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.

GLASS AND GAVEL: THE U.S. SUPREME COURT AND ALCOHOL

Vol. 29 No. 5 (May 2019) pp. 57-58

GLASS AND GAVEL: THE U.S. SUPREME COURT AND ALCOHOL, by Nancy Maveety. Lanham, Maryland: Rowman & Littlefield, 2019. 367pp. Hardcover $35.00. ISBN:  9781538111987.

Reviewed by Ryan C. Black, Department of Political Science, Michigan State University. Email: rcblack@msu.edu.

When I first learned that Nancy Maveety was publishing a book about two topics near and dear to several of my vital organs – brain, heart, and liver (in no particular order) – I took two immediate and swift actions. First, I went on Amazon and preordered the book. Second, I volunteered to review the book for this publication. This was, quite frankly, to ensure that I had an “excuse” to read the book, and the book lived up to my high expectations. Although its title and cover art might lead one to believe otherwise, GLASS AND GAVEL represents a serious – yet still accessible – scholarly effort on the part of Maveety to unite several heretofore disparate strands of work. At roughly 300 pages of main text augmented with another 45 pages of endnotes, the book is a substantial piece of serious scholarship. GLASS AND GAVEL (and I promise this will be the only drink-related pun I subject you to) is equal parts legal anthology and social/cultural history with just a few – but nearly enough for this reviewer’s tastes – dashes of judicial biography. More on that later. As such, if you are in the market for either a comprehensive accounting of the Court’s alcohol-related jurisprudence or a smart and concise synthesis of the socio-cultural history of alcohol, this book is a must-read.

Maveety begins GLASS AND GAVEL by making a persuasive case for why one ought to take seriously the endeavor on which she is about to embark. Like much of the studies we pursue, part of her efforts are motivated by a gap in the literature, and this is an important oversight. As Maveerty writes of the relationship between America and alcohol, “Yet only fuzzily remembered or documented within that troubled romance is the entity of the U.S. Supreme Court. This is as grave an omission as the olive from the martini, for the court and its justices have been caught with glass as well as gavel in hand. Less flippantly put, the U.S. Supreme Court has regularly and frequently been at the center of the tricornered relationship between drinking, public life, and constitutional law and liberties” (p. 3). The structure of the book makes clear the extent of this regularity and frequency that Maveety references. GLASS AND GAVEL consists of 14 numbered chapters, each corresponding to the tenure of a Chief Justice. (Maveety condenses the Jay, Rutledge, and Ellsworth years into a prologue as the Court had not issued any alcohol-related opinions during these early years.) Not only is GLASS AND GAVEL impressive in its breadth – indeed, it covers 225+ years of American history – but it is equally noteworthy in depth of what Maveety skillfully covers within each chapter.

Each chapter provides readers with a brief account of drinking practices among the justices (with a particular focus on the Chief) on the Court during that period. Similarly, Maveety provides a thoughtful summary of alcohol use in political culture (e.g., the President) as well as society more broadly. The inclusion of this information came as a pleasant and very welcomed surprise to me. Maveety has canvassed and synthesized a wide array of lengthy studies on the topic (e.g., Daniel Okrent’s 500-page tome). The result is a number of great gems of trivia that I found myself flagging for future reference. For example, I learned that it was the large number of prohibition-related cases that gave birth to plea bargaining, which has, of course, evolved into an essential element of the criminal justice system. Third, each chapter of GLASS AND GAVEL provides a thorough description of all alcohol-related cases decided by the Court during the period – of which there are a surprisingly large number. As if all of this was not enough, Maveety also identifies a cocktail that she contends is most representative of each period. [*58]

JUDICIAL REVIEW AND CONTEMPORARY DEMOCRATIC THEORY: POWER, DOMINATION, AND THE COURTS

Vol. 29 No. 5 (May 2019) pp. 53-56

JUDICIAL REVIEW AND CONTEMPORARY DEMOCRATIC THEORY: POWER, DOMINATION, AND THE COURTS, by Scott E. Lemieux and David J. Watkins. New York: Routledge, 2017. 183 pp. Cloth $24.95. ISBN 978-1-138-09521-2.

Reviewed by Jesse Merriam, Department of Political Science, Loyola University Maryland. Email: jrmerriam@loyola.edu.

With JUDICIAL REVIEW AND CONTEMPORARY DEMOCRATIC THEORY: POWER, DOMINATION AND THE COURTS, Scott Lemieux and David Watkins have written a thoughtful and engaging book that is ultimately disappointing in failing to engage the political realities of 21st century America. Before explaining what is valuable about the book, and why it is nonetheless disappointing, I will contextualize the shifting debate over judicial review and where it is currently situated in the world of judicial politics, as this background is critical to the book’s place in legal discourse.

In the first half of the 20th century, progressives criticized robust judicial review as a threat to democratic governance, whereas conservatives defended judicial intervention as a constitutionally proper means of modulating popular impulses. During this period, the American Left-Right division, particularly as applied to judicial politics and constitutional law, was defined largely according to economic issues. Thus, cases involving contractual liberties, such as LOCHNER V. NEW YORK, were important in framing how conservatives and progressives thought about judicial review.

In the second half of the 20th century, however, there was a sharp transition in the relationship between judicial review and political ideology as America’s political divisions became more focused on social, cultural, and ethnic matters. Whereas the Old Left rejected robust judicial review (because the Old Left sought to protect large segments of the population from economic exploitation at the hands of the elite few), the New Left embraced judicial review in seeking to protect various minority groups from majority oppression. As the Warren Court advanced the New Left’s agenda on issues such as desegregation, school prayer, and criminal justice, conservatives began condemning the Supreme Court’s use of judicial power as “judicial activism” and a threat to majoritarian rule.

Over the last 75 years, left-leaning scholars, politicians, and judges have generally maintained this favorable position toward judicial review, but the American Right has transitioned on this issue, as many right-leaning legal scholars have recently embraced what they call “judicial engagement” – i.e., an aggressive use of judicial review in effectuating the Constitution’s original public meaning. Just as the American Left came to embrace judicial review for political purposes, the American Right’s renewed commitment to judicial review has coincided with the Republican Party’s control of the Supreme Court and the rise of the Federalist Society.

STATE CONSTITUTIONAL POLITICS: GOVERNING BY AMENDMENT IN THE AMERICAN STATES

Vol. 29 No. 5 (May 2019) pp. 50-52

STATE CONSTITUTIONAL POLITICS: GOVERNING BY AMENDMENT IN THE AMERICAN STATES, by John Dinan. Chicago, IL: The University of Chicago Press, 2018. 396 pp. Paper $35.00. ISBN: 9780226532813.



Reviewed by Staci L. Beavers, Department of Political Science, California State University San Marcos. Email: sbeavers@csusm.edu. 

John Dinan’s STATE CONSTITUTIONAL POLITICS: GOVERNING BY AMENDMENT IN THE AMERICAN STATES provides a sweeping overview of the landscape of state constitutional revision through the amendment processes available to all 50 states. Spanning U.S. history and encompassing a wide breadth of institutional and policy areas, Dinan “categorize[s] and catalog[s] the ways amendments have served as instruments of governance throughout American history” (p. 3).

Dinan’s work as a political scientist in the realm of state constitutional development is already extensive and well-known. In addition to numerous law review articles in the subfield, an earlier book published in 2006 provided a comprehensive examination of “more than 230 state constitutional conventions held since 1776” (p. 7). In STATE CONSTITUTIONAL POLITICS, Dinan now provides updates on formal state constitutional changes for the annual THE BOOK OF THE STATES. With this book, Dinan tackles a host of state-level constitutional amendments across generations.

Chapter 1 sets the stage with an overview of the both the mechanisms available for formally amending state constitutions and the rate at which the states do so. Chapter 8 closes the volume with Dinan’s final assessment of the effects of pursuing amendments as the method of choice for seeking policy or institutional changes rather than legislative statutes or judicial rulings.

Chapters 2-7 provide Dinan’s cataloging of an array of constitutional changes from the Founding era to the present. The amendments included range from “institutional authority amendments” that typically shift legislative powers to other bodies (Chapter 2) to amendments that revise the status of various rights (Chapter 3) to those that attempt to counter or stave off judicial rulings (Chapter 4). Later chapters discuss amendments that proscribe and authorize various powers, particularly in the realm of taxing and spending (Chapters 5 and 6, respectively), while Chapter 7 covers amendments that establish policies outright (Chapter 7). Although the reader could quibble with Dinan’s classification scheme, his organizational criteria are clear and hold together.