RELIGION AND THE CONSTITUTION: VOLUME 1: FREE EXERCISE AND FAIRNESS

by Kent Greenawalt. Princeton, NJ: Princeton University Press, 2006. 480pp. Cloth. $39.50 / £26.95. ISBN: 0691125821.

Reviewed by L. Joseph Hebert, Department of Political Science, St. Ambrose University, Davenport, IA. E-mail: HebertJosephL [at] sau.edu.

pp.71-74

This book is the first in a two-volume series by the distinguished Columbia University legal scholar, Kent Greenawalt, exploring the religious clauses of the U.S. Constitution. Greenawalt, whose previous works have dealt with conflicts between law and private morality in a liberal democracy, gives us an exhaustive account of the legal controversies surrounding the free exercise of religion in the United States.

Written from a “contemporary, analytical perspective” (p.11), FREE EXERCISE AND FAIRNESS takes great pains to balance arguments about what constitutes enlightened policy in a modern democratic setting with considerations taken from court precedents, pertinent legislation, and the constitution itself. Greenawalt covers all the necessary ground – from compelled professions of belief to exemptions from military service, drug laws, educational requirements, military and prison regulations, unemployment compensation qualifications, and Sunday closing laws; from protections for sacred land and confidential communications with clergy to the adjudication of property disputes and tort liability involving religious groups; from discrimination by and against religious believers in the workplace to the rights of religious parents versus state interests in child welfare or the rights of a divorced spouse. Greenawalt is a masterful guide to the range of issues and varied sources concerning free exercise, and teachers and scholars of constitutional law will find his book an invaluable resource on free exercise questions.

The book also aims at developing a theory of free exercise, one that is framed around a question haunting all of the more difficult cases discussed: “Does treating religious individuals and organizations fairly mean regarding them like everyone else or giving them a mix of special benefits and disadvantages?” The chief thesis of Greenawalt’s book is that there is no set answer to the questions whether believers ought to be exempt from general laws and, if so, whether exemptions ought to be extended to non-believers as well. Rather, conclusions hinge on a set of major considerations or general values as applied to the discreet issues involved in different types of cases (pp.1, 256). Greenawalt’s own answers unfold over the twenty-three chapters of the book, as he tackles the sets of cases sketched above, using them to illustrate and develop the general values mentioned in his thesis.

The great advantage of this approach is that it opens the book to readers with different understandings of the religion clauses, allowing “the reader to understand troubling conflicts and [*72] undertake his own critical examination of them” (p.7). Without slighting the importance of moral and legal principles, Greenawalt constantly places them in tension with the diversity of political and social phenomena, testing their ability to resolve the questions judges and legislators must in fact resolve. This volume is not only informational but theoretically stimulating, regardless of one’s views on free exercise and disestablishment.

In this sense, it is true that Greenawalt’s book “does not directly depend” on his own value judgments concerning free exercise (p.4). Still, the book is suffused with such judgments. These can be summarized, however inadequately, by saying that citizens should be exempted from laws that interfere with actions motivated by strongly held religious beliefs unless the law advances a compelling state interest; and that this accommodation should extend to nonbelievers with similarly strong convictions whenever this is feasible – all of this being qualified by the necessity for rules that are easily administered by courts. In other words, Greenawalt advances a certain version of the “Sherbert test,” named after the case, SHERBERT v. VERNER (1963).

This preference places Greenawalt in tension with the U.S. Supreme Court’s EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH (1990), which he identifies as “a crucial divide in free exercise law” (p.81). He accuses the SMITH Court of having “abandoned the free exercise doctrine that prevailed during the previous quarter century” – rooted in SHERBERT – “according to which the state had to show a compelling interest in applying a law against people whose religious exercise is burdened” (p.77). The tension between SHERBERT and SMITH, familiar in free exercise literature (see, e.g., Ryan 1992), comprises a major theme of FREE EXERCISE AND FAIRNESS.

Though Greenawalt explores means to get around SMITH without overturning it (e.g., p.232), he cannot justify doing so without insisting that SMITH was wrongly decided (p.179). As he rightly notes, “to limit free exercise rights to laws that target religion or classify according to religion is sharply to restrict the scope of the Free Exercise Clause” (p.81). The SMITH Court, however, seeks to find a middle ground between these possibilities, allowing courts to overturn or carve out exceptions to laws that target religion, laws that burden religion along with other constitutional rights, or laws that make exceptions for other conflicts, but not for religious ones. What the SMITH Court rejects is the notion that “an individual’s religious beliefs,” all by themselves, “excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate” (SMITH, at.878-879).

Greenawalt’s impassioned critique of the precedential value of this decision – he remarks that the Court “fooled no one familiar with free exercise law” (p.78) – while it echoes the sentiments of many, is not especially convincing. Courts will interpret precedents narrowly or broadly in light of what they consider sound constitutional law. The deeper question [*73] is whether the Court’s limitation of the occasions for judicial balancing is sound. On this point some will remark deficiencies in Greenawalt’s treatment of SMITH that also apply to FREE EXERCISE AND FAIRNESS as a whole.

Though Greenawalt distances himself from originalism – the notion that constitutional clauses must be interpreted in accordance with their original meaning – he is at pains to include originalist perspectives in his analysis. And yet he often seems impatient with the concerns of actual originalists. For instance, he comments ironically that the SMITH Court “relied little on original understanding” of the Free Exercise clause, which he believes comports with SHERBERT (pp.31, 179). He notes that Justice Antonin Scalia, SMITH’s author, is “a strong believer in clear lines that reduce judicial discretion,” and that SMITH “decisively leaves to legislatures the choice whether to exempt” (pp.31, 82). Yet Greenawalt never acknowledges that for many, including Scalia, originalism is not simply a matter of abstract interpretation. Rather, it is tied to the desire to limit the interference of courts in the democratic process by narrowing the grounds on which courts can overturn governmental acts. Though Greenawalt is unfailingly precise in noting complex institutional realities when they affect the implementation of his free exercise theory, greater attention to the question of where courts and legislatures ought to fit into our constitutional order and how they ought to contribute to its maintenance would have been welcome in a book on constitutional law.

Greenawalt’s objection to the SMITH Court’s preference for legislative determination of free exercise rights is that legislatures are less likely to provide exemptions for unpopular beliefs than are courts (p.79). Scalia admits as much in SMITH, but calls this an “unavoidable consequence of democratic government,” the only alternatives to which are anarchy or rule by judges (SMITH, at 890). Though this claim is debatable, it rests on reasonable fears about what may become of the rule of law – especially in the context of a wide “diversity of religious beliefs” – if courts deem “presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order” (SMITH, at 888). Greenawalt passes over such fears in this context and gives them little weight in the rest of his book.

Greenawalt’s concern with protecting unpopular religious practices meshes with his view that, if government is to exempt religious believers, it may only do so on the subjective strength of their beliefs and not on consideration of their intrinsic merits (pp.3, 74, 177, 182, 261-262, 309, 372). And yet Greenawalt admits that the state interest against which religious claims must be balanced is itself a kind of judgment passed on those claims. A society whose dominant religion requires human sacrifice will exempt ritual killings from secular murder laws; our society will never do so (pp.299-300). Greenawalt himself would deny, or consider denying, free exercise in cases where it threatens [*74] physical health in ways he (and others) finds unacceptable (pp.302, 308, 325, 402).

Every law is based on some moral view, and every religion implies a set of moral views. Though a given law might be neutral with respect to certain religions that take no position on its subject matter, or whose positions harmonize with the law, no law can be neutral with respect to religion in general. Any practicable system of religious freedom must draw the line somewhere, and it is fair to question whether a law that seeks to minimize its impact on contrary beliefs as such is not undermining the source of its own moral force, whatever that may be.

It would be unfair to accuse Greenawalt of being unaware of these and other questions that could be raised about his premises. As noted, he constantly alerts the reader to moral and philosophical issues that directly bear on the cases he discusses, clearly indicating his own answers (see especially pp.3-4, 394, 439). One can only be impressed by Greenawalt’s ability to trace a coherent free exercise theory through the complex web of precedents, legislation, and scholarly arguments. And yet the absence of any extensive treatment of core notions such as neutrality – a theme he mostly reserves for Volume II of RELIGION AND THE CONSTITUTION – leaves many key judgments in this volume vaguely grounded. This criticism aside, Greenawalt has written a book that will be of immense help in mapping out and grappling with the theory and practice of free exercise law and public policy.


REFERENCES:

Ryan, James E. 1992. “SMITH and the Religious Freedom Restoration Act: An Iconoclastic Assessment.” 78 VIRGINIA LAW REVIEW 1407-1462.


CASE REFERENCES:

SHERBERT v. VERNER, 374 U.S. 398 (1963).

EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN SERVICES OF OREGON v. SMITH, 494 U.S. 872 (1990).

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© 2007 by the author, Louie Joseph Hebert, Jr.

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INSIDE THE JUDICIAL PROCESS: A CONTEMPORARY READER IN LAW, POLITICS, AND THE COURTS

by Jennifer Segal Diascro and Gregg Ivers (eds.). Boston: Houghton Mifflin Company, 2006. 507pp. Paper. $73.56. ISBN: 0618391827.

Reviewed by Holley Tankersley, Department of Politics, Coastal Carolina University. Htankers [at] coastal.edu.

pp.66-70

In the introduction to the first chapter of their new textbook, INSIDE THE JUDICIAL PROCESS, Jennifer Segal Diascro and Gregg Ivers remind us that “In the end, the act of judging is a political act.” Indeed, INSIDE THE JUDICIAL PROCESS, places the study of law and courts right where it belongs: at the center of American politics. While the political theme of the book is apparent, Diascro and Ivers set out to achieve the secondary goal of presenting an informative, entertaining, and accessible collection of readings. To that end, the book utilizes a wide variety of court cases, scholarly articles, and interviews and historical documents to firmly place judicial institutions, processes, and outcomes in their proper political context. Although all of the contributions to INSIDE THE JUDICIAL PROCESS have been previously published, the editors have effectively structured the collection to put a fresh spin on this introduction to the study of law, politics, and the courts.

While its adherence to a clear and vital theme – the role of politics in law and courts – is enough to make INSIDE THE JUDICIAL PROCESS worthy of any scholar’s attention, the strength of the text rests in its structure and content. Each chapter begins with a brief introduction to the topic at hand, followed by a summary of the selected readings that comprise the chapter. Diascro and Ivers proceed by organizing the readings within each chapter around four sub-themes: “Foundations and History,” “Contemporary Judicial Politics,” “A View from the Inside,” and “A Comparative Perspective.” Consistent organization within chapters makes the text particularly well-suited for both undergraduate and graduate students who are searching for a comprehensive introduction to judicial process.

Two of the chapter sub-themes, “A View from the Inside” and “A Comparative Perspective,” are especially noteworthy. First, the primary sources used to represent the “View from the Inside” provide students with the unique perspective of those political and institutional actors who make the decisions that impact judicial outcomes. Essays from former and current Supreme Court justices, interviews with legal professionals, and Supreme Court opinion texts all give the reader valuable insight into judicial processes, thought processes, and norms of behavior. In addition to providing students with an insider’s view, these [*67] selections meet the editors’ goal of presenting intriguing material that will stimulate student interest in studying judicial politics. Second, Diascro’s and Ivers’ inclusion of the comparative perspective is a refreshing addition missing from other texts aimed at undergraduates. These selections include Bell’s article comparing class action lawsuits in the U. S. and Scotland, Kiss’ description of the Japanese debate over whether to reinstate jury trials, and excerpts from Charles Epp’s book comparing courts in the US, Canada, Great Britain, and India. Understanding judicial theory, politics, and process across other societies and political systems is crucial for today’s students, who are studying during a period of rapid economic and political globalization.

The excellent opening chapter anchors the entire text by establishing the constitutional context of judicial behavior. The selections included in the chapter place a particular emphasis on the question of judicial independence within a democratic political system that champions majoritarianism. While classic primary sources, such as THE FEDERALIST and MARBURY v. MADISON are used to set the stage for debate about judicial independence, Diascro and Ivers explore the arguments on both sides by using an essay by Chief Justice William Rehnquist and the transcript of a speech by Justice Thurgood Marshall. The contrasting viewpoints of these esteemed jurists provide students with a fascinating look at the thought processes of judicial decision makers. Cass Sunstein’s explanation of the “myth of neutrality” (p.2) and Howard Gillman’s analysis of the BUSH v. GORE (2000) decision set the modern context of the scholarly debate surrounding the idea of judicial independence and politicized decision making.

Other chapters investigate the social and political forces that influence judicial decision making. Several articles describe the persistent differences between judicial scholars who argue for the dominance of the attitudinal model and those who adhere to the legal model of judicial decision making. Howard Gillman presents a clear and concise narrative of this debate, while a 1992 APSR article by Tracey George and Lee Epstein discusses the emergence of the extralegal model and suggests that future research synthesize both the attitudinal and legal models. Diascro and Ivers also devote a chapter to the structure of the appellate court system and the nature of judicial decision making at the appellate level. From the Ninth Circuit’s decision in NEWDOW v. U. S. CONGRESS (2002) to Schkade’s and Sunstein’s evidence that judicial partisanship has a quantifiable impact on case outcomes, the addition of an entire chapter on appellate courts is a welcome addition to the text. At the very least, students will learn how to apply the principles of judicial process beyond the narrow confines of the Supreme Court.

Chapters 3 and 4 address the institutional structures and procedural rules that establish boundaries and constraints for judicial decision making. Congressional documents outlining the 2002 debate surrounding the proposed reorganization of the Ninth Circuit Court of Appeals and Supreme Court documents describing the controversial Foreign Intelligence Surveillance Court provide the reader with an understanding of the structure of the American federal court system. These primary sources, when combined with selections that analyze [*68] Supreme Court monitoring of state courts, provide the reader with a comprehensive understanding of the complexity of judicial federalism. Chapter 4 outlines the “Politics of Judicial Selection,” with an emphasis on the impact that procedural rules have on judicial decision making. By including REPUBLICAN PARTY OF MINNESOTA v. WHITE (2002), as well as a 1999 interview in which Justices Breyer and Kennedy address the impact of judicial elections on judicial neutrality and independence, Diascro and Ivers highlight the importance of studying state court systems. The inclusion of studies of state judicial selection sets INSIDE THE JUDICIAL PROCESS apart from most introductory judicial process texts, which are plagued by upper-court bias and a preference for federal courts.

One of Diascro’s and Ivers’ stated goals is to make the study of judicial process both entertaining and accessible to undergraduate students. They go a long way towards meeting this goal by including chapters that describe the influence of lawyers, legislators, citizens, juries, and law enforcement officials on judicial process and outcomes. The editors include de Tocqueville’s veneration of lawyers and juries as linchpins of democracy as well as Rohde’s description of public dissatisfaction with the legal profession and suggestions for its reform. Justice Breyer discusses the political compromises that were made in the development of federal sentencing guidelines; an excerpt from UNITED STATES v. BOOKER (2005) examines the adjudication of these guidelines. The role of group forces in the judicial process is the topic of articles by Vose, O’Connor and Epstein, and Kearney and Merrill. These selections analyze the historical significance and relative success of “test case” strategies and amicus curiae participation. By describing the impact of ordinary citizens on judicial decision making, Diascro and Ivers pull the judicial process within the reach of students who might otherwise find the federal court system too distant to be personally relevant.

A final group of chapters details the role that litigation plays in producing democratic outcomes and bringing about social and political change. Because INSIDE THE JUDICIAL PROCESS builds upon the assumption that the judicial process is implicitly political, these readings go beyond normative questions about the policymaking role of the judiciary to assess both the relationship between the courts and public opinion and judicial [*69] impact on the political system. While many judicial scholars are preoccupied with the countermajoritarian tendencies of the judiciary, David O’Brien uses the historical example of BROWN v. BOARD OF EDUCATION (1954) to reassure critics that the Supreme Court is capable of maintaining its institutional legitimacy while being adequately responsive to public preferences. Funston assesses the conditions under which judges are likely to act as policymakers. Finally, Yates and Whitford and Gibson and Caldeira ask whether an active role in policymaking diminishes the Supreme Court’s legitimacy and effectiveness. Judicial impact on social compliance and policy outcomes is the topic of Dolbeare and Hammond’s examination of the Court’s decisions on school prayer, while Songer and Sheehan investigate the degree to which lower courts comply with Supreme Court rulings. Diascro and Ivers have also included Gerald Rosenberg’s classic argument that the courts fall well short of being the reform agents that previous scholars had described.

INSIDE THE JUDICIAL PROCESS is a modern, informative, and comprehensive textbook that will be a fantastic addition to the library of texts available to professors and students. It presents theoretical concepts and empirical evidence in a way that is both entertaining and accessible to undergraduate students. Its strength is its content and structure; however, its one significant weakness is its price, which the publisher lists at $73.56. This weakness cannot be attributed to the editors, as they have no control over the pricing. However, it would be a shame if the price dissuades professors from choosing this wonderful new text.

Another potential weakness lies in the text’s thematic bias. INSIDE THE JUDICIAL PROCESS has a decidedly behavioral tone, favoring the attitudinal model of judicial decision making throughout its chapters. However, Diascro and Ivers have done an exceptional job of representing all sides of the scholarly debate by including selections from scholars who favor more traditional models of legalism. The editors also clearly accept the assumption that judges are active policymakers, but draw no conclusion as to whether this is the desired state of affairs; they simply recognize that judicial decision making is implicitly political.

INSIDE THE JUDICIAL PROCESS benefits from the strong editorial comments that open each chapter. These summaries are well-written and provide an excellent synthesis of the readings within the chapter. They also pose questions to the reader – for example, in introducing Australian jurist Michael Kirby’s essay on original intent, Diascro and Ivers pose a simple yet important question, “Do you think that a comparative perspective offers insight into how American judges handle their responsibilities?” Diascro and Ivers have also included up-to-date cases (e.g., ZELMAN v. SIMMONS-HARRIS (2002)), current controversies in law and politics (e.g., BUSH v. GORE, the Foreign Intelligence Surveillance Act), and on-going theoretical debates to make the text timely and interesting for today’s students. With its emphasis on critical role of the courts in democratic society and its editors’ determination to compile a text that can both engage and inform undergraduate students, INSIDE THE JUDICIAL PROCESS is a welcome addition to the judicial process bookshelf.


CASE REFERENCES:

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

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

MARBURY v. MADISON, 5 U.S. 137 (1803). [*70]

NEWDOW v. U. S. CONGRESS, 292 F.3d. 597 (9th Cir. 2002).

REPUBLICAN PARTY OF MINNESOTA v. WHITE, 536 U.S. 765 (2002).

UNITED STATES v. BOOKER, 543 U.S. 220 (2005).

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

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© Copyright 2007 by the author, Holley Tankersley.

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THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE

by Richard W. Bauman and Tsvi Kahana (eds). New York: Cambridge University Press, 2006. 614pp. Hardback. $110.00/£70.00. ISBN: 0521859549 Paperback. $55.00/£30.00. ISBN: 0521676827. e-book format. $44.00. ISBN: 0511247877.

Reviewed by Thomas M.J. Bateman, Department of Political Science, St. Thomas University, Fredericton, New Brunswick, Canada. Email.bateman [at] stu.ca.

pp.61-65

A cynical reason for the appearance of this collection, edited by by Richard W. Bauman and Tsvi Kahana is as follows. North American courts were once at the vanguard of progressive social change, invalidating segregationist, sexist, and otherwise repressive laws in favour of constitutional values of equality and human dignity. They read the Constitution through rose-coloured glasses. Members of the legal academy were mostly happy: they, the legal practitioners, and the judges were on the side of the democratic angels. Such judicial “activism” increasingly attracted attention and criticism. Conservative political forces responded first by attacking activist judges. Then they caught on to the game and decided to join, appointing conservative judges who would in their turn read the constitution through blue-coloured glasses.

The reaction of the legal academy to this turn of events? To distance itself from judicial supremacy as the pillar of constitutional democracy and instead explore the possibilities of legislative constitutionalism as a means of protecting and advancing the progressive legacy. Such a turn would not only adjust to new partisan and ideological configurations in the judicial and legislative branches of government; it would also address a nagging, even embarrassing, feature of judicial supremacy – that it is not a very democratic way to protect and advance democracy.

Whatever the merits of the cynical interpretation, the advent of “legislative constitutionalism” as an academic movement is worth examining in some depth. It is not wholly or necessarily a critique of courts’ primacy in the stewardship of the constitution, but it is a recognition that the constitution and constitutionalism are much more than what the courts say they are.

This is a collection of 28 scholarly essays emanating primarily from a 2004 conference in Banff, Alberta. The essays are written mostly by North American law professors, but a few social scientists’ efforts also appear. Generally speaking the essays all address the division of labour that does and ought to exist between the courts and the legislature in matters constitutional. Critical to a proper understanding of this division of labour is a proper view of the constitution. The essays militate against the facile assumption that the constitution is what the courts say it is. According to Daniel Farber, “There is an unfortunate element of circularity in first defining constitutional law to be composed of the kinds of issues decided [*62] by courts and then concluding that courts are the be-all-and-end-all of constitutional law. Yet that is the general impulse of American constitutional lawyers, who tend to identify constitutional law with the kind of work done by courts” (p.449).

The constitution includes both constitutional provisions enforceable by courts, but it includes conventions (unwritten customary, politically binding rules) that give shape and substance to the constitutional order. These constrain political actors as much as any judicial ruling might. Indeed, it is a convention of the constitution that judicial decisions themselves are to be complied with. Aside from “organic” statutes that are constitutive of central processes and institutions of constitutional government, William Eskridge and John Ferrejohn argue that some “super-statutes” have attained constitutional status despite their having merely been passed by Congress. This “super” status stems from the fundamental principles embodied in the substance of the legislation and also by the wide support such legislation commands. Canadians recognize some of these ‘super-statues” as “quasi-constitutional” laws, to be given “large and liberal interpretations” as if they were entrenched documents (CANADA (ATTORNEY GENERAL) v. MOSSOP).

Judicial supremacy is premised in part on the notion that constitutions are about limiting power. This is only one constitutional function. Constitutions also establish political institutions and enable them to operate for the common good. As Jeremy Webber argues, constitutions define or fashion the public voice, converting amorphous, unstructured, fragmented, and incoherent public opinion into an institutional form that can be engaged in the political process. And limitation of power is not itself a judicial monopoly. Referring to the America setting, two essays consider the judicial “nondelegation doctrine” that served to limit political power by enforcing the separation of powers between the legislative and executive branches. In fact, argues Cass Sunstein, the judicial doctrine was extremely short-lived, but the principle of nondelegation carries on in a variety of contexts, many of them having little to do with the courts.

One of the most piercing arguments in favour of legislative constitutionalism stems from the fact of disagreement in democratic societies. Legislative assemblies are structured to recognize and to extract the benefits of disagreement. In a poignant and thoughtful essay, Jeremy Waldron argues that the forms and rules of legislatures are about advancing citizenship. Further, the rules of procedures are made for people who are strangers to one another, thereby taking full account of the depth of diversity in a polity. Courts, by contrast are not representative, and from a democratic point of view this is, prima facie, a problem. But the relevance of disagreement goes beyond this. People disagree with judicial decisions not just because their interests may have been ignored. They disagree – reasonably – about the meaning of rights and about the way to interpret the constitution. Why should courts have a monopoly [*62] on constitutional interpretation in the face of such reasonable disagreement? And why should they have a monopoly when the disagreement arises within the walls of the courts and within their decisions? At the end of the day, it is a majority vote in the appeal court as it is in the legislative assembly. Legislative constitutionalism has its attractions when we take disagreement seriously.

Disagreement stems from the diversity democratic polities embody. It also comes from constitutional ambiguity. Chantal Thomas examines the ambiguous constitutional status of fast-track laws according to which Congress grants the executive significant authority to negotiate legal instruments to be approved or rejected in toto by Congress. Patricia Hughes refers primarily to Canadian constitutionalism in her discussion of “constitutional agnosticism” – “a willingness, under certain circumstances, to suspend the need to act on one’s concerns that the constitution is, for some reason, not legitimate or about which there is serious dissension.” It is a “toleration for constitutional deviation.” Quebec separatism and the province’s use of the s. 33 notwithstanding clause to insulate the province’s laws from the application of significant part of the Canadian Charter are evidence of such agnosticism. Hughes largely rehearses the argument more forcefully made years ago in Michael Foley’s SILENCE OF CONSTITUTIONS (1989).

Sujit Choudhry’s essay addresses Hughes’s concerns differently. He examines the possibilities and limits of judicial power in circumstances in which the toleration for deviation breaks down and the constitution is hurled into crisis. When fundamental disagreement concerns the whole of the polity and its institutions, one cannot expect courts to prevail against protagonists. Can courts do anything to stop the slide into popular revolution when their own legitimacy is in question? Choudhry examines the Quebec secession drama of the mid-1990s which produced a fascinating reference opinion of the Supreme Court of Canada. The Court in REFERENCE RE SECESSION OF QUEBEC invented constitutional rules whereby a clear majority endorsement in a referendum of a clear question on secession would trigger a constitutional obligation on other partners in Confederation to negotiate (not necessarily grant) secession. The Court explicitly warned that courts were not to be called upon to define “clear question” and “clear majority” in future. This was to be left to the political actors. The formula has enjoyed broad endorsement in Canada outside of Quebec and at least grudging acquiescence among Quebec separatists who do not want an independent Quebec to be born in defiance of the rule of law. Choudhry agues that the Supreme Court reference opinion is a brilliant case of a court resorting to popular constitutionalism to avoid popular revolution.

In a closely argued (perhaps poorly edited) essay, Adrian Vermeule suggests that on the management of constitutional change, formal amendment is as important as judicial interpretation. At the least, arguments against the merits of formal amendment have usually been premised on “nirvana” counterfactual [*64] assumptions that in the absence of formal amendment, the constitution and the polity would have been just fine, thank you very much. In the absence of formal amendment, we would have imperfect, unpredictable constitutional common law. He also attempts to dispel the reverence often attached to the original constitution by arguing that the original constitution is just a package of amendments passed at once and subsequent amendments are merely modifications of that initial set (p.240). Against the argument that most proposed amendments are basically stupid acts of grandstanding, Vermeule suggests that these exist because of the prominence of judicial review and ‘amendment by interpretation’ in American government.

This collection helpfully contains pieces from authors who dissent from the chorus of approval of legislative constitutionalism. The arguments are of two general kinds. The first, represented by Owen Fiss, sees in some strands of legislative constitutionalism an unreasonable allegation that courts are undemocratic:

. . . I am as firm in my commitment to democracy as the next person. Yet, when used to provide the basis for legislative constitutionalism in its strong form, this invocation of democracy seems entirely overblown. The democratic ideal should be applied to the political system as a whole and should not be used to ascertain the legitimacy of each component within the system. As a test of the system, democracy requires only that each component be linked to public officials and institutions that are responsive to popular sentiment. Thus, although the judiciary may not be directly responsive to the people, as the legislature is, it is sufficiently embedded within a larger system of democratic governance to meet the objection that judicial review is undemocratic. (462)

Legislative constitutionalists may overlook, as Frederick Schauer reminds us, one of the principal virtues courts have in constitutional regimes: their “externality,” their independence from the politics of the day. Andree Lajoie and her collaborators ask what the fuss is all about: courts overturn a minuscule percentage of all laws passed by legislatures.

Andrew Petter represents the second line of attack. Many legislative constitutionalists in his opinion are Johnny-come-latelys without any critical sense of the undemocratic character of the democratic institutions on which they pin their hopes as a remedy for judicial constitutionalism.

A common failing of edited collections is the unevenness of the contributions. This collection largely avoids this problem. Students of constitutionalism will miss thorough treatments of the subject in truly comparative context; North America really does get all the attention. But the book captures an important element in the evolution of the scholarship on constitutionalism. I recommend this book for law and social science libraries, and to advanced students of constitutions in law schools and political science departments.


REFERENCES:

Foley Michael. (1989) The Silence of Constitutions : Gaps, "Abeyances," and Political Temperament in the Maintenance of Government. London, New York : Routledge, 1989. [*65]


CASE REFERENCES:

CANADA (ATTORNEY GENERAL) v. MOSSOP, [1993] 1 S.C.R. 554.

REFERENCE RE: SECESSION OF QUEBEC.[1998] 2 S.C.R. 217.

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© 2007 by the author, Thomas M.J. Bateman.

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SELF-DETERMINATION: THE OTHER PATH FOR NATIVE AMERICANS

by Terry L. Anderson, Bruce Benson, and Thomas Flanagan (eds). Stanford, CA: Stanford University Press, 2006. 352pp. Cloth. $35.00. ISBN: 0804754411.

Reviewed by Mark Andrews, Associate Counsel, Tanana Chiefs Conference, Fairbanks, Alaska. Email: markandrews [at] ak.net.

pp.56-60

How could a book conclude that tribal intervention in the economy creates uncertainty, and thus poverty, and yet ignore the historical seizure of Indian land? How could a book about property rights in American Indian law never mention Felix Cohen? How could a book that analyzes Indian private enterprise fail to analyze the Native corporations established under the Alaska Native Claims Settlement Act?

The primary thesis of SELF-DETERMINATION is that among the indigenous cultures of North America, the institution of private property was widespread, and it was important to the economic life of the tribes. The indigenous cultures were never so communal as current observers believe, nor were the tribes the careful environmental stewards that many people think.

The seventeen authors of SELF-DETERMINATION display the enormous amount of research that supports their conclusions. The book offers and analyzes economic success stories. Yet, the book has its problems.

Two chapters describe the limits of Indian tribal sovereignty. Sovereignty is the legal quality that makes a tribe a nation, something similar to an American state, a “domestic dependent nation,” in the words of Justice John Marshall (cite to CHEROKEE NATION v. GEORGIA, at 2).

From the economist’s point of view, here is the critical aspect of sovereignty: the Tribes hold the power to alter economic relationships, even after two people have begun trading with each other. Exercising this tribal power comes at a cost. The two traders suddenly learn that dealing within the tribal reservation carries uncertainties for which they had not bargained. Sometimes the uncertainty rises so high that economic development is heavily discouraged, and the people on the reservation remain poor.

This argument is presented well in “The Wealth of Indian Nations: Economic Performance and Institutions on Reservations” by Terry Anderson and Dominic Parker, and in “Sovereignty Can be a Liability: How Tribes Can Mitigate the Sovereign’s Paradox,” by David Haddock and Robert Miller. What I took from these articles, however, was a more general point. The problem is not that there is some characteristic of Native American politics that makes it dangerous to economic activity, but that any system that permits third-party intervention at arbitrary moments will discourage the creation of wealth. [*57]

The book would have been substantially strengthened by the recognition that the historical source of much of the uncertainty was the persistent refusal of European immigrants to recognize any property rights of the original inhabitants. When the European settlers wanted Cherokee lands in southeast United States, the Cherokee were forcibly removed. The Cherokee were removed even after they won their case before the United States Supreme Court (WORCESTER v. GEORGIA, (1832)). When American gold seekers wanted the gold of the Black Hills in South Dakota, the miners simply entered the area, notwithstanding the fact that there had been a treaty granting the area to the Sioux.

These and numerous other examples carry the message that interests in real estate are not created by peaceful bargaining. Instead, this history instructs that a person owns real estate when he identifies land, physically occupies it over the objections of the first owner, and then defends it with violence. SELF-DETERMINATION contains not a hint that this history might affect tribal economic attitudes today.

The book contains examples of arms-length bargaining between the indigenous peoples and European settlers. However, these examples occurred primarily in the early era of European settlement, in the 1600s and 1700s, when European and local power were about equal, and European arrivals had no real choice except to bargain peacefully.

Felix Cohen’s book, HANDBOOK OF FEDERAL INDIAN LAW, has been the standard text on the subject since its appearance in 1941. Cohen is frequently cited by the United States Supreme Court.

HANDBOOK OF FEDERAL INDIAN LAW has chapters on hunting, fishing, and gathering rights; tribal property; water rights; individual property; and taxation. There are numerous references throughout SELF-DETERMINATION to such rights, their function and dysfunction. References to the Cohen text would have helped to explain why Indian rights are what they are today.

SELF-DETERMINATION references about 400 books and articles. The references include Cohen’s 1982 edition, but this reviewer did not see the HANDBOOK cited anywhere in the 10 chapters. If Cohen’s influence was felt, it was not acknowledged.

Cohen wrote not only HANDBOOK OF FEDERAL INDIAN LAW, but also a later article (1954) where he attempted to find what principles were universal in property ownership. Cohen could see similarities between the laws of Montana and the Hindu Laws of Manu (1954, at 366. Animal ownership was Cohen’s example). His willingness to see across time and culture is precisely the skill that SELF-DETERMINATION called for, and yet Cohen’s work is ignored.

Of 17 contributors to this book, only 8 show some direct experience with Indian tribes, whether as researchers or law professors. Of the other 9, three of the [*58] biographies list an interest in “ethnic economies” or similar phrases.

The practical effect of this lack of depth in Indian law is most clear in the essay of D. Bruce Johnsen, a professor of law at George Mason University. His biography lists no direct experience with Indian tribes, nor with Indian law.

Johnsen’s chapter is “A Culturally Correct Proposal to Privatize the British Columbia Salmon Fishery.” The basic economic problem is simple to describe. The Indians’ traditional method of allocating salmon was a system of private property; a tribe or clan would own exclusive access to a stream, and thus the rights to the salmon run. However, this indigenous property system has been lost to European settlement, to the large harvest by offshore fisheries, and to the ineffectiveness of government regulation. What is to be done?

Johnsen capably analyzes the history of the British Columbia salmon fishery and its problems. Then his solution reads like science fiction. The government holds an auction where the Indian tribes and the owners of the ocean-going fishing vessels bid against each other for all the rights to all the salmon. “[T]he winner pays the loser an amount equal to the loser’s bid” (p.123).

This solution is said to be culturally correct because it reflects the traditional rivalry potlatch where competing chiefs would ritually put up property in an attempt to show who had the most, and thus the higher status. The Johnsen solution is for the Indians to raise capital for the auction by organizing a First Nations Corporation, issuing stock, and borrowing from the government. The plan does not sound feasible.

The essay does not estimate a current dollar value of the salmon harvest, a serious lapse. The annual value of the harvest, projected into future years, becomes an income stream. This income stream has a present value. The present value of the salmon run is the minimum bid for the harvest rights. The estimated amount of the minimum bid would shed some light on the feasibility of Johnsen’s proposal, but this information is missing.

Johnsen gives away his point of view as he describes the relations of the bidders. The auction “would require the Crown to recognize those with vested interests in the mobile ocean fishery as an ‘incumbent’ class of claimants and British Columbia’s tribes as a ‘rival’ class” (p.123). The Indians, who were there first, are the rivals, versus those who arrived later, who are known as the incumbents.

The Johnsen chapter contrasts sharply with the next, “Customary Land Rights on Canadian Indian Reserves,” by Thomas Flanagan and Christopher Alcantara. The biographies of both Flanagan and Alcantara show previous experience with researching topics in Indian law and customs, and the experience shows immediately in the tone of voice and realism of the solutions they propose. Among other things, they write, “we do not believe it is fruitful to try to impose institutions [*59] upon people from the outside” (p.155).

Harold Demsetz provides the major intellectual framework of SELF-DETERMINATION. Five of the ten chapters cite Demsetz’s work, notably his 1967 article, which includes a discussion of Native American property rights in Canada in the early 1600s. His influence can be seen throughout the book. SELF-DETERMINATION would have been more accessible to the general reader if it had included more discussion of Demsetz’s work.

The ALASKA NATIVE CLAIMS SETTLEMENT ACT offers exactly the laboratory that SELF-DETERMINATION wants, and yet it is ignored. The Act created 12 regional corporations, divided along the lines of Indian tribal affiliation in Alaska. A 13th corporation was created for Natives living outside Alaska.

The corporations are private, for-profit enterprises. Shares of stock are owned by individuals, and there are numerous local village corporations. The Act imposes an identical system of private stock ownership on differing local cultures, thus offering a test of how this form of private property does or does not produce economic success when it is created among Native American peoples.

Anecdotally, your reviewer understands that the most successful Native corporations were in southeast Alaska, where the aboriginal culture had a private property system. The Native corporations were least successful in the more communal Eskimo cultures of western and northern Alaska. I am not saying that these impressions are correct. But I am saying that this collection of 17 authors had the credentials and background to study this ready-made set of data but for unexplained reasons did not do so.

These flaws in the book unfortunately detract from the able work of many of the authors. When the authors did the scutwork and fact-finding and understood what they were observing, the result was effective and convincing.

Two such examples examine current, real-world Indian economic activity. Ronald Johnson’s, “Indian Casinos: Another Tragedy of the Commons,” examines where and why Indian gaming in the United States has been successful. Jacquelyn Thayer Scott’s “‘Doing Business with the Devil’: Land, Sovereignty, and Corporate Partnerships in Membertou, Inc.” examines the success of the Mi’kmaq tribe in Nova Scotia. Neither author lists experience in Native American economies and culture, but both were able to write effectively by close examination of the facts.

In a book with an abundance of footnotes and citations, one deficiency stood out. SELF-DETERMINATION cites about 400 articles and 70 court cases. Throughout the book the authors cite statutes from the United States and Canada, an important point because statutes play an important role in understanding relations between the indigenous peoples and their respective federal governments. [*60]

But the great majority of statutes are unreferenced. The authors provide citations to the INDIAN GAMING REGULATORY ACT, but otherwise leave the reader mostly guessing. Readers will have to do the research themselves if they want to know details about the CANADIAN FIRST NATIONS LAND MANAGEMENT ACT, or the United States Public Law 280.

SELF-DETERMINATION represents a creditable attempt at the re-interpretation of North American Indian law using the framework of private property rules. Individual articles are valuable, but overall the book suffers from too many omissions.


REFERENCES:

Cohen, Felix. 1954. “Dialogue on Private Property.” 9 RUTGERS LAW REVIEW 357-387.

Cohen, Felix. 1941/2005. HANDBOOK OF FEDERAL INDIAN LAW. Charlottesville, VA: Michie.

Demsetz, Harold. 1967. “Towards a Theory of Property Rights.” 57 THE AMERICAN ECONOMIC REVIEW 347-359.


CASE REFERENCES:

CHEROKEE NATION v GEORGIA, 30 U.S. 1 (1830).

WORCESTER v. GEORGIA, 31 U.S. 515 (1832).

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© Copyright 2007 by the author, Mark Andrews.

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DEMOCRACY, SOCIETY AND THE GOVERNANCE OF SECURITY

by Jennifer Wood and Benoît Dupont (ed). Cambridge and New York: Cambridge University Press, 2006. 304pp. Hardback. £45.00/$75.00. ISBN: 0521850924. Paperback. £19.99/$75.00. ISBN: 0521850924. E-book format. $26.00. ISBN: 9780511144981.

Reviewed by Lee P. Ruddin (LL.B: Liverpool); (MRes: London) and (PgCert: Sheffield). Email: leetherudster [at] aol.com.

pp.51-55

The repertoire of contributors (professor and research fellow alike) amassed together in this volume by editors Jennifer Wood and Benoît Dupont accentuate the challenge of ‘security’ in a post–September 11 age – juxtaposing security ‘governance’ amid ‘democratic’ morality and law and politics. What is more, this 250 page pamphlet has moved the goal – posts of security dialogue stressing the ‘plurality’ of contemporary security governance. For this edition interprets the promotion of security no longer a state monopoly – with commentators (Les Johnson) subscribing to the Hayekian proposition: that the state’s deficient knowledge and capacity to deliver security to local communities renders it an ‘idiot’ (p.48) (in deep disparity to Ian Loader and Neil Walker).

This bourgeoning area of inquiry (international security and global governance) is grounded in the philosophical lineage and scholarly custom that holds dear the ‘state’ as the chief font for security. Indeed, one only need read (or ‘Google’) Hobbes or Weber to appreciate that (in a post-feudal aeon) a social contract binds citizens together, sanctioning the state to formulate, arbitrate and implement rules to uphold law and order. This was succinctly put by two of the contributors, Ian Loader and Neil Walker: “The state is theoretically reconstructed as the outcome of a national social contract in which individuals agree to trade a quotient of their liberty in exchange for the state’s guardianship of their person and property. . . viewed as emerging via an ‘invisible hand’ from the contest between ‘protective associations’ that the state of nature is assumed to generate” (p.168).

Additionally, the pre-eminence of legal and political philosophy sustains the ‘fiction of the monopoly of the monolithic state over the legitimate provision of security’ (p.241). However, historical detection exposes a web of private (parasite-like) agencies (that live upon their respective host) exploiting the (quasi-perestroika) liberal market economy (for example, South Africa).

‘Criminologist . . . Clifford Shearing only contributes one paper to this edited collection, but his presence is apparent on almost every page.. This was the opening sentence of a review for the matching title in the CANADIAN JOURNAL OF SOCIOLOGY ONLINE and explicates that this text firmly cements (and updates) Shearing’s ‘nodal governance’ into International Relations (IR) lexicon.

Overturning the centripetal centrifugal polarity, nodal governance is whereby [*52] non-state entities operate ‘not simply as providers of governance on behalf of state agencies but as auspices of governance in their own right’ (p.2). In sum, it is an approach that displaces the state from its long-standing position of exclusive security provider.

Les Johnson archives the augmentation of the ‘international scene of global security conglomerates’ (p.241) that are key players in the ‘War on Terror’ and nation building reconstruction efforts. Not being exclusive to the private sector, Peter Manning elucidates that a ‘plurality of providers is intrinsic to the temporary assemblage of public agencies that provide security for large political or sports events’ (p.241). As the editors note, ‘his case studies illustrate in a vivid manner the multiplicity of organizations that share the responsibility of producing security on behalf of the state’ (p.241). Together these two particular chapters will be attended to in length – nevertheless, beforehand, we ought to voyage through the outstanding contributors’ ocean of knowledge.

The corollary of the tectonic collision between structural and rational plurality is witness to an overt power struggle as evidenced in Benoît Dupont’s chapter encompassing the Australian police commissioner (Chapter Four: pp.86-111) and the lukewarm impact of the governance of security on the governance of health summarized by Scott Burris (Chapter Eight: pp.196-217). Readers may find the association between health and security an unorthodox one – though, to quell any bewilderment the reviewer directs the reader to a recent article by Michael Williams, “Revisiting Established Doctrine in an Age of Risk” (October 2005).

Pluralism is the midwife to fragmentation and the tenets of inclusion and exclusion are escorted by ‘security clubs’ and ‘bad risk’ populations. Such distribution sets the ‘state’ on a downward trajectory, for ‘this exclusionary economy of security is the source of democratic deficits’ (p.242). Ian Loader’s and Neil Walker’s chapter (pp.165-196) illuminates the ‘self defeating nature’ of such an approach. In the most wild and ghastly manifestation (of exclusion) on September 11, 2001, it is abundantly clear that, ‘security cannot be enjoyed by a few in isolation from the rest of society without creating the conditions of more insecurity’ (p.242). Furthermore, the South African context is scholarly portrayed in Monique Marks’ and Andrew Goldsmith’s chapter (pp.139-165) exposing the colonial-style (Saidian) oriental-like policing (p.226) and vigilante groups that undermine the democratization process; for ‘effective state policing becomes . . . [the] sine qua non of democratic government’ (p.157). However, the pair omitted to mention the favourable UN reports followed by the allocation of hosting the Football World Cup in 2010 (p.142).

Now back to Les Johnson’s installment (Chapter Two: pp.33–52): “Transnational Security Governance.” The British professor provides a most absorbing and memorable addition to the omnipresent military-industrial complex, or what Johnson terms the ‘commercialization of military security’ (p.40). Johnson is spot-on when stating [*53] that ‘corporate involvement in the provision of military and peacekeeping services is nothing new . . . the “war against terror” and the post-war “reconstructions” of Afghanistan and Iraq have given major impetus to such involvement’ (p.41). A far superior installment though is provided by James Carter (2006, at 86-110).

A couple of pages on the ‘cloak and dagger’ practices in Iraq are revealed to the reader. Johnson exposes those depths of private personnel in Iraq and their duties. Personnel have been employed (with impunity from the Geneva Convention) to interrogate prisoners at Abu Ghraib (in fact a startling twenty-seven of the thirty-seven interrogators belonged to CACI International – not the CIA: p.44). Johnson rationally states that the ‘distinction between military (soldiers) and civil (guard) functions is increasingly fudged’ (p.45). Johnson scholarly explicates that ‘contractual procedures make lines of authority and communication over-complex’ impeding governmental oversight of the ‘companies on their payroll’ (p.45). Both the contractual processes and the ambiguous civil-military distinctions enabled (and will continue to enable) states to evade public scrutiny retarding legislative oversight. Johnson succinctly writes that ‘by devolving “rowing” functions to the private military sector in the arenas of Afghanistan, Iraq and Colombia, the state was able to “steer” operations against terrorism and drugs behind the backs of the public and its representatives’ (p.48).

The University of Portsmouth professor is right on the mark when dismissing the ‘contradiction’ between ‘nodalism’ and ‘meta-authority’ – for the state will implement ‘regulatory (meta-authoritative) principles for security governance without having to “know” the particular preferences of particular constituencies’ (p.49). This renders the ‘idiot’ argument obsolete (p.175); though, ‘nodal governance’ empowers disadvantaged constituencies under the neo-liberal market economy.

The following chapter (Chapter Three: pp.52-86) is titled, “Two case studies of American anti-terrorism.” Though the reviewer does not concur with the author in regards the terminology of the ‘war on terror’ not being a ‘war,’ he does not even qualify his reasoning to cajole a reader. He seems to have been washed out from the criminal justice beachhead (of safe ground) and is now struggling to stay afloat in choppy IR waters (p.62).

A second issue of contestation revolves around Peter Manning’s interpretation of US history. Manning reasons that, for America’s lack of rich history (as compared to the British and French in Agincourt, Waterloo and the Somme), the Iraq War became a ‘revolutionary’ event (p.63). Manning’s language is unclear in this instance, and the reviewer deciphers that he may mean events post-March 2003 are exclusively ‘revolutionary.. However, whether Manning proposes pre-March 2003 to be ‘revolutionary’ or post-March 2003 (or both) – neither is ‘revolutionary.’ Symmetries can be deduced from events in the Philippines a hundred years ago (1902) with that of contemporary Iraq upon reading Stephen Kinzer’s OVERTHROW: AMERICA’S [*54] CENTURY OF REGIME CHANGE FROM HAWAII TO IRAQ (2006). The guerrilla insurgency provides historical lessons; the death tolls are roughly comparable – even the torture at Abu Ghraib was not unprecedented. For torture revelations from Balangiga forced Americans out of their innocence long before Seymour Hersh’s exclusive in 2004.

Most interesting from Manning’s first-hand analysis was the diverse interpretations of ‘risk concern’ in his comparative ethnographic analysis of policing (Winter Olympics: 2002 and the Democratic National Convention: 2004); where Police reacted to the ‘known, visible and traceable’ as compared to the Secret Service who planned for the ‘imagined, the future or the anticipated future-appearing other’ (p.84). It could be stated that the Police force operated on a post-emption basis, whereas the intelligence services where operating on a hyper-vigilant pre-emptive basis. The reader is fortunate for such an unparalleled insight of intelligent officers’ assignments. For ‘because neither of the events saw a politically volatile incident, unlike the Atlanta Games, there was no media-based call for a public accounting of actions, planning or finances of the Boston Convention or the Salt Lake City Games’ (p.85).

‘By invoking “security,” the state activates . . . its sovereign right to “decide on the exception.” Security thus operates as an anti-political political practice wherein state actors declare the problem at hand . . . to call for authoritative decision rather than democratic deliberation . . . , and to warrant the restriction of basic liberties as the price to be paid for the maintenance of public security’ (p.181). Rightly so. Democracy is a secondary – indeed supplementary – value when juxtaposed with vital security concerns. For ‘security’ correctly colonizes public policy.

Each individual essay does stand on its own – for they are written by international scholars – but rather too much. When read from foreword to finale there is a substantial degree of repetition which ought to have been eliminated for an enhanced reader experience. However, the exchange between Ian Loader and Neil Walker and Les Johnson compensates sufficiently, proving an absorbing read with the duo taking the rostrum first followed by Johnson’s rejoinder. This comprehensive exchange is priceless for the axis of academics: students, researchers and professors. After citing the first sentence of the review from the CANADIAN JOURNAL OF SOCIOLOGY ONLINE we now extract the last for THE LAW AND POLITICS BOOK REVIEW: ‘It is a top-tier collection of papers that will become a recurrent reference point in ongoing discussions about security, policing and governance.’

REFERENCES:

Carter, James. 2006. in David Ryan and John Dumbrell (eds). VIETNAM IN IRAQ: LESSONS, LEGACIES AND GHOSTS. New York: Routledge. [*55]

Kinzer, Stephen. 2006. OVERTHROW: AMERICA’S CENTURY OF REGIME CHANGE FROM HAWAII TO IRAQ. New York: Times Books.

Williams, Michael. 2005. “Revisiting Established Doctrine in an Age of Risk.” 150 THE RUSI JOURNAL 48-52.

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© Copyright 2007 by the author, Lee P. Ruddin.

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THE EVOLUTION OF A CONSTITUTION: EIGHT KEY MOMENTS IN BRITISH CONSTITUTIONAL HISTORY

by Elizabeth Wicks. Oxford & Portland, Oregon: Hart Publishing, 2006. 232pp. Paper £22.50/$45.00. ISBN: 184113418X.

Reviewed by David Erdos, ESRC Postdoctoral Fellow, Department of Politics, University of York. Email: de508 [at] york.ac.uk.

pp.48-50

Over the past fifteen or so years there has been an explosion of interest in British constitutional law and politics. Other than those which are directly legal or philosophical in nature, the most prominent emergent scholarship has focused specifically on the policy concerns and developments of the Blair era. Complementary to this literature, the monograph under review takes a broader approach. In particular, Elizabeth Wicks uses “historical investigation to cast new light upon the constitution of today” (p.1). The result is a useful and important text which admirably demonstrates that study of historical events remains highly relevant to today’s constitutional controversies.

THE EVOLUTION OF A CONSTITUTION is structured chronologically around eight “landmark” moments within British constitutional history, from the Glorious Revolution of 1688 to the Devolution Settlement of 1998. In addition to these two events, Wicks also focuses on the union between England and Scotland in 1707, the ascendancy of Robert Walpole as the Crown’s first minister in 1721, the Great Reform Act of 1832, the Parliament Act of 1911, ratification of the European Convention in 1953 and the UK joining the European Community in 1972. Each of the main chapters pivots around an analysis of one of these events. In addition, other related developments are given consideration. For example, the chapter on the Great Reform Act also examines the later expansion of the franchise during the nineteenth and twentieth centuries. Similarly, the chapter on the ratification of the European Convention deals briefly with the later passage of the Human Rights Act in 1998 “incorporating” Convention rights in the UK law. This structure focuses the reader’s interest on particular periods when constitutional issues were at the fore of British politics whilst also achieving a broadly comprehensive overview of the country’s constitutional development. Nevertheless, it might be noted in passing that certain topics such as the UK’s changing constitutional relationship with what are now fellow members of the Commonwealth remain largely unexplored despite the fact that the passage of, say, the Statute of Westminster Act in 1931 would appear to provide a perfect “landmark” event around which to explore such issues.

All the main chapters are written clearly, drawing upon and referencing more detailed primary and secondary material where relevant. These chapters can also function largely as self-standing pieces in their own right thus making it possible to consider assigning particular chapters of the book for courses focusing on discrete topics such as the growth of human rights regimes or the rise of minority nationalism within advanced [*49] industrialized democracies. In addition, an introduction focusing on developments pre-1688, a general conclusion, and a bibliography are provided. Throughout, the focus is on historical events not for their own sake but as a prism for analyzing general themes within the British constitutional tradition. Particular attention is given to themes such as Executive dominance or the alleged threat of Scottish independence, which have become particularly prominent in today’s discourse.

This work clearly deserves a broad readership. It may provide a useful starting point for both socio-legal scholars and political scientists interested in including the British constitution and its historical development within their research agenda. Also, given the topicality and interest of the material presented, the book should also attract a more general readership particularly within the UK itself.

It would be difficult to overstate the ambition of this monograph. An almost comprehensive consideration of three hundred or so years of British constitutional history within little more than two hundred pages is a stupendous task which, on the whole, is performed remarkably well. Nevertheless, the twin parameters of breadth and conciseness which Wicks sets for herself lead to some perhaps inevitable drawbacks. In particular, the overall theoretical framework remains somewhat inadequately developed. Near the beginning, Wicks states she “seeks to illuminate the core principles and strengths of the modern constitution but also its weaknesses, contradictions and impotence in the face of modern government” (p.3). Within the limitations of space such an aim is admirably carried out in the core chapters that follow. Despite this, however, Wicks’ conclusions in the final chapter are telescoped into little more than four pages. This text elucidates a number of the book’s key understandings, including, the claim that the UK constitution is an “evolving” one which has “ben[t] but not br[oken]” when confronted with various challenges. Other important themes implicit in the text, however, are given much less attention.

Throughout much of the book, Wicks suggests that the UK Constitution should be conceptualized as being based far more on core quasi-entrenched principles and far less on notions of absolute parliamentary sovereignty than commonly assumed. (For completeness it should be noted that Wicks’ own analysis of Britain’s membership of the European Community constitutes an important exception to this theme since she argues that, as a result of having been insuffiently popularly mandated, the significant limitations on parliamentary sovereignty implied by membership of the EU may be illegitimate.) For example during, during discussion of the 1688 Glorious Revolution she states that “The fundamental idea of a limited constitutional monarchy, a supreme and limited Parliament, and individual rights and liberties were introduced to the English constitution over 300 years ago years ago and although the legacy is an imperfect one, these ideas still endure in the constitution of today” (p.30). The [*50] important implications of this analysis for Britain’s constitution and its future development, however, are never fully addressed. A second edition would do well to expand the theoretical parts of the text so as to allow for a more extended analysis.

Overall, this is an innovative and important contribution to British constitutional studies. As a result of an acute understanding of both history and present day realities, Wicks not only demonstrates the need, but also provides the opportunity to examine Britain’s constitutional evolution in order to understand her current challenges and predicament. It is a first-class piece of scholarship which deserves a wide and engaged readership.

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© Copyright 2007 by the author, David Erdos.

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TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (THE OLIVER WENDELL HOLMES DEVISE HISTORY OF THE SUPREME COURT, VOL. VIII)

by Owen M. Fiss. New York: Cambridge University Press, 2006. 446pp. Hardback $80.00/£45.00. ISBN: 052186027X.

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

pp.44-47

In TROUBLED BEGINNINGS OF THE MODERN STATE, Owen Fiss presents an illuminative history of the United States Supreme Court from 1888 to 1910, the years when Melville W. Fuller served as Chief Justice. TROUBLED BEGINNINGS is the eighth volume in the monumental OLIVER WENDELL HOLMES DEVISE HISTORY OF THE SUPREME COURT. This 2006 Cambridge University Press edition is a reprint of the 1993 Macmillan Publishing Company original.

In 1905, the Fuller Court decided LOCHNER v. NEW YORK, the case that epitomizes the Supreme Court era running from the 1880s to 1937. Fiss, Sterling Professor of Law at Yale Law School, thus reasonably seizes upon this history of the Fuller Court as an opportunity “to confront the ghost of Lochner” (p.12). Progressives, including Progressive historians, shaped the predominant understanding of the LOCHNER era: the justices corrupted the meaning of the Constitution by instrumentally deciding cases to protect the class interests of wealthy elites. For instance, according to this instrumental hypothesis, the LOCHNER Court itself invalidated the statute restricting the hours of employees in bakeries because the legislation would have been costly to the employers. Fiss counters this predominant (instrumental) narrative by presenting the LOCHNER era cases as the Fuller Court justices themselves would have understood them. Fiss, in other words, takes legal doctrine seriously because the justices would have done so. LOCHNER and similar cases restricting governmental power and protecting economic liberties did not twist contemporary legal principles but rather exemplified them. According to Fiss, the Fuller Court was primarily concerned with enforcing liberty as understood within the social contract tradition—a liberty that preexists and must be protected from government.

An important caveat should be added, however. Fiss does not disregard political ideology in his interpretation of the Fuller Court. Chapter 2 places the Fuller Court in the broad historical context of the late-nineteenth and early-twentieth centuries, when industrialization, immigration, and urbanization were changing the American social landscape. And in each subsequent chapter, Fiss places the Court’s key decisions and opinions in the specific political battles of the times. He explains how Progressive politics, debates over corporations and antitrust, and struggles to unionize shaped the Court’s analyses of legal issues. [*45]

With that said, Fiss unfortunately clouds his introduction with a paragraph discussing the “autonomy that law can rightfully claim” (p.18). In this paragraph, Fiss struggles with his earlier assertion that the instrumental hypothesis is incorrect. If instrumentalism is rejected, Fiss seems to ponder, then what alternative remains? His obscure answer lies in his paragraph on legal autonomy: if law is not applied as an instrument to advance political or class interests, then law must be autonomous from such political factors—or so Fiss seems to suggest, albeit briefly. Ultimately, Fiss conceptualizes ‘legal autonomy’ in an odd manner: claims of autonomy reflect the complexity of the interconnections between the legal system and the rest of society. Autonomy does not mean that law is unconnected to society; rather, it means that law is so interlaced with society that we cannot disentangle the web of intertwined threads. Fiss explains: “To say that law is autonomous is thus to acknowledge that life is complicated and our knowledge limited. It is also a way of saying that the relationship between law and economic or social interests proceeds in both directions” (p.18). I agree with Fiss’ understanding of the multifaceted interconnections between law and society, but I find his insistence on using the term ‘autonomy’ unnecessarily confusing. To me, the rejection of the instrumental hypothesis does not require retreat to an ambiguously defined legal autonomy. One does not have to choose between a Segal and Spaeth inspired attitudinal model and Langdellian legal science. Instead, one needs only to recognize that judges interpret legal rules and principles, that legal interpretation is not a mechanical process, and that politics plays an integral role in the (non-mechanical) interpretive process (Feldman 2005).

Fortunately, despite Fiss’ confusing introductory flirtation with the concept of legal autonomy, he demonstrates throughout the remainder of the book his thorough appreciation for the interrelationship between law and politics. Besides LOCHNER, Fiss discusses numerous important cases, including IN RE DEBS, POLLOCK v. FARMERS’ LOAN & TRUST CO., UNITED STATES v. E.C. KNIGHT, THE INSULAR CASES, and PLESSY v. FERGUSON. In analyzing these cases, Fiss relates the issues involving unionizing, income taxes, antitrust, United States imperialism, and race relations to the political and cultural battles of this contentious time in the nation’s history. Even so, while Fiss has thoroughly researched his subject matter and persuasively presents his narrative, I found myself occasionally disagreeing with him.

Most broadly, Fiss repeatedly emphasizes the Fuller Court’s focus on protecting liberty, while I would emphasize that the Court was more concerned with limiting government to acting for the common good (Feldman, 2006). The Court focused on determining the scope of governmental power – the government could promote the common good but not partial or private interests – and liberty was defined as whatever was beyond the government’s reach. Fiss himself recognizes this point. In his discussion [*46] of LOCHNER, he writes: “Liberty of contract was what remained to the individual after the state reached the outer bounds of its authority” (p. 159). Moreover, Fiss usefully discusses how the LOCHNER Court did not merely speak of a generic common good or public welfare but rather segmented it into “discrete and separate” doctrinal components. “‘Safety,’ ‘health,’ ‘morals,’ and ‘welfare’ were each viewed as a pigeonhole into which the purpose of a statute had to be placed” (p.160). Yet, Fiss so often emphasizes liberty in the social contract tradition and so rarely discusses governmental empowerment that one might easily forget that governmental power demarcated the scope of liberty and not vice versa. When Fiss originally published TROUBLED BEGINNINGS in 1993, it should be noted, he was not the first scholar to question the predominant Progressive-inspired instrumental hypothesis. Articles by Charles W. McCurdy (1975) and Michael Les Benedict (1985), among others, had already begun to build a revisionist interpretation of the LOCHNER era. In fact, the same year that Fiss originally published TROUBLED BEGINNINGS, 1993, Howard Gillman published his CONSTITUTION BESIEGED; Fiss cites to Gillman’s Ph.D. dissertation of the same name (p.85 n.29). While Fiss stresses the judicial protection of liberty, Gillman emphasized the judicial distinction between legislative actions for the common good (which would be deemed legitimate) and for partial or private interests (illegitimate class legislation).

On a narrower point, Fiss argues that Holmes “rejected the theory of LOCHNER thoroughly” and instead “embraced the widest conception of permissible ends for state action” (p.180). In other words, instead of the government being limited to pursuing the common good, the “legislative power could be used to favor one economic class or social group over another” (p.180). But Holmes’ free-expression opinions, even including his ABRAMS dissent, demonstrate that he still believed government was empowered to act only for the common good. In LOCHNER, Holmes dissented because he disagreed with the majority’s conclusion that the New York legislature had not done so. Holmes believed that a “reasonable man” could find that the statute furthered the common good (LOCHNER v. NEW YORK, 75-76).

Regardless, my disagreements with Fiss are relatively minor. He writes Supreme Court history the way it should be written. He takes legal doctrine seriously because, he realizes, it plays a constitutive role in judicial decision making. Supreme Court justices sincerely decide cases in accordance with doctrine. Simultaneously, he recognizes that legal interpretation and judicial decision making are not mechanical processes. Politics, culture, and economics influence how the justices understand, apply, and articulate the doctrine. A complete picture of a Supreme Court era requires adequate attention to both doctrine and politics. And Fiss, in discussing the Fuller Court, admirably gives the reader both. [*47]

REFERENCES:

Benedict, Michael Les. 1985. “Laissez-Faire and Liberty: A Re-evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism.” 3 LAW & HISTORY REVIEW 293-331.

Feldman, Stephen M. 2005. “The Rule of Law or the Rule of Politics? Harmonizing the Internal and External Views of Supreme Court Decision Making.” 30 LAW & SOCIAL INQUIRY 89-135.

Feldman, Stephen M. 2006. “Unenumerated Rights in Different Democratic Regimes.” 9 UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW 47-106.

Gillman, Howard. 1993. THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE. Durham: Duke University Press.

McCurdy, Charles W. 1975. “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897.” 61 JOURNAL OF AMERICAN HISTORY 970-1005.

CASE REFERECES:

ABRAMS v. UNITED STATES, 250 U.S. 616 (1919).

IN RE DEBS, 158 U.S. 564 (1895).

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

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

POLLOCK v. FARMERS’ LOAN & TRUST CO., 158 U.S. 601 (1895).

UNITED STATES v. E.C. KNIGHT, 156 U.S. 1 (1895).

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© Copyright 2007 by the author, Stephen M. Feldman.

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BECOMING A CITIZEN; INCORPORATING IMMIGRANTS AND REFUGEES IN THE UNITED STATES AND CANADA

by Irene Bloemraad. Berkeley: University of California Press, 2006. 382pp. Hardback. $55.00/£35.95 ISBN: 9780520248984. Paperback. $21.95/£13.95. ISBN: 9780520248991.

Reviewed by Dagmar Soennecken, Department of Political Science, University of Toronto, Toronto, Ontario, Canada. E-mail: dagmar.soennecken [at] utoronto.ca.

pp.40-43

In BECOMING A CITIZEN, Irene Bloemraad compares the political incorporation of immigrants in the United States with Canada. While the introductory chapter (which lays out the larger comparison) relies mainly on census and survey data together with documentary evidence, the heart of Bloemraad’s book is centred on in-depth interviews conducted in the Vietnamese and Portuguese communities in Boston and Toronto.

The puzzle that animates Bloemraad’s book is the diverging trajectory of political incorporation between the two countries. While the United States’ citizenship acquisition rate has declined dramatically since the 1950s (in 1950, 80 percent of all foreign-born residents were citizens, in 2004 fewer than 40 percent were, p.1) Canada’s has increased (in 2001, 72 percent of all foreign-born residents had acquired citizenship, p.2). This is indeed an intriguing question and is even more interesting, once one gets into the table with detailed country of origin data (pp.38-39), among others.

Bloemraad takes this puzzle as a starting point to ask larger questions about the political incorporation of immigrants in Canada and the United States. Political incorporation, after all, cannot simply be read from a country’s naturalization rate. Her book therefore investigates the attainment of ‘full citizenship,’ which she defines as naturalization plus substantive or participatory citizenship (p.5). Bloemraad’s central contention is it that differences in government intervention, or in settlement and diversity policies, create interpretive and instrumental differences that affect the political incorporation of immigrants (p.4). While the interpretive portion affects immigrants’ perceptions of their standing and ability to participate in the political process, the instrumental side shapes their actual mobilization and participation potential. Still her focus on government intervention does not lead Bloemraad to conclude that government intervention is the key factor in the political integration of newcomers. Civic involvement and political engagement originates just as much in the private realm.

Bloemraad evaluates participatory citizenship by first probing the importance of social networks for political incorporation. Political learning and mobilization, Chapter 2 argues, is facilitated by individual contact and social interaction with family and friends as well as community organizations. Only someone who has been sufficiently politically acclimatized in a new country and who has been shown the benefits of being active will be interested in [*41] acquiring citizenship. Bloemraad also addresses the fears of those who worry about immigrants who focus on their homeland because it diverts attention away from their host country’s life (p.94). She suggests that a homeland focus is only the first stage in a newcomer’s integration process. Her work underlines that more important than their continued contact with their homeland is involvement in other organizations that teach them how to get involved in their new home country.

That government policy plays a crucial role in the integration process is the central contention of Chapter 3. The Canadian government has pursued an official multiculturalism policy since the early 1970s. As a result of this policy, significantly more dollars have been injected into a wide range of programs than in the US. In particular, Bloemraad investigates differences in the immigration ministries’ official promotion of citizenship, bureaucratic attitudes and practices and the government’s settlement and integration policies for newcomers. These ‘interventionist’ programs, she concludes, have had an important, positive effect on the integration of newcomers. Few parallels can be found in the US. Only one comparable program exists in the area of refugee settlement (p.126).

In addition, Bloemraad’s analysis in Chapters 3 and 4 underscores that “the black-white color line fundamentally shapes immigrant incorporation dynamics” (p.133). Put more bluntly, the legacy of slavery and forced migration of African Americans and their descendants simply overshadows existing, albeit weak efforts to incorporate newcomers into the United States. Not only that, since many race-based policies were forced upon “southern states, government contractors, public and private institutions – using the federal government’s legal and coercive apparatus” (p.137), immigrants relying on these policies to gain inclusion face significant reluctance and resentment.

The next chapter in particular underlines the value of Bloemraad’s interview data vis-à-vis her other sources. Newcomers, she suggests in Chapter 4, judge governments on the degree to which they are open to “outsiders like themselves” (p.139). This evaluation takes place when immigrants encounter government officials (as illustrated in the previous chapter, p.114ff) but also when confronted with national beliefs about diversity. For instance, while Portuguese and Vietnamese Canadians interviewed identify with the standard ‘cultural mosaic’ mantra, their American counterparts had trouble with the stereotypical ‘melting pot’ idea (p.145). Identification with the “symbolic meaning of citizenship,” as Bloemraad puts it (p.139), is a powerful motivator that can encourage or discourage political involvement and interest.

Chapter 4 continues Bloemraad’s critique of the race-based American model of citizenship. The Black community, she notes, feels proprietary over certain government programs (p.154), making it hard for non-blacks, here Vietnamese [*42] Americans, to make a claim, while some Portuguese Americans, who are considered ‘white’ today, feel closely allied with Hispanic communities and would prefer a different designation (p.152). These examples underline the divisive nature of current government policies in the United States, according to Bloemraad.

Her detailed comparative analysis of Vietnamese and Portuguese community organizations in Boston and Toronto in Chapter 5 fleshes out a key point already introduced in earlier chapters. Government promotion of community organizations does not “crowd out civic participation” (p.162), as some critics allege, but increases organizational capacity and as a consequence the potential for political integration. In this chapter, Bloemraad also deals with the critics of state intervention. She notes that government intervention is a two-way street. It allows groups a number of ways of resisting becoming government-dependent (p.171). Bloemraad demonstrates through a range of examples in the chapter that government funding does not ‘muzzle’ community organizations (p.177ff) and indeed, that organizations can affect government policy by walking a fine line between lobbying and advocacy.

Perhaps the height of the political integration of an immigrant is his or her running for public office. Comparing the degree to which Portuguese and Vietnamese immigrants become leaders in their community and run for public office is therefore the focus of Bloemraad’s last substantive chapter. Developing what she calls an ‘advocacy framework’ (p.197), or a perspective that takes pride in one’s ethnic background is at the core to becoming a community leader. Pride in background and connection to their community is also more likely to lead to a successful run for public office, Bloemraad suggests, though most interviewees claimed they would vote for the ‘best candidate’ regardless of ethnicity (p.223). The chapter also emphasizes that the US system, though once praised for mobilizing immigrants, today impedes the rise of persons with immigrant newcomers to political office by “keeping power in the hands of party old-timers” (p.210).

Bloemraad’s book concludes with a broad outlook on the future of state-lead multiculturalism. Overall, she does not consider the recent rise in theoretical criticism and retreat from multiculturalism in Australia and the Netherlands, sufficient enough to conclude that the Canadian state-led type of multiculturalism is past its peak (p.233ff). Countries with large foreign-born populations in Europe with welfare state systems similar to Canada would be most likely candidates for the Canadian model, though the American approach may also be helpful to some due to its strong self-image as a nation of immigrants (p.244). Bloemraad views the future of immigrant integration in the United States post 9/11 in a much bleaker light. The US’s overwhelming emphasis on security is likely to drown out any recent upswings in naturalization (p.248ff). Yet Bloemraad also views the creation of the Department of Homeland Security as an opportunity for organizational and cultural change in favour of political integration, since naturalization and immigration is now [*43] more clearly separated from border control and internal enforcement (p.249).

Bloemraad’s book appeals to a number of audiences, aside from those interested in citizenship, integration and immigration. Scholars interested in increasing US voter turnout may find Bloemraad’s discussion of political mobilization of newcomers valuable, as would scholars working on race-relations in the United States. Scholars interested in the legal mobilization of immigrants and refugees are better served by turning to the work of Susan Coutin and others (Coutin 2000), as there is little discussion of the role of courts here. This book will also be of only limited interest to refugee scholars. Although the book discusses the history of the Vietnamese migration to North America, as well as refugee policy and government funding targeted at refugees, Bloemraad does not distinguish between refugees and economic migrants in her subsequent discussion on political incorporation. This may in part be due to a methodological difficulty (see p.69).

A rich book in my view raises a range of follow-up questions, and Bloemraad’s book is no exception. Although I had a number of difficulties with her methodology and at times wondered about the generalizibility of her findings, particularly in light of the crushing number of Mexican migrants in the United States, I will turn to some substantive points instead. There are a number of issues Bloemraad flags as outside of the scope of the book that should have been given more attention. For instance, she alludes to the importance of the welfare state (e.g., p.137), she hardly devotes any attention to this point, which emerges as even more central in her conclusions regarding the transferability of the Canadian model to European states.

Her discussion of the role of political institutions is also somewhat underdeveloped. I found that at times, it appears as if Bloemraad conflates institutions with government policy. This could have been rectified by extending her brief introductory reference to the role of institutions (p.9) or by adding a more substantive theoretical discussion to her concluding chapter, but this may be a preference of the publisher.

I also would have preferred to see a number of the larger questions and debates raised in her last chapter moved to the beginning of the book. Bloemraad dismisses the broader, theoretical literature on citizenship as ‘abstract discussions’ with an insufficient grounding in empirical research (pp.11-12), yet she returns to many of these abstract discussions in her conclusion. Why not let these discussions frame the analysis from the outset? In my view, this could have only strengthened the theoretical framework without detracting from her empirical work.

REFERENCES:

Bibler Coutin, Susan. LEGALIZING MOVES; SALVADORAN IMMIGRANTS’ STRUGGLE FOR U.S. RESIDENCY. Ann Arbor, Michigan: University of Michigan, 2000.

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© Copyright 2007 by the author, Dagmar Soennecken.

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OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT)

by Sanford Levinson. New York: Oxford University Press, 2006. 248pp. Hardback. $28.00. ISBN: 0195307518.

Reviewed by Robert Justin Lipkin, Widener University School of Law. Email: RJLipkin [at] aol.com.

pp.33-39

According to a popular conception of American politics, the United States Constitution is a perfect, or virtually perfect, charter. How often does one hear: “The genius of the Founders lies in ____”? Fill in the blanks with such constitutional virtues as “the system of checks and balances,” “splitting the atom of sovereignty,” “dividing powers thereby forestalling tyranny,” “protecting individual rights,” or a host of other virtues. Occasionally, someone mentions a possible defect such as the Electoral College, but for the most part, the conventional wisdom has it that we have inherited a wonderful charter of republican democracy, creating the longest living and oldest constitutional democracy in the history of politics. The founders bequeathed to us a foundational document that serves as an alluring beacon of democracy to fledgling republics throughout the world.

Then along comes iconoclast, Sanford Levinson, intent on blowing this popular story to smithereens. According to Levinson, the United States Constitution is filled with democratic defects, some of which represent disasters waiting to happen. Can the popular conception be so far wrong? Why is Levinson so determined to demoralize the rest of us? The answer to these questions, for Levinson, is a no-brainer. As he has conveyed before, Levinson sees American political reality replete with “constitutional stupidities” and “constitutional tragedies.”

Levinson has been a strident critic of the United States Constitution for several decades. Through his publications, lectures, and participation in symposia, and on such academic listservs as conlawprof and lawcourts, and blogs such as Balkinization, Levinson has persistently reminded us that the Constitution must earn its democratic bona fides, and to date it is not doing a good job. Now in his book, Levinson presents the full case against the Constitution. Levinson’s case sides with the Jeffersonian imperative which sees the Constitution as a work in progress to be modified or abandoned when desirable. Contrast this with the dominant Madisonian perspective, which regards the Constitution as virtually sacrosanct, to be altered only when absolutely necessary and then with extraordinary care.

Anyone familiar with Levinson’s work will recognize his careful, innovative, and lively scholarly method. Yet, his goal is not merely to add anot