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 another scholarly book – even if a very good book – to the shelves of the nation’s libraries. Rather Levinson’s “fondest hope” is to reach the general public, not seasoned constitutional lawyers (p.85). [*34] Levinson has set himself a gargantuan task. He sees himself and other critics of the Constitution as modern-day Paul Reveres. However, Levinson’s task is much more difficult than Paul Revere’s, since “Revere could call on already mobilized Minutemen to confront the British” (p.170). Levinson drives home the enormity of the problem by admonishing the critics that in order to stave off disaster, we need a movement “that at the present does not exist” (p.170). Paul Revere had the Minutemen; Levinson has only hope and a vision.

This movement, as Levinson’s critique is designed to show, is “that what most of us regard as our beloved Constitution is an abusive one in important respects. The first step is to recognize the abuse. The second is to do something about it” (p.172). The “argument in this book is that our unamended Constitution has deep defects that serve as unacceptable barriers to fulfilling the ‘broad purposes’ of our national project as set out in the Preamble” (p.176). The lion’s share of Levinson’s exposition is designed to help readers realize how abusive our Constitution is. In the final chapter Levinson disappointingly, but graciously, bids farewell to those who disagree with him over the issue of whether “the Constitution is seriously defective,” and asks those who share his concerns “[h]ow can we work together to begin fixing our Constitution?” (p.168).

In order to begin the critique, Levinson’s specific tactic is to persuade the reader to vote yes on a referendum calling for a second constitutional convention. In order to determine whether to take the call for a referendum seriously, Levinson asks the reader to consider a series of questions which roughly correspond to the chapters in the book.

Before exploring these questions, some preparation is required. Appreciating the credibility and force of Levinson’s argument requires a quick exercise in “constitutional psychoanalysis.” One must be ready to dispel a perfunctory veneration of the Constitution. For Levinson, “it is vitally important to engage in a national conversation about [the Constitution’s] adequacy rather than automatically to assume its fitness for our own times” (p.5). Here Levinson accurately diagnoses a vexatious obstacle to any call for substantial change. One might call it “the Burkean death-knell” afflicting even non-Burkean progressives. We are wedded to the status quo by subliminal ties that we do not, and some of us cannot, identify. We are buoyed by what many observers fail to recognize as a tautology, namely, that what exists, works at least to the extent that it allows the status quo to persist. Significant changes threaten us deeply. This is more than merely an unhealthy dose of risk-aversion or even the recognition of the real difficulties in reconstructing political orders. It is deeper, more primordial, and more dangerous. Despite the depth of this primordial force, it hardly follows that we should capitulate. Status quo worshipping, whatever the reason, is the enemy of both the better and the best even if at times it might risk winding up with institutions that are even more undemocratic than existing ones. Expressed as veneration, it is deeply [*35] antagonistic to the spirit of republican democracy which has as its defining characteristic deliberation (p.179). Indeed, a reflexive aversion to the risk of democratic failure is anathema to deliberative democracy. Deliberative democrats must take chances; it comes with the territory. So, Levinson seems to be saying, if one needs to venerate something, venerate the process of free, unforced deliberation among political equals. With this admonition about veneration in mind, let us turn to Levinson’s questions.

The first question is whether equal representation in the Senate “giving Wyoming the same number of votes as California, which has roughly seventy times the population” makes sense [p.6, emphasis added]. For Levinson, “there is imply no defense for this other than the fact that equal representation was thought necessary in 1787 to create a constitution that would be ratified by the small states” (p.51). While Levinson does not seem to equate democracy with majoritarianism, he is nonetheless irritated by the fact that “[m]ajority rule within the Senate may have only a random relationship to majority rule within the country as a whole” (p.53). Levinson insists that “the equal representation of stunningly unequal numbers of voters has consequences that go beyond giving offense to devotees of democratic theory. Among the most serious “is a steady redistribution of resources from large states to small states” (p.59). It is miraculous that a constitutional culture committed to capitalism is able to hide from the public this welfare to the smaller states. Not that such redistribution is necessarily wrong when smaller states are in need (p.60). What is miraculous is that our constitutional culture takes this redistribution for granted, and somehow hides its consequences, justified or not.

Levinson also rejects the notion of bicameralism. For the Founders bicameralism served the purpose of permitting members of the legislative branch to represent both the people and the states. For Levinson, bicameralism seems to be just another means of distorting the community’s will. What sort of democracy – through bicameralism – routinely produces a legislature majority that does not reflect an electoral majority?

The second and third questions concern the presidency, both the manner through which we choose presidents – the Electoral College – and whether the office itself is simply too powerful for a republican democracy. Levinson asks readers whether they are comfortable in a presidential system that “has regularly placed in the White House candidates who did not get a majority of the popular vote and, in at least two cases over the past fifty years, who did not even come in first in that vote?” Levinson severely criticizes the method for selecting the executive because it often precludes the victor from receiving an electoral mandate to govern. Levinson holds up “the first past the post” system for special scorn. And the final blow is that once in office the president “can spy on Americans without any congressional or judicial authorization” and she can “frustrate the will of a majority of both houses of Congress by vetoing [*36] legislation with which she disagrees” politically (p.7).

The fourth question pertains to the life tenure of federal judges, especially Justices of the Supreme Court. Levinson questions the efficacy of Justices sitting on the bench for decades and virtually choosing the general constitutional philosophy of their successors by timing their resignations judiciously. Surprisingly, Levinson limits his critique to life-tenure and does not raise any questions about an institutional practice where Justices are supposed to review and ratify (or not) political choices made by the elected branches.

The fifth and mother of all questions concerns the torturous process required to amend the Constitution. Certainly, a simple majoritarian process is inadequate because it renders statutory and constitutional changes indistinguishable. But a severe super-majoritarian process, while preserving the distinction between statutory and constitutional, change does not permit the status quo to be altered effectively. Perhaps, the core of the democratic defects of our Constitution lies in Article V. The Constitution has been formally altered a mere twenty-seven times. How likely is it that a political order spanning a continent and home to more than three hundred million people would need a mere twenty-seven revisions, some of which are rather minor? Likely or not, Article V ties the Constitution to whatever status quo emerges and does so with a vengeance.

If Article V offers little hope of significant change, how does Levinson’s call for a second constitutional convention hope to succeed? Here is the catch. Levinson follows Akhil Amar, in regarding Article V as “limits on the agents of the people rather than on the general citizenry itself” (p.177). Consequently, the second constitutional convention can simply declare that the new constitutional text will be law if and when it is ratified by “a national referendum where each voter would have equal power” (p.177). People, not states, would authorize the new Constitution. As the only authentic sovereign, the people may go outside canonical language as it did in the first constitutional convention and in the ratification of the Fourteenth Amendment.

Of course, there are significant obstacles to carrying through Levinson’s project. Conducting the convention outside the confines of Article V is just one of them. Let me state some major problems with Levinson’s project and some quibbles. The quibbles first: I think most readers – especially lay readers the audience Levinson targets – will be surprised to learn that Richard Nixon received a plurality of the popular vote in the 1960 election. Some lay readers – looking for a reason to discredit Levinson anyway – might turn away and read no more. Levinson cites Professor George Edwards’ WHY THE ELECTORAL COLLEGE IS BAD FOR AMERICA, as proof that Kennedy lost the popular vote. Maybe so. However, Levinson should alert the reader that he is not making an uncontroversial point. Many observers believe that the 1960 election ended with Kennedy receiving 34,220,984 (49.72%) and Nixon receiving 34,108,157 [*37] (49.55%). Although, controversial, this is, at least, the conventional story. Accordingly, Kennedy should not be placed in the same category as John Quincy Adams, Rutherford B. Hayes, Benjamin Harrison, and George W. Bush. Of course, some contemporary observers reject this conventional story. And perhaps, upon reflection, we, as a nation, should reconsider it. But until that time, Levinson should have made it clear that his view departs from the conventional story, especially for the sake of his target audience.

Another quibble is that Levinson explicitly intends to write a book for the public, a noble undertaking to be sure. However, in doing so, he does not delve into the issues as comprehensively as scholars might desire. Of course, this is a quibble with Levinson’s choice of audience not his scholarly talents, which are first-rate. Ironically then, I worry that the book may require a greater familiarity with constitutional law and theory than even intelligent members of the public are likely to possess. If so, the book might fail to satisfy scholars completely, while being too difficult for the public. Hopefully, this worry will prove unwarranted.

Although not a quibble as much as a curiosity, Levinson might have advanced his cause by discussing or at least mentioning Richard Labunski’s THE SECOND CONSTITUTIONAL CONVENTION: HOW THE AMERICAN PEOPLE CAN TAKE BACK THEIR GOVERNMENT (2000). Labunski shares some of Levinson’s concerns and a brief contrast might have been illuminating. Specifically Labunski discusses Amar’s proposal for going outside of Article V and takes a position diametrically opposed to Levinson’s in this matter.

One major objection is that Levinson never states or even refers to his conception of democracy. Is it majoritarian, representative, republican or some other conception? Criticizing the Constitution for democratic failures requires explaining just what “democracy” means. Further, Levinson refers only minimally to the likely fate of rights in the next constitutional convention. Greater guarantees of their security are required to quell the fears of rights-based democrats.

Another formidable objection is that no democrat, Levinson included, can expect the convention to create all the changes he believes fundamental. Just how many changes are reasonable to expect is uncertain. Half? One quarter? The problem is that given the improbability of total reformation of our constitutional system, the new features might not sit well with the old or with one another. There is no doubt this is a distinct possibility. However, in Levinson’s defense, this is a chance a democrat takes every time there is a call for constitutional or statutory change. Unless it is virtually certain that we will worsen the situation, this sort of knee-jerk risk-aversion seems incompatible with deliberative democracy.

Let us explore this objection a little further. The second constitutional convention might backfire even from a republican democratic perspective. There are at least three possibilities here. [*38] The first occurs when the convention is hijacked by undemocratic forces and somehow through demagoguery, coercion, or intimidation ram undemocratic constitutional provisions through the convention. This would be bad indeed. But it is extremely unlikely at least as far as we can now determine. Another more likely possibility is that the convention, in good faith, will create undemocratic elements erroneously, through lack of sufficient public attention and participation. This is certainly possible, but there may be safeguards such as publicity, serious deliberation, public accessibility which will minimize the chances of this occurring. The third possibility is that changes will occur in good faith, but they will follow from a contested conception of democracy. This last possibility is probably the most likely; indeed, it is almost certain to occur. But democrats must be prepared to lose the battle for defining the terms of their constitutional culture to other democrats committed to a different, but not unreasonable, conception of republican democracy. If you can’t stand the heat of such essentially contested concepts as democracy and its cognates, choose another theory of political organization.

A more serious concern is that Levinson fails to specify, even if only tentatively, just what sorts of replacement institutions for the Senate, presidency, and so forth are appropriate. Of course, Levinson might prefer to wait for the deliberative process engaged in by the new convention. Yet, it might have been helpful had he specified roughly what some of the solutions might be. Should we draw only the conclusion that a politically motivated presidential veto must go? Or that the Constitution should not require equal representation in the Senate? How will these institutions appear after Levinsonian reconstruction?

Finally, despite Levinson’s reconstruction of permissible ways of amending the Constitution, he does not seem to consider seriously more revolutionary options. For example, former Senator Mike Gavel heads a movement, Philadelphia II, designed to transform the United States from a representative to a direct democracy. Levinson has not committed himself to direct democracy, but the method Gavel proposes of using the Internet for Americans to vote on what he calls “the Democracy Initiative” might have been explored further by Levinson. Nor does Levinson explain why more traditional forms of revolution such as demonstrations and civil disobedience are less attractive than a second constitutional convention. Although, he might reply that these alternatives are in no way inconsistent with his overarching goal of reaching a new constitutional convention.

In the end, these objections hardly derail Levinson’s project. Rather, they are issues on a to-do list for the conversation Levinson initiated. Levinson’s book deserves serious consideration by everyone concerned with the democratic legitimacy of American constitutional government. It is critical to realize, however, that those who share his worries owe him something more. If Levinson is right, or even close to being right, then just what should any [*39] self-respecting liberal or progressive do to remedy the democratic defects arising from the Constitution’s structure. This challenge should be answered by anyone close to agreeing with Levinson’s critique but skeptical of his call for a second constitutional convention. The problems he illuminates will not miraculously go away. They will persist, potentially causing havoc even when we cannot identify them as the precise causes of the havoc. If Levinson’s idea of a movement is not desirable, what sort of movement is? If no movement is the right way to proceed, what way is? If now is not the time for such action, when will it be time? Levinson’s dedication, passion, and his ability to succinctly explain his condemnation of our Constitution’s democratic defects, in my estimation, require an answer. Levinson can be satisfied, whether or not he will be, in the knowledge that he at least chose to light a candle of democratic hope rather than merely curse the darkness of the status quo.

This book should be used in any course taking the democratic defects of American constitutionalism seriously or any course wanting to expose students to the problems Levinson identifies. It should prove to be an extraordinarily effective text in a law school seminar with students preparing papers each responding to the central points in Levinson’s critique. In the final analysis, no scholar or citizen concerned with American constitutionalism or constitutionalism generally can afford to avoid confronting the arguments in this book, or if convinced by these arguments, to take action to regain the sovereignty of We the People, the only authentic fount of sovereignty in a republican democracy. The only other alternative is democratic despair.

REFERENCES:
Edwards, George, III. 2004. WHY THE ELECTORAL COLLEGE IS BAD FOR AMERICA. New Haven, CT: Yale University Press.

Eskridge, William N. Jr., and Sanford V. Levinson (eds). 1998. CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES. New York: New York University Press.

Labunski, Richard. 2000. THE SECOND CONSTITUTIONAL CONVENTION: HOW THE AMERICAN PEOPLE CAN TAKE BACK THEIR GOVERNMENT. Versailles, KY: Marley and Beck Press.

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© Copyright 2007 by the author, Robert Justin Lipkin.

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CORPORATE BODIES AND GUILTY MINDS: THE FAILURE OF CORPORATE CRIMINAL LIABILITY

by William S. Laufer. University of Chicago Press, 2006. 216pp. Cloth $40.00/£25.50. ISBN: 0226470407.

Reviewed by Benedict Sheehy, School of Law, University of Newcastle, NSW. Email: Benedict.Sheehy [at] newcastle.edu.au.

pp.29-32

William S. Laufer’s CORPORATE BODIES AND GUILTY MINDS is a challenging, thoughtful, insightful and well researched examination of an controversial but important topic – the regulation of corporate activity by the criminal law. His basic thesis is that the control of corporations has been unsuccessful historically and that reforms imposed for the purposes of corporate control will continue to be unsuccessful without corporate criminal law. He makes his case convincingly, with identification of issues and corporate responses, examples of continual failure of corporations to seriously consider the interests to larger society despite legal sanctions, analysis of the case law, and review of developments in corporate criminal law.

The book is seven chapters long and divided into two parts. The first part, entitled, “The Law’s Ambivalence,” sets background remarkably well for the discussion which follows. In the first chapter Laufer divides the development of corporate criminal law into seven phases. His demarcations, as any such historical divisions, are not uncontroversial or absolute; however, this does not detract from the helpful focus the division creates in drawing attention to the issues – social, economic, political and legal – driving the development. His broad brush strokes and well chosen, well explained examples provide a clear portrait of the development of corporate criminal law. This chapter is a noteworthy contribution to the scholarship through its arrangement, analysis of factual material, synthesis of business, and social issues, and identification and classification of legal issues pertaining to the topic of corporate criminal law.

The second chapter is also noteworthy particularly for corporate lawyers and corporate law scholars in that it returns the corporate personality debate back to the centre of legal and scholarly discussion. In doing so, Laufer challenges accepted wisdom of the nexus of contracts/law and economics model of the corporation. He identifies clearly why the issue of personhood cannot be skipped over in silence – and how and why it has been.

Laufer writes:
That corporations are person’s at the law’s convenience is accepted uncritically. Legislators and courts seem to struggle with extending the idea of personhood to matters of liability and blame nevertheless watch as it is incorporated without reflection in both prosecutorial and sentencing guidelines. This dichotomy makes the substantive criminal law look both strange and weak: strange because prosecutors and judges sidestep the substantive law, still grounded in principles of vicarious liability, in favour of ad hoc standards of corporate citizenship, corporate due [*30] diligence, and good corporate governance—much of it cast in terms of postoffense behaviour; weak because the substantive law, in the context of sentencing law, is seemingly unable to conceive of an organization in organizational terms. (p.49)

Laufer here points out the conundrum that underlies all efforts to develop substantive corporate criminal law. Without a sense of corporate personhood, there is no corporate liability—only misbehaving individuals. As he demonstrates, this approach is insufficient to address the issues corporate wrong-doing raises.

The chapter continues with Laufer’s helpful review of three traditional approaches to corporate fault. He identifies and discusses “proactive corporate fault,” “reactive corporate fault”, and “corporate ethos,” as approaches and challenges to corporate criminal law development and practitioners, and in particular, prosecutors. His analysis of the Holder Memo (a prosecutorial directive) is most informative. However, it marks a shift in the discussion of the work. From this point forward, the book seems to become less focused. It moves loosely between discussion of prosecutorial issues, to management issues, and technicalities of criminal law.

As Laufer observes: “there are no theories of corporate criminal liability . . . . Capturing the essence of what makes a corporate crime an organizational crime rather than a crime committed in an organization by an agent” (p.70). This lack of appropriate theory may be the cause of the weakness just discussed. Despite Laufer’s efforts to impose some order through the use of traditional criminal law doctrines to establish fault, the chapter left this reader confused. The nature of fault is a highly technical matter in criminal law, and it seems difficult to transpose to the corporation. Still, the failure to do so provides a significant barrier to understanding the finer points of Laufer’s suggestions. It is unfortunate, because those sections in which his argument is clearer lead one to believe his contribution here could be significant.

Laufer’s next chapter deals with the constructing fault. This chapter delves into the criminal law with some detail. The application of the elements of criminal law to corporate bodies left this reader confused. The criminal law seems poorly designed for the corporation, and despite Laufer’s attempts to clarify the issue through constructive fault, he fails to provide a clear convincing framework on how it could be done. This chapter deals with a wide range of concerns not adequately addressed in either criminal law or corporate law. Laufer is not to be faulted for this, as his attempt to bring some resolution to the situation is made in an impossibly short format. The problems of corporate law identified in the chapter on corporate personhood do not allow the resolution to be put forward in a chapter or two. Still, a sharper outline of the discussion and more introductory material and summaries would have been helpful.

His chapters “Playing Games” and “Shifting Blame” are both well thought out, well written, and sharply argued. In Playing Games, Laufer sets out the [*31] carefully crafted strategic responses of corporate counsel and strategists. He identifies the games as “compliance/risk management,” “corporate governance,” and “corporate social responsibility.” Importantly he notes the lack of actual connection between failed compliance and failed corporate governance, as well as the conflict faced by the controllers of the corporation where profits and legal obligations often collide. He observes: “corporate deviance is often tolerated if not tacitly encouraged, by an implicit agenda of top management—where compliance initiatives originate” (p.124).

These problems are not adequately addressed, argues Laufer, by the prosecutorial guidelines, and regulatory initiatives. His use of the work of Fisse and Braithwaite in this regard is excellent. His application of theory to the situation at hand sheds considerable light.

The chapter dealing with Shifting Blame is a combination of commonsense and rigorous analysis; however, it tends to lose focus in the discussion of prosecutorial discretion. As well, although one can see the point of discussion on that discretion, it does take away from the main issue addressed—that of shifting blame within the corporation.

The penultimate chapter, “Crafting a Soul,” considers the issues of ethics, Corporate Social Responsibility, and the washing of corporate images. This chapter delves into the ambiguity intentionally generated by corporations to make it difficult to evaluate their activities vis-à-vis their claims. Laufer opens the chapter with a discussion of Altira, the parent company of Phillip Morris, and notes how its anti-tobacco campaigns have spurred teenagers to smoke even more. Laufer’s penetrating analysis is disturbing in that it lays bare the connivance of the consulting industry designed to ensure voluntary compliance, business ethics and self-regulation, are meaningful in perpetrating a fraud on the public. It is an important and necessary contribution to any discussion on the topic.

As seems de rigeur for publishing houses these days, the final chapter is supposed to be an upbeat, optimistic look at the future. Laufer duly entitles the chapter “The Unmaking of the Pessimist’s Account.” The chapter fails to fulfill its titled task. It is a mere eighteen pages compared to the approximately thirty pages for each of the preceding chapters. Laufer finds that the only criminal law’s “big gun” will solve the problems associated with corporate wrong-doing, and that the desire to craft and utilize the big gun is lacking. He notes that to operate effectively, it would be necessary for such a gun to be used consistently and widely. He identifies the real problem as: “What was missing then and now is the motivation. . . the consensus to accomplish necessary reforms, a strong constituency supporting change; and the requisite priority accorded to the most significant and powerful social control of corporations: the criminal law” (p.199).

One main criticism of the work is its focus on prosecution, which is likely the reasonable and expected result of the [*32] lack of substantive corporate criminal law, and which fails to move the discussion of corporate criminal law forward in a meaningful way. Exploring in greater depth potential reforms to the Model Penal Code which could address the issues of concern would also strengthen the work. While his analysis of the MPC is most helpful in terms of dealing with fault, no significant exploration of potential reforms to the MPC is made following up his suggestion of understanding organizations as criminals. Laufer’s failure to re-conceptualize the matter of corporate criminal law, it would seem at least from his argument, arises from problems of corporate personhood he identifies early in the work. But, his failure to re-conceptualize seems to be an important consequence of the inadequate design of criminal law. Hence, it would be helpful if Laufer were to concentrate some further effort in this direction.

Although Laufer at times appears to hint at new directions – for example, he begins with examination of the corporation’s size, activities, and record – he abandons them to return to the more traditional, but less satisfactory approaches identified. His failure to pursue the creative directions is most unfortunate, as the depth and breadth of his analysis and critique lead one to believe his efforts in new directions would be most enlightening.

Finally, the work requires the reader to have some technical expertise in two areas of law normally considered quite diverse—criminal law and corporate law. The book would have been strengthened by providing a bit of an introduction to the areas to make it more accessible to those whose specialization is in the other area. It leaves one at times feeling on the outside of the conversation, which is unfortunate because of the importance of the conversation and the level of insight Laufer has mastered and to which he could certainly introduce the reader.

All in all, this is an important, thoughtful, well-researched book. At times it leaves the reader a bit lost, but there is much there for those willing to make the effort to work through the knots.

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© Copyright 2007 by the author, Benedict Sheehy.

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JUSTICE IN MISSISSIPPI: THE MURDER TRIAL OF EDGAR RAY KILLEN

by Howard Ball. University Press of Kansas, 2006. 272pp. Hardcover. $29.95. ISBN: 0700614613.

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

pp.25-28

The story of the deaths of Michael Schwerner, James Chaney, and Andrew Goodman were well known before the summer of 2005 when, after forty-one years, a Neshoba County jury found Edgar Ray Killen guilty on three counts of manslaughter in their deaths. What happened in between the night of their untimely murders and Killen’s conviction is the subject of Howard Ball’s engaging if somewhat repetitive new book, JUSTICE IN MISSISSIPPI. Ball, a professor of law at Vermont Law School, taught at Mississippi State University in the 1970s and 1980s. It is clear from his recitation of the “Preacher” Killen story that Ball is intimately familiar with the state as well as the players involved. In fact, this is the second time he has written about it – and JUSTICE IN MISSISSIPPI should be seen as an important follow up to his MURDER IN MISSISSIPPI.

Ball’s story begins long ago in what many might describe as a land foreign to the Mississippi in which the 80 year-old Killen was convicted on June 21st, 2005. Three civil rights workers –Schwerner and Goodman white, Chaney black – were brutally murdered exactly forty-one years earlier in the dark quiet of a dirty back road in Neshoba County, Mississippi. They came against the backdrop of an extraordinary, and extraordinarily turbulent, period in American history. Within that year alone stretching back to the summer of 1963, Martin Luther King had given his “I Have a Dream” speech at the March on Washington, John F. Kennedy had been assassinated, and Lyndon Johnson was about to sign the most important piece of civil rights legislation in the nation’s history outside of the Fourteenth Amendment. The country was already roiling, and the senseless murders of these three brave young men – who had descended upon Neshoba County simply to try to register blacks to vote – only exacerbated the conflict over civil rights in the heart of the Old Confederacy.

Their story became the rallying cry for the civil rights movement, and in 1967, after three years of investigation by the FBI, the federal government indicted eighteen Mississippi Klansmen for conspiracy to commit murder. Seven were convicted. But not surprisingly, no one was ever brought to trial at the state level for the deaths of Schwerner, Chaney and Goodman. National attention waned; the civil rights movement ran out of steam, and soon the deaths of the three civil rights workers were put in the “cold case” file.

Interest was revived in 1988 when Hollywood got in on the act and released the blockbuster film “Mississippi Burning.” Despite its glaring inaccuracies and glorifying interpretation of actual events [*26] (particularly of the FBI agents played by Willem Dafoe and Gene Hackman), the film had educated a new generation of Americans (not to say Mississipians) who had never heard of the case of the three civil rights workers. Momentum to reopen the case picked up in the 1990s as a new generation of Mississippians came of age and sought to prove to the world that the “New South” had in fact come to Neshoba County. After several more years of agitation and false starts, Mississippi Attorney General Jim Hood and Neshoba County District Attorney Mark Duncan teamed up to return a successful indictment for murder of Edgar Ray Killen in the Neshoba County Courthouse in January 2005. On June 21st, 2005, exactly forty-one years after the heinous murders, Killen was convicted of manslaughter. Alas, the state of Mississippi had finally held someone accountable for the deaths of Schwerner, Chaney, and Goodman.

To be sure, the trial of Killen captivated the nation in the summer of 2005 as national and international media descended upon and overwhelmed tiny Philadelphia, Mississippi for the weeklong court proceedings. In other words, the trial became a media spectacle saved for only those rare occasions when the likes of O.J. Simpson or Michael Jackson have their day in court. By June 21st, 2005, few in the United States did not know who Edgar Ray Killen was or who the three slain civil rights workers were. And the sight of the former Klansman being wheeled into court with an unrepentant smile on his face brought the nation back to a time when southern whites brutalized blacks with impunity. In this sense, the specter of the Killen trial was much more significant than Simpson’s or Jackson’s – if not as dramatic.

Ball’s narrative unfolds easily and without effort, in a way that any good investigative reporter would tell the story. In this sense, JUSTICE IN MISSISSIPPI is an extremely easy read for any audience – no doubt exactly the way Ball and the editors at the University Press of Kansas wanted it. His methodology is mainly the interview: Ball had access to all the major players over the last forty years who were still alive (save for Killen himself) and who played major roles in moving the improbable indictment forward. He pieces together the story with precision and ease, and sets the table for understanding the actual court case when he gets to it in the penultimate chapter. There is very little commentary in Ball’s prose, and even less analysis – which, given the media hype surrounding the trial, can only be seen as a good thing.

And yet, there is something oddly anti-climactic to Ball’s book which might not altogether be his fault. In fact, the same needs to be said about the Killen trial itself, and JUSTICE IN MISSISSIPPI only mirrors that reality. After all, here was one of the most brutal slayings by white supremacist thugs during the civil rights era – a case which pitted not only white against black, but also Northern “agitators” against Southern “racists,” and the federal government against the state government of Mississippi. Both whites and blacks were murdered – a fact which no doubt raised the profile of the slayings both at the time and in the [*27] ensuing years, and one which Ball does not really address adequately. The case, in other words, was a microcosm of the Jim Crow South, the messy reality of the civil rights movement and southern resistance to it, and our clumsy attempt as a nation to move beyond our own system of apartheid.

But when the time came for the trial to begin, there was the frail and handicapped Killen who was a pathetic shell of the man painted as the Mastermind of the murders and as the face of evil incarnate. During the trial he had to be rushed to the hospital because of high blood pressure and court proceedings were suspended until he was released the next morning. On the other side, there was the team for the prosecution, which produced no new surprise witnesses with no new shocking testimony from turncoat aging ex-Klansmen who had decided to get right with their Maker by confessing. Indeed, the prosecution could only prove their case by having actors read the words of dead witnesses that had testified under oath at the 1967 federal conspiracy trial of the eighteen Klansmen. The defense tried to block the testimony, arguing there was simply no way to cross-examine a dead man. Prohibiting the testimony through reenactment no doubt would have sunk the prosecution’s entire case – but the judge allowed it. And so, Killen was done in by a bunch of dead Klansmen making trouble from beyond the grave.

The trial lasted barely a week; the jury had deliberated for a little less than five hours in returning their conviction on three counts of manslaughter. After forty-one years, the trial of Edgar Ray Killen was over, seemingly just like that. And while Ball seeks to provide some final context on truth, reconciliation and change in Mississippi in the wake of the case in his closing chapter, the book ends in much the same way the trial did – seemingly just like that.

If there was any high drama in the case, and a piece to this story which could have been explored further, it perhaps came when Judge Marcus Gordon turned his attention to the duty of sentencing Killen. On the day of sentencing, Killen was wheeled into a packed courtroom in his yellow Neshoba County jump suit. As Ball tells it, Gordon asked the bailiff to wheel Killen in front of the bench. He then stated:

I have to pass on a sentence to a person who is 80 years old. A person who has suffered serious injury. There are those of you in this courtroom who would say a sentence of 10 years would be a life sentence. . . I take no pleasure at all in pronouncing sentence. The three gentlemen who were killed, each life has value, and each life is equally as valuable as the other life, and I have taken that into consideration. That there are three lives involved in this case, and the three lives should absolutely be respected and treated equally (p.176).

Gordon then unceremoniously meted out the maximum sentence to Killen for each count of manslaughter – 20 years each for the killings of Schwerner, Chaney and Goodman, for a total of 60 years.

Ball lingers over the sentencing for several pages, but does it in a way that is consistent with the rest of the book: rather than offer his own analysis, Ball [*28] quotes those involved in the case and the major media outlets across the country. In other words, he lets other do the talking – perhaps both the greatest strength and the greatest weakness to JUSTICE IN MISSISSIPPI. It is at times like this in the story that one craves the sophisticated analysis of a political scientist and professor of law who is intimately familiar with his subject matter like Ball is.

William Faulkner said once that “the past is not dead. It is not even past.” JUSTICE IN MISSISSIPPI should remind us that the sordid history of race discrimination in the United States is not necessarily dead, nor even in the past. Ball wisely quotes Rita Schwerner Bender, widow of Michael Schwerner and one of the true heroes of this tragedy, in the closing chapter: “I hope this case is just the beginning and not an end. I hope this conviction helps to shed light on what has happened” (p.195). This is exactly what Ball’s work has done, and in this sense it is a significant contribution. And yet, a danger lies in complacency – in the thought that, as the old guard Klansmen die off and the rest like Killen are sent to prison, we have won the battle over racial bigotry because “that was all in the past . . .” Recalling the TRC in South Africa led by Desmond Tutu after the fall of the apartheid government, Ball closes with a discussion of his own on truth and reconciliation in the New Mississippi and the New South. We must never forget that reconciliation is not the same as forgetting – the latter of which was the way Mississippi had dealt with the deaths of Schwerner, Chaney, and Goodman for more than a quarter century. Reconciliation is something entirely different . . . it is an ongoing process.

REFERENCE:
Ball, Howard. 2004. MURDER IN MISSISSIPPI: UNITED STATES v. PRICE AND THE STRUGGLE FOR CIVIL RIGHTS. Lawrence: University Press of Kansas.

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© Copyright 2007 by the author, Christopher Malone.

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BRUTE FORCE; PEOPLE, PROPERTY, OR PETS?; ANIMAL RIGHTS

BRUTE FORCE: ANIMAL POLICE AND THE CHALLENGE OF CRUELTY, by Arnold Arluke. West Lafayette, IN: Purdue University Press, 2004. 170pp. Cloth $24.95. ISBN: 1557533504.

PEOPLE, PROPERTY, OR PETS? by Marc D. Hauser, Fiery Cushman, and Matthew Kamen, (eds). West Lafayette, IN: Purdue University Press, 2006. 230 pp. Cloth. $24.95. ISBN: 1557533806.

ANIMAL RIGHTS: CURRENT DEBATES AND NEW DIRECTIONS, by Cass R. Sunstein and Martha C. Nussbaum (eds). New York: Oxford University Press, 2004. 338 pp. Cloth. $29.95. ISBN: 0195152174. Paper (2005). $16.95/£9.99. ISBN: 0195305108.

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

pp.15-24

In the decades since Peter Singer (1975) published a call for “animal liberation,” an extensive literature about the rights of animals has appeared (see Kistler 2000, 2004). Also, in state and local political contexts proposed legislation to define egregious animal cruelty as a felony, enforce dog breed bans, and regulate biomedical research employing animals has generated considerable political controversy. Much of the scholarship and political debate has focused on the status and humane treatment of companion animals or pets, with commercial animal husbandry and the management of wildlife and fisheries receiving less attention from political scientists and legal scholars. Additionally, almost all of the scholarly discussion of animals has exhibited a prescriptive bent.

PEOPLE, PROPERTY, OR PETS? is among a series of books published by Purdue University Press that address the meaning, status, and welfare of animals in contemporary America. It is a book that will guide the uninitiated reader interested in animal law and rights. ANIMAL RIGHTS contains chapters that provide more rigorously developed scholarly perspectives about the normative and legal dimensions of the status of animals. In contrast, BRUTE FORCE attends to the bureaucratic enforcement of animal protection laws

The volume edited by Marc Hauser, Fiery Cushman, and Matthew Kamen offers competing prescriptive assessments of the status of animals in sections entitled “Philosophy,” “Law,” Cognitive Science,” “Biomedical Research,” and “Animal Care.” This arrangement of essays, Hauser states in his preface, starts from the proposition “that questions concerning the legal status of animals start from questions concerning our obligations to other species” (p.xi). Although the essays in each section draw on the literature of diverse disciplines to define human obligations toward animals, each author reveals a concern about the legal [*16] constitution of animals – especially the question of whether animals are chattel property or whether they possess some modicum of rights. To examine these issues, in each section there are three or four short essays offering competing perspectives about human obligations to animals. Written by students in Hauser’s seminar in Evolutionary Ethics at Harvard University, they are followed by commentaries by academics from law (Gary Franchione), animal science (Temple Grandin), cognitive science (Lewis Petrinovich), and philosophy (Bernard Rollin).

These essays vary in quality, but overall they are very readable and provide an excellent overview of the many perspectives held about animals in the United States. Each section includes at least two pro animal essays, at least one dissenting essay, and a commentary. In section one, Ariel Simon, Derek Hass and Catie Louder provide the pro argument. All argue for a change in the moral status of animals. Hass argues for personhood, Simon presents a case for shades of gray rather than only categories of person or property, and Louder bases his argument on the consequences and lack of moral agency. In contrast, Neha Jadeja contends that animals must be property because we could not eat them or use them in research if they were given “personhood.” He further argues that animals do not have rights because they are not fully autonomous, but he offers little evidence for this claim. Bernard Rollin concludes this section by pointing out that animals are self-aware and feel pain, which are sufficient criteria for raising their moral status. He expects that increasing concern over animals will lead to improved laws, but argues that personhood is neither necessary nor likely.

Section two takes a legal perspective and questions whether animals could or should be granted legal rights. Alex Pollen and David Hambrick argue in their essays that animals should be given at least some rights. Pollen points out that possession of rights does not depend upon cognitive ability and that any criterion for possessing rights that we use for humans would be shared by at least some animals. This implies that animals share sufficient characteristics with humans to have a similar set of rights. Hambrick sees legal rights as procedural tools which are the only way in which animals can be protected and therefore argues that these rights must be extended to animals. As with the other sections, there is a dissenting essay. Ian Tomb argues against rights for animals because they do not live in moral communities. Moral communities provide the basis for rights and extend these rights to their members, he argues. Communities can ban any behavior they regard as immoral, so animals can be protected if humans in their moral communities want to extend that protection. Helene Landemore, in this section, quite correctly points out the problems incurred by giving animals rights or even declaring them persons. She notes that regardless of legal changes, humans will continue to make decisions for and about animals. She concludes by arguing for passive rights for animals and moral obligations imposed upon humans. Gary Francione concludes this section by arguing that exploitation of animals is not morally justifiable because they are “persons” rather than resources. He uses the term “person” to indicate creatures with [*17] morally significant interests, and further argues that humans have created false conflicts between human and animal interests to justify our actions. His fairly radical conclusion is that if we take animal interests seriously we have to, as he says, “put our vegetables where our mouths are and start acting on the moral principles we profess to accept.”

Authors in section three base their arguments on cognitive science and ask whether animals have cognitive capacities. Two students provide arguments for cognitive abilities, one dissents, and an academic scholar provides the summary essay. Fiery Cushman and Robbie Silverman offer the pro cognitive ability arguments. Cushman contends that animals feel pain and experience empathy so have a moral sense. However only primates can sense moral rights and wrongs and so are the only animals deserving rights. Silverman writes that all animals are self-aware and have desires and goals. This argument suggests that all animals that experience consciousness should have rights. The dissenter, Justin Junge contends that animals do not have abstract thought, therefore cannot suffer. Suffering to Junge requires memories of pain suffered, an awareness that can be incurred, and a desire to avoid pain. Without this capacity to suffer, animals do not need to be protected. Lewis Petrinovich takes an evolutionary perspective. He argues that it is logical to protect the interests of humans over other species, but humans who accept pets also accept moral responsibilities toward those pets. This argument does not require any cognitive capabilities on the part of animals but juxtaposes cognitive ability with moral sense in humans.

Section four takes a biomedical perspective. Frances Chen argues that experiments on animals are morally repugnant, provide certain pain for only potential long-term benefit, often involve flawed research designs, and are used when alternatives are available. Experiments are morally wrong and unnecessary. Jonathan Flombaum contends that we cannot have property rights in genetic structure. We all own our own genetic structure and we believe all organisms own their own genetic structure in that same sense. This does not mean we cannot kill and/or eat animals but that we do not have the right to affect genetic structure. Lisa Guttentag provides one of the dissenting essays in this section, contending that animals lack consciousness of pain and empathy so cannot suffer. She argues that we need animal research and thus contends research is humane because the animals do not suffer. Virginia Vance agrees that animals do not suffer in the way humans do and are not autonomous, so there is no moral problem with using them in experiments. Vance further argues that animals benefit from research and suggests a cost benefit analysis should be used to ensure that research does provide sufficient benefit. Andrew Rowan summarizes the arguments and contends that changing the status of animals would not solve the problem. There is no funding for research to measure stress and distress in animals; there is no US Department of Agriculture (USDA) guide for measuring stress or pain; and it is impossible to evaluate these costs to animals used in research. Rowan concludes that we could certainly reduce our use of animals, but there are no conclusive data to indicate that we must. [*18] This section is perhaps the most troubling, because the arguments for or against using animals in research appear to provide factual arguments: either animals feel pain or they do not. As Rowan notes, there is no evidence to fully support either argument. None of the writers use veterinary evidence, which increasingly suggests that animals feel pain in levels comparable to humans.

The essays in section five are based on personal experiences of farmers and veterinarians and are more pragmatic than previous sections. Matt Kamen expresses concern over the economic impacts of changing the status of animals from property to something else. Animals are food, he argues. Human morality may require that we ban practices that are particularly cruel but we should look as ourselves as predators and animals as prey – a status that does not require property designation. Rianna Stefanakis and Allen Yancy offer veterinary perspectives. Stefanakis contends that animals feel pain comparable to humans and thus should have rights commensurable with their feelings. She advocates guardianship to protect animal rights. Yancy pays little attention to the question of pain and argues against personhood for animals and in favor of biomedical research, which he claims is needed. If animals were considered persons, Yancy contends, there could be legal repercussions for veterinarians. He does not oppose extending third party standing to sue on behalf of animals but says that it cannot include harm such as mice being fed live to snakes. Temple Grandin begins her summary by pointing out that animals do not understand the concept of property, so they are not abused by being considered property. However, Grandin argues that animals do experience fear and pain so need protection. We need to change human attitudes about animals, and as Grandin notes, if changing rhetoric also changes human attitudes and behaviors, we should consider it.

The conclusion of this text is that the challenge for lawmakers is to bring policy into accord with public sentiments. Whether granting personhood or rights to animals will improve their lot is not clear from these essays. A few of the writers appear unconcerned about the welfare of animals, but most agree that animals feel pain, experience fear, and deserve some protection. Public sentiment is in favor of improved animal welfare legislation, but public sentiment also supports eating animals, using them in biomedical research, and using them for entertainment. The challenge really seems to be to balance human and animal interests while retaining public support.

Cass Sunstein and Martha Nussbaum’s ANIMAL RIGHTS also is a collection of essays. The authors include academic animal rights scholars and distinguished law, philosophy, and animal behavior professors. Pitched toward a more academic audience, the book is divided into two sections. Part I covers the current debates, while Part II focuses on new directions.

In Part I, chapters by Gary Francione and Richard Epstein offer contrasting views on the issue of animals as property. Francione refers to our moral schizophrenia in supporting animal welfare laws while allowing the raising [*19] and slaughter of millions of animals every year under horrendous conditions. He contends that their status as property allows such treatment and the economic interests and even human pleasure will always win out over the interests of non-persons. Epstein counters that animals are indeed property. They are assets that have allowed human progress. He also argues that many animals are better off due to human ownership. Although we could treat animals better than we do, it can only be under the aegis of protection of a lesser species rather than on the basis of parity with humans. Epstein concludes that we should provide greater protection to social animals than to non-social animals because social animals suffer from the loss of interaction with others of their own and other species.

Richard Posner agrees with Epstein that freedom would not benefit most animals, and also agrees with the concept of separating animals into categories that determine the degree to which they receive protection. Steven Wise suggests that the level of autonomy, using a precautionary principle because we do not really know the degree to which animals could be autonomous, should be used to place animals into categories that offer different levels of rights. Lesley Rogers and Gisela Kaplan write in the same vein, agreeing that science does not give us sufficient information to draw the line accurately. Rather than categories of rights, they argue that animals could be placed in the same category as minor children, requiring owners to protect and provide care for their charges. Peter Singer agrees that certain categories of animals should have rights, but sentience, which gives animals interests, should be the dividing line between those animals with rights and those without. Singer includes all animals in his discussion.

Cora Diamond, on the other hand, feels that we really only want to give rights to animals we care about. It is the personal relationship to an animal or species that provides the impetus for rights discussions. She argues that our feelings are important, and they should be the guide. James Rachels seems to agree, contending that general consensus should be our best guide to legislation.

In this section, authors discussed autonomy, ability to feel pain, sentience, and the human/animal relationship as potential criteria for giving rights or personhood to animals. There is a general agreement that all animals are not equal, but they do not all agree that animals deserve rights or personhood. Steven Wise and Gary Francione seem to argue for a classification akin to personhood for some species. However, others contend that we simply need to provide greater protection to some animals, while continuing their classification as property.

In Part II, David Wolfson and Mariann Sullivan discuss the dichotomy between farm animals and pets and point out that ninety eight percent of all animals still need basic protection, particularly in the US and Canada. This mirrors Francione’s arguments in Part I. Wolfson and Sullivan, however argue for extending basic protections to farm animals rather than giving rights or personhood to any group of animals. This is an incremental approach that is also taken by David Favre and Cass Sunstein. Favre says we should not demand radical change but should consider political reality. He contends [*20] that laws and property are human constructs so can be adjusted. Indeed, he argues, current animal laws prove that some rights and property status can co-exist. He suggests, as did Rogers and Kaplan in Part I, that animals could be considered self-owned as children are, while having guardians appointed to protect their interests. These guardians could sue for damages on behalf of a harmed animal. Sunstein makes a very similar argument but takes it further. His argument is that current laws are basically symbolic because they are rarely enforced. Because no one has standing to sue under current animal welfare laws, this is something that Congress should address. He points out that Congress has given legal standing to corporations, and they can also do so for animals. This would also assist the USDA which lacks the resources to investigate and prosecute even cases over which they currently have jurisdiction.

Catherine MacKinnon takes a very different approach, one that is based on the oppression of women in history. She asks why animals should measure up to human standards before they count, and argues that this has been the problem for women as well. Women are not “like men,” nor are animals “like humans.” She does not offer any solutions to this dilemma.

Elizabeth Anderson compares the arguments from animal welfare, animal rights, and environmentalism. Animal welfare proponents use capacity to suffer as their benchmark and provide arguments based largely upon sympathy. Animal rights advocates use capacity for subjecthood as their benchmark and base their arguments on respect for animals. Environmentalists use the stability of the ecosystem as the basis for protecting species and rely upon an awe of nature in their arguments. These are often conflicting values. Anderson suggests a rational attitude theory of value and a balancing of the three perspectives. She alone among these writers suggests that rights come with responsibilities and compares a rat in the house that does not attempt to accommodate the interests of humans, to the dog that accepts responsibility for following human rules. Rats, in her argument, may have a right to not be tortured but do not have a right to live in the house.

The final chapter by Martha Nussbaum also compares perspectives: the contractarian view presented by John Rawls, the utilitarian approach of Peter Singer, and the capabilities approach used by Wise and others. She concludes that the capabilities approach is the most useful in deciding how to treat animals. She contends that we are not obligated to care for all animals – just those under our control – but that all animals should be treated with dignity. Her conclusions are that it is not necessary to mistreat even research and food animals, we need national laws to require that all animals be treated with dignity, and that international accords are also needed to require respectful treatment of all animals.

Although this book is largely philosophical in its treatment of the legal and moral status of animals, several chapters do discuss political and legal changes that could drastically improve the lives of animals without giving them rights or personhood. The book acknowledges that human interests, sympathies, and needs must be taken [*21] into account. This is a book political decision makers should read. It concludes with a short bibliographic essay that provides further guidance to those wishing to pursue issues in greater depth.

In contrast to the normative and prescriptive arguments that predominate in the Hauser, Cushman, and Kamen and the Sunstein and Nussbaum volumes, Arnold Arluke’s BRUTE FORCE offers an ethnographic study of the enforcement of animal law. It therefore addresses what Sunstein calls the “enforcement gap” or the difference between the intentions and the implementation of animal rights and animal protection laws. Based on six months of interviews and observations, it provides a “thick description” of how Massachusetts humane officers enforce animal control and animal cruelty laws. Although Arluke does not reference the literature on street-level bureaucracy or local politics and only occasionally compares his findings to the literature on policing, his account of “animal police” indicates striking similarities – and a few key differences – between the humane officers and other street-level regulators.

Arluke’s first chapter focuses on the ambivalent status of humane officers. He describes how humane officers, caught between public perceptions of as “dogcatchers” and as “do-gooders,” have developed two different roles. Some officers adopt a police-oriented role. They treat their duties as “just a job” that they attempt to conduct like professional police. Checking their emotions, they practice their tasks much in the mode of law enforcement oriented urban police. Other officers consider their job to be a mission. They want to help animals through the application of humane standards of care. Most therefore display emotional reactions to the abuse of animals. Complicating these roles, Arluke finds that many officers switch between them as they practice their profession. Arluke also reports that humane officers try to differentiate themselves from animal control workers – traditional dogcatchers and shelter personnel without law enforcement powers. As Arluke observes, agencies seem to appreciate both types of officers and feel both to be important.

In the second chapter Arluke describes humane officers’ duties as largely responding to “fire alarms.” Although photographs illustrate officers conducting “patrol” style inspections of pet stores and ox pulls, most of this chapter relates how dispatchers alert officers to cruelty or abuse and how the officers respond. As in the general literature on policing, dispatchers’ attitudes, operating procedures, and interpretations of the public’s reports of cruelty have important influence on decisions to send officers with different role perceptions to address the different kinds of complaints. However, officers find that many of the complaints are “stretched” or exaggerated by dispatchers. The result is that – as with police in general – many responses to calls do not turn up evidence of legal violations, and many calls were about neighborhood disputes, sanitation problems, or other matters properly in the jurisdiction of other agencies. Arluke also notes that dispatchers generally know which officers are more likely to attempt to deal with those exaggerated calls in a way that aids animals. [*22]

Arluke then discusses how role perceptions influence how officers evaluate and act upon calls. Because of the imprecision of animal cruelty and abuse law, as with policing in general, animal officers have enormous discretion. Because of their experience and perception of their role, they effectively make policy by adopting personalized standard operational responses to categories of events. To determine a course of action, they learn to “read” the condition of animals and the behavior of their owners or controllers. They develop sensitivity to a suspect’s attitudes toward animals and the care of property, thus allowing them to categorize the moral character of the suspect. The officers additionally regard both animals and persons with suspicion, in part because they fear violent responses. Then they try to categorize the extent of law breaking and make a choice about arrests, seizures, or warnings.

Finally, Arluke depicts how officers’ conception of their role affects the decision to penalize for law breaking. Rookies are more aggressive, the police-oriented are more hardened, and the do-gooders often file charges even when the likelihood of successful prosecution is minimal. In non-malicious and borderline cruelty cases police-oriented officers often warn suspects, but the officers also report a cynical expectation that the suspect will not change his behavior toward an animal. Threats of arrest also occur, but arrest is confined to the most serious abuses and confrontations with suspects. The reason the officers reserve arrests is that they have learned prosecutors, magistrates, and trial judges often do not take animal abuse seriously. The officers’ experience reduced charges, mild penalties, continuances, and nolle pros decisions that enhances their cynicism toward the courts and reduces their desire to spend time on less serious cases of animal abuse. Do-gooders argue that the time and money abusers must expend responding to chages constitutes at least a small punishment. But regardless of their role conception, officers find an emotional reward in saving animals from abuse by means of education or threat even when no conviction occurs.

Arluke’s book consequently offers a crucial perspective that is ignored in the prescriptive calls for animal rights. If humane officers face status and bureaucratic conditions and hold role perceptions that circumscribe their enforcement efforts, and if other law enforcement personnel undercut their efforts to enforce existing animal cruelty laws, what can the definition of animals as rights-bearers really achieve? Arluke’s book implies that, without political support, budgetary resources, clear legal authority, and commitment by a range of law enforcement professionals, legalization of animal rights will be more symbolic than genuine policy mandating humane treatment of animals.

Although these volumes represent the current state of animal law research, they indicate a need for sociolegal and more politically attentive scholarship. As with the essays in PEOPLE, PROPERTY, OR PETS? and ANIMAL RIGHTS, discussion retains a prescriptive focus on the determination of legal status of animals. Even if they sometimes rely on experimental studies of animal cognition, these discussions [*23] are largely philosophical and jurisprudential. Although in many instances the essays offer noteworthy arguments about the status of animals that policymakers need to consider in the formulation of animal law and regulation, the clear implication is that the current regime fails to do justice to either animals or humans.

But, what is the contemporary practice of animal law? Why is the law apparently in need of reform? Despite its limitations, BRUTE FORCE points toward the need for empirical inquiry into an array of questions, including placement of animal issues on the policy agenda (but see Finsen and Finsen 1994; Jasper and Nelkin 1992); the politics of the formulation of animal laws (but see Allen 2005; Hunter and Brisbin 2006), policing of animals and their owners, and adjudication of disputes about animals (but see Tauber 2006). Additionally, because these topics have generated theory and empirical inquiry in other policy arenas, animal law can be readily compared to the carload of other studies of political and sociolegal behavior, conceptions of rights, interest group activity, legislation, policing, crime reporting, adjudication, and legal and political institutional development. In a nation in which dogs and cats reside in a majority of homes (American Veterinary Medical Association 2002), most people eat the products of commercial animal husbandry, and recreational hunting is an enterprise with major economic consequences, such comparisons might reveal much about whether animal law is similar to general American political practices or a unique arena of law and regulation.

REFERENCES:
Allen, Mahalley D. 2005. “Laying Down the Law? Interest Group Influence on State Adoption of Animal Cruelty Felony Laws.” 22 POLICY STUDIES JOURNAL 443-457.

American Veterinary Medical Association. 2002. U.S. PET OWNERSHIP AND DEMOGRAPHICS SOURCEBOOK. Schaumberg, IL: American Veterinary Medical Association.

Finsen, Lawrence and Susan Finsen. 1994. THE ANIMAL RIGHTS MOVEMENT IN AMERICA: FROM COMPASSION TO RESPECT. New York: Twayne Publishers.

Hunter, Susan, and Richard A. Brisbin, Jr. 2006. “Animal Welfare Laws and State Politics: What Puts a Bite in the Law?” Paper presented at the Western Political Science Association meeting, Albuquerque, NM.

Jasper, James M., and Dorothy Nelkin. 1992. THE ANIMAL RIGHTS CRUSADE: THE GROWTH OF A MORAL PROTEST. New York: The Free Press.

Kistler, John M. 2000. ANIMAL RIGHTS: A SUBJECT GUIDE, BIBLIOGRAPHY, AND INTERNET COMPANION. Westport, CT: Greenwood Press.

Kistler, John M. 2004. ANIMALS ARE THE ISSUE: LIBRARY RESOURCES ON ANIMAL ISSUES. New York: Haworth Information Press.

Singer, Peter. 1975. ANIMAL LIBERATION: A NEW ETHIC FOR OUR TREATMENT OF ANIMALS. New York: Random House. [*24]

Tauber, Steven. 2006. “The Impact of Animal Activist Group Litigation on the Outcome of Animal Welfare Cases Decided in the U.S. District Courts, 1970-2005.” Paper presented at the Law and Society Association meeting, Baltimore, MD.

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© Copyright 2007 by the author, Susan Hunter and Richard A. Brisbin, Jr.

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LIVING SPEECH: RESISTING THE EMPIRE OF FORCE

by James Boyd White. Princeton, N.J.: Princeton University Press, 2006. 256pp. Cloth. $29.95 / £18.95. ISBN: 0691125805.

Reviewed by Jerome O’Callaghan, Arts and Sciences, State University of New York at Cortland. Email: ocallaghan [at] cortland.edu.

pp.11-14

Convinced that “dead modes of thought and expression” (p.xi) are overcoming our culture James Boyd White has provided LIVING SPEECH as the antidote. The subtitle, “Resisting the Empire of Force,” captures his idealistic thrust and even suggests a resurgent counter-culture. White establishes a binary scheme early on: there is “living speech,” and there is the rest. The meaning of “living speech” is centered in deliberation, reflection and silence. Such speech comes “from the center of the person” (p.16); it “comes from the silence within” (p.40); it is speech that is “deep, original, and self testing” (p.43). Living speech is the key to resisting an empire of force, i.e., a system of “thought and imagination” that requires us “to reduce other people to objects, to deny their equal claims to a life of meaning and fulfillment” (p.4).

Through six chapters White develops the role of living speech as a challenge to the empire of force that threatens to envelop all thought. His focus shifts from how living speech reveals the mind of its author, to the central role of the reader in creating meaning, to the importance of a form of writing that calls the reader into a conversation, to the relation between justice and the claim of meaning. In each chapter comparisons are developed among unlikely companions; Dante, Attorney General John Ashcroft, Shakespeare, Sophocles, Justice Harlan, Robert Frost, these are some of his prominent sources. White’s passion for Dante above all others is evident throughout. Law and literature sit side by side, and the result is a strange brew of comparative analysis. One can almost (and I emphasize almost) have sympathy for Attorney General Ashcroft when one of his news conferences is arranged in a line up with, among others, Dante, Shakespeare (via Polonius) and the Bible. No surprise that the highest law official in federal government falls into the empire of force category.

White is sincerely troubled by the trivializing banter that passes for contemporary public discourse; it corrodes both the quality of our lives and our ability to understand the meaning of our lives. Yet the endless punditry, formulaic thinking and myopic political grandstanding that he bemoans are also symptoms of an instant-gratification culture, a culture marked by an obsession with individualism, not to mention a form of “liberty” that is nothing more than dolled-up consumerism. White tackles none of these subjects directly, yet their role in the plague that he describes seems critical.

“The dominant mode of our culture, economic in nature, seems obviously inadequate as a model of life or speech” (p.41). [*12] The economic mode is the perfect example of the empire of force at work – it fosters modes of thought that tend to “erase the reality and humanity of other people” (p.6). In the context of law, the economic mode grabbed a foothold in the foundational phase of free-speech doctrine – it was in 1919 that Justice Holmes developed the ever-resilient “marketplace of ideas” analogy. White will have none of that; he is quick to dissect the flaws of the Holmes approach. Joseph Tussman covered the same territory with more verve in 1960:

The marketplace of ideas! Do we appreciate enough the daring of that conception? At one bold stroke it identifies the deliberative and the bargaining arts, turns the scientist into a businessman, the sage into the salesman. This is the most significant triumph of a business civilization. Or it would be if it did not ensure disaster. For unfortunately, we need the product of deliberation . . . . deliberating and bargaining are not the same, neither in process nor in result. Education turns on the difference. (Tussman 1960, at 104)

To the extent that this book reminds us of the importance of careful and deliberate expression, it obviously serves the common good. The readership of the Princeton University Press will no doubt agree that the kind of living speech extolled by White is far too scarce in our lives. LIVING SPEECH is, in all likelihood, an exercise in preaching to the choir. White’s commitment to the western canon narrows his horizon and limits his audience. It also reveals a more conservative agenda: immersion in the classics will improve the quality of just about everything. Of course White does not claim that living speech is the exclusive domain of the great authors of eras long gone. Nevertheless he avoids examples of living speech from popular culture for no clear reason. Take for example the relentless drive for more information in today’s broadband world – a drive that misses the problem of insufficient ability to understand what it all means or if it matters. In popular culture this is wisely summed up in a lyric from the rock group U2, “you miss too much these days if you stop to think.” Or, one might turn to Tom Stoppard’s play THE REAL THING for this endorsement: “I don’t think writers are sacred, but words are. They deserve respect. If you get the right ones in the right order, you can nudge the world a little or make a poem which children will speak for you when you’re dead” (p.54). Nudging the world a little is precisely the goal of living speech.

Readers interested in free speech law will find an analysis of legal writing in some famous free speech decisions – each is inspected for how well it fits the ideal of living speech. Justice Harlan in COHEN v. CALIFORNIA (1971) fares well, as do both Justice Jackson and Justice Frankfurter in dueling roles in W. VIRGINIA v. BARNETTE (1943). Justice Blackmun’s opinion in VIRGINIA STATE PHARMACY BOARD v. VIRGINIA CITIZENS CONSUMER COUNCIL (1976) “cannot manifest in its own composition a conception of valuable and living speech” (p.81) – however a decision that extended free speech protection to advertising was an unlikely candidate for “resisting the empire of force” in the first place. Anyone interested in free speech or civil liberties should read the [*13] Jackson-Frankfurter clash in BARNETTE. It is a brilliantly compelling example of a well-reasoned investigation of constitutional meaning, and White is right to draw our attention to its virtues in the context of living speech.

While there is a lot of merit to the arguments made in LIVING SPEECH, this reader felt immediate concerns in two areas: inconsistency in the discussion of free speech in the COHEN case, and the limitations of analyzing law through the means of Supreme Court opinions.

Justice Harlan receives substantial praise for his opinion regarding the famous “Fuck the draft” button on Cohen’s jacket. In this context it is a little strange that White does not identify Cohen’s slogan as either living or dead speech. Certainly plausible arguments can be made on both sides. More confusing is the missing reference to Justice Harlan’s oft-quoted aphorism: “One man’s vulgarity is another’s lyric.” That particular slide into free speech relativism is not consistent with White’s belief that certain categories of speech deserve constitutional protection, while other categories do not. Justice Harlan might just have easily said “one man’s stripper is another man’s ballerina” – yet White is adamant in his disapproval of the extension of free speech values to nude dancing. While White keeps a focus on Harlan’s writing in COHEN (the opinion is a “complex civilized composition” p.181), he appears to be having his cake and eating it too when it comes to free speech doctrine.

Although the analysis of Supreme Court opinions can be the source of both confusion and illumination, it is a mistake to treat it as an analysis of the law. The Court has no monopoly on writing “the law.” Too many other factors contribute to what “the law” is (both in practice and in theory): myriad courts, numerous legislative bodies, thousands of policy-implementing bodies, politics, even economics. A significant part of the law and politics literature has been devoted to demonstrating how removed the Court can be from the reality of the law. Although White directs the reader to the art of good writing, finding meaning in text, and the like, he also asks this pivotal question in his introduction: “is the law inherently [emphasis in original] an instrument of the empire of force?” (p.10). He would have the reader believe that the answer must be yes for two reasons. First, he has found specimens of living speech in Supreme Court opinions. Second, some Supreme Court opinions do in fact elevate First Amendment protection for living speech. Yet, review of a few Supreme Court opinions does little to address the heart of the question. Consider for a moment the claims made by Tocqueville about the nature of the legal profession: “Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten that, if they prize the free institutions of their country much, they nevertheless value the legality of those institutions far more: they are less afraid of tyranny than of arbitrary power.” It is hard for this reader to resist the conclusion that the [*14] law’s alliance with force, power and authority will ultimately prevail.

Education in the “liberal arts” has much in common with LIVING SPEECH. Both stress clear writing, careful argument, critical thinking; they set out to call us to “a deeper kind of life – a life of thought, and imagination and feeling” (p.139). White reminds us that a deliberate effort to achieve that ideal will face substantial obstacles. Those of us in education are well aware of the challenges. The rest of American society may be too distracted to notice.

REFERENCES:
De Tocqueville, Alexis. 1835. DEMOCRACY IN AMERICA. Available at http://xroads.virginia.edu/~Hyper/DETOC/1_ch16.htm.

Stoppard, Tom. 1982. THE REAL THING. London: Faber and Faber.

Tussman, Joseph. 1960. OBLIGATION AND THE BODY POLITIC. New York: Oxford University Press.

U2. 1991. “Until the End of the World.”

CASE REFERENCES:
COHEN v. CALIFORNIA, 403 U.S. 15 (1971).

VIRGINIA STATE PHARMACY BOARD v. VIRGINIA CITIZENS CONSUMER COUNCIL, 425 U.S. 748 (1976).

WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624 (1943).

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© Copyright 2007 by the author, Jerome O’Callaghan.

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THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA

by Neil M. Gorsuch. Princeton and Oxford: Princeton University Press, 2006. 320pp. Cloth. $29.95 / £18.95. ISBN: 0691124582.

Reviewed by Stephen Arons, Department of Legal Studies, University of Massachusetts, Amherst. Email: arons [at] legal.umass.edu.

pp.5-10

For more than twenty-five years a rough consensus has existed among physicians, biomedical ethicists and healthcare experts that competent patients have the right to refuse unwanted medical care, even life-sustaining care, and to secure their autonomy in these matters through advance directives that become effective upon the loss of legal competence. A considerable body of law has been built up based on this consensus, and some of the rights to control one’s medical treatment have taken on a constitutional coloration. Much of this consensus, and of the law in which it is now embedded, focuses on which kinds of physician assistance are appropriate in the provision of end-of-life care. One of the thorniest issues, but by no means most important, is physician-assisted suicide.

In an era in which the demographic bulge known as the Baby Boomer Generation makes mortality intrude on the consciousness of more and more of us, it should come as no surprise that end-of-life care issues have become increasingly important questions of law and public policy, as well as of medicine, healthcare and ethics. But the thoughtful, informed and humane consideration of these questions is hindered by a new battle in the apparently endless culture wars. End-of-life treatment and care are increasingly subjected to scrutiny by ideologues, protests by religious zealots, and legislative campaigns by interest groups whose agendas extend far beyond those concerns. Complex, idiosyncratic and usually painful personal decisions, heretofore made privately by patients, families and physicians, are becoming more public, more political and more removed from the real context of death and dying in America.

As a result of this burgeoning conflict, the medical, ethical and healthcare consensus that has supported the right to make decisions about one’s own medical care may now be threatened, and the quality of end-of-life care may be undermined across the board. A number of doctors and nurses have been subjected to criminal or civil accusations for providing palliative care or for following a patient’s expressed wishes to terminate unwanted life-sustaining or death-prolonging treatment. In a number of these situations, the accused have been fully exonerated, but not before their careers and personal lives were destroyed or seriously disrupted (Cohen, et al. 2006). In one case, a Kansas physician was convicted of first-degree murder and attempted murder and served six months in a maximum security prison before an appeals court not only reversed his conviction, but heeded the medical testimony that the jury had ignored and directed a verdict of acquittal on both counts (KANSAS v. NARAMORE 1998). [*6]

In the aftermath of the Terri Schiavo case, the U.S. Congress and many individual states began considering legislation that would have a chilling effect on palliative care medicine, crimping the use of advance directives and undermining the autonomy principle in medical care for millions of Americans (Lazzarini, et al. 2006). The Schiavo case was about the right to refuse treatment, although the political and media spectacle attached to the family’s tragedy often made it seem that the issue was euthanasia or homicide. The subsequent legislative campaigns attempt to create laws to prevent the withdrawal or refusal of some forms of life-sustaining medical treatment even when a patient has an advance directive clearly indicating her personal decision in the matter. The model bill adapted for introduction in over twenty states – the Starvation and Dehydration of Persons with Disabilities Prevention Act – was drafted by the National Right to Life Committee. In his veto message responding to a like-minded bill passed by the Wisconsin Legislature in 2005, Governor James Doyle, wrote, “This bill lets your doctor put his or her political beliefs ahead of your medical best interests.”

On the national level, the US Attorney General sought to up-end Oregon’s Death with Dignity Act by issuing an order in 2001 that would have exposed every physician in the nation to the chilling possibility of a DEA hearing about the physician’s intent in prescribing pain relief medications listed on Schedule II of the Controlled Substances Act. A number of amicus briefs filed by palliative care doctors, medical associations and biomedical ethicists pointed out to the courts that if the order were upheld, not only would Oregon’s law be nullified, the practice of palliative care medicine around the country would be undermined. In 2006, the US Supreme Court agreed with the lower federal courts that the Attorney General had exceeded his authority under the CSA (GONZALES 2006). But six months later legislation was introduced in Congress to give the attorney general the authority denied by the Court’s ruling.

Out of the glaring lights of political and legislative action in the culture war, the undermining of the generation-old consensus about patients’ rights in end-of-life medical treatment continues. Even the principle of individual autonomy itself – the liberty that lies at the heart of constitutional democracy in America – is being deconstructed in efforts to promote beneficent paternalism in medicine, to increase the control of the state over individual lives, and to advance particular concepts of the meaning of life (President Bush’s Council on Bioethics 2005).

THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA, written by Neil Gorsuch before he became a judge on the Tenth Circuit Court of Appeals in July, 2006, is a welcome antidote to the poisonous politics of one aspect of the end-of-life care debate. It is thoughtful and temperate in its philosophy, carefully reasoned in its doctrinal analysis, and mostly free of the polemics that often characterize the debate over PAS and the right to refuse unwanted medical treatment. Gorsuch [*7] sees the main contribution of the book as its articulation of an argument against PAS based on the principle that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong” (p.157).

In a world in which violence rages nearly everywhere and in which life seems to have become cheap even to those who claim to be protecting it, Gorsuch’s statement of the inherent value of life is welcome indeed. But perhaps the greatest strength of his book is that Gorsuch argues for the protection of many of the uses of the right to refuse life-saving medical treatment, even as he mounts a strong case against physician-assisted suicide: “the inviolability-of-life view I espouse represents something of a mean between two extremes—between the extreme of those who would deny equal treatment to some person’s lives and effectively declare them less than fully human and the other extreme of those who would demand that the respirator never be pulled, or the feeding tube never withdrawn out of rigid adherence to a view that life must be categorically preferred to any other end or good” (p.164).

The argument against physician-assisted suicide in THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA is carefully laid out. Gorsuch derives four key questions from his reading of the six opinions in the Supreme Court’s unanimous decisions in WASHINGTON v. GLUCKSBERG and VACCO v. QUILL, holding that state criminalization of physician-assisted suicide violates neither constitutional liberty rights nor the principle of equal protection. The four questions concern: 1) the historical precedent for legalization of PAS, 2) the equal protection problem of allowing terminally ill patients on life support to have the assistance of doctors in hastening and easing their deaths by removing life support and providing palliative care, while preventing terminally ill patients who are not on life support from having the assistance of their doctors in hastening and easing their deaths, 3) the role of the principles of personal autonomy and self-determination in considering the justifiability of physician-assisted suicide, and 4) the utilitarian calculus about whether legalizing PAS would provide the greatest good for the greatest number of persons.

After devoting a chapter to each of these issues, Gorsuch constructs, explains, and tests out his principle of the inviolability of human life as an argument against legalization of PAS. He also suggests questions about the constitutionality of Oregon’s Death with Dignity Act, and inserts an epilogue briefly exploring GONZALES v. OREGON, the problem of managing pain in the terminally ill, and developments in other countries. Gorsuch gives a nod to some of the arguments and perspectives that do not support his position, and he evaluates them without demagoguery. But he also discusses opposing ideas without crediting them with their full potential. It is the lawyer’s brief-writing tactic; not unfair but not really enlightening either. The writing itself is accessible to most people familiar with the rudiments of law and biomedical ethics, and the focus [*8] is narrow enough to allow the author to make some sharp-edged arguments and to score some doctrinal and philosophical points. The book is interesting, and it discusses a topic of importance not only to the study of law and society, but to each of us individually.

But the primary weakness of the book is that its approach, while not insensitive at all, is nonetheless too detached from the realities to which its ideas are meant to apply. THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA is too abstracted from context. Despite its occasional references to particular cases and to the problems of a few categories of people with end-of-life care issues, Gorsuch’s book is more focused on solving an interesting doctrinal and philosophical problem than on solving the problem of dying people in need of physicians’ assistance. After all is said and done, we are given a significant and fundamentally conservative argument that may justify criminalizing PAS and prohibiting “suicidal” decisions to refuse life-sustaining treatment. But that policy leaves us with an unfortunately large group of people for whom there is no help – those who are terminally or grievously ill, suffering great anguish and pain not adequately managed by the healthcare system, and desirous, for whatever reason, of giving up the struggle against death.

Had Gorsuch spent time energetically focusing on a right to palliative care, something that Robert Burt (1997) found lurking between the lines of five of the six GLUCKSBERG opinions, the book might have connected better with the realities of dying in America, and the book’s argument might be less formalistic. It is not that the problems of these particular terminally ill or gravely ill people are easy to solve, or even that some policy permitting physician assistance is an appropriate answer to their problems. It is just that a book about public policies that affect dying in America ought to be anchored more in an effort to address the problems of people than of legal doctrine or philosophy. Gorsuch is not insensitive. But his book is too abstracted from the realities of the complex problems that his argument is meant to address. In CRUZAN v. MISSOURI, which Gorsuch discusses, Justice Brennan’s dissent found a similar problem with the majority opinion – the state’s interest in the preservation of life. Brennan wrote “[T]he State has no legitimate general interest in someone’s life, completely abstracted from the interest of the person living that life, that could outweigh the person’s choice to avoid medical treatment” (CRUZAN, Brennan, J., dissenting, at 313)

The price of being so doctrinally and philosophically sophisticated seems to be a detachment from the emotional and medical complexities of end-of-life care. A good corrective to this detachment, or companion to Gorsuch’s book, would be to read LIVING WITH DYING (Berzoff 2004). For those who find, as I do, that Gorsuch’s book is not grounded sufficiently in the dilemmas that it may affect, a more powerful and useful blending of law, biomedical ethics and the realities faced by end-of-life patients and their families is David Orentlicher’s discussion of refusing medical treatment [*9] and seeking assisted-suicide in MATTERS OF LIFE AND DEATH: MAKING MORAL THEORY WORK IN MEDICAL ETHICS AND THE LAW (Orentlicher 2001).

Finally, THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA is disappointing in another way. The political, religious and cultural struggles that have marked consideration of public policy on end-of-life care in the past decade or so cannot help but affect how Gorsuch’s argument is understood and used. Had this intensely religious and ideological reality, linked as it is to the struggle over reproductive rights, formed a bigger part of how the argument was fashioned, the book would have been more useful. Gorsuch does insist that the principle of the inherent value of human life would not be violated by honoring non-suicidal refusals of medical treatment. But otherwise, he merely mentions the cultural context of his work and tosses off some criticisms of extremists without evaluating in depth the likely operative meanings of his ideas, and without taking the cultural context sufficiently into account in fashioning those ideas.

This is perhaps a virtue as well as a flaw in a book that is so focused on legal doctrine and philosophy. But it can also be seen as a disregard for the collateral damage that might be done by proposing a policy or doctrine without examining fully enough the cultural context in which it might be used. Attorney General Ashcroft’s attempt to over-turn the Oregon Death with Dignity Law is a good example of this problem. Whether the effort to kill the Oregon law was justifiable or not – indeed, whether the Attorney General’s order was within his power under the CSA statute or not – the means chosen would have been a disaster for palliative care across the nation. Yet, so fixed on his goal was Ashcroft that he was either dismissive of or unwilling to examine the collateral consequences of his policy for the provision of good pain management across the country. THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA likewise does not examine carefully enough the broad consequences for end-of-life care that might arise from putting Gorsuch’s argument into the cultural crucible that threatens to melt down so many of our rights to control our own medical care.

REFERENCES:
Berzoff, Joan, and Phyllis R. Silverman (eds). 2004. LIVING WITH DYING: A HANDBOOK FOR END-OF-LIFE HEALTHCARE PRACTITIONERS. New York. Columbia University Press.

Burt, Robert A. 1997. “The Supreme Court Speaks: Not Assisted Suicide but a Constitutional Right to Palliative Care.” 337 NEW ENGLAND JOURNAL OF MEDICINE 1234-1236.

Cohen, Lewis, Linda Ganzini, Christine Mitchell, Stephen Arons, Elizabeth Goy, and James Cleary. 2006. “Accusations of Murder and Euthanasia in End-of-Life Care.” 18 JOURNAL OF PALLIATIVE MEDICINE 1096-1104. [*10]

Lazzarini, Zita, Stephen Arons, and Alice Wisniewski. 2006. “Legal and Policy Lessons from the Schiavo Case: Is Our Right to Choose the Medical Care We Want Seriously at Risk?” 14 PALLIATIVE AND SUPPORTIVE CARE 145-153.

Orentlicher, David. 2001. MATTERS OF LIFE AND DEATH: MAKING MORAL THEORY WORK IN MEDICAL ETHICS AND THE LAW. Princeton, NJ: Princeton University Press.

President’s Council on Bioethics. 2005. Available online at http://www.bioethics.gov/reports/taking_care/chapter2.html .


CASE REFERENCES:
CRUZAN v. MISSOURI, 497 US 261 (1990).

GONZALES v. OREGON, 126 S. Ct. 904 (2006).

STATE OF KANSAS v. L. STAN NARAMORE, 965 P2d 211 (Court of Appeals of Kansas, 1998).

VACCO v. QUILL, 521 US 793 (1997).

WASHINGTON v. GLUCKSBERG, 521 US 702 (1997).

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© Copyright 2007 by the author, Stephen Arons.

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BRUTALITY ON TRIAL: “HELLFIRE” PEDERSEN, “FIGHTING” HANSEN, AND THE SEAMEN’S ACT OF 1915

by E. Kay Gibson. Gainesville, FL: University Press of Florida, 2006. 256pp. Cloth. $34.95. ISBN: 0813029910.

Reviewed by Greg Marquis, History and Politics Department, University of New Brunswick Saint John. Email: gmarquis [at] unbsj.ca.

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BRUTALITY ON TRIAL, by E. Kay Gibson, is the fifteenth volume in the New Perspectives on Maritime History and Nautical Archaeology series, edited by James C. Bradford and Gene A. Smith. Gibson is an independent scholar whose spouse began researching the story of the events on the PUAKO sailing ship in the 1970s. The book essentially details successful prosecutions under the Seamen’s Act of 1915, which was designed to provide crew members with legal protection from abuse by ship masters and mates and to make vessel owners responsible for damages in the case of improper use of physical force. During this era, the United States, already a major maritime power and exporting nation, expanded its maritime presence because of its neutrality status between 1914 and 1917.

The 1915 statute, sponsored by Senator Robert LaFollette, has been described as the Magna Carta of sailors’ rights. The law’s true architect was Andrew Furuseth (1854-1938), the Norwegian-born head of the International Seamen’s Union of the Pacific, who was attempting to give seafarers the same rights as industrial workers. The Seamen’s Act abolished imprisonment for desertion and all forms of corporal punishment. Sailors could still be placed in irons, have wages forfeited or put on reduced rations for willful disobedience or for striking an officer, but they were not to be flogged or otherwise punished corporally. Serious offences would be handled by the courts on shore. Many ship owners opposed the provision that gave sailors the right to demand half of their wages earned in any loading or discharging port after voyages had commenced. Hind, Rolph and Company, the owner of the two vessels featured in the book, was a supporter of the reforms of 1915. The law, possibly influenced by concerns raised by the 1912 TITANIC disaster, also guaranteed a minimum standard of provisions and a certain number of lifeboats, and dictated that a majority of each crew be able to understand orders issued in English.

The working conditions of American merchant mariners had been publicized in 1840 with the publication of Richard Henry Dana’s TWO YEARS BEFORE THE MAST. Although not totally sympathetic to the common sailor, Jack London’s 1904 novel, THE SEA-WOLF, reminded Progressive-era Americans of continuing brutality on the high seas. Legislation had attempted to abolish corporal punishment on American merchant vessels as early as 1850, when flogging was banned. But captains and mates either ignored this and other laws, or resorted to the use of fists, boots, pieces of rope, brass knuckles, pistols and ship-board items such as belaying pins, marlin spikes, hand spikes and other tools. Testimony [*2] from the PUAKO investigation indicated that seamen also were punished by being confined in irons, put on short rations, and subjected to the ‘water cure’ – being doused with cold water for long periods on deck. The 1915 law attempted to close a loophole found in the earlier White Act, which authorized prison terms for masters and mates who assaulted their seamen but exempted vessel owners from responsibility. As Furuseth and others complained, the law did not deter the traditions of “bucko” (violent) masters and mates. The purpose of buckoism was to lower labor costs by forcing a smaller number of seamen to work harder, often for lower wages. Buckoism, together with crimping, in the opinion of seamen’s rights advocates, made many sailors virtual slaves. One factor that contributed to the relatively defenseless situation of abused seamen was a law dating from 1790 that prevented them from striking an officer who was performing his duty.

Most of the book details the reign of terror on the PUAKO during a voyage from British Columbia to Cape Town in 1918. The barkentine, rated at 1,011 net tons, had been built in 1902. Its captain, Adolph C. Pedersen, was born in Norway and became a naturalized citizen in 1893. His nickname “Hellfire” came not from his brutal methods but from an earlier attempt to save a ship from fire. When the PUAKO arrived in South Africa, the captain had several of the crew arrested as conspirators to mutiny and sabotage, and even supplied the authorities with written confessions. Because World War I had not ended, the South African police launched an investigation. Suspicions soon turned from the battered seamen to Captain Pedersen and his two mates (his sons). Through the efforts of a vigilant US consul, the three officers were charged in district court in New York. The captain was indicted for the murder of Axel Hansen, an experienced Danish sailor. According to testimony of the crew, Hansen, after constant ill treatment by the master and mates, threw himself overboard. Pedersen allegedly had refused to allow a rescue attempt. Earlier in the voyage the cook, American J.H. Stewart, had committed suicide by drowning under similar circumstances. After the crew disembarked in South Africa a third man, Bjarne Olsen, died, possibly of injuries sustained on the voyage. The captain had noted his suspicions of a plot in the ship’s log. It is not clear whether the captain was paranoid, genuinely suspicious of a plot amongst the crew, or simply using the sabotage threat as an excuse for his abusive and violent behavior. Despite his age, moderate size and mild demeanor in court, Pedersen had a reputation along the Pacific coast for being a tough and violent master.

The case was prepared by the US Justice Department, and prosecuted by Assistant US Attorney William Miller, who regarded the master as “yellow” (p.125). In addition to the murder charge, the captain and two mates were indicted on several counts of assault and illegal imprisonment. The defendants pled not guilty to the former, but admitted to imprisoning seamen, citing the necessity of countering a plot of mutiny, murder and piracy. The defense, conducted by an ex assistant secretary of state, stressed [*3] that the officers had faced an inexperienced and stubborn crew and suggested that the US Consul in Cape Town was prejudiced against the prisoners. The relative inexperience of the crew was not an exaggeration – most had no deep-sea experience. The officers attempted to portray Hansen as a labor agitator and suggested that the crew, described as “these I.W.W.s, this gang, these nomads” (p.121) had been infected by radical doctrines. An Industrial Workers of the World (IWW) songbook had been found among the crew’s effects.

The jury acquitted the defendants on the murder charges, but Captain Pedersen and Leonard and Adolph Pedersen were convicted on the lesser counts. The father, convicted on six counts, was sentenced to eighteen months on each, to be served concurrently. The sons, convicted on two counts, were each sentenced to six months. In 1924 the suit for damages against the owner of the PUAKO on behalf of six injured crewmen, was concluded. They were awarded amounts ranging from $250 to $2000.
The elder Pedersen renewed his master license following release from prison but spent his last years as a caretaker. Both sons continued nautical careers – one as a master, later a caretaker, the other as a harbor pilot.

The second case examined by Gibson centers on “Fighting” Frederick Hansen, first mate on the barkentine ROLPH, which in 1920 picked up a crew at Vancouver to haul lumber to Melbourne. The vessel was owned by James Rolph Jr., the mayor of San Franciso and future governor of California. Hansen had been convicted of killing a seaman in 1917 and investigated for the murder of a second. Once the ROLPH reached Australia, most of the crew, intimidated by the mate, was discharged. The vessel then headed to Newcastle to pick up a cargo of English coal for Chile. By this time the crew included only two Americans. According to later testimony, Hansen hit a German sailor with a belaying pin and, when the man went overboard, made no attempt to rescue him. Hansen also assaulted other seamen, with the apparent connivance if not the direct orders of the captain. Charged under the 1915 law, he was indicted in 1922 for assaulting A.R. Arnesen, a naturalized U.S. citizen. Hansen was found guilty and sentenced to five years in federal penitentiary. The four seamen who were libellants were awarded a total of $14,500 in damages – paid by the ship’s owner. One sailor had been virtually blinded by Hansen’s beatings.

BRUTALITY ON TRIAL is a fascinating account of maritime labor relations in the transition from 19th-century authoritarianism to a more rights-based legal framework. Prior to the 1915 reform, Furuseth regarded seamen as little better than slaves. Although the book was not written strictly as an academic work, this reviewer would have benefited from a fuller discussion of the legal background to the issues that Gibson raises – in short, moving one of the appendices to the front of the book and expanding it. For example, no mention is made of the 1920 Merchant Marine (Jones) Act, section 33 of which made ship owners, [*4] officers and fellow seamen liable for negligence which caused the death or injury of a sailor (Chapter 24-Merchant Marine Act 1920). Similarly, the book would be strengthened by additional material on general working conditions on early 20th-century US flagged deep-water sailing vessels, which were facing competition from steam, and on the nature of the industry, including the political power of shipping companies, and the ethnic profile of the workforce. Many West coast sailors were Scandinavian – was violence a problem in the merchant fleets of those nations?

The politics of sailors’ unionism are also worth some explanation. Although Furuseth was not a supporter of the IWW, the general climate of labor militancy by 1918 may have been a factor in the prosecutions. Pedersen’s claims of an IWW conspiracy to sink or blow up the PUAKO seem fanciful, but the Wobblies were a feared presence on the West coast. Their leaders were jailed after America declared war in 1917, and the organization was targeted in the first Red Scare, but the Wobblies would continue to attempt to organize sailors, fishermen and longshoremen during the 1920s. The mainstream seamen’s labor movement also was weakened, which probably affected use of the courts to protect sailors. In 1921, just after the PUAKO trials and prior to Hansen’s prosecution, the International Seamen’s Union lost a crucial strike, and the sailors’ labor movement declined for the next decade. It would be interesting to know if any further “LaFollette Act” prosecutions ensued during this period of union busting (see e.g., Sailors’ Union of the Pacific; Seafarers International Union).

REFERENCES:
Sailor’s Union of the Pacific, History. Available online at: http://www.sailors.org/

Seafarers International Union, SIU and Maritime History. Available online at: http://www.seafarers.org/about/history.xml

Chapter 24-Merchant Marine Act, 1920, United States Code, Title 46, Appendix.

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© Copyright 2007 by the author, Greg Marquis.

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