly shows, in meticulous detail, the operation of bureaucratic activism through “legal services units” within the Department of Justice and how they screen draft legislation for Charter compliance. This form of Charter vetting has served to expand greatly the power and influence of the cabinet; paradoxically, though, this elevation of the cabinet has served to weaken Parliament’s role with potentially detrimental effects for Canada.

The book has many strengths, including a triangulated research methodology. The volume blends interpretive, historical, and doctrinal analysis with a significant qualitative component, in the form of extensive interviews with [*501] members of parliament, provincial officials, various public servants and former Prime Minister Pierre Trudeau. The first third of the book sets out the general theory, and also provides an historical and critical account of the constitutional politics surrounding adoption of the Charter. This historical account is important for the purposes of defining the framers’ intent; Kelly asserts that the framers desired a decidedly activist document – one that encompassed judicial review of the Charter’s protections, in tandem with legislative and bureaucratic rights activism. The second third of the book examines judicial activism in more detail, arguing that, in regards to criminal procedure cases, the Court has ruled moderately, protecting the rights of the accused and of society, by adopting a modified jurisprudential crime control model. The following chapter analyses judicial activism in civil cases; Kelly contends that the Court’s activism is not problematic because the statutes struck down were primarily those enacted or amended before adoption of the Charter (and the concurrent Charter vetting process). The final third of the book details the theory of legislative activism and the new cabinet-centered process of rights protection, with an emphasis on federalism issues. Kelly notes that the values of federalism are safeguarded by coordinate constitutionalism and multiple rights activism: “Coordinate constitutionalism has a deeper significance, therefore, as legislative activism acts as a bulwark against judicial encroachment on provincial autonomy” (p.182).

For this reviewer, the weakest part of the book is the chapter on judicial activism in non-criminal cases. Kelly’s argument rests upon the claim that the Supreme Court generally only strikes down statutes that were enacted or last amended before introduction of the Charter; thus, the Court is not making a discretionary policy decision but only invalidating legislation introduced during a different constitutional regime. The difficulty with this argument is that Kelly does not provide enough information to evaluate this claim fully. He notes that 64 statutes have been invalidated by the Court in the period from 1982 to 2003 and that 31% of those statutes were enacted between 1970 and 1982. Furthermore, only 12 statutes enacted after 1990 have been struck down by the Court. However, Kelly only provides a table listing the 64 activist cases and another table showing simple percentages for statutes ruled constitutional and unconstitutional in the period, 1982-2003. A table disaggregating the constitutional and unconstitutional statutes into two time periods – 1982 to 1990 and 1991 to 2003 – with percentages for each of those periods would be informative. Better yet, the use of inferential, rather than descriptive, statistical techniques would allow greater confidence in the assertion that the Court generally invalidates only statutes enacted in the pre-Charter regime.

On the other hand, in the same chapter, Kelly makes the compelling point that the Supreme Court has been increasingly likely to use the judicial remedy of suspending declarations of invalidity in Charter cases, rather than simply [*502] nullifying unconstitutional laws. The author notes that suspended remedies, rather than nullifications, show the Court’s commitment to coordinate constitutionalism because these suspensions allow an invalidated statute to be amended and brought into constitutional compliance. Here, Kelly does provide a table dividing Charter cases into two periods, 1982-1992 and 1993-2003. The data show that, from 1982 to 1992, nullifications accounted for 80.60% of Charter cases and suspensions accounted for 6.45%. But, in the period from 1993 to 2003, nullifications accounted for only 33.30% of Charter cases and suspensions increased to 33.30% of cases. Kelly also notes in the text that, since 1997, suspended decisions have increased to 42% of cases. His point regarding the changing nature of judicial remedies at the Court is well taken and one that is usually overlooked by commentators on judicial activism.

GOVERNING WITH THE CHARTER offers a number of challenging insights into the new era of Canadian politics. The theory of multiple rights activism, the historical analysis of framers’ intent, the reconceptualization of judicial activism, and the normative implications for the future of Canadian politics all make this a most satisfying volume for the scholar of Canadian law, as well as for the general comparative courts researcher.

REFERENCES:
Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: The University of Chicago Press.

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© Copyright 2006 by the author, David L. Weiden.

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THE TORTURE DEBATE IN AMERICA

by Karen J Greenberg (ed). New York: Cambridge University Press, 2006. 432pp. Hardback. $50.00/£30.00. ISBN: 0521857929. Paperback. $18.99/£12.99. ISBN: 0521674611. eBook. $15.00. ISBN: 0511138385.

Reviewed by Andrew Goldsmith, School of Law, Flinders University, Adelaide, Australia. Email: andrew.goldsmith [at] flinders.edu.au

pp.496-499

This volume of essays and materials follows on from an earlier publication, THE TORTURE PAPERS, edited by Karen Greenberg and Joshua Dratel (2005). In light of the earlier book, this volume attempts to capture and reflect the range of public debates and perspectives upon the issue of torture that the disclosure of, and ready access to, internal government memoranda relating to the use of torture and other coercive methods of interrogation in the Global War on Terror (GWOT) has helped to facilitate. While not exclusively so, the contributors to the volume are mainly lawyers, both practicing and university-based; some of them have served in government positions prior to or during the GWOT; others have had the opportunity to reflect upon certain issues from their positions in different universities. The book emerges under the auspices of New York University Law School’s Center on Law and Security – a number of the Law School’s staff is represented in the collection. The general lawyerly focus of the book is leavened by some contributions from well-informed investigative journalists (for example, Dana Priest) and from those interested in broader questions of ethics and political morality (for example, David Luban, Stephen Holmes, and Joyce Dubensky). In addition to presenting the transcript of a Panel Discussion, “Torture: The Road to Ahu Ghraib and Beyond,” there are twenty chapter length essays, as well as a number of “Relevant Documents,” including the Bybee-Gonzales memorandum of August 1, 2002, and the Levin-Comey memorandum of December 30, 2004.

Under the theme of torture, a number of aspects are examined by the contributors. The book chapters are organized into four sections; Democracy, Terror and Torture; On the Matter of Failed States, the Geneva Conventions, and International Law; On Torture; and Looking Forward. These themes enable the contributors to bring a variety of disciplinary and practical perspectives to bear on the broader theme, while using the published torture memoranda as a framework providing coherence to the collection.

One of the principal strengths of the collection is the field of contributors. The field is broader than the ‘usual suspects’ one might predict on such a controversial issue. While the collection as a whole presents many more criticisms of current and recent US tactics in GWOT than it does supportive viewpoints, the flow is not all one way. It has managed to achieve this by drawing both insiders and outsiders together to examine a range of pertinent questions under the rubric of torture. [*497] One significant contributor in this regard is William Taft IV, a legal adviser in the Department of State from 2001 to 2005. Other contributors to offer either an insider perspective or one at odds in some respects from many of the more critical contributions include Heather MacDonald, a writer and commentator, and Andrew McCarthy, a former prosecutor and employee of the Department of Justice. In bringing together such a range of opinions from a distinguished and well-informed group of contributors, the collection succeeds in minimizing the elements of shrill stridency and uninformed speculation, often in combination, that can be found in commentaries on this issue. Having said this, in many cases, the individual contributions do not show signs of considering earlier drafts of other contributions to the book, with the result that there is a silo-effect. In other words, while the volume manages admirably to represent a range of views, apart from the panel discussion, there is no dialectical element to the book, reflecting an intense engagement between contributors. While I am asking to set a high benchmark here for exercises of this nature, it remains hopefully the direction in which future exercises might develop, building upon the platform of greater transparency and analytical capacity that has evolved recently, due in large measure to the relative availability of key policy and operational documents.

Another question that the book leaves open, or at most is dealt with in passing in a few individual chapters, is the significance of the wider setting, in particular the public mood and opinion upon these questions, for debates around torture. It is relatively easy to see the US government’s flirtation with torture and other coercive measures post-911 as an expression of political whim within what some critics see as a grand imperialist mission to defeat terrorism everywhere. A more complex examination would seek to explain the form of interrogation and detention arrangements in places such as Guantanamo Bay today and in the recent past, in terms of public expectations about how the GWOT should be conducted and the tough political choices (at least in some instances) that follow. This in turn might lead to an examination of how public fear of future terrorist attacks is played out, and manipulated, in political discussions. Analysts who fail to acknowledge the political realities surrounding these issues run the risk of being unpersuasive and indeed seen as irrelevant. Similarly, those who make their case purely or largely by reference to political or moral principle, without grounding their arguments in the practicalities of the situations in which potential users of torture methods find themselves, are likely to go unheeded. One of the ironies presented by Dubensky and Lavery’s contribution on finding religious resources for condemning torture (in Chapter 8) is that today’s American reservist serving in Iraq in a military prison is probably more familiar with Biblical injunctures and prescriptions than with Kantian philosophy. If true, those seeking to influence behavior among participants within the GWOT in a positive direction would be better off to focus on the religious propensities of those serving on both sides of the conflict, rather than [*498] invoking more rarefied (and secular) notions of human rights.

What is meant by torture, and the different ways in which it might be used in GWOT, remain issues around which greater clarity is needed. While much can be gained from reading these contributions in relation to these questions, there is scope for greater analytical precision. Much of the characterization of torture today in the GWOT draws directly or indirectly upon a diverse range of applications within the history of torture, including its use as part of systematic repression and elimination of political opponents in countries such as Chile and Argentina in the 1970s and 1980s. Moreover many recent accounts tend to focus upon the physical manifestations of torture, giving less regard to the psychological impacts of certain detention regimes. The intense debates within the US administration around what degree of physical harm or pain amounted to “torture” – and which was therefore prohibited under domestic as well as international law – certainly lent weight to this analytical focus. The use of methods of torture within the context of interrogation, and within the context of war-like operations involving unconventional combatants, are issues that sometimes get overlooked or too readily analogized with other contexts in which torture has been used. One suspects that for many critics of current field interrogation methods in GWOT, the measure is how interrogations in ordinary criminal cases are routinely handled. Whether this comparison is an appropriate one is rarely asked or addressed. It surely is a matter warranting further examination and, like many questions arising in this vexed area, would benefit from better empirical understanding. One of the underlying difficulties analysts confront in this area is being able simply to pose some of the difficult questions that are not merely of technical interest, but also of potentially enormous moral and practical significance. The ‘unspeakable’ nature of the subject-matter for some commentators limits, rather than enhances, useful debate. However, a refusal to engage with certain questions hardly seems likely to lead to a modification or abolition of certain objectionable practices. It would seem to make more sense to accept that there are ‘hard choices’/‘lesser evil’ elements that arise in GWOT, and deal with them in a transparent, reasonable way.

This point applies not least to the question “does torture work?” This leads to further crucial questions, especially, “what is meant by torture?” and “under what circumstances, or for what purposes?” I have suggested that the particular context for asking this question is, or rather, ought to be, interrogations of suspected combatants and their associates in war-like operations. The objective in many such situations is clearly related to collecting intelligence, rather than eliciting evidence for a criminal prosecution, though both objectives may coexist in some cases. So does torture work in these cases? For many contributors to this collection, this point is not the central one of their argument. But it can hardly be ignored. The answer cannot be divorced from the circumstances of the GWOT, and hence from the objectives [*499] of useful analysis. Yet when the issue does occasionally arise, the point is often made that confessions under torture often lead to unreliable statements, especially where those being tortured are in fact innocent (so-called ‘false positives’). However, the fact that “sometimes” or indeed “often” statements obtained through extreme methods are unreliable does not negate all tactical objectives, especially because it seems clear enough (and intuitively true) that sometimes even the threat of inflicting pain is sufficient to elicit reliable, useful information that may save lives or lead to the dismantling of terrorist operations.

Ultimately, these questions cannot remain unanswered or left on the basis of faulty assumptions. Such practical issues will always be subject to reality checks, informally if not formally, even if it is left to field operatives out of public view to draw their own different conclusions from some of the glibber assessments provided by critics of these measures. Once we have informed assessments of what is being proposed in an area such as interrogation of suspected combatants in the GWOT, including the likely utility of particular methods under consideration, public discussion is likely to deliver better, legitimate outcomes than has been the case previously. We can, as part of the torture debate, look at these proposals alongside some of the other contextual considerations relevant to the debate. Some of the contributors to this book have rightly drawn attention to the damaging impact upon non-US perceptions of US actions against terrorism, and their counterproductive consequences, of events such as the abuses at Abu Ghraib prison. A number has also questioned the idea that torture can be regulated, restricted narrowly, as some like Alan Dershowitz have famously asserted. Certainly, history largely favors the sceptics’ argument. This book goes a long way to raising a range of pertinent normative and doctrinal questions in relation to torture and associated matters; it also goes some way to looking at contextual questions and practical issues. With any luck, some of the tough empirical issues implied within many of these discussions, as well as further conceptual clarification, will become the subject-matter of further scholarly investigation.

REFERENCES:
Greenberg, Karen J., and Joshua L. Dratel. 2005. THE TORTURE PAPERS. New York: Cambridge University Press.

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© Copyright 2006 by the author, Andrew Goldsmith.

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DEMOCRACY, MINORITIES AND INTERNATIONAL LAW

by Steven Wheatley. Cambridge: Cambridge University Press, 2005. 226pp. Hardback. $90.00/£50.00. ISBN: 0-521-84898-9.

Reviewed by Magdalena Zolkos, Institute of Political Science, Copenhagen University. Email: mzolkos [at] gmail.com.

pp.492-495

Steven Wheatley is known to the international scholarly audience for his work on minority rights, human rights and democratic governance (in Europe and elsewhere). He has recently written a book that deals with the issues of democracy, minority rights and collective territorial self-determination in international law. It is an excellent and thorough introduction to the legal and institutional arrangements of the contemporary minority rights regime in the Western world. A great value of that book is precisely that it positions questions of minority rights and self-determination right in the analytical propinquity to democracy, and as such it manages to address an important lacuna within the rights-oriented literature of today. While this book is written from a legal point of view, it will also provide a useful read for many political scientists, international relations scholars and other social scientists. The readership of this book includes, therefore, undergraduate students of legal and social sciences, as well as those graduate students and academic scholars who work with issues of democratization, minority groups, human rights, self-determination, consociationalism and national sovereignty.

The main purpose of DEMOCRACY, MINORITIES AND INTERNATIONAL LAW is “to examine the position of cultural minorities in international law, with a particular focus on democratic States” (p.2). Furthermore, this cleaves into two main objectives. The first objective is to provide a comprehensive overview over the legal and institutional democratic arrangements that relate to minority rights, territorial self-determination and democratic solutions to minority-related problems. Steven Wheatley indisputably achieves that objective as his DEMOCRACY, MINORITIES AND INTERNATIONAL LAW provides an extensive, detailed and amply documented and referenced account of the minority problematique in international law. The book also has a clear and coherent argumentative structure, and it is well organized and written in an accessible and comprehensible academic style, largely devoid of legal jargon. The second objective of this book is critical and normative, namely to indicate weaknesses of the contemporary approaches and solutions of the international community as regards minority rights and self-determination rights. Accordingly, the author has convincingly argued that the international community “has failed to define the relevant beneficiaries of the [self-determination] right, or to detail the circumstances in which measures to protect and promote cultural security should be introduced, or territorial self-government regimes established” [*493] (p.127). However, due to the dominant descriptive mode of Wheatley’s analysis, he fails to achieve more than offer (rather vague) suggestions of what needs to be emendated, what should be the legal and institutional trajectories of such corrective endeavor, and how it should be achieved.

Another great asset of DEMOCRACY, MINORITIES AND INTERNATIONAL LAW is that this book not only provides an extensive synchronic comparison of the national laws and minority rights institutions nowadays, but that it also shows how international legislation, legal practice, as well as meanings and interpretations of such terms as “minority,” “minority rights,” “self-determination,” or “democratic governance” have changed throughout the decades. This makes it possible for the reader to map the evolutionary change in conceptual and legal thinking in, for instance, complementing the primacy of individual rights with collective considerations, or the initial negative rights discourse of the international human rights instruments with positive rights formulations. Also, Wheatley has thoroughly depicted the complicated relationship of law and politics in the areas that are in the focus of his research. This is particularly visible in regard to the controversial and contentious issue of forming an international definition of “minorities.” Wheatley shows how very different legal notions and national interpretations are, as a matter of fact, underpinned and influenced by historical developments and contemporary political considerations. An example here is Denmark’s definition of “national minorities” and “indigenous people” as two separate (and alternative) categories of social belonging, which has allowed Denmark to exclude the groups of Greenlanders and Faroese from the national protection of the Framework Convention for the Protection of National Minorities of the Council of Europe. Another example is Estonia’s requirement that national minorities include groups that are in possession of Estonian citizenship, which has made it possible for Estonia to exclude from that category numerous stateless Russian-speakers. The only deficiency is that in the context of his discussion of defining national minorities in Europe, Wheatley does not provide the reader with extensive political and historical background information. Such information would be a definite asset provided that the book is directed at the undergraduate readership group. Therefore, as the scope of this book has been limited to the overview of legal and institutional instruments of the European minority rights regime, it has maintained perspicuity of its main argumentative line, but at the same time its explanatory potential has been curbed.

The focus of Wheatley’s book is primarily on Europe, but it includes examples of legal cases and organizational solutions from, for instance, Canada and New Zealand. There are examples from outside of the Western world, such as post-colonial Somalia and Morocco, and the ethnic federations of Malaysia, Pakistan and India (mostly discussed in the sub-section “Decolonialisation”), but they remain sparse and somewhat under-[*494]explored. On the one hand, the Europe-centrism (or West-centrism) of this book is understandable due to the developed political and legal framework of European institutions dealing with human and minority rights, as well as the historical securitization of the minority issues in Europe in the 20th century and the alleged idiosyncratic intricacy of minority-majority relations in contemporary Europe. On the other hand, however, this book’s primary focus on Europe underplays the importance of the minority problematique elsewhere in the world, where regional institutional networks of human rights protection remain in much more rudimentary condition, and where nevertheless belonging to underprivileged ethnic, religious, linguistic and cultural groups has important consequences for people’s security and social well-being. Wheatley’s book might have avoided this criticism if he had explicitly narrowed the geo-political focus of its analysis to the West, rather than give an impression of adopting a comprehensive global perspective.

Finally, while DEMOCRACY, MINORITIES AND INTERNATIONAL LAW is likely to attract attention of both legal and social scientific readership, it nevertheless demonstrates the difficulties with practicing interdisciplinarity and, in particular, the tension that often resonates between legal and political scholarly approaches to such social phenomena as “minorities” and/or “rights.” The author makes an admirable attempt to expand and sophisticate the disciplinary perspective of his analysis, but it remains debatable to what extent he actually succeeds. For instance, throughout the book the reader encounters such intriguing assertions as “[e]thno-cultural groups are imagined communities” (p.62). However, Wheatley does not explain what he actually means by this claim; he does not refer to the extensive body of cultural and social scientific literature that has dealt with the constructed nature of national and ethnic identities; and he does not show how the conceptual prism of “imagined communities” actually complicates and problematizes the contemporary legal and political approach to minority rights (see e.g. contributions by Adrian Hastings, Benedict Anderson and Joane Nagel in Spencer and Wollman 2005). Rather, he seems to be taking minorities as “imagined communities” for given. Another, and possibly more important, issue is that Wheatley uses terminology that is common to law, as well as political science and international relations, but he seems to pay no attention to the fact that these concepts are interpreted and problematized along very different trajectories within these disciplines. One example here is the concept of sovereignty that the author seems to equate simply with territorial self-government, and consequently he takes little notice of the complex and potentially insightful debates on sovereignty conducted by international relations scholars (e.g. Walker and Mendlovitz 1990; Walker 1993; Weber 1995; Biersteker and Weber 1996).

In spite of these few problems and deficiencies, Steven Wheatley’s DEMOCRACY, MINORITIES AND [*495] INTERNATIONAL LAW constitutes an important and well-argued contribution to the on-going academic discussions on minorities, self-determination and democracy. It is particularly recommended for those who, without necessarily having much prior knowledge on that topic, would like to gain a thorough introduction.

REFERENCES:
Biersteker, Thomas J., and Cynthia Weber (eds). 1996. STATE SOVEREIGNTY AS SOCIAL CONSTRUCT. Cambridge: Cambridge University Press.

Spencer, Phillip, and Howard Wollman (eds). 2005. NATIONS AND NATIONALISM: A READER. New Brunswick, NJ: Rutgers University Press.

Walker, R.B.J. 1993. INSIDE/OUTSIDE: INTERNATIONAL RELATIONS AS POLITICAL THEORY. Cambridge: Cambridge University Press.

Walker, R.B.J., and Saul H. Mendlovitz (eds). 1990. CONTENDING SOVEREIGNTIES: REDEFINING POLITICAL COMMUNITIES. Boulder: L. Rienner Publishers.

Weber, Cynthia. 1995. SIMULATING SOVEREIGNTY: INTERVENTION, THE STATE, AND SYMBOLIC EXCHANGE. Cambridge: Cambridge University Press.

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© Copyright 2006 by the author, Magdalena Zolkos.

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FILIBUSTER: OBSTRUCTION AND LAWMAKING IN THE U.S. SENATE

by Gregory J. Wawro and Eric Schickler. Princeton: Princeton University Press, 2006. 326pp. Cloth $29.95/£18.95. ISBN: 0-691-12509-0.

Reviewed by Frances E. Lee, Department of Government and Politics, University of Maryland, flee [at] gvpt.umd.edu.

pp.488-491

Scholars and journalists today often speak of “the 60 vote Senate,” a reference to the three-fifths majority necessary to cut off debate and force a measure to a vote. Conventional wisdom holds that the supermajority necessary to achieve cloture effectively means that successful legislation must win support from at least 60 senators. If this is true, Gregory Wawro and Eric Schicker ask, how did the 19th century Senate legislate at all? Prior to the adoption of the cloture rule in 1917 there was no procedural mechanism available to end debate and bring measures to a vote. If the cloture rule explains why nearly all major laws adopted by the contemporary Senate pass by margins of at least 3/5 (p.27), then it stands to reason that universal coalitions would have been required in an institution without a rule for ending debate. The 19th century Senate nevertheless dealt with highly contentious issues; majorities were able to legislate despite significant opposition; and the Senate as an institution “functioned well enough to be a major player in one of the most successful and prosperous democratic nations the world has known” (p.6).

Wawro and Schickler thus look to history to gain a better understanding of how institutional rules and procedures affect legislative policymaking. By extending their analysis of Senate obstruction back in time, they allow rules and precedents to vary and thereby gain better analytical traction on their puzzle. They investigate the topic with an impressive array of quantitative and qualitative evidence. They conduct statistical analyses of coalition size over time, the passage of appropriations bills, and obstruction on slavery in the antebellum Senate. They provide in-depth case studies, with extensive quotation from the Congressional Record and other primary sources. They examine in detail the role minority obstruction played in the Bank Bill of 1841, the Federal Elections Bill of 1890-91, and the politics of the tariff throughout the 19th century. In the process, they shed new light on Senate history and on the recent controversy over Senate confirmation of judicial nominees.

Wawro and Schickler come to a counterintuitive conclusion: majorities were paradoxically better able to rule in the 19th century Senate than in the contemporary Senate, despite the lack of a cloture mechanism then and the existence of one now. They argue that narrow majorities in the 19th century could threaten to enact precedents that would restrict obstruction, and these threats led legislative minorities to exercise self-restraint. Wawro and Schickler contend that these threats were credible in part because 19th century senators could look to the House of Representatives for an example of how floor majorities could use procedural [*489] rulings to limit obstruction (pp.62-65). They argue that this strategy was also a viable option in the Senate. Indeed, the “nuclear option” contemplated by the Republican majority in the 2004-2005 deadlock over judicial nominees would have operated according to this basic logic: a senator would make a point of order that filibusters of judicial nominees were unconstitutional; the Vice President as the presiding officer would uphold that point of order; a member of the majority party would then offer a nondebatable motion to table the appeal of the presiding officer’s ruling; and then a majority vote would sustain the tabling of the appeal. Thus a precedent ending filibusters of judicial nominees could be established by simple majority.

Under this logic, Wawro and Schickler argue that Senate rules are subject to a “remote majoritarianism” (p.275). A committed majority that finds itself thwarted on highly salient issues has the power to change Senate rules to enable it to enact its policy preferences. According to Wawro and Schickler, the Senate has not adopted majoritarian procedures because, “such a committed majority has never been manifested” (p.263). In their study of the 19th and early 20th century Senate, they strive to document that a sustainable majority was never thwarted by minority obstruction on a significant, salient matter. Southern filibusters were not the cause of the Senate’s failure to act on civil rights because not even a simple majority of senators supported cloture on any civil rights measure considered between 1917 and 1964 (p.263). Although a minority successfully delayed the passage of the Bank Bill of 1841, the minority Democrats permitted the passage of the Whig program in the end (p.73). They argue that the Federal Elections Bill of 1891 was not defeated by minority obstruction, but by the unraveling of majority support for the bill as members of the majority party defected (p.77).

This is a bold argument, and it stands in opposition to much scholarship on the Senate, including the Binder (1997) and Binder and Smith (1997) accounts of institutional development. Wawro and Schickler do not view the Senate’s failure to adopt majoritarian procedures as a “path dependent” consequence of the lack of a procedural motion enabling a simple majority to close off debate. Instead, they contend that Senate rules have persisted because Senate majorities prefer to keep them that way.

Although Wawro and Schickler muster substantial evidence in support of the ability of Senate majorities to govern in the 19th century, it remains unclear how important majority threats to restrict minority rights were among the various reasons for restrained floor obstructionism. In an era when normative theories of party government were far more widely accepted, senators’ beliefs about appropriate legislative procedure exercised important restraint on minority obstruction. Indeed, Wawro and Schickler provide strong historical evidence that such norms played an independent role (pp.39-59). In addition, obstruction was less used when it was less effective, in a period when the institution’s workload was less onerous and majorities could afford to [*490] take the time to fully engage a “war of attrition” with opponents (pp.56-57).

It is more unclear that “remote majoritarianism” can convincingly account for the contemporary Senate. The focus of the book is on the 19th and early 20th centuries, and only limited attention is given to the contemporary Senate, but the remote majoritarianism thesis is often phrased in ahistorical terms: “If existing institutions are producing outcomes on highly salient issues that are unsatisfactory to a majority of the Senate, the rules themselves are subject to change” (p.275). The idea that the contemporary Senate comports with remote majoritarianism is very difficult to accept when so much important legislation over the past 30 years has fallen casualty to the supermajority requirements in the Senate. President Clinton’s entire legislative agenda was stymied by a minority party filibuster at the end of the 103rd Congress (Sinclair 1997, at 49). Binder and Smith (1997, at 135) compile a lengthy list of important post-1970s measures killed by filibusters. Many more majority-supported agenda items have been watered down to accommodate minority objections and achieve a filibuster-proof margin of victory. If legislative majorities do not attempt to change Senate rules today, it cannot be because they are fully able to achieve their policy goals under existing rules. The persistence of those rules must have other, non-policy causes.

Existing Senate procedures may be accepted and tolerated by Senate majorities today given the available alternatives, but this does not mean that a majority of senators designing institutional procedures on a blank slate would actively choose the supermajority procedures that currently exist. Even though it is difficult to obtain majority support for any particular set of procedural reforms, a legislative majority solely concerned with enacting its policy goals would not likely select procedures designed to thwart those goals. But within the Senate context as it exists, battles over procedure come at great cost. They embroil the institution in debates at some remove from senators’ substantive policy goals. They consume valuable legislative time. And procedural reforms often create undesirable unanticipated consequences.

The Wawro/Schickler thesis challenges much conventional wisdom about the policy effects of the Senate filibuster, but it raises more questions than it settles. Can the failure of Senate Republicans in 2004-2005 to marshal majority support for limiting filibusters of judicial nominees be interpreted through the lens of remote majoritarianism? It is true that no majority existed to change Senate rules and support Majority Leader Frist’s plan to invoke the “constitutional option.” A sufficient number of majority party senators may [*491] have concluded that the costs of “going nuclear” were too high, given the extensive resources of the minority party to respond across other agenda items. Individual senators may prefer to keep the filibuster for non-policy reasons because, “the right of unlimited debate makes each senator a more prominent player on the national political stage” (p.263). Senators may have also have preferred to retain existing procedures because the broader public views them as the legitimate “rules of the game” (p.273). Multiple explanations for the persistence of the Senate’s supermajority procedures remain.

Wawro and Schickler have done Senate scholarship a great service with their provocative argumentation, their impressive historical research, and their statistical analysis. The book will be widely read by scholars and graduate students interested in the Senate and American institutions generally. And it will undoubtedly stimulate future research into the root causes of the Senate’s distinctive procedures and the effects of those procedures on the Senate’s deliberative and policymaking capacities.

REFERENCES:
Binder, Sarah A. 1997. MINORITY RIGHTS, MAJORITY RULE. New York: Cambridge University Press.

Binder, Sarah A., and Steven S. Smith. 1997. POLITICS OR PRINCIPLE: FILIBUSTERING IN THE UNITED STATES SENATE. Washington: The Brookings Institution.

Sinclair, Barbara. 2000. UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCEDURES IN THE U.S. CONGRESS. 2nd ed. Washington: CQ Press.

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© Copyright 2006 by the author, Frances E. Lee.

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THE CONSTITUTION AND CAMPAIGN FINANCE REFORM: AN ANTHOLOGY (2nd ed)

by Frederick G. Slabach (ed). Durham, NC: Carolina Academic Press, 2006. 632pp. Paper. $55.00. ISBN: 0-89089-424-8.

Reviewed by Steven B. Lichtman, Department of Political Science, Shippensburg University.

pp.482-487

The Supreme Court’s 2003 campaign finance decision, MCCONNELL v. FEDERAL ELECTION COMMISSION, is one of those rare constitutional moments in which rote consistency and dramatic change play equal co-starring roles. In MCCONNELL, the Supreme Court once again rejected suggestions that reining in the high costs of running for office or leveling the playing field between rich and poor were constitutionally valid campaign finance concerns. Instead, the Court reaffirmed its decades-old holding in BUCKLEY v. VALEO that only combating the appearance of quid pro quo corruption was sufficient to justify regulations on political money.

Yet even as the Court stubbornly clung to its insistence that only corruption counted, it radically altered its view of what counted as corruption. The Court in MCCONNELL expanded on its heretofore limited perspective that only the trading of an actual vote or promise of legislative action for a campaign donation constituted the requisite quid pro quo. Presented with reams of evidence that donors were buying not only votes but also access to legislators – most notably, testimony indicating that many donors felt compelled to contribute to both sides of the partisan aisle out of a perceived need to “pay-to-play” – the MCCONNELL Court trailblazingly characterized these payments for implicit promises to hold open the door to a legislator’s office as the exact kind of corrupt act that could be restricted without offending the First Amendment.

Clearly, then, MCCONNELL v. FEDERAL ELECTION COMMISSION heralds a new constitutional era for campaign finance legislation, an era in which the Supreme Court has dramatically liberalized its tolerance for regulation even as it has perpetuated a decisional structure that has been in place since 1976. This new era calls for updated scholarship in the field, and Frederick Slabach has obliged with a second edition of his 1998 anthology, THE CONSTITUTION AND CAMPAIGN FINANCE REFORM, which features seven new chapters.

Slabach, who recently ended a three-year stint as Dean of Texas Wesleyan School of Law to become CEO of the Harry S Truman Scholarship Foundation, has produced a valuable resource for scholars and students that reproduces some of the seminal reactions to the Supreme Court’s campaign finance jurisprudence, as well as vital analysis of the various theories backstopping campaign finance legislation. As useful as the second edition is, however, it is a curiously structured update, in that the most important new developments in the field are comprehensively under-[*483] stressed.

THE CONSTITUTION AND CAMPAIGN FINANCE REFORM contains work by leading legal scholars, such as Vincent Blasi, Daniel Hays Lowenstein, and Cass Sunstein. This roster of legal-constitutional commentators is complemented by several real-world practitioners and observers. Former Oklahoma Senator David Boren – one of the modern pioneers in drafting campaign finance reform legislation – contributes a chapter, as does Democracy 21 founder and former Common Cause president Fred Wertheimer (a piece he co-authors with fellow Common Cause and Democracy 21 official Susan Weiss Manes). In addition, Slabach astutely includes prominent political science research on campaign finance, such as Anthony Corrado’s postmortem on the role that soft money played in the 2000 presidential and congressional elections.

However, the inclusion of Corrado’s work also serves to highlight its comparative isolation; it is one of the only pieces in the book authored by a political scientist, and it is the only piece that focuses on actual campaign data. Though it is problematic to suggest that some of the high-caliber constitutional analysis Slabach chooses