THE SUPREME COURT: AN ANALYTIC HISTORY OF CONSTITUTIONAL DECISION MAKING

Vol. 29 No. 9 (October 2019) pp. 110-113

THE SUPREME COURT: AN ANALYTIC HISTORY OF CONSTITUTIONAL DECISION MAKING, by Tom S. Clark. New York: Cambridge University Press, 2019. 428pp. Cloth $99.99. ISBN: 9781108422765. Paper $29.99. ISBN: 9781108436939.

Reviewed by Patrick C. Wohlfarth, Department of Government and Politics, University of Maryland, College Park. Email: patrickw@umd.edu.

Sometimes I wonder if justices on the U.S. Supreme Court would prefer to exist in seclusion, especially in today’s political environment. Except for the occasional trip to the Kennedy Center Opera House, or to the Washington Navy Yard to catch a Nationals game (Savage 2015), they could hole up in their chambers and make their decisions while sequestered like a jury in a high-profile trial. Forget the chatter about cameras in the Courtroom—turn off the audio recorders and kick everyone out. Of course, such a (facetious) proposition belies the fact that the “outside” political world is always present; it is where the docket begins, where the decisions are made, and where the country responds.

In THE SUPREME COURT: AN ANALYTIC HISTORY OF CONSTITUTIONAL DECISION MAKING, Tom S. Clark sets out to capture in a systematic manner the dynamic contours of the politics of constitutional history since the Civil War. This is a tall order which the book delivers. Clark’s central argument is that constitutional change coming from the Court is a product of various external social and macro-political forces that shape the content of the Court’s docket and establish a context in which the justices (at the micro level) then make decisions based on their multidimensional preferences. At its core, Clark’s ambitious book seeks to strike a balance between offering a rich, historical narrative and a parsimonious, social scientific inquiry. It may be that strict adherents to either analytical perspective will grumble about this balancing act. I don’t, however, and I find Clark’s approach to be admirable and refreshing. He offers perhaps the most impressive, rigorous account of the dynamics of constitutional issue change on the Supreme Court, to date. In short, this novel book should interest law and courts scholars of all stripes and ought to be required reading for years to come.

The first half of the book lays out the theoretical and empirical foundations that motivate the rest of the analysis. One key argument at the outset is that law is not a constraint on justices, but rather the political landscape shapes how justices interpret and ultimately determine the content of constitutional law. More specifically, Clark contends that social and political circumstances spark legal questions. Justices then resolve these cases and controversies in a manner consistent with micro-level theory, which subsequently aggregate into constitutional doctrine.

Clark features the case-space theoretical model to motivate his inquiry. As he states, “the premise underlying the case-space model is one in which judges have different preferences on different dimensions of a given case. Any given case may activate some of those dimensions relatively more or less” (pp. 34-35). As a consequence, justices balance a case’s multiple dimensions and the internal cleavages on the Court ultimately determine the content of doctrine. Invoking the case-space model offers a compelling theoretical foundation upon which the entire book rests. The book’s theoretical development is also notable for its emphasis on issue framing by litigators. Although some prior work has considered the notion of “heresthetics” and strategic issue framing on the Court (e.g., Wedeking 2010), the emphasis on this important aspect of the process by which cases and controversies produce case law is an essential—and often overlooked—part of the Court’s decisions.

As he moves to the analytical side of the inquiry, a central innovation that Clark presents (as developed in his earlier coauthored work—see Lauderdale and Clark [2012, 2014]) is a theoretically-motivated measurement model to identify the issues, or topics, onto which justice’s [*111] votes and opinions map. Clark argues that the data are best categorized into six topic dimensions: Judicial Power, Economics and Business, Central Authority, Balance of Power, Crime and Punishment, and Individual and Civil Rights. He estimates each justice’s preferred policy preference (or ideal point) across each dimension. Thus, the content of the Court’s decisions maps onto multiple topic dimensions, which change over time, and justices have preferences that vary across issues. One important takeaway from this analysis is that the preference alignments among justices (and, by extension, the identity of the median justice) varies significantly across individual cases. This innovative work brings to bear a rigorous, multifaceted portrait of justices’ preferences that serve as the linchpin for Clark’s broader analysis of the history of constitutional change.

THE FREE EXERCISE OF RELIGION IN AMERICA: ITS ORIGINAL CONSTITUTIONAL MEANING

Vol. 29 No. 9 (October 2019) pp. 105-109

THE FREE EXERCISE OF RELIGION IN AMERICA: ITS ORIGINAL CONSTITUTIONAL MEANING, by Ellis M. West. Palgrave Macmillan, 2019. 317 pp. Cloth $89.99. ISBN: 978-3-030-06051-0. E-book $69.99. ISBN: 978-3-030-06052-7.

Reviewed by Andrew R. Murphy, Department of Political Science, Virginia Commonwealth University. Email: amurphy5@vcu.edu.

First things first: THE FREE EXERCISE OF RELIGION IN AMERICA: ITS ORIGINAL CONSTITUTIONAL MEANING is a tour de force. It will surely become the book from which future debate over the historical origins of the religion clauses, particularly the Free Exercise clause, begins. Professor West seems to have read everything on this topic, and he manages to weave it all together – not only primary source materials but also historiographical, legal, philosophical, and political ones – into a thorough and comprehensive account. In the Preface, West describes the book as “a long time in the making” (p. v), with its origins reaching as far back as his 1971 doctoral dissertation; he was inspired to complete it, he adds, by unfinished business from his THE RELIGION CLAUSES OF THE FIRST AMENDMENT: GUARANTEES OF STATES’ RIGHTS? (West 2011). The book thus represents a summation, of sorts, of an entire career spent studying the nature, meaning, and limits of American religious liberty.

THE FREE EXERCISE OF RELIGION IN AMERICA is provocative, in the very best sense of that word. Indeed, its first provocation comes on its first page, where West writes that the book “explains the original meaning of the two religion clauses” (p. 1, emphasis added). He acknowledges that evidence about early Americans’ views can be difficult to come by, but justifies his use of the singular definite article by stressing that we have ample records of those groups that took an active role in debates at the time. He then advances the book’s central claim: that there was a shared view, endorsed by a “clear majority of Americans who advocated and defended the free exercise of religion” (p. 24), about its meaning during the crucial early years of the American republic. Yet his observation seems also meant to apply not only to those supporting this majority view but also to early Americans more generally. With the exception of New England elites, he writes, “Most other Americans understood the free exercise of religion guaranteed by the First Amendment in the same way that they understood the free exercise of religion guaranteed in their state constitutions, and most of those state guarantees quickly came to have the same meaning” (p. 24). It is an important move, from an argument about how the “majority of Americans who advocated …the free exercise of religion” defined that term to a more expansive one about “how the American people originally understood it” (p. 24); and it effectively transforms a claim about one side in a political debate to a far more ambitious one about a broadly-held early American consensus.

It is crucial to the book’s argument, of course, to know in legal and jurisprudential terms how elites behind the constitutional provisions understood the term “free exercise of religion,” and West provides an extraordinarily detailed and meticulously crafted presentation of the dominant view. That said, we should not assume that through this explanation we have therefore established what “early Americans” generally thought on the topic. There were always other views: most notably, Quaker pacifists, who – largely unsuccessfully – attempted to secure exemptions from militia service on conscience grounds. After all, “in most of the states there was widespread, vigorous, and continuing debate…over how the various provisions should be interpreted and applied, and thus over the meaning of the free exercise of religion,” even if by 1790 “one view of religious liberty became dominant” (p. 196).

In addition to these opening provocations about “the” understanding of free exercise, the book [*106] makes a series of broader claims as part of Chapter 3, “Setting the Stage.” “Early Americans did not have a Darwinian view of society,” nor did they believe in an invisible hand economic theory; to the contrary, they believed that “persons were morally free only to do that which is right” (p. 42). Such a view of morality and politics, as we shall see, had significant implications for the theory and practice of religious liberty. More controversially, West argues that “[e]arly Americans believed that by nature (as created by God) all persons are free and equal…” (pp. 36, 38). Perhaps they did. Then again, the persistence of slavery – to say nothing of widespread anti-Catholicism and gender, religious, ethnic, and political exclusion – might have led to more muted assertions about what early Americans believed. It is important to keep in mind that social and political reality frequently belied these claims, as social historians of American religion have frequently pointed out (see, e.g., the essays in Beneke and Grenda 2011; Corrigan and Neal 2010; Grasso 2018; and Sehat 2010).

GOD AND THE ILLEGAL ALIEN: U.S. IMMIGRATION LAW AND A THEOLOGY OF POLITICS

Vol. 29 No. 9 (October 2019) pp. 96-104

GOD AND THE ILLEGAL ALIEN: U.S. IMMIGRATION LAW AND A THEOLOGY OF POLITICS, by Robert Heimburger. Cambridge: Cambridge University Press, 2018. Paper $24.99. ISBN: 9781316629833.

Reviewed by John S.W. Park, Department of Asian American Studies, University of California, Santa Barbara. Email: jswpark@asamst.ucsb.edu.

Robert Heimburger presents the main point of his book, GOD AND THE ILLEGAL ALIEN: U.S. IMMIGRATION LAW AND A THEOLOGY OF POLITICS, by noting: “this work deals with specific questions about civil law and authority as they concern the migrant. Along the way, the book seeks to remind the church of its purpose and to remind civil authorities of their purpose, each given by God. The aim is to submit human guarding of communities and lands to the guarding of God. Much of the book pares back over-confident assertions of political authority over immigration, pointing to Christ as judge” (p. 19). Heimburger is a fierce critic of Americans and their civil authorities, especially in their treatment of undocumented persons from Mexico. Indeed, one might read his book as a stirring moral rebuke of how Americans in general have been among the most un-Christian and unholy toward their neighbors to the south.

In many places, his book reads like a sermon, the kind that warns its audience of dispossession and divine retribution, maybe even hell fire. The portion of his subtitle that includes “U.S. immigration law” puts this review of his book in a venue like this one, but Heimburger mostly relies on other legal scholars for historical background, interpretations of federal immigration law, and descriptions of their demographic consequences in the United States. This work is thus not an original piece of scholarship in legal history, nor does it offer novel analyses of immigration law and policy; rather, at its heart, this is a book written by a devout Christian for the sake of other believers. Heimburger offers to his Christian audience a history of immigration law that the professional scholars in that field will already find familiar.

To sketch important aspects of the history of immigration law, Heimburger cites some of the best people in the field. In his discussion on the origins of the federal immigration law, Heimburger relies on other important works by Roger Daniels, Daniel Tichenor, Aristide Zolberg, and Mae Ngai, among others. To reach back further into the origins of “aliens” and “citizens,” Heimburger turns to analyses of the leading Chinese exclusion cases of the late 19th century. Justices Stephen Field and Horace Gray were fond of citing medieval theorists, including Emer de Vattel, Hugo Grotius, Samuel Pufendorf, and Thomas Hobbes, all of whom offered full-throated versions of national sovereignty. Heimburger noted that to justify the power to exclude, Justice Stephen Field had once promoted a near unlimited right for his nation to deter unwanted migrants. But Field came to question the doctrine of national sovereignty when his colleagues, including Justice Gray, extended the power to deportation without robust due process protections. Field later repented.

By then, though, the damage was done: “The intellectual lineage from Justice Field and Gray through Vattel and Hobbes casts the sovereign nation as fundamentally committed to its own life, to preserving itself and defending itself from threat” (p. 94). American immigration law divided the world into “us and them,” and “the assumption that the most important thing about law is how it binds a political community together, causing the law to apply first to those within a political community and only in a limited way to those outside” (p. 43). The United States proceeded to act solely in its narrow self-interests, by excluding “immoral” persons and persons likely to become a public charge, including prostitutes, people with loathsome and contagious diseases, and paupers; [*97] the United States also excluded Asians repeatedly from 1882 through 1965. Heimburger suggests that a selfishness was baked into immigration jurisprudence dating since at least the late 19th century.

WHO IS TO JUDGE?: THE PERENNIAL DEBATE OVER WHETHER TO ELECT OR APPOINT AMERICA’S JUDGES

Vol. 29 No. 8 (September 2019) pp. 94-95

WHO IS TO JUDGE?: THE PERENNIAL DEBATE OVER WHETHER TO ELECT OR APPOINT AMERICA’S JUDGES, by Charles Gardner Geyh. New York: Oxford University Press, 2019. 195pp. Hardcover $29.95. ISBN: 9780190887148

Reviewed by Michael K. Romano, Department of Political Science, Shenandoah University. Email: mromano@su.edu.

One of the most contentious debates between scholars of state courts and legal academics has been examining which institutions of judicial selection and retention better elevate accountability over independence (and vice versa). While other debates find satisfaction in the fact that researchers on both sides can agree their opposition makes some valid points, the conflict between accountability-based and independence-based proponents has normative connotations regarding the nature of democratic norms, and neither side has seemed willing to give ground to the other’s ideas. Charles Geyh’s WHO IS TO JUDGE?: THE PERENNIAL DEBATE OVER WHETHER TO ELECT OR APPOINT JUDGES attempts to add to this debate by calling a truce. Geyh replaces rigid orthodoxy with introspection to draw new attention to the debate over how to design judicial institutions; his focus on the pros and cons of both sides of the debate is valuable as it requires the reader to engage rather than isolate themselves in their own ideological bubble. The work’s significance is not in new findings or sophisticated empirical techniques, but rather in how it draws attention to deeper theoretical and methodological questions concerning how we examine, and indeed how we understand, how courts operate in the United States.

The book posits that the accountability/independence debate has proven to be less than useful in generating an institutional design that can find balance between countervailing claims for legitimacy This thesis is important for several reasons, not the least of which is a signal from legal reformers like Geyh whom have written extensively about “Why Judicial Elections Stink” (2003). The premise of the argument presented in WHO IS TO JUDGE? is fairly simple: if scholars on both sides take a step back from the debate and look carefully, we will find that we have all been wrong in some ways, and that being “engagingly pugnacious but wrong is no virtue” (p. ix). What Geyh tries to do, through in-depth research into the histories of institutional change as well as engagement with countless years of empirical research, is to find the line between what we currently have evidence to support and disprove about the stigma of judicial elections, and to consider a new way forward for institutional designers concerned about the judiciary. Enlisting advice from some of Law and Court’s foremost scholars on state courts, the book plays out like a tennis match between arguments for and against judicial elections in an attempt to find balance. Additionally, the book includes a concise but rich history of the normative rationales behind why states diverged along different paths when designing state judiciaries.

In some ways, the main benefit of the book – much like his previous writings about how judicial elections “stink” – is that Geyh provides empirical and legal scholars alike new areas to investigate and analyze. The book is devoted to discussions of how our cognitive biases can cloud our ability to see the evidence for what it is: the legal field was wrong for assuming with no evidence that judicial elections would lead to the outright degradation of the courts, and political scientists were wrong for trying to artificially inflate the importance of their findings when they were based on limited data. To provide support, Geyh wades through decades of scholarship in an attempt to analyze where the debate has been and where it is headed. The final product for Geyh is a new set of “incremental reforms” that the legal world will likely consider worthwhile to implement, and scholars in judicial behavior will likely treat as testable hypotheses going forward. [*95]

AWAKENING: HOW GAYS AND LESBIANS BROUGHT MARRIAGE EQUALITY TO AMERICA

Vol. 29 No. 8 (September 2019) pp. 91-93

AWAKENING: HOW GAYS AND LESBIANS BROUGHT MARRIAGE EQUALITY TO AMERICA, by Nathaniel Frank. Cambridge: Harvard University Press, 2017.

Reviewed by Edward F. Kammerer, Jr., Department of Political Science, Idaho State University. Email: kammedwa@isu.edu.

Nathaniel Frank’s AWAKENING: HOW GAYS AND LESBIANS BROUGHT MARRIAGE EQUALITY TO AMERICA provides a through, detailed account of how same-sex marriage went from a fringe idea laughed out of the Supreme Court in the 1970s to the law of the land, supported by a majority of the American public, in less than 50 years. The book is largely organized chronologically, moving through early gay and lesbian activism in the 1950s to early same-sex marriage litigation in the states to the landmark Supreme Court decision legalizing same-sex marriage, OBERGEFELL V. HODGES in 2015. Frank concludes the work with post-OBERGEFELL actions around implementation and briefly touches on future issues regarding recognition and non-discrimination laws.

The chronological organization supports the author’s goal of demonstrating the country’s gradual awakening to the importance of same-sex marriage and the incremental process by which it was achieved. Throughout the book, Frank provides significant detail into the legal and political strategies used to argue for, and eventually win, marriage equality. This detail is the book’s clear strength. The path to marriage equality was not straightforward or singular and Frank highlights many of the internal debates over goals and strategies. The detail that Frank provides contributes to the literature on cause lawyering, impact litigation, and social movements.

In Chapter One, Frank provides an interesting jumping off point for the debate on marriage equality by framing it as a movement goal. He discusses two articles published in ONE, an early gay magazine, that addressed the topic of marriage for gay men. Frank first describes an article from 1963 in which the author makes the case that marriage is preferable to singlehood, and that marriage is a path toward self-respect for gay men. He juxtaposes this with an earlier article, from 1953, whose author was horrified that acceptance of gays and lesbians in society would lead to the kind of confining respectability that marriage entails. Frank starts with these articles to show that the idea of same-sex marriage is not as recent as many might assume, but also to show the divisions within the LGBTQ community with respect to marriage and its importance. He continually makes reference to this division as he recounts the history of marriage equality. The following chapters discuss early efforts at relationship recognition, starting with the first push for marriage equality itself in the 1970s. While the marriage equality movement did not take root, other forms of relationship recognition did at this early stage. Domestic partnerships and other local laws provided some protection for same-sex couples in limited circumstances. More importantly, though, Frank notes how these local changes became the foundation on which marriage would later be built. He discusses the impact of AIDS, sodomy law repeal efforts, and gay and lesbian parenting.

Several chapters in the book are dedicated to key junctures in the marriage equality movement. The lawsuits in Hawaii and Massachusetts each receive a chapter, as do movement setbacks like the Defense of Marriage Act and the passage of Proposition 8 in California. Later chapters address the incremental state-by-state approach the movement adopted, and then the federal lawsuits that finally brought same-sex marriage to the entire country. These sections are rich in detail, but cover information that will likely be familiar to anyone who has previously studied the issue. But even those who are more familiar with the movement may learn new information about strategy debates and the behind-the-scenes discussions of movement actors. Those [*92] unfamiliar with these moments in LGBTQ activism will find these chapters particularly helpful in understanding the evolution of marriage equality and the context in which that evolution occurred.

THE POSITIVE SECOND AMENDMENT: RIGHTS, REGULATION, AND THE FUTURE OF HELLER

Vol. 29 No. 8 (September 2019) pp. 87-90

THE POSITIVE SECOND AMENDMENT: RIGHTS, REGULATION, AND THE FUTURE OF HELLER, by Joseph Blocher and Darrell A.H. Miller. New York: Cambridge University Press, 2018. 203pp. Paper $29.99. ISBN: 978-1-316-61128-9.

Reviewed by Charles F. Jacobs, Department of Political Science, St. Norbert College. Email: charles.jacobs@snc.edu.

According to data compiled by the Gun Violence Archive, the United States experienced 257 mass shootings from January through early August of 2019. This total includes a pair of recent events, one in El Paso, Texas and a second in Dayton, Ohio, that claimed the lives of nearly three dozen individuals and injured an additional 53. The reaction of the public, the press, and the political class echoed responses from earlier mass casualty events in places like Sandy Hook, Parkland, and Orlando—there were expressions of grief and anger, and calls for reform to gun control laws that currently allow the purchase of weapons that often lead to large-scale carnage hundreds of times each year. Advocates of both gun safety and gun rights dominate cable news programs in the days following these latest attacks, propounding often extreme and polarized views about the place of firearms in American society and culture.

It is in this political and social context that Joseph Blocher and Darrell A.H. Miller offer their relevant and well-argued tome THE POSITIVE SECOND AMENDMENT: RIGHTS, REGULATION, AND THE FUTURE OF HELLER. With their comprehensive and honest deconstruction of the constitutional language surrounding the right to bear arms, the authors provide a frank review of the “history, doctrine, and jurisprudence” (p. 4) that helps to define the debate and disagreement over the place of the Second Amendment in contemporary America. In doing so, Blocher and Miller offer insights into what the decisions of the United States Supreme Court in both DISTRICT OF COLUMBIA V. HELLER and MCDONALD V. CITY OF CHICAGO accomplished and the questions that remain in the aftermath of the establishment of the right of individuals to keep and bear arms.

The authors offer a multi-faceted argument that is certain to cause an equal amount of consternation among those who align themselves with constitutional absolutists promoting unfettered gun rights, as well as those who argue for significant controls on the right to own firearms. As they note, “The Second Amendment is complicated and nuanced. There are no easy answers and nothing in this book will fully satisfy the extremists” (p. 4). This forms the basis of their claim that activists on both sides are wrong in their interpretation and understanding of the Second Amendment. Blocher and Miller argue that “To make sense of the political debate, then, not to mention the current state of the law, one must also understand the Constitution itself” (p. 4). Their goal is to define “the substance and method of Second Amendment law” by clarifying the scope and purpose of this fundamental liberty and to provide a common interpretation of the limits of the freedoms it provides and the limits that may be imposed upon those freedoms. In doing so, the authors additionally hope to provide what they describe as a positive account of the amendment, by which they mean “a vision of the Second Amendment that is affirmative and constructive, a creature of constitutional rather than natural law, and also one that provides some right and wrong answers” (p. 5). The result, they suggest, will be an opportunity to dissolve some of the rancor in the debate over gun rights by providing a foundation from which to discuss relevant policy alternatives in a less [*88] politically polarized environment. The arguments the authors present orbit around the decisions offered by the justices in HELLER and MCDONALD. Blocher and Miller dissect the Court’s interpretation of the Second Amendment and provide insight into the questions and issues that remain to be resolved through future litigation.