JUDICIAL APPOINTMENTS AND DEMOCRATIC CONTROLS

by Mitchel A. Sollenberger. Durham, N.C.: Carolina Academic Press, 2011. 284 pp. Paper $40.00. ISBN: 9781594607851.

Reviewed by Michael R. Dimino, Sr., School of Law, Widener University (Associate Professor). E-mail: mrdimino [at] mail.widener.edu.

pp.52-57

In FEDERALIST #47, James Madison explained that to protect against the “tyranny” that results from placing all governmental power “in the same hands,” the Constitution not only separates the powers of government, but it equilibrates those powers. If powers are nominally separate, but one branch can direct the behavior of another, then the liberty-preserving function of the separation of powers is undermined. Thus, each branch must not only have powers assigned to it, but it must have the “constitutional means,” in the words of FEDERALIST #51, “to resist encroachments” by the other branches. The objective is to have a government whose constituent parts “keep each other in their proper places.”

Congress’s thirst for power was a particularly worrisome prospect, as Madison recognized when he warned in FEDERALIST #51 that “[i]n republican government, the legislative authority necessarily predominates.” If, as he argued in #47, “Congress is everywhere drawing power into its impetuous vortex,” the President and the courts must have the ability to resist congressional pressure—particularly in areas requiring the cooperation of multiple branches.

One such area is the power over appointments. Article II of the Constitution grants the President the power to “nominate, and by and with the Advice and Consent of the Senate, [to] appoint” federal judges and other officers of the United States. As Madison foresaw, whenever one branch’s power is checked by another’s, conflicts are likely to develop concerning the scope of each branch’s authority. And so it has been with the Appointments Clause.

Sollenberger argues for a strengthening of congressional power over appointments through the use of what he terms “democratic controls.” His book is both an historical discussion of the ways such controls have been used to exert congressional influence over, and concerning, courts, and an argument for their vigorous employment to counter presidential appointment authority.

THE DAWN OF DESEGREGATION: J.A. DE LAINE AND BRIGGS V. ELLIOTT

by Ophelia De Laine Gona. Columbia: University of South Carolina Press. 216 pages. ISBN: 9781570039805.

Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.

pp.47-51

On October 10th, 2000, forty-five years to the day after he fled the state fearing for his life, Reverend Joseph Armstrong De Laine was posthumously granted a full pardon from an assault and battery charge with the intent to kill by the State of South Carolina. De Laine’s “crime” was in fact nothing more than a heroic act of self-defense: after years of agitating for equal public schools in Clarendon County – and months of direct threats on his and his family’s lives by whites opposed to integration – Reverend De Laine took his shotgun out on that fateful October night in 1955, sent his wife to a neighbor’s house, crouched in the dark, and waited for the car filled with the white mob who had earlier shot up his house to return. When it did, De Laine fired two rounds into the Lake City night air. Both of them hit their mark, injuring two of the passengers. Within an hour, Reverend De Laine – a tall, charismatic church leader and school principal who had spent the previous eight years fighting for justice for black children and their families – found himself a fugitive from it as he sped north from South Carolina, never to return again.

The story of the events leading up to Reverend De Laine’s flight from South Carolina is the subject of THE DAWN OF DESEGREGATION: J.A. DE LAINE AND BRIGGS V. ELLIOTT, a short but rather engrossing memoir written by De Laine’s daughter, Ophelia De Laine Gona. The larger context for Gona’s rendering of her father is the origin of BRIGGS V. ELLIOTT, the first of five companion cases that became the landmark BROWN V. BOARD OF EDUCATION (1954) decision. So much is known about BROWN – the plaintiffs, the impact of the ruling and the logic behind it, the role played by the NAACP, the use of the “doll tests,” and so on. The story of BRIGGS is also known, albeit to a much lesser extent. Gona’s memoir fills in much-needed details about the community from which the case originated. It is an account of an unlikely series of actions, crowded with many firsthand depictions, by a poor, rural, black farming community that risked virtually everything they had to confront the evils of Jim Crow in the isolated and insular world of post-war South Carolina. If that description sounds like a Hollywood movie trailer, then so be it: Gona’s narrative could serve as the basis for a darn good screen play. The story and its cast of characters are that compelling. More importantly, I think, DAWN provides historians, legal scholars, political scientists, social movement theorists and others with some fresh new pavement on the well-worn roads of the Civil Rights Movement. It should also secure Reverend Joseph Armstrong De Laine’s rightful place as one of the great civil rights leaders of the 20th century.

Gona’s story begins with the realities of inequality in segregated South Carolina and a seemingly simple request: that black children be afforded the same bus transportation services enjoyed by white [*48] children across the state. In rural Clarendon County, some students walked 8-10 miles one way to get to school. Parents and students met to plot out strategy and then sought the assistance of the NAACP. Reverend De Laine, a community leader through his work as school principal and pastor for the AME church, was elected as their spokesman. In 1947, the group first filed a petition to the county school board and eventually a lawsuit (LEVI PEARSON V. CLARENDON COUNTY AND SCHOOL DISTRICT NO. 26) in the U.S. District Court for the Eastern District of South Carolina which contended that equal bus services should be provided to black children.

HOW CONSTITUTIONS CHANGE: A COMPARATIVE STUDY

edited by Dawn Oliver and Carlo Fusaro. Portland: Hart Publishing, 2011. 510pp. Cloth. £55.00. ISBN 9781849460941.

Reviewed by John E. Finn, Department of Government, Wesleyan University. E-mail: jfinn [at] wesleyan.edu.

pp.44-46

Constitutional change is a central component of all constitutional orders. This book contributes to our understanding of constitutional change in two ways – first by offering fifteen case studies of constitutional change in particular jurisdictions (14 nation states and the European Union), and second, as noted on the book jacket, by considering whether there emerges from these case studies “any overarching theory or theories about constitutional change in liberal democracies.” The short answer to the question is that nothing as grand as a theory or theories of constitutional change emerges, but the authors do formulate a number of hypotheses, some descriptive and some predictive, that make this a valuable contribution to the study of comparative constitutional law.

In a too-brief opening chapter, Oliver and Fusaro identify a number of sources of pressure for constitutional change, both internal and external. External sources include internationalization and “Europeanisation,” globalization, terrorism, religious fundamentalism, and migration. Internal pressures include “citizen demands” for a variety of changes in governance, including greater transparency and efficiency in democratic institutions, human rights, as well as demands for devolution, federalism, and “even secession or independence” (p.5). In the face of such pressures, the editors describe their project as identifying “the factors which influence changes” as well as “the processes and procedures by which change takes place” and as “making comparisons between a range of differing countries and constitutional arrangements” (p.5). Oliver and Fusaro also make clear in this chapter that their understanding of the two chief variables – constitutions and change – is comprehensive and catholic in nature. Thus the term “constitution” includes both fundamental documents and rules that are located elsewhere, such as in legislation or judicial decisions, as well as “conventions, codes, guidance, concordats and memorandums of understanding which set out how certain aspects of government are or should be conducted” (p.3). The term “change” includes formal change and rules that govern the process of constitutional amendment, as well as informal change, which may include judicial decisions that interpret constitutional provisions, as well as alterations in constitutional practice by institutional actors and political culture.

MOBILIZING FOR HUMAN RIGHTS: INTERNATIONAL LAW IN DOMESTIC POLITICS

by Beth Simmons. New York, Cambridge University Press, 2009. 468 pp. Hardback $96 ISBN 9780521885102.  Paperback $31.00 ISBN 9780521712323.

Upendra Baxi, Emeritus Professor of Law, University of Warwick and Delhi; Fellow, Kate Hamburger Kolleg, Institute of Law as Culture, Bonn.

pp. 37-43

The question of relationship between ‘norms’ and ‘behaviour’ has been central to sociology of law and legal theory, even when the frameworks for understanding this relationship have varied, the operationalization of the notion of norms has differed, and empirical methods used have been constantly subjected to contestation and renovation.
Understandably, conventionally erudite international law theory and some emerging discourses on sociology of international law do not foreground such concerns, preoccupied as these remain with consensual norm-setting processes and enunciations of state responsibility. Mediating state sovereignties towards securing normative agreements about the conduct of each individual state towards other states and peoples, of the ‘community’ of states towards restraining acts of war, war-like acts, and even occasions of ‘humanitarian intervention’ constitutes in itself a Sisyphus-like labour. Even so, and increasingly now, specialists in international relations and organizations remain concerned with the nature, number, scope, justifications for (and modes of effective compliance with) human rights norms and standards.

This magisterial work exemplifies an array of concerns/questions:  Why do states subscribe in the first place to treaties generally, and especially international human rights treaties (HRT, hereafter)? In what ways does the very act of signing a HRT create a gravitational field within domestic politics? How may we understand and explain strong forms of exceptionalism (non-ratification of HRT) compared with weak forms (ratification with reservations or derogations)? In relation to the latter, in what ways and with what impact the apex Courts, mostly in the Global South, proceed to ‘endogenize’ (a favourite term of Simmons) or socialize HRT obligations? In what specific ways do the patterns of adjudicatory leadership thrive in active partnership with human rights and social movement actors/networks and with learned professions?  How may, in this regard, the specificities of constitutional texts, and particularities of hermeneutic traditions, serve simultaneously as a resource as well as a constraint for sustained solicitude towards HRT obligations? In posing suchlike concerns, Simmons inaugurates many fresh starts in what I have named the comparative social theory of human rights.     

This high achievement is further enhanced by a nuanced understanding/exposé of methods–type concerns. Although Simmons does not so name her field, her exploration comes close to the traditions of impact studies so familiar to law and society and critical legal studies scholarship.  A salient question for impact studies is how firmly one may distinguish ‘symbolic’ from ’instrumental’ political (including adjudicatory) action (see Baxi, 1982).  If the former stands designed to unfold some long-term aspects of cultural change (some new histories of mentalities – attitudes/ dispositions/ doxa) -- the latter seeks to accomplish [*38] human rights results/outcomes in ‘now-time’.

THE ILLUSION OF FREE MARKETS: PUNISHMENT AND THE MYTH OF OF NATURAL ORDER

by Bernard E. Harcourt. Cambridge, Mass.: Harvard University Press, 2011. 336 pages. Hardcover $29.95. ISBN 9780674057265.
reviewed by Michael C. Macchiarola, Distinguished Lecturer, City University of New York.

pp. 33-37

The economic turbulence of the last several years has proven deeper, wider and more persistent than few ever expected to encounter – let alone in a world that long ago embraced the wisdom of the free market as the efficient allocator of resources. More than a means of distribution, by the dawn of a new century, we had grown increasingly comfortable with the market as the embodiment of natural order – the mechanism by which the world achieved and maintained a “stable, orderly, self-sustaining form of equilibrium in the absence of government intervention” (p.240). As balance is tested with a force and frequency that expands by the day, we would be wise to understand the philosophies on which “equilibrium” relies.

While the studies of the events pushing the global economy to such a precarious place continue in earnest, many academics have paused to take measure. In fact, the Great Recession has offered the perfect occasion for a critical reexamination of many of the philosophies now deeply embedded in our worldview. Bernard E. Harcourt’s The Illusion of Free Markets: Punishment and the Myth of Natural Order offers one such evaluation. In that regard, the timing could not have been better for his interesting and lucid inspection of just how we have become conditioned to expect the market to dispense the natural order. Timing is the least of Harcourt’s advantages, however, as he challenges the reader to look beyond a reflexive endorsement of the universal categories that dominate today’s discourse in favor of a disciplined inspection of underlying philosophies. More than that, Harcourt’s work establishes the links in the evolutionary chain of a worldview that resists government intrusion into the wisdom of markets, on the one hand, yet encourages maximum government engagement in enforcing law and order, on the other.

The quality of Harcourt’s work could stand on its own in any era. And, his well written volume will prove to be a timeless contribution. Its value to today’s reader, however, cannot be overstated. The Illusion of Free Markets provides the intellectual backdrop for many of today’s most interesting economic policy debates. And, whether they know it or not – and one doubts that most do – today’s actors borrow heavily from the ideas of the past.

For Harcourt, the market “freedoms” we trumpet are illusory. “Free markets” are more a contrivance, reinforcing a convenient narrative that market outcomes are talent or merit based, and somehow more natural. Harcourt maintains that it is the state itself that “actually facilitates and makes possible the new order” (p.241) and he offers ample evidence that legal, social and professional regulation abound in even our freest markets. In this regard, Harcourt’s description of the level of intervention in an enforcement action on the Chicago Board of Trade – the “epitome of the free market in the Western world” – is eye-opening (p.17). For Harcourt it follows that today’s efforts should concern how best to regulate and not whether to regulate. [*34]

SEX PANIC AND THE PUNITIVE STATE

by Roger N. Lancaster. Berkeley, CA: University of California Press, 2011. 328pp. Hardcover $50.00. ISBN 9780520262065. Paper $24.95. ISBN: 9780520262065.

Reviewed by Joseph Fischel, Pembroke Center for Teaching and Research on Women, Brown University. Email: joseph_fischel [at] brown.edu.

pp.27-32

As I write this review in the Fall of 2011, the alchemy of sex, politics and panic bubbles over in blogs, newscasts and print media. The nation has witnessed a rising Republican presidential candidate failingly rebuff sexual harassment charges, and the famed Penn State football outfit has withered under publicized charges of child sexual abuse. Roger N. Lancaster’s Sex Panic and the Punitive State insists that episodic “sex panics” are not simply sensationalist, epiphenomenal media accounts produced for profit, but rather reflect and reiterate what he calls forms of “punitive governance.” For Lancaster, punitive governance describes the paranoid politics in U.S. culture that has eroded presumptions of innocence, valorized the victim as national hero, and ennobled the vigilante as iconic citizen. Sex panics, the eruption of public anger and media frenzy around (sometimes imagined) sexual violations, has inaugurated and codified the extension of the state’s supervisory and carceral powers, the expansion and subsequent legitimation of security measures, and the enactment of harsher regulatory and punitive laws. In this regard, Lancaster follows other recent and not so recent work charting the political mobilization of collective anxieties around sexual threat (for example, Jenkins 1998; Rubin 1993; Watney 1996; Weeks 1981). However, more compellingly than his predecessors, Lancaster investigates how the logic and rhetoric of sex panics has infused multiple, often-nonsexual arenas of state control. He offers a cartography of the U.S. political landscape that links up concerns over unmoored sexuality with the war on terror, and with the sharp turn, over the past several decades, to incarceration as the U.S.’s method of governing par excellence. Thankfully, Lancaster mostly resists the language of causation and opts instead to show his readers the complex relations between sex, media, panicked citizenry, the ever-longer arm of the punitive state, and the ever-shrinking arm of the welfare state. At the core of his analysis is not, as he suggests early on, the figure of the homosexual (p.17), but rather the political use and abuse of fear, and the political, discursive leveraging of the child and childhood innocence to keep fear not only alive in the body politic but also effective in the promotion of state power.

Like its writing style, the architecture of Sex Panic and the Punitive State is straightforward and smart. The book is divided into two parts. Part One: Sex Panic considers, over the course of three chapters, the modern history, sociological contours, and legal consequences of sex panics in the United States. Part Two: The Punitive State is less narratively linear than Part 1, as the scope of inquiry is far wider. The four chapters under Part 2 document: the punitive turn in U.S. forms of governance beginning in the late 1960s, the global amplification of U.S. carceral, punitive, and securitizing practices after 9/11, and the emergence of the injured victim as the central figure igniting (conservative and liberal) 1970s-1990s activist agitation and law and order reform. At the close of Part Two, Lancaster briefly but excellently pushes back against some critical accounts of [*28] the relationship between neoliberal capitalism, (identitarian-infused) liberalism, and the punitive state. Chapter 4, an autobiographical interlude, judiciously bridges the two parts of the book.

THE IMMIGRATION BATTLE IN AMERICAN COURTS

by Anna O. Law. New York: Cambridge University Press, 2010. 280pp. Cloth $90.00. ISBN: 9780521767088.

Reviewed by Karen A. Woodrow-Lafield, Maryland Population Research Center, University of Maryland College Park. Email: kwoodrow [at] umd.edu.

pp.18-26

The Immigration Battle in American Courts is an examination of the role of the two highest federal courts in treating aliens’ permission to enter or to remain in the United States given the traditions as a nation of immigrants and as having a commitment to equal treatment under the law. The core empirical inquiry is whether the Supreme Court of the United States and the U.S. Court of Appeals are contrasting in opposing and welcoming aliens’ claims for status. The central arguments are that each court’s unique institutional context serves to shape judges’ perception of roles, that each court’s role has been dynamic, and that evolving institutional settings have multiple consequences. Overall, the federal judiciary serves the roles and missions as conceived by the founders.

Congress makes laws on immigration, and these laws are the products of political conflicts within the boundaries of institutional norms and structures. Guided by rules, procedures, and norms, federal judiciary decision making implements those laws in political asylum cases, exclusion cases, and deportation or removal cases. Professor Law demonstrates the protective reach of the U.S. Court of Appeals for politically vulnerable aliens at risk in the immigration bureaucracy. By contrast, the Supreme Court is more deferential to the executive branch on immigration actions and to congressional plenary powers, thus limiting due process for aliens. Law notes the data display a pattern favoring the alien in the cases of the U.S. Court of Appeals against precedent or congressional intent. Immigration law tests the Supreme Court as policy court and court of law. With controversial anti-immigration laws in Arizona, South Carolina, Alabama, Indiana, Utah, and Georgia, the Supreme Court will review in the Arizona case whether states have constitutional authority to regulate immigration.

Social scientists predominantly deal with immigration impacts and trends, rather than focusing on the institutional contexts and development of immigration law, to which legal scholars also do not attend. This book takes a longitudinal strategy over 1881-2002 to discern how the U.S. Courts of Appeals (Third, Fifth and Ninth Circuits) have diverged from the Supreme Court in adjudicating immigration cases. Law illuminates theoretically the development of intercurrence within the federal judiciary despite different systems of purposes, incentives, and motivations. The Supreme Court is hypothesized as becoming more oriented toward policy and jurisprudence due to immigration acts of Congress and being more removed from individual cases, including oversight of the Court of Appeals. Law hypothesizes the latter are more concerned with correcting error from lower courts and citing Supreme Court doctrine, perhaps even resembling the Supreme Court. Augmented by increasing world migration and political, economic, and civil contexts, developments in U.S. immigration policy, including enforcement strategies, laws, and interactions of individual aliens with authorities have altered the appeals workload. From the mid-1980s, immigration policies have resulted in [*19] growing caseloads, especially for the Ninth Circuit in the West (American Bar Association 2010), and that growing pressure has shifted the court toward selectivity.