CREATING A CONSTITUTION: LAW, DEMOCRACY AND GROWTH IN ANCIENT ATHENS

Vol. 29 No. 11 (December 2019) pp. 136-141

CREATING A CONSTITUTION: LAW, DEMOCRACY AND GROWTH IN ANCIENT ATHENS, by Federica Carugati. Princeton & Oxford: Princeton University Press, 2019. 248pp. Cloth $39.95. ISBN: 978-0-691-19563-6.

Reviewed by Paul Gowder, College of Law, The University of Iowa. Email: paul-gowder@uiowa.edu.

In CREATING A CONSTITUTION: LAW, DEMOCRACY AND GROWTH IN ANCIENT ATHENS, Federica Carugati sets herself the dual tasks of contributing to an explanation of both Athens’s economic (and military) recovery in the Fourth Century B.C.E., and of showing the relevance of ancient examples for contemporary political science, in particular the dynamics of constitutionalism and its role in state success. The volume succeeds at both of those tasks, and will prove to be an essential read for those who are concerned to understand the distinct institutional forms that constitutionalism and the rule of law can take while still serving their stability-promoting function. This monograph is an elegantly executed and quite substantial contribution to the literature of political science, law, and classics.

Some historical context is perhaps necessary for the reader who is less familiar with Athens. In the middle of the Fifth Century, Athens was a prosperous and powerful empire, with much of its local hegemony built on naval power, which it used, among other purposes, to extract tribute from its “allies” (client states). As is well-known, Athens’s famous democracy was itself tied to this sea power, for the lower classes were the sailors. In this sense, Athens may stand as the first example of the thesis of a connection between military necessity and enfranchisement: a kind of ur-case for Therborn’s (1977, 21-23) “national mobilization democracy.”

However, toward the end of the Fifth Century, Athens went to war with Sparta, its major Greek competitor. Over the course of the war, the polis suffered several devastating defeats which brought its democracy down no less than twice. First, not long after a failed invasion of Syracuse (made infamous by Thucydides’s dissection of the folly of the democracy in bringing it about)—and, not incidentally, after a collapse of the legal system as well (Gowder 2016, 102-3)—the democracy was replaced in 411 B.C.E. by a short-lived oligarchy known as “the Four Hundred.” Athens bounced back from that meltdown fairly quickly, but finally suffered a total military defeat in 404 B.C.E. in which the Spartans occupied the city, tore down the Long Walls connecting Athens to its great port of Piraeus, and installed the infamously vicious and bloodthirsty Thirty Tyrants.

The Thirty were also quickly overthrown, but, in the interim, Athenian military power had been shattered, a vast proportion of the population had been killed (and much of the rest probably robbed by the Thirty), and a deep rift had been driven between the oligarchic and the democratic parties that posed the risk of poisoning Athens’s politics. Yet, as Carugati recounts, Athens recovered to an astonishing degree over the next century. It did not, to be sure, return to the heights that it scaled during the time of its empire, but it rebuilt the economy, regained the capacity to protect its interests militarily, and managed to preserve the restored power of the democracy for decades thereafter. How?

JUDICIAL MERIT SELECTION: INSTITUTIONAL DESIGN AND PERFORMANCE FOR STATE COURTS

Vol. 29 No. 11 (December 2019) pp. 134-135

JUDICIAL MERIT SELECTION: INSTITUTIONAL DESIGN AND PERFORMANCE FOR STATE COURTS, by Greg Goelzhauser. Philadelphia: Temple University Press, 2019. 201pp. Cloth $71.29. ISBN 978-1439918074. Paper $32.95. ISBN 978-1439918081.

Reviewed by Chris W. Bonneau, Department of Political Science, University of Pittsburgh. Email: cwbonneau@gmail.com.

In his latest book on the politics of judicial selection, Greg Goelzhauser asks a fundamental question: “Does merit selection work?” (p. 3). This method of judicial selection has been around since the 1940s, but the answer to Goelzhauser’s question has long eluded scholars for two reasons. One, and noted by Goelzhauser, is the lack of transparency and data surrounding this process (more on this later). Second, those proponents of merit selection who have dominated the legal community for a long time have not really been interested in systematically evaluating whether or not it works; it has simply been assumed to accomplish its goals of having better judges, more diverse courts, etc. Of course, there have been a number of studies that have shown this is not the case, as Goelzhauser rightly notes. These studies have all focused on outcomes: do you get “better” judges under merit selection? Do you get more diverse courts? In this new book, JUDICIAL MERIT SELECTION: INSTITUTIONAL DESIGN AND PERFORMANCE FOR STATE COURTS, Goelzhauser opens up the hood of the car and looks at the process of selecting judges and the impact process has on outcomes.

After laying out his research question and the current state of the literature in Chapter 1, Goelzhauser turns his attention in Chapter 2 to a case study of filling a vacancy in Arizona. Although I am a big believer in the use of quantitative methods, the use of this case study highlights the value of incorporating qualitative methods in research. Most judicial nominating commissions (who are tasked with providing a list of nominees to the governor) operate in secrecy, making it very difficult to understand who applied for vacancies, what their background is, what the deliberations entailed, and so on. Arizona, however, does things differently. With a few narrowly carved out exceptions that Goelzhauser details, all parts of the process are public and the public even has an opportunity to make statements in support of candidates. This allows Goelzhauser to watch the nominating process unfold as it happens. Moreover, the votes of the commissioners are also public. This case study is a fascinating look at how commissions work in one state. The study is limited to Arizona due to data availability, and while this is a limitation, in my judgment it is not a big one. That said, it is likely that the behavior of these commissioners is affected simply because they know that their comments and actions are going to be viewed by the public. Overall, though, the analysis in this chapter provides valuable information about how judicial nominating commissions work.

THE CONSERVATIVE REVOLUTION OF ANTONIN SCALIA

Vol. 29 No. 11 (December 2019) pp. 131-133

THE CONSERVATIVE REVOLUTION OF ANTONIN SCALIA, by David A. Schultz and Howard Schweber (eds). Lanham, Maryland: Lexington Books, 2018. 376pp. Cloth $120.00. ISBN: 1498564488.

Reviewed by Jeffrey R. Dudas, Department of Political Science, Executive Committee, American Studies Program, University of Connecticut. Email: jeffrey.dudas@uconn.edu.

The predicament of fairly and accurately reviewing an edited volume of scholarly essays is a familiar one; it is a challenge perhaps only eclipsed by the construction and oversight of such a volume in the first place. It is daunting for the reviewer, even in a venue as generous with space limitations as is the LAW AND POLITICS BOOK REVIEW, to know how to proceed. Should the review feature a summary and short analysis of each of the volume’s essays? Should it alternatively assess the overall themes of the volume – themes that may suffuse some of the essays while being mostly absent from others? Is the presence or absence of such themes legitimate grounds for criticism (or praise) of either the individual essays or the volume as a whole? The best answer, I suppose, is that reviewers of edited volumes should attempt to do at least some of all of these things. So here goes.

Professors David A. Schultz and Howard Schweber have commissioned and collected 13 essays authored by an accomplished group of scholars that together assess the many legacies – legal, political, and cultural – of deceased U.S. Supreme Court Justice Antonin “Nino” Scalia. In particular, the volume’s essays follow the lead of its title, accepting its premise (and frequently persuading the reader) that the late Justice’s collected work product can be usefully described as THE CONSERVATIVE REVOLUTION OF ANTONIN SCALIA. The contours and influences of that revolution are, however, ambiguous: Was Scalia’s promotion and use of the interpretive theory of “originalism” as important for the Court’s jurisprudence as his champions (and some critics) insist? Was Nino’s heightened, combative tone towards his opponents, both on and off the Court, a harbinger of the more “populist” elaboration of modern American conservatism that now seems to predominate? Is it possible, instead, that Scalia’s greatest impact – the “conservative revolution” for which he will be most remembered – points less to jurisprudential innovation and more to the sanctification of neo-conservative purpose with the imprimatur of “neutral” legal principle? The great strength of the 13 essays that Schultz and Schweber have cultivated is not that they offer definitive answers to any of these questions but rather that they ask those questions in the first place.

Consider Scalia’s originalism. At least five of the essays (those authored by Atwell, Smith and Jacobs, Merriam, Feldman, and Kahn and D’Emilio) make abundantly clear that this interpretive method – which insists that objective constitutional meaning can be derived from a historical investigation of then-contemporary common linguistic understanding – is the primary innovation upon which Scalia’s potential reputation as a “great jurist” rests. But as all of those essays also make clear, there were multiple issues with Nino’s originalist proclivities. For one, it turns out that his own use of originalism was highly selective. Scalia tended to employ the method with great fanfare whenever it could be plausibly marshalled to support his favored policy outcomes – outcomes that, as the excellent essays by Atwell, Merriam, and Feldman make clear, just so happened to endorse neo-conservative positions on race, gender, sexuality, executive authority, and Christianity. Conversely, and with very rare exceptions, when originalism appeared to endorse non-conservative positions, Scalia abandoned the method entirely, relying upon other jurisprudential moves such as plain meaning textualism and stare decisis. [*132]

And this is to say nothing of the flimsy historical investigations that Scalia and his clerks conducted when applying originalism. Indeed, I learned from several of these essays that Scalia not infrequently based the “original” meaning of constitutional provisions solely on then-contemporary dictionary definitions of the words in question – a reliance that would, I imagine, prompt either head-scratches or belly laughs (or maybe both) from actual, professional historians. Such selective, amateurish uses of history underscore the most acute and damning criticism of originalism: the inevitable ambivalences of history make ash of any attempts to find singular meaning or intention in the records of our past. Imagining that stable, neutral meaning can be found in history and then claiming that neutral ground as foundation for non-discretionary, allegedly non-political interpretations of law is at once folly and, in Scalia’s case, pretense (Kahn and D’Emilio call it a “façade”) for other (deeply-political) goals.

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).