THE FLEXIBLE CONSTITUTION

by Sean Wilson. Lanham, MD: Lexington Books, 2012. 236pp. Cloth $85.00 ISBN 978-0739178157

Reviewed by Dennis Coyle, Department of Politics, The Catholic University of America.

pp.628-632

Yes, another book on constitutional theory. Sometimes it seems that books promising the key to understanding constitutional meaning appear as frequently as books on Lincoln or History Channel documentaries on World War II. Thankfully, The Flexible Constitution does not just follow well-trodden paths. It is most definitely not a thick historical tome scouring a faded landscape for relics of constitutional meaning in the intimate thoughts of designated founders or obscure post-revolutionary social practices. Nor is it a complex treatise of moral philosophy seeking to prove beyond doubt that sophisticated thinking coincidentally leads to doctrinal conclusions that match the author’s policy preferences. Nor is it a case-laden text showing that Supreme Court jurisprudence is – mirabile dictu – coherently rooted in precedent.

Professor Wilson begins by dismissing the familar Philip Bobbitt typology of forms of legal reasoning – historicism, doctrinalism and so on – and turns to a seemingly surprising source of legal enlightenment: Ludwig Wittgenstein, the 20th-century philosopher of language and logic. For Wilson, elaborating constitutional meaning is all about the text, and thus we benefit most from turning to those who are most serious and insightful about the meaning of words and the function of language. Hence, Wittgenstein. What he teaches us – as channeled by Wilson – is that a plain-language text such as the U.S. Constitution prescribes meaning and direction only in the general way that language works in everyday life. We converse using varying meanings of words, without a prior specification of precise definitions. Agreement on meaning is never precise because words connote related families of meanings and are constantly evolving as they are applied in new situations and comprehended by different persons. Language is both a tool and product of culture.

Because the Constitution is a purely positivist document in Wilson’s view, and no different in kind from other forms of positive law, interpretation demands careful attention to the words themselves. As Wilson repeats throughout the book, if constitutional authors wanted to bind us to anything else, they should have put it in the text. But Wilson is no simple dictionary-toting textualist. He finds in Wittgenstein a more sophisticated understanding of the development and role of language, emphasizing that a word captures a family of related concepts or things and evolves along with our experiences. The good judge develops a sophisticated sense of how to integrate awareness of larger phenomena while remaining true to the words. This skill cannot be reduced to a science, and thus Wilson prefers Wittgenstein’s notion of an aesthetic, and refers to the adept practitioner as a connoisseur. [*629]

One might quibble over whether this terminology is appropriate for legal reasoning and whether Wittgenstein himself would have characterized it in this way, as presumably a good legal opinion involves more than artistry. But applying unusual terms – as Wilson is wont to do – does challenge the reader to rethink the underlying phenomena, and surely there is a significant element of art in skillful judging.

THE SOVEREIGN CITIZEN – DENATURALIZATION AND THE ORIGINS OF THE AMERICAN REPUBLIC

by Patrick Weil. University of Pennsylvania Press, 2012. Paper $34.95. ISBN-10: 0812222121.

Reviewed by Anna O. Law, CUNY Brooklyn College, Department of Political Science. Email: alaw [at] brooklyn.cuny.edu

pp.621-627

French social scientist Patrick Weil has written a book that focuses on a seemingly minor aspect of U.S. immigration law: denaturalization policy, or the process by which one loses one’s American citizenship. Weil uses denaturalization policy as a vehicle to comment on other aspects of the American politics, most immediately the arbitrariness and politically contingent nature of one’s United States citizenship status, not just of immigrants, but also of native-born citizens. Weil notes that “Present –day Americans feel secure in their citizenship” (p.1). One comes away from the book having new appreciation for the precariousness of one’s U.S. citizenship and the ease at points in U.S. history when the government can arbitrarily revoke one’s citizenship, thereby possibly rendering even a native-born citizen effectively stateless.

In most standard immigration law casebooks, naturalization policy is a subsection of a chapter on “citizenship”. The coverage of denaturalization policy is further relegated to the citation of one or two cases and is listed under a sub-sub-section of the naturalization section called “loss of citizenship” that also includes a section on expatriation (Aleinikoff et al. 2008 and Legomsky et al. 2009). Given the breadth and complexity of U.S. immigration law, it is understandable that leading casebooks would limit the pages devoted to denaturalization policy when there is so much more to cover. Yet using denaturalization policy, Weil’s THE SOVEREIGN CITIZEN – DENATURALIZATION AND THE ORIGINS OF THE EARLY REPUBLIC provides insight into diverse constitutional and political phenomenon that would be of interest not just to immigration scholars, but also to those working on federalism, constitutional interpretation, and the internal politics of the Supreme Court.

Weil’s book utilizes multiple-methodologies including doctrinal analysis, archival work with the papers of former Supreme Court Justices, analysis of many other government reports, and interviews with former Supreme Court law clerks. In combining all these data sources, he is able to elucidate the processes and mechanisms by which policy entrepreneurs, administrative capacity, changes of personnel on the Court, scant textual support for federal immigration power, the ideology of the Justices, and jealousies among administrative agencies all interact to produce particular policy outcomes.

FREEING SPEECH: THE CONSTITUTIONAL WAR OVER NATIONAL SECURITY

by John Denvir. New York: New York University Press, 2010. 204pp. . Cloth $70.00. ISBN: 9780814744352. Paper $21.00. ISBN: 978-0-8147-4435-2

Reviewed by Paul A. Passavant, Department of Political Science, Hobart and William Smith Colleges. Email: Passavant [at] hws.edu.

pp.617-620

Editor's note: The Law and Politics Book Review generally reviews first edition and first publications of books. FREEING SPEECH was reviewed in 2010 when it first ws published in hardback. An editorial oversight led to the commissioning of a second review when the book was published in paper.

FREEING SPEECH by John Denvir powerfully argues that the broad vision of presidential power recent presidents have aggressively pursued, to which Congress, and in significant measure, Denvir claims, the Supreme Court has acquiesced, coupled with “a weak official interpretation of the First Amendment,” has “transformed American democracy for the worse” (p.7). The thesis is defended with clear writing, allowing the book to be assigned in undergraduate civil liberties courses. The overall project, however, leaves experts, politicians, and citizens with disturbing problems demanding attention to keep the United States constitutional system from slipping further into the depths of a post-democratic order. In this regard, the book may be poorly titled because its substance goes well beyond the First Amendment to the well-being of the polity itself.

FREEING SPEECH’s Introduction outlines a framework for the book’s subsequent analysis of “four Constitutions.” The first meaning of “constitution” is the actual text. The second is the official meaning given to the text by the Supreme Court. The third is the primary “challenger” to the official constitution, and the fourth is the “de facto Constitution,” which is the operative “constitution” during the Supreme Court’s silence.

Chapter One addresses the “National Security Presidency.” It begins with the text of the Constitution, observing that the framers not only made Congress the dominant policy making branch domestically, but also on foreign policy and national security matters. The official constitution is represented by the key precedent on presidential power, YOUNGSTOWN SHEET & TUBE V. SAWYER (1952). In YOUNGSTOWN, the Court ruled against President Truman’s seizure of steel mills during the Korean war to prevent a labor dispute from stopping work. Justice Black’s majority opinion finds the seizure unsupported by either statute or by Truman’s claims for an independent source of constitutional power. The president’s responsibility is to execute faithfully laws passed by Congress, but here Congress had refused to provide the president with the power he now wished to exercise, leaving the president without legal authority for his actions. Today, many focus on Justice Jackson’s concurring opinion and its more “fluid” approach to presidential power, which Denvir rejects. Denvir’s brief constitutional history of the presidency finds that prior to the attacks of September 11, 2001, presidents, at least formally, have operated within the fluid conception of Jackson’s scheme of presidential power.

EXPORTING THE MATRIX: THE CAMPAIGN TO REFORM MEDIA LAWS ABROAD

by Richard N. Winfield (ed.). Durham, NC: Carolina Academic Press, 2012. 131pp. Cloth. $40.00 ISBN: 978-1-61163-146-3.

Reviewed by Kyu Ho Youm, School of Journalism & Communication, University of Oregon, youm [at] uoreoegn.edu

pp.613-616

Over the years, the United States has exerted a great deal of influence on the rule of law as a governing principle in many countries. The global impact of American constitutionalism is illustrated by the direct and indirect transplantation of freedom of speech and the press as an essential element of the functioning rule of law.

An early case in point is the seminal decision of the Federal Constitutional Court of Germany in the late 1950s. The German Constitutional Court, quoting from the U.S. Supreme Court in PALKO V. CONNECTICUT (1937), held:

The basic right to freedom of expression, the most immediate aspect of the human personality in society, is one of the most precious rights of man …. It is absolutely essential to a free and democratic state, for it alone permits that constant spiritual interaction, the conflict of opinion, which is its vital element …. In a certain sense it is the basis of freedom itself, “the matrix, the indispensable condition of nearly every other form of freedom” (LÜTH DECISION, 198).

EXPORTING THE MATRIX: THE CAMPAIGN TO REFORM MEDIA LAWS ABROAD is a collection of essays by lawyers, law academics, and others who worked in Africa, Middle East, and the former Soviet Union. The book, whose title is from the PALKO opinion, tells the fascinating first-person stories of the participants in the worldwide reform campaign of the International Senior Lawyers Project’s (ISLP) Media Law Working Group. U.S. media attorney Richard N. Winfield, ISLP co-founder, notes that his book shows “the centrality of the reformers’ demands for freedom of expression and information to the irresistible drive toward democratic self-rule and freedom” (p.xi).

THE HUMAN RIGHT TO WATER: SIGNIFICANCE, LEGAL STATUS AND IMPLICATIONS FOR WATER ALLOCATION

by Inga T. Winkler. Oxford and Portland, Oregon: Hart Publishing, 2012. 376pp. $110 hardback. ISBN: 978-1-84946-283-9.

Reviewed by Sanghamitra Padhy, Assistant Professor of Law and Society, Ramapo College. Email: spadhy [at] ramapo.edu

pp. 609-12

Inga T. Winkler’s THE HUMAN RIGHT TO WATER is a comprehensive volume on the legal status of the human right to water. Through extensive legal documentation, Winkler provides insight into how the recognition of water as a human right evolved in international law, and its normative and procedural implications for the countless struggles to access water for human needs. From a human rights perspective, the book provides a tool to understand the United Nations General Assembly and Human Rights Council’s resolution recognizing Human Right to Water in 2010, its legal significance and its implications for state responsibility. From a sustainability perspective, Winkler demonstrates that human rights can bridge the tension in water allocation debates through prioritization of human needs and addressing discriminatory practices of water allocation. The ability to intertwine human rights with water allocation makes this book invaluable to the scholarship on the human right to water and sustainability.

The human right to water, despite being critical to survival and the realization of most other human rights, has been a neglected subject in International Law until the 2010 recognition by the UNGA and Human Rights Council. While these resolutions were not the first to recognize water as a human right, they provided a universal tone to the right to water and ignited a discussion – in political and legal arenas – on the interpretation of the right. The resolutions revealed, on the one hand, the need to address changing demand for water through human rights, and on the other, raised questions about the nature of the right’s legal status, especially since the human right to water is not explicitly mentioned in human rights law. Winkler’s intervention in this discourse is enlightening. She has navigated through the rich tapestry of laws, to show the right to water is at the core of the human right to life, the right to an adequate standard of living and housing, and the right to decent health, and is integral to not only the International Bill of Rights, but also to Human rights treaties such as the Convention on Rights of Children (CRC), , Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), Banjul Charter and is protected in the national constitutions of some countries.. This implies that states are obligated to protect water rights not withstanding ratification of the Covenant on Social, Economic and Cultural Rights.

Winkler’s discussion of the human right to water is embedded in the context of growing scarcity and urgency to attend to water needs. While recognizing [*610] the water crisis to be a multifaceted issue – shrinking resource, shortage in supply, pollution, availability – her work focuses specifically on the “human dimension of water – in particular the neglect of basic human needs in the allocation of water resources” (p.2). Winkler notes that the lack of access is not about scarce resources as much as it is the neglect of human needs in the allocation of water. She claims access, availability, affordability and safety, which ought to be the key factors, have received short shrift in water allocation. She takes the example of watering golf courses at the cost of restricted supply for domestic use to show the paradox of allocations; the classic Tale of Two Cities. She proposes a human rights framework to redress inequality and discrimination in water allocation. The recognition of a human right to water will not only ensure protection from discrimination in the allocation of water, but also establish state responsibility to protect individuals' right to water and empower communities. It obliges states to act upon lack of access and hence, transforms a basic need of water to a rightful claim and gives rise to corresponding obligations.

HIGH COURTS AND ECONOMIC GOVERNANCE IN ARGENTINA AND BRAZIL

by Diana Kapiszewski. New York: Cambridge University Press, 2012. 289pp. Cloth $103.00 ISBN:9781107008281.

Reviewed by Roger Handberg, Department of Political Science, University of Central Florida. roger.handberg [at] ucf.edu

pp. 606-608

This is one of the strongest works I have seen in the area of comparative judicial behavior and process over the past 30 years. Dr. Kapiszewski has produced a work that articulates a clear research design, explains what she is doing, and then proceeds to follow through on her intentions. The book is a detailed examination of the high courts of Argentina and Brazil with regards to the area of economic policy, a subject of great stress and disagreement within both societies. Both states emerged from periods of military rule to confront the realities of extreme economic crisis (Argentina defaulted on its national debt) which disrupted national politics and created a continuing series of crises. Courts became central players in these events as the process of judicialization spread even to civil law systems. This volume analyzes how each political system responded to the crises and what role the courts had in that response. In each case, the high court held the potential to be a major disruptor of the political branches’ efforts to deal with the economic crises which at several points appeared unending.

Kapiszewski lays out a straight forward model of what she terms court character as the critical explanatory variable for assessing the relationship between the high court and the political branches. In developing the concept of court character, she takes one on a grand tour of the comparative court literature across the globe. This literature overview is in itself worth the cost of the book since the relevant references through 2012 are nicely pulled together in a single location; one may disagree with her characterizations in some instances but the literature is there. Four components comprise the court character variable: level of high court stability, level of high court perceived legitimacy, level of high courts professionalism, and level of high court institutional cohesion. Each measures a facet of how a high court operates both internally and within the larger society.

REVIEW ESSAY: MAKING CONSTITUTIONS AND DESIGNING DEMOCRACY

MAKING CONSTITUTIONS IN DEEPLY DIVIDED SOCIETIES, by Hanna Lerner. New York: Cambridge University Press, 2011. 274pp. Hardback $94.00. ISBN: 9781107005150. Paperback $29.00. ISBN: 9781107610576





DESIGNING DEMOCRACY IN A DANGEROUS WORLD, by Andrew Reynolds. Oxford and New York: Oxford University Press, 2011. 224pp. Hardback $99.00. ISBN: 019959449X. Paperback $35.00. ISBN: 9780199594498

Reviewed by Alexander Hudson, Department of Political Science, University of Texas-Austin.

pp.597-605

Introduction

Recent events in Egypt draw attention once again to the challenges of making a constitution in a divided society. The difficulties that Egyptian lawmakers have encountered in their attempt to write a constitution that reflects the aspirations of its diverse population are not unique, and pose interesting questions for social scientists. Early hopes for an inclusive process that would establish a secular state have largely been dashed as Islamists have dominated the constituent assembly. Many of the assembly’s secular Muslim and Christian members abandoned the process, seeing no hope of having their views implemented. A recent analysis of the draft constitution published by Human Rights Watch suggests that there are a number of positive points in the new constitution, but also notes omissions that many in the international community consider important, including protections for freedom of expression and religion.

The unrepresentative, rushed, and deeply conflictual process that has created the new constitution is likely to blame for many of the document’s deficiencies. A number of key provisions use ambiguous language, making it difficult to predict how these provisions will actually be implemented through legislation. The meaning of many parts of this constitution will have to be decided by legislators and judges in the years to come, and even where it is similar to the 1971 constitution the text may take on new interpretations (Brown 2012). Although the public approved the draft on December 15, 2012, nearly a year on the future of Egypt’s new constitution does not look very bright

This brief consideration of the Egyptian constitution-making process provides some context for thinking about the theoretical and practical contributions of the scholarly literature on this topic. Two recent publications that address some of the challenges inherent in constitution making, particularly as they relate to divided or otherwise volatile societies, are DESIGNING DEMOCRACY IN A DANGEROUS WORLD by Andrew Reynolds, and MAKING CONSTITUTIONS IN DEEPLY DIVIDED SOCIETIES by Hanna Lerner. While both deal with the difficult process of constitution-making, these books approach the problem from very different perspectives both in terms of theory and methodology.

IMAGINING NEW LEGALITIES: PRIVACY AND ITS POSSIBILITIES IN THE 21ST CENTURY

by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (eds.). Stanford, California: Stanford University Press, 2012. 224pp. Hardback $65.00. ISBN: 978-0-8047-7704-9.

Reviewed by Victoria A. Redd, University of Florida Levin College of Law Journal Offices. Email: reddva [at] law.ufl.edu.

pp.591-596

In the aftermath of reporting on the extensive NSA surveillance programs, a recent CNN news report quoted a U.S. President as saying “No one is listening to your phone calls…” (Pearson 2013). Despite the assurances, many Americans continued to obsess on the issue: Is my privacy safe?

When considering this topic there are so many privacy issues at stake, there is no wonder that many feel helpless to protect themselves against the infringement of their Fourth Amendment. Technology has bypassed the slow movement of the law. There is actually a movement of those who feel that the law needs to be reformed so that a citizen can have a “reasonable expectation of privacy,” especially in the area of communications. But should we depend on Congress rather than the courts for this?

“More than a century ago, Samuel Warren and Louis Brandeis warned of emerging threats to individual liberty associated with new business methods and technologies” (p.1). That warning has echoed with its concern throughout society’s private life, however, today the concern is even more urgent ‒ where privacy in the home has been degraded, allowing the family’s activities of intimacy to become the world’s business, where privacy is subjective depending on who and what government agency is involved, and where we have the internet that can be used to instantly leak information all over the world.

Unfortunately, the court system is overburdened with cases of various issues on privacy rights and there seems to be no end in sight: Advocates for privacy rights (Advocacy 2013) remind those who will listen that the Supreme Court declared in 1967, “The Fourth Amendment protects people; not places” (KATZ V. U.S.). These advocates believe that the issue should not be about whether someone has something to hide, but instead that the government should stay out of people’s affairs. In the U.S. Constitution, there is “no explicit reference to a ‘right to privacy’”(p.3). Given that there appears to be a tug of war between privacy and surveillance (something that has occurred throughout U.S. history (McCoy 2013)), the Supreme Court cases engage the debate of public versus private realms. One of the most recent is the Electronic Privacy Information Center’s petition to the Supreme Court arguing that “the current domestic surveillance program is unlawful” (EPIC 2013)) under the Fourth Amendment. In fact, this is merely just the tip of the iceberg, only one aspect of our privacy issues that are eroding society’s mental health. Even a solution to this one problem will not [*592] resolve the rest. Because, what really does a “reasonable expectation of privacy” mean for an individual and his or her family? (Wilkins 1987; Allen 2013) What can we say about a government that thinks privacy is unimportant for their citizens and is more concerned with surveillance? And how can someone who is striving to protect their right to privacy fight against government agencies and the challenges they face daily in society?

People who are interested in sorting through these arduous questions should consider reading IMAGINING NEW LEGALITIES: PRIVACY AND ITS POSSIBILITIES IN THE 21ST CENTURY edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey. The book’s title is a reflection of the essays that make up this book in the Amherst Series in Law, Jurisprudence, and Social Thought, on Privacy issues that we all deal with on an individual or a collective basis. Sarat, who has been at Amherst College for more than 40 years and who is renowned in the field of sociology and the law as it is revealed in America, and his fellow editors have created an absorbing and effective book to share various views on the rights of privacy and what this means in society. They assert that “[t]his book does not seek to provide a comprehensive overview of threats to privacy” (p.3) (even though it covers the topic quite thoroughly); rather the aim is to give the reader a catalyst to realize a responsibility for the problem. We as a society need to take charge of our own rights in the spirit of democracy by using something he calls “legal inventiveness” (p.3).

SAME-SEX MARRIAGE IN THE UNITED STATES: THE ROAD TO THE SUPREME COURT

by Jason Pierceson. Lanham, MD: Rowman & Littlefield, 2013. 255pp. Cloth $45.00. ISBN: 978-1-4422-1204-6. Paper $24.95. ISBN: 978-1-4422-1205-3.

Reviewed by Artemus Ward, Department of Political Science, Northern Illinois University. Email: aeward [at] niu.edu

pp.588-590

On June 26, 2013 the U.S. Supreme Court handed down two eagerly anticipated decisions on the issue of gay marriage – both favorable to gay rights. In UNITED STATES V. WINDSOR (2013) the Court voted 5-4 to strike down the section of the Defense of Marriage Act (DOMA) that only recognized heterosexual unions. In HOLLINGSWORTH V. PERRY (2013) the Court effectively allowed same-sex marriages in California to continue based on procedural grounds. While neither decision proclaimed a fundamental right to gay marriage they illustrated both the Court’s and the American people’s evolving conception of gay rights as an important civil rights issue akin to race and sex discrimination. Jason Pierceson’s book SAME-SEX MARRIAGE IN THE UNITED STATES (2013) was published three months before the decisions were announced. And although it necessarily does not cover the outcomes of these cases, it predicted them correctly, and is an important addition to the growing literature documenting the gay rights movement in general and specifically the issue of same-sex marriage.

The book continues the Pierceson’s excellent research on the topic (Pierceson 2005; Babst, Gill, and Pierceson 2009; Pierceson, Piatti-Crocker, and Shulenberg 2010, 2012). This new book tells the story of the legal and cultural shift on same-sex marriage, its backlash, and how it has evolved over the past fifteen years. Unlike other books on the topic, Pierceson provides a comprehensive account of both the successes and failures of the movement from a legal, political, and social perspective. There are many strengths to the book including Pierceson’s focus on the historical evolution of the issue and a comparative assessment of same-sex marriage around the world, in the various regions of the U.S., and at the state level. It is also a nice addition to the literature on courts and social change and would be a good candidate for classes on the topic to use in conjunction with Gerald Rosenberg’s HOLLOW HOPE (2008).

In Chapter 2 “Gay Rights and Same-Sex Marriage, 1950-1990,” Pierceson explores the history of the early gay rights movement in the U.S. He shows that there was much more activism and activity than is generally known. He argues that gay marriage was not a new issue to gay rights activists; rather it was central to their conception of citizenship. He recognizes that this is somewhat surprising given that many feminist and queer theorists have steadily argued that a focus on marriage equality reinforces traditional gender roles and inhibits sexual liberation. He details how the New Deal and World War II were catalysts for shaping a national gay and lesbian identity – a crucial precursor to [*589] the movement – which in turn led to a backlash in the form of government policy and society at large. Early activists focused on reducing social stigma and it was not until the mid-1960s that a movement akin to African-American civil rights began to take shape. Despite early litigation failures, activists in the 1970s and 1980s pushed for legal recognition of same-sex relationships. Legal changes in sex-discrimination and divorce helped link gender and sexuality but also temporarily derailed the move toward same-sex marriage as activists turned toward domestic partnerships and other strategies.

FLAGRANT CONDUCT: THE STORY OF LAWRENCE v. TEXAS

by Dale Carpenter. New York: W. W. Norton & Company. 2012. 345 pp. Hardcover $29.95. ISBN: 978-0-393-06208-3. Paperback $16.95. ISBN: 978-0-393-34512-4.

Reviewed by Benjamin O. Arah, Department of History & Government, Bowie State University. E-Mail Address: barah [at] bowiestate.edu

pp.584-587

This informative, well-written, detail-oriented, and engaging book, LAWRENCE V. TEXAS, by Dale Carpenter, deserves the praise that it has received since its publication in March of 2012. Now available in paperback, the book narrates the story of LAWRENCE V. TEXAS (2003). Dale Carpenter paints an apt and vivid picture, in “How a Bedroom Arrest Decriminalized Gay Americans.” This is what makes this landmark case an appealing and compelling narrative, and Carpenter set out to tell the story that was about gay rights as human rights in their quest for justice and equal protection under the U.S. Constitution.

Dale Carpenter (a Texan, the Earl R. Larson Professor of Civil Rights and Civil Liberties at the University of Minnesota Law School) helped to write the amicus brief in support of John G. Lawrence and Tyron Garner, the petitioners in this pivotal case. In addition to teaching constitutional law, the First Amendment, and law and sexual orientation, he appears to be one of the active gay rights lawyers who “took their case, LAWRENCE V. TEXAS, to the Supreme Court, which struck down the Texas sodomy law and similar laws in twelve other states” (Carpenter 2012, xii). Carpenter’s goal in writing the book was, in part, to bring to light the corrupting tendencies of such sodomy laws that were directed at specific human conduct and used to target and harass a group of citizens who happened to be the gay Americans. Giving title to the book, he is particularly critical of the Harris County police, since it was their “deputies whose flagrant conduct gave us Lawrence” for “enforcing the sodomy laws against model citizens in the privacy of their well-appointed homes” (pp.280-281).

The book is a morally awakening story in which Carpenter meticulously unearthed the legal history of social injustice, with “deep malignity,” inherent in the sodomy laws of the United States. LAWRENCE V. TEXAS (2003), involved “two gay men” (55-year old John Geddes Lawrence and 31-year old Tyron Garner), who in 1998 were arrested and charged with having “deviate” consensual homosexual intercourse, in the privacy of Lawrence’s bedroom; the “troublemaker” (a 40-year old Robert Royce Eubanks), who called the Texas’ Harris County police and falsely reported about “an armed black man going crazy with a gun”; and the misconduct of the police in arresting the two men and having them spend the night in the county jail, raising questions concerning the Texas Homosexual Conduct that criminalized minor offenses or personal indiscretions (under a Class C misdemeanor). [*585]

Carpenter set out on a personal and professional journey, as he writes, “to correct and enrich our understanding of the case, by ferreting out what happened that September night in Houston and by explaining the way gay civil rights lawyers rewrote a snarled human story as part of a pristine legal argument acceptable to a basically conservative Supreme Court” (p.xii). FLAGRANT CONDUCT is a story behind the story, informing readers of the long history of discrimination and social injustice, of perverted justice with “deep malignity” in these anti-sodomy laws, against gays and lesbians or other minorities that finally culminated in the reckless police arrest of the two gay men based on a false report by disgruntled man (Eubanks, who was sentenced 30 days in prison).

THE REHNQUIST COURT AND CRIMINAL JUSTICE

by Christopher E. Smith, Christina DeJong, and Michael A. McCall. Lanham, Md.: Lexington Books, 2013. 334pp. Paper: $43.99. ISBN: 978-0-7391-4081-9.

Reviewed by Frank J. Colucci, Associate Professor of Political Science, Purdue University Calumet. Email: coluccif [at] purduecal.edu.

pp.579-583

Although criminal law makes up much of the U.S. Supreme Court’s calendar, many political scientists – me included – grant it too little attention. The essays collected in this volume, most written by scholars in criminal justice, explore the contributions of the individual Justices who served with Chief Justice William H. Rehnquist to development of constitutional doctrine in that area.

Criminal law clearly moved in a decisively conservative direction under Rehnquist, Christopher E. Smith and Michael A. McCall write in the introduction, but the Court “never coalesced into a unified group with a shared vision and concerted action aimed at undoing the legacy of the Warren Court era" (p.3). “The anticipated counterrevolution did not fully take place,” they argue, and “the complexity of the mixed results of the Rehnquist Court's decisions is attributable to the distinctiveness of each justice” (p.viii). The body of the book consists of 12 chapters, each analyzing an individual justice who served on the Court between 1986 and 2005. (Lewis F. Powell, who retired in 1987, is excluded; William J. Brennan and Thurgood Marshall, who retired in 1990 and 1991, respectively, are considered in a combined chapter.)]

The core chapter documents how Rehnquist “directed an evolutionary process in which he changed conversations in the judiciary” (p.115). He changed from an associate justice in the 1970s who wrote many solo dissents into a Chief Justice who rarely dissented and only once dissented alone. As McCall writes, Rehnquist “seemed to temper his more maverick qualities” not merely because of his role as Chief, but also because the Court included more justices – often a majority – who would vote with him. With these appointments, “much of Rehnquist’s conservative jurisprudence that he began to stake out early in his career eventually gained majority support and the weight of constitutional law” (p.116).

The Court accomplished this shift not through overruling Warren Court precedents directly, but “by shifting thresholds and reconstructing definitions” in existing cases and by “limiting the scope” of protections under the Fourth, Fifth, and Eighth Amendments (pp.115, 101). Rehnquist may have “failed to marshal sufficient support to overturn” Warren Court precedents like MAPP V. OHIO, GIDEON V. WAINWRIGHT AND MIRANDA V. ARIZONA and “failed to garner majority support for his positions in potentially landmark cases late in life” (p.111). Despite his “strong disregard” for the case, Rehnquist wrote the majority opinion in DICKERSON V. U.S (2000) “grudgingly” upholding it (p.112). Rehnquist led criminal law in a [*580] markedly more conservative direction, McCall writes, yet the Court during his tenure never spoke “with a single, conservative voice” (p.94).

A STORM OVER THIS COURT: LAW POLITICS, AND SUPREME COURT DECISION-MAKING IN BROWN v. BOARD of EDUCATION

by Jeffrey D. Hockett. Charlottesville, VA: University of Virginia Press, 2013. 280pp. Cloth $39.50. ISBN: 978-0-8139-3374-0

Reviewed by Ronald Kahn, Department of Politics, Oberlin College. Email: Ronald.Kahn [at] oberlin.edu.

pp.568-578

When I saw the announcement of the Hockett book I wondered what additional scholarship could be written about BROWN V. BOARD OF EDUCATION (1954). But I was intrigued by Hockett’s creative approach to the case, so I ordered A STORM OVER THIS COURT: LAW, POLITICS, AND SUPREME COURT DECISION MAKING IN BROWN V. BOARD OF EDUCATION from the University of Virginia Press. I am delighted that I did so. This book is not simply about BROWN V. BOARD OF EDUCATION, it is a book that asks whether any one of the many different approaches used by political scientists to explain Supreme Court decision-making can explain why the Supreme Court in BROWN V. BOARD OF EDUCATION unanimously decided to declare racial segregation in public schools unconstitutional as a violation of the Equal Protection Clause.

Chapter 1, “Barriers to Desegregation,” is a superb analysis of the main components of the arguments used by the petitioners for the school children and the respondents for the school boards. We see in Hockett’s analysis the fight over whether the Court should make its decision based on an Originalist or a Living Constitution interpretation of the Constitution, what the facts demonstrate about the effects of segregation on the children, and the place of public education in the lives of children as future citizens in the time of the passage of the 14th Amendment, PLESSEY V. FERGUSON (1896), and at the time this case was to be decided. At each stage of this analysis, the reader is witness to the degree to which each side was confident that their arguments would prevail before the Court. This book is based on painstaking research on a wide range of materials, including justices’ memoirs, memoranda, correspondence, and draft opinions, and a meticulous reading of the scholarship on the BROWN case and the methods used, particularly by political scientists, to explain the outcome. Hockett demonstrates a mature, sophisticated and respectful understanding of qualitative and quantitative research methods, ranging from interpretive methods used by scholars of historical institutionalism to the most recent methods used by behavioral political scientists.

This book is a masterful test of whether any one of these approaches can explain the BROWN decision, in light of this meticulous evidence. In this book we also see whether BROWN can be explained by political factors external to the Court, including those considered by officials in the Truman and Eisenhower administrations, short- and long-term effects of their actions on the prospects [*569] of the Democratic and Republican Party, respectively, in the future, the impact of segregation on the Cold War, to name but a few that Hockett considers. In each chapter, the reader gets to consider how internal legal and doctrinal concerns, including precedent, and external political concerns, including the possibility of social conflict and stonewalling by states during the implementation of a decision, should the Court find racial segregation in schools to be unconstitutional. Hockett also follows in most precise terms differences among members of the interpretive community as to the constitutionality of racial segregation in schools before BROWN was decided, and afterwards, with particular regard to whether the Court would be viewed as political in its decision-making.