HATE: WHY WE SHOULD RESIST IT WITH FREE SPEECH, NOT CENSORSHIP

Vol. 29 No. 10 (November 2019) pp. 127-130

HATE: WHY WE SHOULD RESIST IT WITH FREE SPEECH, NOT CENSORSHIP, by Nadine Strossen. New York: Oxford University Press, 2018. 199pp. Hardcover $24.95. ISBN 978-0-19-085912-1.

Reviewed by Keith E. Whittington, Department of Politics, Princeton University. Email: kewhitt@princeton.edu.

Although there are several free speech controversies swirling around these days, the argument over hate speech has recently been one of the most persistent, emotional and contentious. On college campuses, hate speech remains a flashpoint, more than three decades after the first wave of campus speech codes were adopted and in many cases struck down by the courts. Hate speech is often the rubric used to push controversial figures off social media and other Internet platforms. While the United States holds fast to a fairly libertarian set of constitutional rules regarding hate speech, many other advanced democracies have embraced a more regulation-friendly framework. Facebook workers tried to get Donald Trump kicked off the platform during the 2016 presidential election campaign on the grounds that he engaged in hate speech. A few months later, former presidential candidate Howard Dean confidently, if wrongly, asserted that hate speech was unprotected under American constitutional law. Dean may have been wrong in 2017, but his tweets might eventually prove prophetic. There is an active intellectual, legal, political and cultural debate over the future of the First Amendment and the status of hate speech in American law, and there is no reason to think that civil libertarians will always find themselves on the winning side in coming years.

Nadine Strossen has been fighting that fight for a while now. As president of the American Civil Liberties Union (ACLU) through the 1990s and much of the first decade of the twenty-first century, Strossen has been on the front lines of legal and political struggles over free speech in addition to other issues involving civil liberties. In the 1990s, she was often defending the civil liberties side in debates over the regulation of pornography and hate speech. Those particular debates seemed to cool off for a bit in the years following 9/11, but the hate speech debate, at least, is now back with a vengeance. Hate speech has often been a contentious issue inside the ACLU and among civil libertarians as well. Famously, the ACLU angered many of its own members when it came to the defense of the neo-Nazis who wanted to march in Skokie, Illinois in 1977. In the aftermath of the white supremacist rally that broke into violence in Charlottesville, Virginia in 2017, the ACLU once again found itself internally divided on how to position itself regarding such demonstrators. Strossen is among those who would plant the ACLU firmly on the side of those wishing to march in the streets, even when the cause and message of those marching is deplorable.

Strossen has a new book focusing on the hate speech issue, and continues to come down firmly against the effort to legally regulate such speech. It is a timely, forceful, and much needed book. It would make for excellent reading and discussion in undergraduate classrooms. Hate is published as part of the impressive Inalienable Rights [*128] series, edited by Geoffrey Stone (most recently of the Chicago Statement on the Principles of Free Inquiry fame) at the Oxford University Press. The books in the series are designed to be accessible to general audiences on contentious constitutional topics and offered on the market at affordable prices. HATE: WHY WE SHOULD RESIST IT WITH FREE SPEECH, NOT CENSORSHIP is no exception. It is short, punchy and engaging. It eschews the usual scholarly apparatus (more so than I would prefer); there are no endnotes, bibliography, or suggestions for further reading, and quoted sources, most often Supreme Court opinions, are simply described in the text itself. This is a work of advocacy, and there is less engagement with critics than scholars might like. It gets the point across, and there is plenty there for students to dig into and argue with. It should add to our broader cultural conversation about how best to respond to hate speech, but it might not satisfy those looking for a denser text for graduate students or academic research.

The book proceeds through nine brisk chapters that progressively build the case against relying on legal regulation (whether the formal governmental kind or the administrative campus code of conduct kind) to respond to hateful groups and expression. The book begins with an introductory chapter that sketches out the main points of the argument, emphasizing how the costs of hate speech regulations outweigh their benefits and that alternative strategies are available and more productive for countering campaigns of hate.

THE POLITICAL VALUE OF TIME: CITIZENSHIP, DURATION, AND DEMOCRATIC JUSTICE

Vol. 29 No. 10 (November 2019) pp. 122-126

THE POLITICAL VALUE OF TIME: CITIZENSHIP, DURATION, AND DEMOCRATIC JUSTICE, by Elizabeth Cohen. New York: Cambridge University Press, 2018. 183pp. Hardback $74.99. ISBN: 9781108419833. Paperback $24.99. ISBN: 9781108412254. E-book: $20.00. ISBN: 9781108331012.

Reviewed by Matthew Reid Krell, Department of Political Science, The University of Alabama. Email: mrkrell@ua.edu.

In 1963, Wallace Mendelson argued that “neobehavioralists” studying judicial politics had engaged in a fundamental category error. He said that they had “singl[ed] out from some many-dimensional reality . . . one measurable attribute and identifying this partial aspect with the whole . . . . The result of the partial measurement is taken as an index of the whole” (Mendelson 1963: 595). To my knowledge, this criticism was never refuted; instead, behavioralists (including myself) on-boarded it, taking seriously the injunction to measure as many dimensions of judicial decision-making that we could. Success is where you find it, but certainly I find later work to be more convincing than the classics, even when they reach similar conclusions (Murphy 1964; Epstein and Knight 2017; Clark 2019). And so the field develops: we assess judges using a metric, then a later scholar determines that we failed to capture an important dimension in the metric and in turn develops a better one (e.g., Hitt 2016).

Elizabeth Cohen has given us in law and politics a field-expanding piece of scholarship in THE POLITICAL VALUE OF TIME. Like Mendelson, she has pointed out an entire dimension of the process, which we purport to measure, that is basically completely cut out of our research. Like the judicial behavior scholars who built on Murphy and Pritchett and took Mendelson’s criticisms seriously enough to find more creative measurements, we should start considering how her insights should shape our research going forward.

Cohen’s most basic argument is this: the decision to incorporate time into a political process is, in fact, a decision, and it could have been made differently. Either time could have been left out of the process altogether, or it could have been incorporated in a different way. Therefore, the decision to make time part of politics is a decision that expresses political values and we should be willing and able to investigate and analyze the values these decisions express. The time choices that Cohen considers are deadlines, waiting periods, and scheduled recurring events. These represent choices that polities make about the boundaries of the polity: who’s in and who’s out.

After offering a summary of her argument and how it fits within the broader conversation, Cohen then moves into an explanation of the types of political judgments that are represented by single, non-recurring deadlines. She argues that these sorts of timing decisions signify authoritarian decision-making models, while timing choices that afford periods of time allow for the deliberation necessary for democratic decision-making. She develops an analysis of the purposes served by time in democracies, and then explains how those purposes imbue time with value for citizens and other decision-makers. From this, she develops what she calls a “political economy [*123] of time,” whereby power can express itself by defining the ways in which other people’s time is politically valued. Throughout the book, she offers well-grounded examples that serve to reify her abstractions. Many of these cited examples are grounded in decisions surrounding citizenship, but she also includes examples related to other issues such as sentencing in criminal law and in other issues.

THE FORM OF THE FIRM: A NORMATIVE POLITICAL THEORY OF THE CORPORATION

Vol. 29 No. 10 (November 2019) pp. 117-121

THE FORM OF THE FIRM: A NORMATIVE POLITICAL THEORY OF THE CORPORATION, by Abraham A. Singer. New York: Oxford University Press, 2018. 312pp. Hardcover $58.77. ISBN: 9780190698348.

Reviewed by Jeffrey Bone, Department of Management, Saint Joseph’s University. Email: jbone@sju.edu.

Writing as a political theorist, Abraham Singer begins his book, The Form of the Firm: A NORMATIVE POLITICAL THEORY OF THE CORPORATION, on the premise that despite public and political fixation on corporations, there has historically been a dearth of literature on the subject from the disciplines of political theory and philosophy. Singer attempts to fill this void with an interdisciplinary overview on how modern corporations ought to be governed. Readers like myself, who come from outside the field of political theory, will appreciate this contemplative contribution to the scholarship of corporate law and business ethics.

The book provides a thought-provoking critique of the law and economics perspective of “the corporation” that arose at the University of Chicago throughout the 20th century (the “Chicago School”). The Chicago School views the corporation as a nexus of contracts in which efficiency is improved by bundling freely-chosen arrangements between corporate constituents. Essentially, the corporation is entirely the product of market forces. Singer challenges the Chicago School’s assumption that corporations are purely economic and contractual entities that are justified in using all legal means to maximize profit. He contends that the Chicago School overlooks the role of the business corporation as an institution that depends on the cultivation of norms and social relationships.

Singer’s overarching argument is that economic theories of the corporation (or the firm), such as those conceived of by the Chicago School are important, but ultimately lacking for understanding the modern corporation in today’s liberal democracy. While this is a laudable contribution to the field on the political theory of the firm, Singer leaves out some important aspects. As discussed at the end of this review, the most notable of these omissions is the stakeholder perspective of E. M. Dodd, who lay out the groundwork for modern notions of corporate social responsibility.

THE FORM OF THE FIRM is organized in three parts. In Part I, Singer articulates and assesses the economic justification of the corporation and explores the legal and economic theories associated with the Chicago School. In Parts II and III, he sets out various critiques of the Chicago School and offers a counterproposal that he calls the “relational” theory of the firm. With certain exceptions outlined below, I am persuaded that Part I has the most compelling insights.

Singer begins by exploring the history of the firm in economic thought. He sets out the different ways theorists have tried to understand the corporation, ranging from Adam Smith to Karl Marx. Moving into the 20th century, Singer explores the ideas put forward by Ronald Coase in his foundational work on transactional costs, with a coherent articulation of Coase’s article “The Nature of the Firm” (1937).

THE CULT OF THE CONSTITUTION

Vol. 29 No. 10 (November 2019) pp. 114-116

THE CULT OF THE CONSTITUTION, by Mary Anne Franks. Stanford: Stanford University Press. 272pp. Cloth $26.00. ISBN: 9781503603226.

Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: rushm@wlu.edu.

This is a very important book. Mary Anne Franks’ new book, THE CULT OF THE CONSTITUTION offers a thoughtful critique of the western, liberal conception of liberties and rights. In doing so, she offers an equally thoughtful criticism of the American approach to interpreting the Constitution and, in particular, the First and Second Amendment. This is not just another exegesis on the breadth or narrowness with which scholars and jurists should interpret freedom of speech and religion and the right to bear arms. Instead, Franks forcefully reminds us that how one chooses to interpret the Constitution has clear consequences that cannot be separated from the theories on which approaches to reading constitutional text may be based.

Franks contends that the absolutist manner in which Americans, from jurists to citizens, now interpret rights to speech and gun ownership creates a society in which we have become blind to the fact that the exercise of liberty by the powerful can cause direct, interpersonal harm to others and limits their ability to exercise their own rights. On the one hand, this argument is by no means new; long ago, Ronald Coase acknowledged that the exercise of rights may be zero-sum. Accordingly, he sought to reconcile and balance clashes of rights and liberties.

But, whereas Coase drew upon relatively benign examples (e.g., clashes between doctors and candymakers whose offices share the same walls or farmers whose crops suffered due to the sparks produced by passing trains), Franks urges the reader to consider the clash of rights and liberties in the broader context of the 21st century. In situations, such as those described by Coase, the state was clearly capable of serving as referee to balance and manage conflicts between and damage caused by rights-bearing individuals regardless of how broadly or narrowly the courts interpreted the scope of liberties.

However, in the 21st century, Franks argues that absolutist interpretations of freedom of speech and the right to bear arms have led to the proliferation of violence that the state is clearly unable to control. Thanks to the internet and social media, speech has been weaponized (in the form of cyberbullying, revenge porn, and so forth) in manners that the Founders never could have imagined. Similarly, the proliferation of gun violence demonstrates that the nearly absolute protection of the right to bear arms has led to a state of uncontrollable and random violence that even the staunchest civil libertarian would be hard-pressed to justify. Accordingly, it is more than irresponsible, says Franks to continue interpreting the constitution on the basis of 18th, 19th or 20th century conceptualizations of rights, liberty, and harm.

Overall, Franks offers a powerful argument in favor of reconceiving the scope and definition of constitutional rights that takes into account the realities of 21st century society. She echoes (p. 12, p. 60) Mary Ann Glendon’s challenge to Ronald Dworkin’s absolutist vision of individual rights: “if someone has a right to something, then it is wrong for government to deny it to him even though it would be in the general interest to do so” (Glendon 1991, p. 40 citing Dworkin 1977, p. 269). Such an interpretation of rights, says Glendon, “promotes unrealistic expectations and ignores both social costs and the rights of others” (Glendon 1991, p. xi).

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.