IMMIGRATION AND DEMOCRACY

Vol. 29 No. 7 (August 2019) pp. 79-86

IMMIGRATION AND DEMOCRACY, by Sarah Song. New York: Oxford University Press, 2019. 192 pp. Cloth $34.95. ISBN: 9780190909222

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

Toward the middle of her book, IMMIGRATION AND DEMOCRACY, Professor Sarah Song notes that many intellectuals have stopped defending a thick, robust national sovereignty, at least in terms of an unqualified right of nation-states to control immigration. Instead, she claims, “open borders” has become a “dominant position among philosophers and political theorists writing about immigration” (p. 75). Song argues for an intermediate position, something between open borders and blunt forms of national sovereignty: “what is required is neither closed nor open borders but controlled borders and open doors” (p. 77). She devotes the first third of her book to critiques of existing accounts of national sovereignty, the next third to how open borders still aren’t a good idea, and then the last third to outline her own position.

Professor Song gives reasons for why liberal nation-states should retain some level of sovereignty, and then why they should also provide generous policies for family reunification and for refugee admissions. She also gives reasons for why adjustments and legalization might be necessary for some long-term migrants, even those who entered unlawfully. Throughout, as in her other books, Professor Song brings an intellectual rigor to this project that is most admirable, and her writing is clear, accessible, and free of jargon, all of which makes this work an excellent choice for a wide audience. The rest of this review might sound overly critical, but the disagreements I’ll express should not detract from the tremendous respect I have for Professor Song in her attempt to find a reasonable middle position within this polarizing, acrimonious area of public law.

Many scholars — including Joseph Carnes, Kevin Johnson, and Ayelet Shachar — have indeed questioned the ways in which liberal democracies have assigned citizenship at birth and the ways citizens have excluded others through law and policy, often in racist ways. Liberal democracies practiced race-based forms of exclusion ever since they were established, and even though their framers stated lofty principles about the inalienable rights of all “men,” they excluded all women and people of color from full citizenship. “Indians not taxed,” “the migration and importation of such persons” — these phrases from the United States Constitution alluded to certain kinds of people whom the framers did not consider citizens or capable of citizenship. It’s an older, deeper problem than just in the immigration law. The Supreme Court went on to say that Native Americans were members of “domestic dependent nations,” that the members of various tribes were not American citizens, and thus the individual members of those tribes didn’t really have “constitutional” rights.

Slaves posed other problems: they were dangerous, and for white people lots of slaves living among a smaller group of white people were even more dangerous, so the framers envisioned a time when the federal government might want to stop its citizens from “importing” such persons. That, too, as a constitutional provision in Article I, was as much a migration rule as it was a limit on the right of Congress to regulate the American citizens participating in that particular market. In cases like DRED SCOTT (1857), African people appeared as property, not as persons at all, and although this provision might seem as though it’s not about migration, it was. Indeed, if we look at that provision along with the one in Article IV, about how the United States shall protect every state from “domestic violence,” and if we combine [*80] this with what we know already about slave revolts in the late 17th and 18th centuries, we can see how the framers worried about their own slaves, about how there could be too many slaves, and how, if an insurrection did occur, they’d want the federal government to step in. White men wrote the constitution to protect their “property” and allay the fears of other white men.

BEYOND ABORTION: ROE V. WADE AND THE BATTLE FOR PRIVACY

Vol. 29 No. 7 (August 2019) pp. 75-78

BEYOND ABORTION: ROE V. WADE AND THE BATTLE FOR PRIVACY, by Mary Ziegler. Cambridge: Harvard University Press, 2018. 383pp. Hard Cover $45.00, ISBN-10: 9780674976702.

Reviewed by Boleslaw Z. Kabala, Department of Government, Legal Studies, and Philosophy, Tarleton State University. Email: kabala@tarleton.edu.

The right to privacy is particularly relevant today in the context of social media’s illegal sales of hundreds of millions of private citizens’ records, the recent explosion in the crime of identity theft that involves stealing of billions of private records from government and industry databases (Leskin 2018), and our own government’s growing surveillance of hundreds of millions of Americans. Mary Ziegler’s book, BEYOND ABORTION: ROE V. WADE AND THE BATTLE FOR PRIVACY, explores the ROE V. WADE decision and its impact on the formulation and understanding of the right to privacy.

The main thesis of BEYOND ABORTION is that the right of privacy was, and still is, shaped not only by ROE v. WADE, but also and primarily by the reinterpretations of the decision promoted by activists from a wide range of social movements. These reinterpretations have affected the way courts themselves interpreted the law concerning intimate relations (both in and outside of marriage) and sexual liberty (for heterosexuals, homosexuals, and bisexuals), medical authority, mental illness, the right to refuse medical treatment, death and dying. Ziegler argues that the ROE decision and its reinterpretations by activists are, in one way or another, central to all these issues.

The book is well organized and written clearly, with approximately chronological chapters organized by theme. The targeted audience is that of educated laypeople with a penchant for law and politics. The author documents how diverse movements and their activists, from both liberal and conservative backgrounds, were central in each of the spheres mentioned and how they relied on ROE in different ways to develop privacy claims.

Chapter 1 presents the history of right to privacy and many ROE related details. Chapter 2 covers the story of the ACLU Sexual Privacy Project, dealing with issues of gay and lesbian rights, and the movements that secured sexual freedoms by challenging in Court the moral and sodomy laws (laws against certain types of sex, against fornication, against living with a boyfriend or a girlfriend without marriage, etc.). These decisions extended the privacy guarantees of ROE to the private space of one’s bedroom. The ACLU project also covered reforming laws on marital rape and pornography, and other key issues.

Chapter 3 analyzes the use of the ROE decision and its privacy arguments to reform what many considered abusive psychiatric practices and treatment of the mentally ill: civil commitment against one’s will without providing effective medical treatment and the patient’s right to refuse treatment. Groups of former or current mental patients and their activists used ROE to stand for the right to make their own medical decisions.

DECISION MAKING AND CONTROVERSIES IN STATE SUPREME COURTS

Vol. 29 No. 7 (August 2019) pp. 72-74

DECISION MAKING AND CONTROVERSIES IN STATE SUPREME COURTS, by Salmon A. Shomade. Lanham: Lexington Books, 2018. 136pp. Cloth $90.00. ISBN: 978-1-4985-4299-9.

Reviewed by Jenna Becker Kane, Department of Political Science, West Chester University. Email: jbeckerkane@wcupa.edu.

In DECSION MAKING AND CONTROVERSIES IN STATE SUPREME COURTS, Salmon A. Shomade examines the effects of public controversies on the decision-making of state supreme court justices. Although this group is not often viewed as those most likely to become embroiled in political scandals, some state supreme court justices have found themselves entangled in public controversies that raise public awareness and scrutiny of these multi-member courts. Scholars typically treat these controversies as anecdotal stories of judges acting badly but Shomade adeptly recognized these instances as an opportunity to examine a previously unexplored aspect of collegial court behavior – how public controversies affect judicial decision-making. Shomade considers three instances of public controversies that affected the supreme courts of Alabama, Louisiana, and Wisconsin and examines the behavior of state supreme court justices before, during, and after the onset of public controversy. Through this examination, Shomade tests five competing models of judicial decision-making (legal, attitudinal, strategic, role values, and group interaction) to assess their applicability to collegial court decisions in the wake of public scrutiny.

For each case study, Shomade provides the necessary background regarding the controversy that arose, the justices involved, and the historical and institutional context in which the controversy took place. He then examines data on the voting behavior of each high court judge for a two-year period both prior to and following the public controversy in order to assess if the ensuing scandals prompted a change in voting behavior on the courts. Shomade gathered data on the rate of unanimous votes, majority joins, and dissents both as a court and individually for each judge. To supplement this quantitative examination, the author also investigates the full-text of state supreme court decisions to look for evidence of changes in opinion writing behavior between the judge(s) involved in the controversy and their colleagues on the court.

Shomade’s first, and most well-developed, case study examines the controversy surrounding a Ten Commandment display at the Alabama Judicial Building. Former state supreme court Chief Justice Roy Moore’s decision to install – and then his eventual refusal to remove – the display came under public scrutiny between 2001 and 2003. After a federal district court ruled the display an unconstitutional governmental establishment of religion, Moore defied the court ruling by refusing to remove the display despite the threat of a $5,000 per diem fine. Moore’s public position on the issue rallied public support for the monument, which included public demonstrations and continued appeals in the courts. Throughout the ordeal, Moore’s colleagues on the court remained silent and refused to invoke an administrative procedure that would allow them to override the chief justice’s decision to keep the monument. It wasn’t until Moore’s legal challenges were exhausted and a court-imposed deadline loomed that Moore’s colleagues on the Alabama Supreme Court ultimately voted unanimously to remove the monument.

The second high court controversy considered stemmed from an internal dispute within the Louisiana Supreme Court in 2013 over the elevation of Justice Bernette Johnson as the state’s first African-American chief justice. Upon the retirement of then Chief Justice Catherine Kimball in 2012, a controversy arose regarding who on the court had legal claim to the position of chief justice. According to Article V, Section 6 of the Louisiana Constitution, the position of chief justice is awarded to the “judge oldest in point of service.” [*73] (La.Const. art. V, §6) Having been appointed to the Court in 1994, Justice Johnson laid claim to the position as the longest-serving judge on the court. She was challenged by Justice Jeffrey Victory who joined the court in 1995 and contested Johnson’s claim to the chief justiceship on the grounds that she was initially appointed to the court rather than elected. Following a public controversy over the role race may have played in the elevation dispute and a subsequent lawsuit, the Louisiana Supreme Court determined that Justice Johnson had the rightful claim to the chief justiceship under the state’s constitution.

HUMAN RIGHTS, CONSTITUTIONAL LAW AND BELONGING: THE RIGHT TO EQUAL BELONGING IN A DEMOCRATIC SOCIETY

Vol. 29 No. 6 (July 2019) pp. 69-71

HUMAN RIGHTS, CONSTITUTIONAL LAW AND BELONGING: THE RIGHT TO EQUAL BELONGING IN A DEMOCRATIC SOCIETY, by Elena Drymiotou. New York: Routledge, 2018. 233pp. Hardcover $112.00. ISBN: 978-1138298903. eBook $44.96. ISBN: 978-1315098319.

Reviewed by Maureen Stobb, Department of Political Science and International Studies, Georgia Southern University. Email: mstobb@georgiasouthern.edu.

Equality is a hot-button topic. Politicians, political activists, talk-show hosts and celebrities alike proclaim its importance, while legal scholars heatedly debate its meaning. Elena Drymiotou’s new book, HUMAN RIGHTS, CONSTITUTIONAL LAW AND BELONGING: THE RIGHT TO EQUAL BELONGING IN A DEMOCRATIC SOCIETY is intended for the latter audience. For those struggling to interpret the many provisions of constitutions and multinational treaties guaranteeing the equal protection of the law, this work offers helpful insights. However, the author falls short of fully engaging with those who disagree with her viewpoint. She also does not adequately explore the case law that will challenge her to explain how one applies the approach to real world, complex problems. Despite these shortcomings, however, the book offers a valuable starting point for discussion of the meaning of “equal treatment,” particularly in cases in which individuals are not as “similarly situated” as we would like to believe.

Drymiotou examines the jurisprudence of the right to equal protection of the law in North America, proposing what she argues is a more just model for interpreting this legal concept. Her ultimate goal is to develop an approach that adequately addresses social deficiencies in these majoritarian societies, which she views as generally oppressive for vulnerable members. The theory, the right to equal belonging in a democratic society, is her answer to this problem.

She devotes a great deal of effort to defining each of the terms in the phrase “equal belonging in a democratic society.” Belonging is the way one stands in relation to other members of a group. Equal belonging is integration into the group, or substantive ties among people in the society who view each other as valuable and of equal worth. There is no dominance among members. When the society is democratic, it is a participatory community of equals – a concept, the author notes, which stems from Aristotle’s idea of a polis. This community is both physical and spiritual, composed of individuals with a shared identity who seek the well-being of all members. Drymiotou measures participation, or the power to influence substantive outcomes, in terms of the proximity of the person claiming the right to the decision making center. Low political accessibility to decision makers would equate to reduced participation.

Drymiotou argues that three rights are inherent in the right to equal belonging. First, members have the right to secure belonging, which entails the absence of systemic political disadvantage, prejudice, stereotype, dominance and the worsening of pre-existing political disadvantage. Second, individuals possess the right to free-identity belonging, or the equal freedom to choose the way you belong or define your relationships. Third, members have the right to minimum comfortable belonging, which is simply freedom from anxiety that is created by the violation — or threat of violation — of the first two rights. The core or minimum content of each of these three rights is the right to self-rule and self-development, in the sense of non-dominance.

IDENTITY, THE DEMAND FOR DIGNITY AND THE POLITICS OF RESENTMENT

Vol. 29 No. 6 (July 2019) pp. 63-68

IDENTITY, THE DEMAND FOR DIGNITY AND THE POLITICS OF RESENTMENT, by Francis Fukuyama. New York: Farrar, Straus and Giroux. 2018. xvii + 219pp. Cloth $26.00. ISBN: 978-0-374-90674-0.

Reviewed by H.G. Callaway, Department of Philosophy, Temple University. Email: HG1Callaway@gmail.com.

In his new book, IDENTITY, THE DEMAND FOR DIGNITY AND THE POLITICS OF RESENTMENT, Stanford University political scientist Francis Fukuyama addresses themes which might more properly be considered matters of political and legal philosophy. In particular, though he affirms the importance of the concepts of human dignity and identity, more or less as these are commonly understood in contemporary political debates and judicial decisions, he also sets himself against the contemporary phenomenon of identity politics which he views as a danger to liberal democracy. “The rise of identity politics in modern liberal democracies,” writes Fukuyama, “is one of the chief threats that they face;” and moreover, “unless we can work our way back to more universal understandings of human dignity, we will doom ourselves to continuing conflict” (p. xvi). Readers learn in the Preface that “This book would not have been written had Donald J. Trump not been elected president in November 2016” (p. ix). Fukuyama warns of “political decay,” though he holds it had set in well before the shocks of Brexit and Trump in 2016, “as the state was progressively captured by powerful interest groups” viz. vetocracy, “a rigid structure that was unable to reform itself” (p. ix). In the Preface, Fukuyama also draws lines to his earlier works, including his essay “The End of History?” (1989), his related book, THE END OF HISTORY AND THE LAST MAN (1992) and his impressive recent volumes, THE ORIGINS OF POLITICAL ORDER (2011) and POLITICAL ORDER AND POLITICAL DECAY (2014).

This review will focus on some legal and constitutional issues arising from debates and political conflicts centered on identity, human dignity, recognition and identity politics; however, it is important to understand that Fukuyama links the concept of human dignity and the demand for recognition to his claim that modern liberal democracies have “not fully solved the problem of thymos” (p. xiii). Taken from the ancient Greek, and conventionally translated as “spirit, spiritedness, courage,” Fukuyama writes that, “thymos is the part of the soul which craves recognition of dignity,” “isothymia is the demand to be respected on an equal basis with other people,” and “megalothymia is the desire to be recognized as superior” (p. xiii). “It is not surprising,” Fukuyama wrote in a previous work, “That so many political philosophers have seen the central problem of politics as one of taming or harnessing the desire for recognition in a way that would serve the political community as a whole” (Fukuyama 1992, p. 163).

We have to do with recent elaborations of the ancient theme that while thymos or “spiritedness,” including the demand for recognition—and indignation at injustice—, are fundamental to politics, this same human quality has often proved to be destructive. According to Fukuyama, identity politics in its present forms is destructive of liberal democracy. The danger is that the desire to be “recognized as superior” may link to, and play off of, the “demand to be recognized on an equal basis with other people;” and the leftward demand for recognition of group cultural identity or ethnic equality will reignite the political fires of ethnic and religious nationalism, “the politics of resentment”—and even Caesarism (pp. xiv-xvi). The political message concerning growing inequalities within countries around the world (see pp. 74-80), has not been delivered to classes and their traditional leftward representatives, but to nations and religions, because, “to be poor is to be invisible to your fellow human beings, and the indignity of invisibility is often worse than the lack of resources” (p. 80). Otherwise put, the book’s thesis is that narrow, factional, ethnic politics, [*64] even when ostensively aimed at greater justice, tends to produce what James Madison called “majority factionalism” in response (See Madison 1787, FEDERALIST PAPERS, No. 10, p. 54). Fukuyama advocates broader, more inclusive, voluntary and flexible concepts of political identity not linked to biological origins, nationality, cultural background or religion—and better suited to the defense of human dignity.

PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION

Vol. 29 No. 6 (July 2019) pp. 59-62

PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION, by Robert L. Tsai. New York: W.W. Norton & Co., 2019. 288pp. Cloth $27.95. ISBN: 978-0-393-65202-4.

Reviewed by Timothy Zick, William & Mary Law School. Email: tzick@wm.edu.

In his new book, PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION, Robert Tsai passionately and eloquently addresses a timely and critically important question: “What is to be done to confront injustice when the timing doesn’t seem right or the odds appear to be stacked against you?” (p. 3). As I read his response, an iconic Rolling Stones lyric came to mind: “You can’t always get what you want. But if you try sometimes, you get what you need.” Tsai’s book, which is rooted in pragmatic theory and action, applies this bit of classic wisdom to America’s enduring struggle to achieve equality. He has written a guide for achieving equality by other means. “Practical equality” is an approach and set of principles by which we can achieve something close to equality, even when we strongly disagree about what equality entails and the prospects for equality are otherwise dim.

Equality is a venerable legal and moral principle and treating likes alike is a pillar of any just society. However, history contains countless examples of society’s failure to live up to its soaring promise: slavery, racial and other forms of discrimination, internment of Japanese-Americans during World War II, abuse of suspects at the hands of police, and the disenfranchisement of millions of convicted felons, to name just a few.

That’s the bad news. The good news is that history also contains many examples of achieving equality by means other than the enforcement of formal rights of equality. Even when judges and other actors have had a difficult time agreeing on what equal treatment means or whether officials have actually provided it, they have often been able to forge a consensus around equality-related principles: the individual right to fair processes, rational decision-making, humane treatment, and freedom of expression.

Tsai devotes separate chapters to each of these alternative means of promoting a more egalitarian and just society. In his thorough analysis he describes a variety of contexts in which activists, policymakers, and courts have resorted to these methods and principles in situations where the prospects for achieving equality seemed very bleak if not hopeless. The examples he cites include courts using fair process rules to remedy mistreatment of suspected criminals, rationality principles to invalidate discrimination based on disability and sexual orientation, anti-cruelty principles as a basis for rejecting imposition of the death penalty for juveniles and persons with severe intellectual disabilities, and the right to free expression to facilitate a variety of racial and other equality movements.