MAKING THE MODERN AMERICAN FISCAL STATE: LAW, POLITICS, AND THE RISE OF PROGRESSIVE TAXATION, 1877-1929


Vol. 24 No. 9 (September 2014) pp. 496-499

by Ajay K. Mehrotra. Cambridge University Press. 2013. 428pp. Hardback $90.00. ISBN: 978-1-107-04392-3.
Reviewed by Jonathan Chausovsky, State University of New York at Fredonia, chausovs[at]fredonia.edu



Ajay Mehrotra has chosen to follow the money. In this case, it is in the form and distribution of taxation burdens that accompanied the transition to a more modern bureaucratic American state. His method is historical, and in the finest tradition of James Willard Hurst, contextual and complex. The narrative of MAKING THE MODERN AMERICAN FISCAL STATE is divided in three parts, bisected by POLLOCK v. FARMER'S TRUST AND LOAN (1895) which declared an income tax unconstitutional, and by the Sixteenth Amendment, ratified in 1913, that effectively reversed that decision. Surrounding these two points is a rich intellectual history of responses to industrial development, situated in the political structures of the Gilded Age and Progressive Eras. The initial context of unfair burdens of indirect taxes was intensified with the advent of corporate capitalism. Intellectual academics articulated a new ability to pay, termed the faculty theory of taxation. They sought to replace the extant theory of taxes paid for government services delivered, termed the benefit theory. Lawmakers navigated the political waters to put these theories into laws, alternately in the states, and at the Federal level. Finally, a bureaucratic turn administered the new Federal tax policy, and contributed to a new industry of tax lawyers.

Part one traces the structure of taxation policy and its resulting antagonism in the period following Reconstruction. Federal income depended largely on tariffs on imports, and on various fees for services rendered. Scholars debated who ultimately bore the burden of the tariff, with Thomas Cooley, in particular, claiming it fell primarily on the ultimate consumer, and thus principally on laborers and agricultural workers (pp. 38-9). Local property taxes became increasingly regressive, as intangible and financial assets proliferated in the new industrial economy. Judicial oversight was minimal. The deterioration of the old system resulted from alterations in social conditions, including immigration, industrial urbanization, and increased inequality. Wealthy persons and corporations with new intangible assets were increasingly able to hide their wealth from taxation. Local tax administration controlled by the parties led to favoritism, complete with an incentive to hide assets from the state.

The causal arrow in this narrative runs from these social changes through the hands of German-trained academic intellectuals, who articulated the new “faculty” theory. The three most influential included Richard T. Ely, Henry Carter Adams, and in particular, Edwin R.A. Seligman. Seligman contended that the benefits theory supported an outmoded theory of citizenship. His theory of taxation was not individualistic, but rather conceived of the individual as a member of society. Eventually this would lead to a new concept of fiscal citizenship. These efforts informed the legislative effort resulting in a mildly progressive income tax in 1894. Mehrotra nicely details the machinations of clever lawyers that distorted Seligman's research to construct a clever argument that a colonial era Massachusetts income tax was the sort the uniformity clause was intended to forbid. In POLLOCK five Supreme Court Justices were convinced.

The second part details the response to POLLOCK, and the path to the Sixteenth Amendment. Reformers intensified their articulation of underlying philosophical principles. When the Democratic Party absorbed populists in 1896, it also absorbed the populist demand [*497] for progressive taxation. Academic reformers identified three elements of a progressive regime: first, a more equitable allocation of the tax burden; second, development of an ideology of fiscal citizenship; and third, construction of administrative authority. Their challenges included defining the ability to pay, linking progressivity to the faculty theory, and deflecting claims faculty theory amounted to socialism. Seligman drew on colonial history to claim that the faculty tax indeed comported with American ideals, and on John Stuart Mill's claim that ability to pay should be based on equality of sacrifice, noting that wealth produces more wealth. This results in a corresponding increase in tax obligation.

Mehrotra portrays the states as laboratories of experimentation in tax policies. States had relied on property taxes more than other revenue streams. The rise of free education, dependent care, and urban industrialism stressed their expenditures. Some reform efforts were misplaced. Ohio, for example, was among the states that sought to outsource tax collection, but the collectors themselves were often corrupt. State imposition of assessors from outside the locality removed local control, but required increased legibility by the state. The search for new revenues led to centralization, classification, and separation of types of revenue for the different levels of government. For example, Henry Carter Adams argued property taxes should be assessed locally, to reduce under assessment, while corporations should be assessed at the state level (pp. 214-15). California did so, and saw a substantial increase in revenue. But this led to a dependence on business conditions: in a recession, state tax revenues waned. Wisconsin was the first to adopt the progressive income tax under the leadership of Robert La Follette, as an element of the Wisconsin Idea, including state constitutional reform eliminated a uniformity clause (pp. 230-32).

The third part details the imposition and then entrenchment of the new taxation system. The “tectonic shift” (p. 294) occurred during and after the Great War. The narrative shifts from academics and legislators to lawyers and bureaucrats at the Treasure Department. They built the administrative foundations of a new fiscal policy by constructing networks, developing legal skills and professionalism, and formulating new policies. Wartime statism was funded by tax increases, borrowing via Liberty Bonds, and easy money policies that led to inflation. The need to increase tax receipts led to higher marginal rates, up to 77% at the war's end, and well as a much lower exemption. It also led to an “excess profits” tax, itself controversial as it implies a “normal” rate of profit. The Treasury lawyers acted as entrepreneurs to impose what from their view was a function and fair system, a classic case of bureaucratic autonomy (Carpenter 2001).

The consolidation of the fiscal regime occurred after the war. Lawyers who had built the system during the war built private taxation practices after the war, and presented a potent new lobby. With legacy Treasury administrators, and the remaining congressional progressives, they successfully resisted efforts to remove the income tax. Andrew Mellon's tenure as Treasury Secretary in the 1920's oversaw the retrenchment. Marginal burdens were reduced on the very wealthy, even as the effective rates remained, due to wealth increases. Progressives strategically sacrificed the excess profits tax in order to maintain an income tax. In a trade off between fairness of progressive taxation and the simplicity of a sales tax, the former won out. This was reinforced, with the Supreme Court's decision in EISNER V. MACOMBER (1920) that stock dividends did not amount to taxable income, and that only with “realization” could profits be treated as income (pp. 367-70).

The narrative in this work is detailed and impressive. It covers a wide range of history, and cuts across literatures in a number of areas. It skillfully deploys ideas developed by scholars in recent decades, such as bureaucratic autonomy or path dependency. For those most interested in the constitutional/public law elements, the rich use of sources that is compiled [498] here provides useful context for legal change. For those interested in administrative state building, Mehrotra provides a useful case study to contrast with the many others drawn from this same period. For those advocating reforms to establish a consumption tax (as Mehrotra appears to favor), it is an invaluable resource. It will prove useful for contemporary debates over tax code alterations. Thomas Piketty (2014) can advocate redistributive taxation, but Mehrotra explores the vagaries the law and politics that must be navigated for a purported implementation.

Mehrotra identifies corporate capitalism as a significant cause of constitutional change, as opposed to existing narratives that identify elite actions. To be fair, Mehrotra's narrative does identify elites, but they are different elites: his elites are academic advocates in the Progressive Era. Whether, as he claims, Progressive Era developments were more significant than New Deal administrative developments would seem to still require a direct comparison. Clearly the New Deal built on Progressive Era developments, but the extent to which its departures really broke new ground deserves direct attention.

A more provocative claim is that Seligman's tactics of privileging faculty theory and disparaging benefits theory severed the link between spending and revenue collection. Mehrotra claims that Seligman undercut the possibility of redistribution by focusing on taxation, and not on spending. This wades into the longstanding question of “why no socialism?” in America. Obviously, many explanations have been proposed, ranging at least from Hartz's (1955) depiction of irrational mass Lockeanism, to Bensel's (2000) analysis of a bifurcated party system, or Lieberman's (1998) analysis of racial intransigence during the New Deal, to pick three prominent examples. Beyond this, it was not until the Keynesian revolution that purposive budget deficits were fully articulated. Keynes' advice confounded many: don't save in a crisis, go into debt! During the 1930's the Federal government did not run particularly large deficits: that took a world war. Following the war, politicians typically kept deficits somewhat in line. An additional severing came with the Reagan revolution, when large deficits were justified using supply side theory, rather than demand side. Mehrotra does suggest Mellon's policy proposals resembled Reagan's supply side policies, but there does not seem to be any direct lineage. In any case, Mehrotra argument does complicate these debates, it does not replace them.

The assertion of a critical juncture where stigmatization of consumption taxes precluded their inclusion in a full-ranged holistic federal tax policy rests in part upon path dependence theory (Pierson 2004). Mehrotra claims that efforts to privilege progressivity focused exclusively on the taxation side, and “limited the imagination of future American tax theorists and lawmakers” (p. 17). Evidence of the resistance to changing the path came from the failure of proposals for sales taxes in the 1920's. The result, Mehrotra argues, was to close off the path to a European style welfare state that would include substantially more redistributive spending, an assertion similar to that by Monica Prasad (2012).

The reliance on path dependency theory here seems less helpful than a traditional analysis of combat with entrenched interests. Path dependency theory is built in part on increasing returns to scale. But the legislative battles consisted of entrenched interests that maintained pressure on the political system, and warded off efforts to impose a different system of taxation. These efforts can be depicted as negative feedback by an entrenched interest against efforts of change, rather than by increased returns to scale via drastically increased numbers of persons and interests locked unwittingly into a system lacking a value added tax. The new tax lawyers lobby was far more influential than its mere numbers would suggest.

That said, Merhotra's contribution offers rich fodder for these debates. It is an exemplary work that deserves close reading. [*499]

REFERENCES:

Bensel, Richard Franklin. 2000. THE POLITICAL ECONOMY OF AMERICAN INDUSTRIALIZATION, 1877-1900. New York: Cambridge University Press.

Carpenter, Daniel P. 2001. THE FORGING OF BUREAUCRATIC AUTONOMY: REPUTATIONS, NETWORKS, AND POLICY INNOVATION IN EXECUTIVE AGENCIES, 1862-1928. New York: Cambridge University Press.

Hartz, Louis.1955. THE LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF AMERICAN POLITICAL THOUGHT SINCE THE REVOLUTION. New York: Harcourt, Brace.

Lieberman, Robert. 1998. SHIFTING THE COLOR LINE: RACE AND THE AMERICAN WELFARE STATE. New York: Cambridge University Press.

Pierson, Paul. 2004. POLITICS IN TIME: HISTORY, INSTITUTIONS, AND SOCIAL ANALYSIS. Princeton, NJ: Princeton University Press.

Piketty, Thomas.2014. CAPITAL IN THE TWENTY-FIRST CENTURY. Cambridge MA: Belknap Press.

Prasad, Monica. 2012. THE LAND OF TOO MUCH: AMERICAN ABUNDANCE AND THE PARADOX OF POVERTY. Cambridge, Mass: Harvard University Press.


CASE REFERENCES:

EISNER v. MACOMBER, 252 U.S. 189 (1920).

POLLOCK V. FARMERS' LOAN & TRUST CO., 158 U.S. 601 (1895).

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© Copyright 2014 by the Author, Jonathan Chausovsky.

SUPREME COURT JURISPRUDENCE IN TIMES OF NATIONAL CRISIS, TERRORISM, AND WAR

Vol. 24 No. 9 (Septemeber 2014) pp. 493-495

by Arthur A. Garrison. Boulder, CO: Lexington Books, 2011; 2013. 500pp. Hardback $130.00. ISBN: 978-0-7391-5102-0. Paper $48.99. ISBN: 978-0-7391-5103-7.

Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College (MO). Email: tobias.gibson@westminster-mo.edu

Arthur A. Garrison’s SUPREME COURT JURISPRUDENCE IN TIMES OF NATIONAL CRISIS, TERRORISM, AND WAR is an excellent discussion of the role that the Supreme Court has, does and should play in this important policy space. Garrison begins with the thesis that “in times of war and national crises the judiciary maintains the Constitutional boundaries on Presidential power” (p. xii).

Despite its title the book is much more than a retrospective look at Supreme Court jurisprudence. Garrison begins with an excellent in-depth discussion of the debate between Framers James Madison and Alexander Hamilton, with a pinch of Thomas Jefferson, regarding power dispersion in the Constitution. Using the debate between the framers to frame the discussion, by the end of the first chapter Garrison has established that “Congressional acquiescence or complicity with Presidential use of military force and deployment without Congressional approval has established a history that has placed in the power of the President, as Commander-in-Chief, the ability to use military force as he determines the need with or without the strict need to gain Congressional approval” (p. 36).

In chapter two, the Supreme Court’s role in national security is firmly in focus. The emphasis here is on the historical basis of Supreme Court jurisprudence, and includes cases decided in the wake of the Constitutional ratification to post-Civil War cases. Again, the discussion is deep, rich and informative, with Garrison dissecting case after case, and, importantly, opinion after opinion. One of the strengths of the book, beginning in this chapter, is that Garrison does not merely focus on the opinion of the Court, but also includes treatment of the dissents and concurrences of important cases.

In chapters three and four Garrison outlines cases the Court heard regarding communism and national security during World War I and World War II including a fair amount of discussion of the impact of the cases on free speech issues. One of the key topics discussed within these chapters is a rather extended treatment of citizenship questions, especially regarding the rights of naturalized citizens, during World War II. Garrison notes that the Supreme Court, in BAUMGARTNER v. UNITED STATES (1944), upheld the rights of a naturalized citizen from Germany who aligned with Adolph Hitler. According to Justice Felix Frankfurter, “American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation” (p. 151). Similarly, Justice William Douglas, in KNAUER v. UNITED STATES (1946), entrenched the idea that “Citizenship obtained through naturalization is not a second class citizenship” (ibid.).

In the next two chapters, Garrison offers two “case studies” regarding the powers of the president, and the judiciary’s role in establishing those powers. These chapters, which encompass the Roosevelt and Truman administrations, are excellent, interesting and informative. The Roosevelt chapter focuses on the legal questions surrounding the detention of Japanese Americans during World War II. One of the highlights of this chapter is the inclusion of decisions in lower federal courts about the powers of the president and the rights of these citizens. What Garrison establishes with this discussion is that well before cases like [*494] KOREMATSU v. UNITED STATES (1944) reach the Supreme Court, decision after decision in district courts sided with the government. According to Garrison, “West Coast courts provided support for the curfew and exclusion policies throughout the war and even after its conclusion” (p. 207).

Garrison also notes the impact of Supreme Court decisions on lower courts in the wake of HIRABAYASHI V. UNITED STATES (1943). And in this instance, the district judges were distinguishing precedent, saying that the cases that came before them such as SCHUELLER V. DRUM (1943), EBEL V. DRUM (1943) and SCHERZBERG V. MADEIRA (1944), were fundamentally different as there was no clear imminent threat. In SCHUELLER, for example, the court ruled “where there is a direct interference as here with one’s liberty and property, conduct normally beyond the scope of governmental power, such action could only be justified… when the danger to the government is real, impending and imminent” (p. 214, my emphasis).

The heart of the book is found in its second half, the focus of which is on the post-September 11 Supreme Court War on Terror jurisprudence. Early in this section, Garrison sets the stage with a detailed look at the legal justifications offered by various presidential administrations in determining the legal capacity of the president to engage in war in Vietnam, react to hostage taking in the U.S. embassy in Iran and events that could lead to deployment of troops without congressional approval. To offer a summary of the positions taken by executive branch attorneys, in 1986 the Office of Legal Counsel took the position that “any statute infringing upon the President’s inherent authority to conduct foreign policy would be unconstitutional and void” (p. 274). And all of these legal positions served as bases for the George W. Bush administration’s claim of inherent presidential authorities when entering and engaging in the war on terror. Indeed, Garrison argues that the Bush team of (legal) advisors continued to maintain a position that previous presidential administrations had established as the norm. “It is a historical and political reality that although Congress has had a role in the implementation of policies to protect America throughout history, it has been the President who has had the plenary position in the determination of initial military action” (p. 289).

After reviewing the historical trends, Garrison embarks upon a thorough discussion of the “enemy combatant” cases decided by the Supreme Court. In the course of two chapters, all four enemy combatant cases, including the opinions of the Court and accompanying concurrences and dissents are discussed, parsed and excerpted. Garrison’s main conclusions are hinted at in his original thesis, “in times of war and national crises the judiciary maintains the Constitutional boundaries on Presidential power” (p. xii). He notes, for example, that in HAMDI V. RUMSFELD (2004), “the Court made clear that the tool of detaining an American citizen as an enemy combatant was limited by the Constitutional boundary of due process requirements that the citizen be provided a neutral forum to contradict the facts underlying the classification” (p. 304).

In short, Garrison concludes that the Supreme Court has a key role in establishing the powers of the elected branches. Perhaps more importantly, he also concludes that the Court has a key role in determining the outer limits of those powers, even—or especially—in times of war and crisis. Indeed, “[u]nder the U.S. Constitution, the rule of law, the muse of justice, finds her voice in Hamilton’s least dangerous branch” (p. 442).

Despite the high quality of this book there are some minor concerns. I should note up front, though, that these concerns do not diminish the overall quality of this book. The biggest concern is that the book is too long, especially in chapters eight and nine. Professor Garrison includes within these chapters extended discussion of Court opinions, and excerpts from them at length, using the excerpts to support his arguments in each chapter, and he does this skillfully. But he also includes extended excerpts [*495] from these cases in chapter appendices. In my view this is unnecessary both because of the strength of the chapters and because in the information age the opinions are but a few keystrokes away from the reader.

In short, Garrison’s book offers an excellent discussion of the political, philosophical, historical and legal underpinnings of presidential war powers. The book is mistitled, as it suggests limits that do not exist to the breadth and depth of the scope offered within its pages. This is a detailed, important treatment of the players in a key policy space. I recommend this book highly.

CASE REFERENCES:

BAUMGARTNER v. UNITED STATES, 322 U.S. 665 (1944).

EBEL V. DRUM, 52 F. Supp. 189 (D. Mass. 1943).

HAMDI V. RUMSFELD, 542 U.S. 507 (2004).

HIRABAYASHI V. UNITED STATES, 320 U.S. 81 (1943).

KNAUER v. UNITED STATES, 328 U.S. 654 (1946).

KOREMATSU v. UNITED STATES, 322 U.S. 214 (1944).

SCHERZBERG V. MADEIRA, 57 F. Supp. 43 (E. D. Pa. 1944).

SCHUELLER V. DRUM, 51 F. Supp. 383 (E. D. Pa. 1943).

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© Copyright 2014 by the author, Tobias T. Gibson.


REGULATING OBESITY? GOVERNMENT, SOCIETY, AND QUESTIONS OF HEALTH

Vol. 24 No. 9 (September 2014) pp. 490-492

by W.A. Bogart. New York: Oxford University Press, 2013. 224pp. Hardback $74.06. ISBN: 978-0199856206.

Reviewed by Aaron J. Ley, Department of Political Science, University of Rhode Island. Email: ajley@uri.edu.


“The Biggest Loser,” “Shedding for the Wedding,” “Extreme Weight Loss.” These are just some of the reality TV shows demonstrating the American fixation with weight loss and the debate over what to do about obesity. Is advocating weight loss an appropriate response to the problem of obesity? It seems the answer would be a resounding, “Yes!” When I first sat down to review REGULATING OBESITY? GOVERNMENT, SOCIETY, AND QUESTIONS OF HEALTH, I was ready to review a book evaluating proposals that banned junk foods and soft drinks, and the various other proposals that have come under scrutiny from critics who believe that government has overstepped its bounds with respect to individual choice. I got a lot more than what I bargained for.

W.B. Bogart, a University Professor and Professor of Law, at University of Windsor with extensive experience consulting governments in developing policies aimed at reducing harm from risky behaviors such as gambling and smoking, demonstrates the complications of using law as a tool for shaping individual behavior. The best way of describing this book from a methodological standpoint is that it blends the sociolegal tradition with the Public Policy, Public Administration, and Comparative focus on the New Governance. The New Governance observes that government is moving beyond command-and-control regulation toward regulation that is more “reflexive” or “collaborative” in nature (see e.g., Fiorino 2006). It emphasizes using innovative tools, like subsidies and government-imposed markets, to accomplish societal goals rather than regulations that are punitive in nature. It also includes the practice of carefully measuring the attainment of goals and going back to the drawing board to devise new regulatory strategies or approaches when these strategies fall short of attaining these goals. This book should be lauded for doing what a lot of sociolegal and policy scholars do not do – bridge the gap between the fields of law and policy.

More specifically, it asks, in light of what we know about obesity from the extensive public health research that has been done about it, how do we go about tackling this critical problem if we take into consideration what we know from the experience of other countries and in light of how we think about governance? Bogart insists from the beginning that this book is not really about obesity, and I agree: it encourages readers to think about appropriately fashioning legal interventions in ways and in combinations so that they can be measured for effectiveness. The author warns readers that the title was chosen to “emphasize unrealistic beliefs about law and its role in addressing a complex array of issues concerning healthy eating and drinking and physical exercise” (p. xiii). When that is recognized, then it becomes apparent that the public health issue of obesity is an area that can be used to better understand how we approach other important public health problems.

Is the issue really about a weight problem in the United States? After reviewing a number of different perspectives, Bogart convincingly demonstrates that weight is not what we should be attacking. He points out that not everyone agrees that obesity is a problem arguing that the rates of obesity are exaggerated and that the health problems associated with obesity are misrepresented (pp. 44-47). Furthermore, a significant amount of research shows that those who [*491] lose weight have a difficult time sustaining weight loss (pp. 48-49). With that being the case, we would almost surely never succeed in attaining a societal goal of sustained weight loss and would risk hurting large-bodied people through the process if they are stigmatized due to their weight or are encouraged to lose weight by adopting unhealthy eating habits. One example is a billboard campaign in Georgia that showed a large girl with her eyes downcast with a caption reading, “It’s hard to be a little girl if you’re not” (p. 31). Though well-intentioned, such ads and policy approaches emphasizing childhood weight loss as the solution reinforce stigmatization of large people by giving the impression to others that obesity can be controlled through the exercise of self-control while eating. Ultimately, this creates an economic and normative infrastructure that reinforces unhealthy eating habits, where doctors encourage patients to surgically shrink the size of their stomachs, diet pills and fad diets are peddled to those trying to drop excess weight, and large people are exposed to a steady dose of fat shaming. After a careful review of the literature, the author concludes that shifting the emphasis from weight loss to the promotion of healthy eating habits and active lifestyles may bring about normative change where law may have a role.

Law has a role in bringing about this normative change, according to the author, but that role is complicated. There is no question that heavier people face discrimination and suffer from appearance bias on a widespread basis. The author includes an example of a Texas hospital prohibiting the hiring of well qualified prospective, but large, employees who did not have redress to challenge these exclusions through human rights legislation. If heavier people are excluded from health professions on the basis of their appearance, and not their health, then they are not afforded the opportunity to demonstrate their merit just like everyone else. According to the author, “health and weight are not to be confused [and] [h]uman rights laws are necessary to protect fat people from prejudice” (p. 94). To confuse health and weight precludes people of merit in all shapes and sizes the opportunity to demonstrate their competence in performing the same duties as those who are privileged by the current system of discrimination against heavier people. Although critics of human rights statutes worry about increased litigation, Bogart cites evidence that jurisdictions with anti-appearance bias statutes have not experienced significant levels of growth in lawsuits. The only question that remains is the extent to which those who are disadvantaged by the current system would know that they are protected under these statutes.

Besides human rights laws that protect heavy people from being discriminated against, how might government promote healthy consumption and active lifestyles? Bogart encourages readers to think about policy implementation in light of the New Governance, or the various tools that governments have at their disposal to achieve successful policy implementation. In Chapters 5-7, the author explores interventions relating to the regulation of marketing (especially the marketing of food to children and how other countries have successfully limited it), fiscal tools (e.g., taxes and subsidies), and changes to the built environment (e.g., more parks, bike paths, and the promotion of active lifestyles in schools). As a lot of policy analysts are wont to do, he cautions readers to think carefully about the unintended consequences that may arise during the process of implementing policies and also to think carefully about how we effectively combine various tools of government to achieve our goals, called the “regulatory mix.” He also encourages readers to be attentive to normativity, which includes two challenges in the context of obesity: “combating negative attitudes and actions toward fat people and promoting norms regarding healthy eating/drinking and physical exercise” (p. xvii). [*492]

Although I would hesitate to assign this book to undergraduates due to the complexity of the author’s argument, this book is appropriate for a graduate-level and scholarly audience and is timely given the growing number of Public Policy and Public Administration schools that are beginning to incorporate public health programs. One would hope that this book will also be read by health care professionals and insurance industry professionals who are concerned with long-term health care outcomes. Even though the author uses the debate over weight as the substantive focus of the book, he also uses various other public health issues, such as smoking and gambling, to illustrate and reinforce the idea that law is a complicated mechanism for influencing human behavior. My main criticism of this work is that it does not pause to consider what the debate over addressing obesity will look like under the Patient Protection and Affordable Care ACT (PPACA) passed under the Obama Administration. This is likely an artifact of the slow implementation and passage of the law, and the fact that the book, which is very well-written and organized, was concurrently in the publishing process.

Still, this lack of discussion does not detract from the main objective of the book and can be turned into an opportunity for debate and discussion in the classroom. Some of the questions raised might be, will insurance companies emphasize healthy lifestyles and eating habits over weight loss? Certainly, some insurance companies are offering incentives for the insured to attend fitness centers, which are plastered with posters that encourage healthy lifestyles and eating habits. Will insurance companies become an important player in encouraging governments and local jurisdictions to pave more walking and bike paths? Will they assume a lead role in minimizing the advertising of junk food, both online and on TV, to children? Did the New Governance anticipate the role of the insurance industry in health care administration? Not only does this book raise interesting questions about the interplay of government and private industry, but I also encourage all law and policy scholars to consider reading it because the author explores the interplay of law, policy, and society in new, creative, and innovative ways.

REFERENCES

Fiorino, Daniel J. 2006. THE NEW ENVIRONMENTAL REGULATION. Cambridge, MA: MIT Press.

© Copyright 2014 by the author, Aaron J. Ley

CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE, by Megan Ming Francis and BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY, by Joseph Fishkin

Vol. 24 No. 9 (September 2014) pp. 485-489

CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE, by Megan Ming Francis. New York: Cambridge University Press, 2014. 208pp. Cloth $80.00. ISBN: 1-107-03710-7. Paper $27.99. ISBN: 1-107-69797-2.

BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY, by Joseph Fishkin. New York: Oxford University Press, 2014. 288pp. Cloth $35.00. ISBN: 0-199-81214-4.

Reviewed by Bailey Socha, Department of Political Science, Rutgers University.





Both Megan Ming Francis’ CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE and Joseph R. Fishkin’s BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY take up the question of social equality in novel and important ways. Francis’ historically-based investigation of the early role that the National Organization for the Advancement of Colored People (NAACP) played in developing twentieth century civil rights litigation tactics invites us to reconsider the framework scholars use to think about the civil rights movement. In a different mode of questioning, Fishkin’s analysis of some extant theories of equal opportunity leads him to develop his own theory with an eye to its legal and policy implications. While these books are very different from one another, each one of them presents a persuasive contribution to the literatures in which they are engaged.

CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE

CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE charts the emergence of the NAACP as a central actor in promoting civil rights for African Americans on a national scale. CIVIL RIGHTS reconstructs the institutional formation and coalescence of the NAACP around the single issue of lynching in 1909 and follows some of its most prominent members over a fourteen-year period in their efforts to secure federal protection against lynching. This single issue campaign culminated in the NAACP’s litigation breakthrough in the landmark decision MOORE v. DEMPSEY (1923) that shaped the path of future civil rights tactics, opening the door for a much broader range of civil rights protest in later decades.
Much of the data used to support and develop her argument in CIVIL RIGHTS results from original archival research, and Francis’ findings are sure to be of lasting value for scholars working in American political development, African American politics, and civil rights. Francis positions herself with those who challenge the dominant periodization of the civil rights movement as a post-World War II phenomenon. No doubt the richness of her archival sources fosters and supports her reframing of the genesis of the civil rights narrative away from the oversaturated study of BROWN v. BOARD OF EDUCATION (1954) toward the first quarter of the twentieth century when MOORE was decided in 1923. While the NAACP’s fight against racial violence during this period coincided and contributed to the national government’s power grabbing from the states, Francis is more interested in highlighting the contingency that marked the evolving strategy of the NAACP’s anti-lynching agenda. This is illustrated strongly by Francis’ four-sphere investigation of the NAACP’s campaign to quash the culture of racial violence throughout the United States via print media, then by turning to the executive branch, the legislature, and eventually the judiciary. In exploring one central organization during this tumultuous time in American history, Francis succeeds in forcing her reader to reassess the importance that the NAACP played in shaping criminal procedure jurisprudence and subsequent civil rights litigation practices. [*486]
The NAACP formed at a low point in American race relations and the organization’s membership was hotly contested from within the anti-lynching community. In pursuit of wide-spread support among the African American community and acceptance from white progressives, extreme voices on the anti-lynching spectrum were negotiated out of the NAACP’s worldview from the start. One notable exception was W.E.B. Du Bois who edited the NAACP’s magazine THE CRISIS. This politically moderate—although still quite diverse—leadership pursued a consciousness-raising campaign. The NAACP’s media-based initiatives rested on the organization’s belief that the persistence of lynching and racial violence were generally due to white ignorance about the nature of lynchings.
Typically, lynching was perceived (and defended) as a form of vigilante justice carried out by whites against an almost-always African American “rapist.” However, the reports and exposés circulated by the NAACP told a different story. Only one-fifth of lynchings were against a suspected rapist. Instead, lynching was carried out often under a pretense of suspicion, and it is not an overstatement to say that white suspicion was provoked merely by, in many cases, a man’s blackness. Lynching was a mechanism to enforce a caste-like social structure, but the question remained open whether this mechanism was an extra-legal or a systemic feature of criminal justice where it occurred.
The NAACP media campaign was successful in reaching broad audiences and counteracting the mythical connection between rape and racial violence. While reports were used in congressional hearings against lynchings and many papers across the country ran stories investigated by the NAACP, racial violence continued to burn across the nation after World War I. The Red Summer of 1919 marked one of the bloodiest seasons in American history, when at least 26 discrete race riots occurred around the country. It was clear to the NAACP after the Elaine race riot in 1919, out of which emerged MOORE v. DEMPSEY (1923), that lynching was not the result of individually-held irrational racism of the few, but was condoned by state and local governments as a legitimate arm of justice. Furthermore, it became clear, Francis argues, that a media campaign alone would not be enough to stem the tide of racial violence in the United States.
Throughout this period and with a growing sense of urgency, the NAACP courted the favor of Presidents Wilson and Harding. Francis details how the organization was met with moderate success, less with Wilson than with Harding. During both terms of the Wilson administration the NAACP vice-president and secretary achieved only tepid results after years of correspondence and petition. One statement from the President against lynching delivered to Congress in 1918 came at a time when Wilson’s own advisers were Southern white supremacists who supported segregation of national government offices.
Three years later, the NAACP was met with greater success in their association with President Harding. Harding’s initial ignorance on the subjects of lynching, the NAACP, and African American issues, was quickly overcome. Francis shows that Harding became an outspoken supporter of the NAACP agenda. In a direct statement to Congress the day after an anti-lynching bill was introduced, Harding stated that lynching ought to be abolished and made illegal. Francis turns her attention next to the role that the NAACP had in supporting and publicizing the Dyer Anti-Lynching Bill through its passage in the House and its ultimate death on the Senate floor in 1922. Through the NAACP’s role as a lobby organization, Francis argues that it was further able to influence public and elite opinion that helped influence the Court’s decision in MOORE the following year.
Next, Francis investigates the central role that the NAACP played in bringing MOORE to the Supreme Court in 1923. This is the natural center of the book as a whole, and through it the reader begins to see a clear picture emerging in favor of Francis’ argument. It was not that the NAACP had necessarily devised litigation as a clear and likely mode of pursuing its anti-lynching agenda. Instead, the organization’s breakthrough emerged from the conflict between [*487] states’ and federal interpretations of due process and its acute relationship to the fourteenth amendment in the postbellum South. Caught up in the chaos of this large-scale conflict as well as the raging racial and economic turmoil of 1919 were twelve African American men condemned to die in a case of legal lynching in Helena, Arkansas.
In the aftermath of the Elaine Race riot, scores of African Americans were rounded up by white law enforcement. While upwards of 250 African Americans had been killed by white mobs during the riot, the arrests were made in connection with one white man’s death. In the end, after testimony was obtained by torture, twelve men were sentenced to die by a mob-dominated trial that lasted less than an hour. Walter White of the NAACP conducted an on-the-ground investigation during the trial and published his findings in a Chicago newspaper. Subsequently, the NAACP contracted Scipio Jones and funded the litigation process through the state level courts. Six of the defendants were freed because of a clerical error. The other six men in MOORE were still condemned to die under the Arkansas Supreme Court’s view that there existed necessary correctives to ensure due process of the law. Finally, a federal judge agreed with the NAACP legal defense that there were grounds for an appeal. The Court overturned the earlier precedent of FRANK v. MAGNUM (1915) and stated that a mob-dominated trial was illegitimate even if it occurred in the guise of formal due process. Instead, due process was given a fuller, more substantive interpretation. Francis concludes her argument with the assertion that this marked change from FRANK was due in large part to the NAACP’s activism elsewhere during the period. Francis concludes the early success the NAACP had in MOORE v. DEMPSEY (1923) shaped the kinds of tactics used in later civil rights strategies.
CIVIL RIGHTS deserve praise for its original scholarship and insight into an early chapter of civil rights activism. It rightly emphasizes the role of citizen organizations like the NAACP that help engender popular support and exert pressure on elites in a literature that is often focused on elite decision makers themselves. But while it is clear that the NAACP played an important role in MOORE and to a lesser extent in the executive and legislative branches, whether the NAACP actually caused attitudes and outcomes to shift in the way Francis suggests is less certain. The degree to which African American interests represented by the NAACP may have coincided with a President’s desired image or the Supreme Court’s agenda to wrest power from the states remains to be seen at the end of CIVIL RIGHTS. It may be that there is a significant gap between the interests of those who pursue civil rights protection at the national level and the interests and agendas of the elites who take up those challenges. That said, such an examination is the subject of another book, another discussion. In any event, the measure of a book’s significance is determined by the quality and novelty of the questions it raises. For that reason CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE will be with us for a long time.

BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY

Joseph R. Fishkin’s book BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY reimagines how we might conceptualize equal opportunity in a more comprehensive, pluralistic way. BOTTLENECKS breaks with the existing literature on equal opportunity by broadening our thinking about the scope of equality beyond the familiar flash points of affirmative action. Fishkin approaches questions of merit and opportunity through a rich examination and critique of existing theories of merit, human development, and the role of luck underlying much of our language used to discuss opportunity. Using cutting edge research from the fields of psychology, experimental biology, and philosophy of science, BOTTLENECKS provides a compelling view of how opportunities profoundly shape merit. Fishkin advocates for a pluralistic model of promoting developmental chances while preserving individual differences in society. The book concludes with an engaging overview of how conceptualizing restricted opportunities as [*488] bottlenecks can be loosened to promote a plurality of choices for all individuals.
The argument in BOTTLENECKS is presented in four distinct phases. First, the author reviews some popular models for equal opportunity, most notably the Rawlsian and starting gate opportunity theories, with special attention paid to the concepts of talent and human development. Marshaling recent psychological data in his analysis of human development, Fishkin argues that ability is thoroughly bound up with the concrete opportunities and experiences provided to us. On these grounds, BOTTLENECKS advocates for a pluralistic conception of opportunity, one that prioritizes the development of human capacity at any time of life. Fishkin argues that opportunity pluralist policies will correct these bottlenecks and demolish the barriers that constrain possibilities surrounding the kinds of paths individuals might choose for themselves. Finally, Fishkin uses his diagnostic tool for seeking out, and ameliorating, bottlenecks in a series of social applications, including class, education, race, and gender.
Fishkin conceives of a “bottleneck” as a narrow institutional structure through which individuals must pass to reach benefits and opportunities on the other side. College is one example, as may be gender, age, or geography. For example, to the extent that one’s role (or potential role) as a child’s mother may demote or disqualify a worker there exists a bottleneck. The pervasiveness of this restriction throughout the job-opportunity structure determines the severity of the bottleneck. The important part of this framework is that it does not approach restrictions and exclusions from a social or political experience of historically disenfranchised groups but highlights instead the intersection of individuals and institutions.
BOTTLENECKS discusses some of the existing theories of opportunity and criticizes them all as either unrealizable or unattractive. Rawls’ theory of Fair Equality of Opportunity, a theory of natural talents, luck egalitarianism, and Dworkin’s theory of opportunity are problematic because they all rely on the assumption that talent and capacity are either innate or reliant on the insurmountable force of chance. In developing a new groundwork for understanding human development as wholly bound up with opportunities for development, Fishkin engages in biological and psychological research. This second chapter houses the conceptual core of Fishkin’s argument and it is the strength of the book. Fishkin argues that human development as the expression of genes or natural talents never manifests without an environment. “All traits and behaviors are 100 percent genetic and 100 percent environmental in origin.” This interaction of demonstrated capacity as resting on concrete opportunity means that our current ways of conceptualizing merit in institutional contexts like college admissions, the hiring process, even the kinds of educational opportunities presented to us as children, cannot and should be thought of as remedial measures. While the chances for developing a “flourishing life” are never totally equal, Fishkin argues that a vision of pluralistic opportunities is more desirable than a vision of totally equal sameness.
This book’s target audience is interdisciplinary: BOTTLNECKS addresses itself to public law scholars, political theorists, policy makers, and institutions looking to refine the way they structure opportunity. Examples of class, education, race, gender, and workplace bottlenecks are reviewed. After discussing each kind of bottleneck, Fishkin provides some insights into the ways that opportunity pluralism would ameliorate the difficulties found in each case. For example, in discussing Sweden’s policy move in the 1990s to make parental leave non-transferrable between parents, Fishkin shows that the government’s attempt to promote gender equality in the workplace actually led to a severe gender bottleneck. Although the policy of parental leave was formally open to both men and women, Fishkin highlights the division between government employees who are mostly female and private sector workers who are mostly or “ideally” male. In the former case, many employees are offered and utilize generous parental leave agreements, while in the latter case, the work culture discourages the utilization of any parental leave regardless of gender. This creates a situation in which women, but also men, who have chosen to take on the [*489] role of a parent are more likely to select a career in the government exclusively for benefits extraneous to the job. From the perspective of opportunity pluralism, the only solution to this problem is to break down the norm of the “ideal” i.e. male worker in all workplaces through public policy and restructuring the way work is compensated in firms.
Fishkin’s project is overtly engaged in normative theories of opportunity. With that in mind, it is perplexing why his overview ignores alternative theories of human flourishing that extend beyond those in a liberal market society. For example, the relationship between opportunity pluralism and its real-world applications in Fishkin’s argument is complicated by some assumptions of an individualistic rather than communitarian social structure. While the book does advocate for loosening bottlenecks that unduly stress the disadvantaged, its theory does not question whether certain economic arrangements like wage labor are normatively necessary, let alone viable for a flourishing life. Related to this, BOTTLENECKS does not assess whether social roles are interactive and structural, rather than derivative of personal choice in an open marketplace. There may be good arguments why such a paradigm is superior to others, but Fishkin leaves this justification underdeveloped.
In spite of this question mark, Fishkin’s book is important for the ways in which it challenges our vocabulary of merit, talent, and chance, pushing us toward a language that promotes opportunity irrespective of “dessert” and away from arguments that defend accumulated advantage. It is a valuable resource for students interested in a concise and truly interdisciplinary approach to normative theoretical investigation. For these reasons, BOTTLENECKS ought to be incorporated into our extant discussion of equal opportunity.
For as much as Francis’ and Fishkin’s books differ in their conceptual and theoretical approaches, taking them together highlights the richness and diversity found within the domain of public law scholarship today. Both of these authors strengthen the field by expanding the frontiers of what we may know of our world by challenging the narratives through which we approach it.
CASE REFERNCES:
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
FRANK v. MAGNUM, 237 U.S. 309 (1915)
MOORE v. DEMPSEY, 261 U.S. 86 (1923).
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© Copyright 2014 by the author Bailey Socha.

BOOK NOTICES: August & September 2014

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