JUDGING FREE SPEECH: FIRST AMENDMENT JURISPRUDENCE OF US SUPREME COURT JUSTICES

Vol. 26 No. 3 (July 2016) pp. 58-61

JUDGING FREE SPEECH: FIRST AMENDMENT JURISPRUDENCE OF US SUPREME COURT JUSTICES, by Helen J. Knowles and Steven B. Lichtman (eds). New York: Palgrave Macmillan, 2015. 288pp. Cloth $110.00. ISBN: 9781137434913. Paper $30.00. ISBN: 9781137434906.

Reviewed by Wayne Batchis, Department of Political Science, University of Delaware. Email: batchisw@udel.edu.

When we delve into the weeds to address topics in constitutional law, we tend to talk about “the Court.” The reason is clear. If the goal is to understand, for example, a particular doctrine derived from the First Amendment, we generally need to know the rules of the game, articulated over the years by majority opinions. JUDGING FREE SPEECH changes the conversation. The entries – by an impressive array of scholars – instead each focus our attention on the First Amendment jurisprudence of one particular justice. The result is a concise, thoughtful and illuminating volume of essays on nine select members of the Supreme Court (past and present), highlighting each justice’s distinctive approach to the freedom of expression.

The book also thankfully defies the unfortunate, but at times deserved lament that academic writing must necessarily be inscrutable and abstruse. The entries in this collection provide a genuinely enjoyable read, light on the jargon with amble helpings of colorful substance. More importantly, this volume demonstrates that political scientists can “do” law, and do it well. The majority of contributing scholars are political scientists who – refreshingly, in my opinion – take law and doctrine seriously, while at the same time offering a brand of analysis that is broader than what one might find in the pages of a typical law review.

I must admit, I found the choice of justices profiled a bit haphazard. I would have perhaps preferred that the book maintain its focus on the current – or at least modern – Court, rather than dedicating several chapters to the jurisprudence of justices long gone. In many cases, I found that the chapters on contemporary justices were more likely to offer fresh insights.

The final chapter, for example, penned by Harvard Law professor Mark Tushnet, offers an important, not merely informative, synthesis of Stephen Breyer’s First Amendment jurisprudence. Breyer is a critical First Amendment player on the current Court. For good or ill, his approach to free expression is on cusp of becoming vastly more influential as the death of Justice Scalia, sharp ideological division, and a pivotal presidential election coalesce to make a dramatic shift on the Court likely. Many agree that the current Court is highly responsive to First Amendment claims, perhaps more so than it has been at any time in its history. In some ways the left and right flanks of the Court have come together on free speech. However, Breyer’s distinctive, legislative-like approach, described with insight and clarity by Tushnet, is a sharp contrast with the categorical, tradition-oriented approach preferred by the Chief Justice and other conservatives. Tushnet explores how Breyer’s First Amendment approach is tethered to his pragmatic conception of what is needed for a democratic society to thrive.

As the editors point out in their conclusion, there is some suggestion that other justices, particularly Justice Kagan – whose First Amendment track record has been somewhat limited up to this point – may be willing to follow in Breyer’s footsteps. The next few years could be pivotal for the future of First Amendment jurisprudence. The path the Court takes on free speech matters may determine the Amendment’s meaning for decades to come.

Like Tushnet’s chapter, Helen J. Knowles also provides an important profile of the First Amendment jurisprudence of a current justice. Indeed, Knowles’ chosen jurist is arguably the [*59] most consequential free speech justice on the contemporary Court. Anthony Kennedy may be best known as a “swing justice” for his propensity to align himself with both the liberal and conservative justices in high profile 5-4 decisions, but as Knowles points out, his First Amendment record has been anything but inconsistent. Kennedy stands out for his libertarian perspective, and even a casual student of First Amendment case law would likely observe Kennedy’s tendency to author highly speech-protective decisions.

RELIC: HOW OUR CONSTITUION UNDERMINES EFFECTIVE GOVERNMENT AND WHY WE NEED A MORE POWERFUL PRESIDENCY

Vol. 26 No. 3 (July 2016) pp. 54-57

RELIC: HOW OUR CONSTITUION UNDERMINES EFFECTIVE GOVERNMENT AND WHY WE NEED A MORE POWERFUL PRESIDENCY, by William G. Howell and Terry M. Moe. New York: Basic Books, 2016. 256pp. Cloth $26.99. ISBN: 9780465098583.

Reviewed by Graham G. Dodds, Department of Political Science, Concordia University. Email: g.dodds@concorida.ca

Complaints about governmental dysfunction in the U.S. have been commonplace for some time. In RELIC, well known political scientists William Howell and Terry Moe contend that many current problems – like Congress’s apparent inability to enact urgently needed commonsensical policies – are mere symptoms, the true causes of which are rooted in the Constitution. Specifically, they claim that Congress occupies the central position in the federal government but is deeply dysfunctional, they see Congress’s many shortcomings as inevitable because they are hard-wired by the Constitution, and they argue for changing the Constitution to make the presidency more powerful and prominent.

The book’s first chapter is devoted to examining the Constitution, which Howell and Moe say was designed by people who were very different than us and for times that were very different than ours. They note that the founders believed in inequality (per republicanism and race) and that their values “are not the values of modern America” (p. 8). They also say that the Constitution was designed for a “premodern” world (p. 23) and that it is truly a relic “wholly out of sync with modern society” (p. 24). But the authors do not entirely fault the Constitution or its authors for this state of affairs; they also fault the American people for failing to update a document that is so outmoded.

Howell and Moe contend that in the early twentieth century progressives managed to make the antiquated constitutional regime work effectively, by weakening political parties and the separation of powers while strengthening administration and the presidency. But they also argue that the Progressives’ success was limited, later eroded, and that the many subsequent changes in American society over the past century require a different approach to resolving “the disconnect between government and society” (p. 45).

In the second chapter, Howell and Moe examine Congress, which they see as the central part of American national government, and they find it wanting. They contend that Congress never really worked well, that even in the supposed good old days of the 1960s it was not altogether functional, and that Congress is “increasingly archaic” (p. 51). This is not due to the particular individuals who comprise Congress, it is the result of institutional influences on members’ behavior. Because of the way the Constitution set up Congress and its electoral incentives, members of Congress are profoundly “parochial” or blind to concerns beyond their home districts or states, they are “myopic” or focused only on short-term consequences, and in terms of public policy they care only “about the pieces, not the whole” (p. 55).

IMPERIAL FROM THE BEGINNING: THE CONSTITUTION OF THE ORIGINAL EXECUTIVE

Vol. 26 No. 3 (July 2016) pp. 50-53

IMPERIAL FROM THE BEGINNING: THE CONSTITUTION OF THE ORIGINAL EXECUTIVE, by Saikrishna Bangalore Prakash. New Haven, CT: Yale University Press, 2015. 454pp. Cloth $45.00. ISBN 9780300194562.

Reviewed by Louis Fisher, Scholar in Residence at the Constitution Project and Visiting Professor, William and Mary Law School. Email: lfisher11@verizon.net.

From the title of the book and early chapter headings (including “A King Under the Title of President” and “Constituting ‘His Highness’ the President”), readers might think that Saikrishnam Bangalore Prakash is offering the U.S. President as a replica of William Blackstone’s king, who had power over all external affairs, including the power to declare war, make treaties, and to appoint ambassadors. But the Introduction of Imperial from the Beginning quickly belies that. “When Presidents exercise the right to decide whether the United States will wage war,” (p. 3). Prakash writes, “they act contrary to the original Constitution. . . . The Constitution grants many traditional executive powers to Congress, such as the power to decide to wage war” (p. 3). Prakash notes that “executive privileges and immunities, while fitting in more thoroughly regal systems, are best seen as foreign to the Constitution’s republican monarchy” (p. 4). The term “republican monarchy” is in obvious tension, sounding more like an oxymoron. Why would Prakash describe a system of self-government and separation of powers, operating through checks and balances, as a monarchy?

In discussing the Constitution’s framework for foreign affairs, Prakash acknowledges that many of the Framers “believed that the English Constitution ceded too much foreign affairs power to the Crown and that some aspects of foreign affairs had legislative overtones (such as the war power)” (p. 111). In drafting the Constitution, a number of exceptions “to the grant of executive power ensured that the President would have fewer foreign affairs powers than the English monarch” (p. 111). Under an 18th-century English legal principle, the Crown could “do no wrong.” Americans, as Prakash notes, “knew from experience that he could” (p. 221). They would also learn the capacity of Presidents to do wrong.

Still, Prakash occasionally reintroduces the theme embodied in the book’s title, such as when he writes: “The picture that emerges from the founding era is of an elective monarch, constitutionally limited in a number of significant ways” (p. 10). He claims that “the Constitution’s presidency was redolent of monarchy,” (p. 13) while admitting that, “[f]or many, monarchy implies life tenure, with heirs succeeding to the throne. . . . Monarchy implies singularity; where authority is split among many, one is tempted to say that there is no monarch” (p. 13). What is gained by using the word “monarch”? What evidence justifies its use?

As Prakash correctly notes, the Senate in 1789 debated whether to the President should be styled “His Highness the President of the United States of America and Protector of the Rights of the Same.” An alternative proposal was “His Excellency.” Prakash does not mention that a House committee strongly opposed these titles, believing that “it is not proper to annex any style or title to the respective styles or titles of offices expressed in the Constitution.” (ANNALS OF CONGRESS 1789, 331). Representative Thomas Tucker of South Carolina said that, if Congress intended to vote on such titles, it should add “an embroidered robe, a princely equipage, and finally, a crown and hereditary succession.” He added, “This spirit of imitation, sir, this spirit of mimicry and apery will be the ruin of our country. Instead of giving us dignity in the eye of foreigners, it will expose us to be laughed [*51] at as apes” (ANNALS OF CONGRESS 1789, 333).

THE CASE AGAINST THE SUPREME COURT

Vol. 26 No. 3 (July 2016) pp. 47-49

THE CASE AGAINST THE SUPREME COURT, by Erwin Chemerinsky. New York: Viking Penguin, 2014. 400pp. Cloth $30.00. ISBN: 9780670026425. Paper $18.00. ISBN: 9780143128007.

Reviewed by Gary E. Bugh, Department of Political Science, Texas A&M University-Texarkana. Email: gary.bugh@tamut.edu.

In THE CASE AGAINST THE SUPREME COURT, Erwin Chemerinsky presents a scathing critique of the Supreme Court for failing to carry out its most important responsibilities at critical moments. What are these functions, where do they come from, why has the Court inadequately performed them, and what could help the Court do a better job? Chemerinsky asserts “that the two preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities” (p. 10). He argues that these obligations—as well as the Supreme Court’s history of unsuccessfully fulfilling them when they were most needed—derive from the Constitution. However, rather than amend the Constitution or remove judicial review from the courts, his proposed solution for the Court’s incompetency is to enact several statutory-level reforms.

While the Constitution does not expressly describe the Court’s two primary duties, Chemerinsky holds that it logically supports them. He explains that the design of the Constitution—its separation of powers, civil liberties protections, and near invulnerability from alteration—is meant keep an impassioned majority from harming minority rights and the Constitution’s “basic values” (p. 9). The Constitution also guarantees justices’ tenure and salaries, further insulating the Court from the majority. Consequently, “[j]udges with these protections, it always has been hoped, will be more likely to safeguard minorities and enforce the Constitution against repressive desires than government officials who are elected and are accountable to the voters” (p. 10).

In reviewing different historical and contemporary areas of constitutional law, Chemerinsky lays bare the Court’s record of repeatedly failing to take a stand for constitutional rights and principles. The history of the Supreme Court is characterized by decades-long support for government-sanctioned slavery, racial segregation, corporate favoritism, and suppression of speech during times of crisis. “Throughout American history,” Chemerinsky writes, “the Court usually has been on the side of the powerful—government and business—at the expense of individuals whom the Constitution is designed to protect” (p. 10). He acknowledges that the Court has occasionally performed admirably, as in BROWN V. BOARD OF EDUCATION (1954), but such instances are rare and generally limited. Even the Warren Court does not escape Chemerinsky’s critique, and he details throughout Chapter 4 how “it did so much less than it needed to and should have done, even in the areas of its greatest accomplishments” (p. 155). In other chapters he eviscerates the current Roberts Court, describing how it favors the powerful over citizens in several areas from generic drug manufacturers to voting rights.

The vague and broad language of the Constitution, Chemerinsky argues, is behind the Court’s inability to fulfill its responsibilities. At one level, he observes that the Constitution’s general language makes it possible for Americans of different ideologies to consent to the constitutional system. However, he maintains that at the level of the Court, it invites justices to rely not on the law or text of the Constitution when making decisions, but “on their own values, views, and prejudices” (p. 10). Problematic with the justices having so much leeway is that they have historically swung in [*48] favor of elite preferences. This is no wonder, he continues, because most justices are among the elite. As he elaborates, “it is striking how similar the educational backgrounds of the justices are and how many of them come from relatively privileged families” (p. 294). The justices’ reliance on “making a value choice” explains the Court’s inconsistent use of standards that it could use to protect minority rights and limited representative government, such as “compelling government interest” (p. 339).

However, there may be more to the explanation of why the Court’s history is not one of fighting for equal citizenship and constitutional values. Expecting the Court to be the leading defender of citizen rights and government restraints may not be realistic. After all, it is part of government. Chemerinsky leaves out the important role that mass movements have played in pressuring government to uphold civil rights and civil liberties. In his argument, the relationship works the other way around, with an independent Court driving popular movements. He even claims at one point that “[t]he Court’s desegregation decisions helped spur the civil rights movement and the adoption of landmark civil rights laws in the 1960s” (p. 53). Yet, Chemerinsky has some difficulty holding to his autonomous view of the Court, mentioning that “the justices live in society and thus are likely to reflect its attitudes and values at any point in time,” and agreeing with Mark Tushnet’s (1999) argument that the courts tend to go along with “the dominant national political coalition” (pp. 293–94). Nevertheless, Chemerinsky’s defense of his thesis presents an alternative to political perspectives of the Court, including Tushnet’s (2010) regime-centered theory. It also provides many valuable insights.

LOOKING FOR RIGHTS IN ALL THE WRONG PLACES: WHY STATE CONSTITUTIONS CONTAIN AMERICA’S POSITIVE RIGHTS

Vol. 26 No. 2 (June 2016) pp. 44-46

LOOKING FOR RIGHTS IN ALL THE WRONG PLACES: WHY STATE CONSTITUTIONS CONTAIN AMERICA’S POSITIVE RIGHTS, by Emily Zackin. Princeton: Princeton University Press, 2013. 234pp. Paperback $32.95. ISBN 978-0691155784.

Reviewed by Richard S. Price, Department of Political Science and Philosophy, Weber State University. Email: richardprice@weber.edu

Those of us who study state constitutional politics and development are not infrequently asked: why? After all, real constitutional action occurs at the federal level and state constitutions are sideshows, or at least that seems to be the questioner’s assumption. A number of scholars have debunked this view by demonstrating the wealth of state constitutional experience that is far richer than many suppose (Dinan 2006; Levinson 2012; Tarr 1998; Williams 2009). Emily Zackin’s LOOKING FOR RIGHTS IN ALL THE WRONG PLACES is a terrific addition to this scholarly group. Zackin takes as her target one of the vestiges of American exceptionalism, the oft-noted fact that the U.S. Constitution lacks positive rights, rights “that require government intervention in order to protect people from threats that are no directly or solely governmental” (p. 37). While this is true, anyone familiar with state constitutions knows that this federal-centric description misses the positive rights present in most state constitutions. Simply noting this fact adds relatively little to scholarly debates. Zackin, however, goes further and seeks to explain why state constitutions contain these rights. It is this question where LOOKING FOR RIGHTS IN ALL THE WRONG PLACES adds a major contribution, not only to the American constitutional development literature but also to comparative constitutional theory.

Critics of state constitutions have long attacked their length and detailed provisions as not sufficiently “constitutional,” with constitutional being defined as the gold standard of the U.S. Constitution’s brevity and focus on great principles over idiosyncratic political concerns. Setting aside the overly romantic vision of the U.S. Constitution, these critics enjoy pulling isolated provisions out of a state constitutional text as examples of the parochial concerns of state constitution writers (see Gardner 1992). One frequent example of this so-called unprincipled constitutionalism is New York’s detailed authorization of ski trails (N.Y. Const. Art. XIV, Sec. 1). Zackin, however, reads such provisions quite differently: “Not only do these details often address issues of national salience, but their origins, while in some ways different from those of the federal Constitution, are not inherently less elevated. Indeed, the origins of these provisions highlight the ways in which state constitutions reflect their champions’ principled (and quite familiar) use of constitutions and constitutional politics” (p. 19). It turns out that the ski trails provision is of much greater principle than commonly assumed; when added in 1941, the New York Constitution contained a powerful conservationist mandate protecting the Adirondacks from development and the authors of the ski trails provision sought to carve a limited exception to the broader conservationist principle (p. 28). Where many scholars focus on the detailed nature of state constitutions limiting governmental power, Zackin warns, “we should not confuse the desire to limit legislative choices with the goal of limiting the role of government” because “state constitutions not only contain prohibitions on particular types of legislative activity, but also include mandates for legislative action” (p. 34). Zackin explores this dynamic by tracing the development of positive rights mandates in three areas: education, labor, and environmental rights.

For the sake of brevity I will only discuss Zackin’s labor rights chapter in detail. While Americans in the post-New Deal world often forget, state constitutions contain many labor provisions mandating governmental protection of workers in a variety of ways. Labor activists used the opportunity provided by constitutional [*45] conventions, or accessible amendment procedures, to entrench the importance of the right to a quality working environment (p. 117-18). Labor organizations were the driving force behind this movement and sought to elect favorable convention delegates as well as mobilizing their own membership to ratify the proposed changes (p. 121-22). The labor mobilization was “part of larger campaigns to change state policy. . . . [C]onstitutional labor provisions were understood to supplement, not substitute for, protective legislation” (p. 123). Zackin demonstrates that the labor movement pursued a sophisticated strategy and sought to achieve multiple goals through constitutional entrenchment. Courts were a key goal of this movement, just not in the way that many assume rights provisions work. Rather than seeking to empower courts to restrain abusive legislatures, the labor movement sought to constrain and overturn courts directly. Simply altering courts through elections, as the labor movement also strove to achieve, still left the movement’s legislation vulnerable but changing state constitutions insulated the movement’s legislative victories. Beyond directly reversing unfavorable decisions, the movement also sought to preempt litigation before it occurred by reducing the constitutional arguments available to attack labor laws (p. 123-33). While this could not overcome hostility in federal courts, labor rights provisions offered substantial protections against state legal challenges and state courts were the most frequent sites of contestation (p. 134-38). The movement for positive labor rights provisions served additional purposes as well. Importantly, Zackin argues that the labor movement used labor provisions to force legislative action on its agenda. Legislatures that had been reluctant to embrace innovations in employment law and regulation faced added pressure from the successful ratification of labor provisions (p. 138-41). This goal serves to underline the fact that constitutions may simultaneously restrict governmental power while also authorizing and legitimizing that power. Finally, the campaign for constitutional labor rights protections served to further build the labor movement (p. 141-43). This necessarily brief summary hardly does justice to the nuances of Zackin’s account of the labor movement, let alone her equally stimulating account of education and environmental activists.

UNFIT FOR DEMOCRACY: THE ROBERTS COURT AND THE BREAKDOWN OF AMERICAN POLITICS

Vol. 26 No. 2 (June 2016) pp. 39-43

UNFIT FOR DEMOCRACY: THE ROBERTS COURT AND THE BREAKDOWN OF AMERICAN POLITICS by Stephen E. Gottlieb. New York: New York University Press. 2016. 416pp. Cloth $55.00. ISBN: 978-0814732427.

Reviewed by Daniel N. Hoffman, Professor Emeritus, Johnson C. Smith University. Email: guayiya@bellsouth.net.

In this passionate, copiously footnoted volume, law professor Stephen Gottlieb ambitiously combines the methods of history, political science and legal analysis to assess the state of American democracy. Part I, Traditions, lays out his view of democracy’s core principles. Part II, Political Science, reviews the literature on the forces that tend to support democracy and those that tend to undermine it. Part III, At the Court, examines the role that the Supreme Court, and especially the Roberts Court, has played in a historical narrative that his title glumly labels “breakdown.”

Chapter one, Legacies, argues that since the founding, Americans have shared clear premises about how to protect democracy, and that the Constitution can be soundly interpreted only in the light of these assumptions. Gottlieb relies on selected quotes from original sources and a variety of secondary sources. The founders, he says, “believed in the need to disperse both wealth and power and provide for an educated people. And they assumed that they needed unity, to encourage the population to mix, interact, and work together to develop the country for the good of all” (p. 5). To this end, they focused on travel, commerce, finance and education. Political checks and balances would help prevent abuse, but democracy also required political rights, starting with the right to vote. Beyond this, the powerful must have the character “to stay their hands rather than hold democracy hostage to their own personal or partisan gains” (p. 9). Freedom also depends on economic independence, and disparities of wealth threaten democracy, whether by motivating rebellion or by facilitating the exploitation of dependent masses to rig elections. Thus, Madison in 1792 advocated for “laws, which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity, and raise extreme indigence towards a state of comfort” (p. 11). Over time, the franchise became nearly universal, and election processes were repeatedly reformed. Education, industrialization and military service have served as integrative forces, though racial integration has been resisted and Americanization was sometimes coercive. In their vigorous partisan conflicts, Americans generally have steered far between the extremes of radical egalitarianism and corporate control of politics. The founders’ beliefs about the requirements of democracy deserve to be better recollected and appreciated.

Chapter two, In the Shadow of War, explores the nation’s and the Court’s response to threats to democracy in the first half of the twentieth century. Gottlieb celebrates the Court’s gradual expansion of personal liberties under the Due Process clause and its acceptance of the constitutionality of redistributive New Deal programs. He writes at length about PALKO V. CONNECTICUT, which appealed to fundamental principles underlying all our civil and political institutions, and about the famous CAROLENE PRODUCTS footnote, where the Court acknowledged its special responsibility for protecting those who suffer systematic obstacles within the political process. As he notes, the two cases embody distinct approaches to protecting democracy, and the Rehnquist Court later rejected the latter, more robust one.

Chapter three, Export, examines cases from the same time period that illustrate gradual progress on issues of religious and racial exclusion, punctuated by significant failures like the wartime treatment of Japanese-Americans. Gottlieb next discusses such global developments as the Nuremberg Trials and the UN Universal Declaration of Human Rights, [*40] which were influenced by American constitutional principles but in some respects went beyond them. Newer national Constitutions, such as those in Italy, Germany, India, Canada and South Africa, wisely began to embody explicit socio-economic rights along with political rights and rules allocating governmental powers.

THE GRASPING HAND: KELO V. NEW LONDON AND THE LIMITS OF EMINENT DOMAIN

Vol. 26 No. 2 (June 2016) pp. 35-38

THE GRASPING HAND: KELO V. NEW LONDON AND THE LIMITS OF EMINENT DOMAIN by Ilya Somin. Chicago: University of Chicago Press, 2015. 356pp. Hardcover $30.00. ISBN: 978-0226256603.

Reviewed by Logan Strother, Department of Political Science, Syracuse University. Email: lrstroth@syr.edu.

Ilya Somin’s THE GRASPING HAND is both an intensive case-study of one of the most controversial decisions in the Supreme Court’s history, KELO V. NEW LONDON, and an extensive treatment of the historical, legal, and political development of the “Public Use” doctrine. The book is thoroughly researched, and the writing is lively and engaging. THE GRASPING HAND is notable for the richness and variety of data Somin brings to bear on his topic: it features substantial legal research on cases and statutes, of course, but also numerous interviews with homeowners from the Fort Trumbull neighborhood, city officials from New London, and attorneys for both sides in the dispute, as well as extensive polling data on attitudes about the Court’s decision and many reform measures enacted in KELO’S wake.

Somin’s basic argument is that KELO is bad law, and should be overturned. He argues that economic development and “blight” takings – both currently justified under the Court’s “public purpose” doctrine – are unconstitutional under both originalist and living constitutionalist theories of interpretation. He rests his originalist argument primarily on analysis of state supreme court decisions on state constitutional public use clauses in the post-bellum period. He does this because they provide, in his view, the best available window into the meaning of “public use” as understood by jurists who witnessed the passage of the Fourteenth Amendment (there were virtually no federal takings cases in this period). Somin’s discussion of cases is supplemented with a number of other sources, including legislative debates and period legal treatises. All told, he finds that between 1832 and 1877, sixteen states adopted a “narrow” reading of public use, while nine adopted “broad” readings. Extending the analysis to 1905 only strengthens his case, with nine more state supreme courts adopting narrow readings to only two that adopted broad readings (pp. 46-47). His analyses offer a significant rejoinder to the conventional wisdom that “public use” was broadly interpreted in the early Republic and post-bellum periods, though the historical record certainly leaves room for debate.

Further, Somin argues that economic and blight takings are politically undesirable because they disproportionately harm poor and politically vulnerable populations, and tend to benefit powerful business interests and their allies in government. Using the example of KELO he demonstrates that those condemnations “were undertaken in large part as a result of extensive Pfizer lobbying of state and local officials” (p. 16). Because of the political realities of eminent domain, Somin suggests that broad use takings fail under a number of theories of living constitutionalism, including: representation-reinforcement, because they disproportionately harm the politically weak (Ely 1980); common law constitutionalism, because the doctrine is internally contradictory (Strauss 2010); moral constitutionalism, because the outcomes of such takings are far from the ideal of “equal justice under law” (Dworkin 1986); and popular constitutionalism, because of their considerable disfavor among the public (Kramer 2005).

What is truly striking about KELO, however, was not the decision, but its aftermath. The backlash to KELO was unprecedented, with polls consistently finding more than eighty percent of Americans oppose of the Court’s ruling. Moreover, in the decade since KELO was decided, forty-five states and the federal government have passed laws ostensibly limiting the use of eminent domain for economic development (pp. 135-64). Somin codes each of the reform measures passed as either “effective” [*36] or “ineffective” and argues that fewer than half actually place meaningful restrictions on economic development takings. His coding rules are perhaps a little ambiguous: they require identifying “significant” protection, or determining that they forbid such takings in “some substantial range of cases” (p. 141). Still, a close reading of the analyses suggests that the determinations he reached are reasonable, and they track closely with similar coding of those laws by other scholars and interest groups.

INTEREST GROUPS UNLEASHED

Vol. 26 No. 2 (June 2016) pp. 32-34

INTEREST GROUPS UNLEASHED, by Paul Herrnson, Christopher Deering, and Clyde Wilcox (eds.). Thousand Oaks, CA: CQ Press, 2013. 285pp. Paper $39.00 ISBN 978-1452203782

Reviewed by Christopher J. Wolfe, Politics Department, University of Dallas. Email: cjwolfe@udallas.edu

The 2010 midterm election was a significant election for many reasons and for many different areas of study. It was most certainly an election that deserved to be studied from the standpoint of the interest groups involved. INTEREST GROUPS UNLEASHED is a collection of essays focusing on the strategies, tactics, and performance of several groups which tried to influence that election.

2010 featured a changed regulatory environment for interest groups. It was the first national election in the wake of the 2008 Supreme Court ruling CITIZENS UNITED V. FEC (which struck down Bipartisan Campaign Reform Act restrictions on corporations and unions spending money on media campaigns directly advocating a candidate) and the 2010 lower court ruling SPEECHNOW.ORG V. FEC (which struck down donation limits on PACs that did not contribute directly to candidates, i.e. super PACs). These cases compounded the effects of the earlier 2007 Supreme Court ruling WISCONSIN RIGHT TO LIFE V. FEC (which expanded the power of outside groups to run ads just before an election). Thus the 2010 election offered a unique opportunity to study a cause and effect: the changes to the law as the cause, and the change in the amount of money spent on electioneering as the effect. Herrnson, Deering, and Wilcox conclude that interest groups were indeed “unleashed.” Simply in terms of dollars, more money was spent on the 2010 election than any previous by a long shot, with interest groups spending almost $700 million (p. 19). Some might also be tempted to propose a further effect: the net gain for the Republicans of 63 seats in the House of Representatives (enough for a majority) and 6 seats in the Senate (p. 185). But as the authors acknowledge, Republican victory in 2010 was due to a variety of different causes, only one of which was the CITIZENS UNITED ruling. This is evident when one considers the specific interest groups which influenced the contest; INTEREST GROUPS UNLEASHED provides a look at nine such groups.

In 2010 several interest groups that favored Republicans changed their electoral approaches to include super PACs, but several interest groups that favored Democrats did so as well. Unions were one of the groups that the new campaign finance rules opened up new possibilities for, and they took advantage of this by donating around $14.6 million to super PACs (p. 143). Unions actually spent more money in 2010 than they did in any previous midterm election, but were not successful in getting many Democrats elected for other reasons. Peter Francia argues in his chapter that the main strength of unions in elections is their highly effective get out the vote efforts. The problem in recent years for them has been that there are simply fewer union members (especially unions in the private sector) to get out the vote to. Added to this, union rivals in the form of corporations made huge campaign efforts in 2010. Michael Franz in his chapter on corporate interest groups points out the salient fact that in 2010 there were actually fewer independent expenditures by corporate PACs on issue advertising than in earlier years, because that money was instead spent by corporate super PAC’s doing express advertising (p. 120). Another Republican group that one might have expected to pursue the new electioneering strategies whole-hog was the U.S. Chamber of Commerce, but they in fact did not. In his chapter on the Chamber, Robert Boatright claims that it “did not obviously change its strategy in response to CITIZENS UNITED,” but rather contributed more money in the way it [*33] had before, paying for electioneering ads that did not expressly advocate candidates.

Several interest groups on both sides of the political spectrum chose to focus on a lobbying and access approach as opposed to the new electioneering and replacement approaches that were made available by CITIZENS UNITED. As Herrnson, Deering, and Wilcox put it, they “reacted to the opportunity to run electioneering ads with a yawn” (p. 237). The Defense Industry interest groups focused more on “buying time” with sitting Congressmen than on trying to get new Congressmen through electioneering ads; the changes to the campaign finance laws did not affect them very much (p. 95). Another example of a group which focused on lobbying instead of electioneering in 2010 is the Health Care Industry (p. 58). Suzanne Robbins argues in her chapter on Drugs, Doctors and Hospitals that the Pharmaceutical Research and Manufacturers of America, the American Medical Association, and the American Hospital Association “acted traditionally, in that they did not take advantage of newer legal structures,” and instead focused on lobbying and supporting incumbents. Additionally, these medical interest groups “had something to protect; they had won significant gains in their bargains over the Patient Protection and Affordable Care Act” (p. 63).

DON’T BE SO GAY: QUEERS, BULLYING, AND MAKING SCHOOLS SAFE

Vol. 26. No. 2 (June 2016) pp. 28-31

DON’T BE SO GAY: QUEERS, BULLYING, AND MAKING SCHOOLS SAFE, by Donn Short. Vancouver: University of British Columbia Press, 2013. 316pp. Paper $32.95. ISBN: 978-0774823272.

Reviewed by Eric van der Vort, Maxwell School of Citizenship and Public Affairs, Syracuse University, emvander [at] syr.edu

A number of suicides among LGBTQ youth have received significant media attention in recent years. Many of these deaths have included stories of bullying in the form of verbal and physical violence perpetrated against LGBTQ youth, bullying that is often described as one of the central causes of these suicides. Beyond these high-profile cases, which continue to appear in the media with tragic regularity, statistics on LGBTQ youth experiences in the United States confirm the troubling fact that these youth are often targets of verbal and physical violence. According to the 2011 National School Climate Survey (a regular survey published by GLSEN (Gay, Lesbian and Straight Education Network)), nearly 82% of LGBTQ youth were verbally harassed at school because of sexual orientation and 38% were physically harassed. Additionally, 64% reported verbal harassment and 27% physical harassment based on gender expression. Similar numbers have been reported in this survey for years. Recognition of a widespread cultural practice of bullying LGBTQ youth in schools and its very real consequences has led to an outpouring of research on the subject. One of the questions this research confronts is what the most effective means are to ensure school safety for queer youth. Donn Short’s DON’T BE SO GAY is a timely and necessary additive to this discourse.

Short’s work focuses on the attempt to make schools safe for LGBTQ youth in Toronto (Canada). Short rejects top-down approaches to the problems and solutions of school safety. He adopts an explicitly socio-legal approach in examining “the ways that state-issued laws and policies… are effective and to what extent their reach may be complicated or rendered less effective” (p. 178). He centers LGBTQ students as their own expert witnesses to find out what safe schools should look like through interviews and participant observation of schools. He combines the students’ voices with a comprehensive review of the legal and political background of safe schools policy in Toronto. This review examines the text of provincial and local policies as well as interviews with teachers and administrators. The resulting work is an ambitious and empathetic case study of a major school district’s struggles to define and implement effective safe schools policies for LGBTQ youth and, in the process, all students. At its core, Short’s argument suggests that legislation and policy are critical elements to creating safe schools, but that many contemporary safe schools policies are reactive to individual incidents and thus ignore the greater problems of culture that impede the effective implementation of such policies. Multiple normative orders concurrently exist alongside these official policies which complicate effective implementation: heteronormativity and aspects of youth culture such as ‘anti-snitch’ and gender codes or religiosity. To ensure effective implementation, Short and his respondents argue largely as one, effusive declarations and punitive actions are not enough; proactive efforts to shift school cultures are the only truly effective means to create safe schools for LGBTQ youth and all students.

The book proceeds in three informal parts. In the first section, Short sets up the structure of the text. Chapters 1 and 2 emphasize theories of bullying and their place in Canadian education and law, and a survey of the history of safe schools policy-making by in Toronto and Ontario, a history that shows the legal commitment of officials to providing safe school environments conducive to learning. Chapter 3 presents four different schools Short visited in his research, which demonstrate the multiplicity of ways that the official commitment to providing safe school environments have been implemented at their most immediate level. In [*29] this chapter, Short argues that schools tend to conceive of safety in one of four ways, implementing policies and a school culture that emphasizes different aspects of safety: control (an emphasis on controlling student identity), security (an emphasis on physical safety), equity (an emphasis on equality among students), and social justice (an emphasis on justice in both the school environment and larger culture). Given the weight Short and the queer youth whose voices he draws on throughout the text places on shifts in culture, it comes as no surprise that the latter two dimensions – equity and social justice – offer the most promising avenues for establishing safe schools.

Chapters 4 and 5 expose the heteronormative culture that undergirds much of schooling and the ways in which heteronormativity serves to create barriers to the implementation of what Short calls equity policies. Short employs hidden curriculum theory to describe these heteronormative assumptions that are so central to education. “The hidden curriculum,” he notes, “is composed of the unspoken social norms that are outside of the manifest curriculum but that students are nonetheless expected to learn” (p. 115). From this view, much of schooling, including methods of achieving safe schools through control or security, privilege “heteronormative gender scripts” (p. 108) and uncritically accept heterosexism, to the detriment of queer youth and their peers. Short employs the voices of his respondents to describe in detail the ways that heteronormativity and heterosexism, quite distinctly from homophobia, work to marginalize queer youth. Conversely, he shows how attempts to shift the underlying culture of schools provides a more effective means to provide safe schools than punitive or reactive policies intended to prevent or punish specific and individualized incidents.

EQUAL RECOGNITION: THE MORAL FOUNDATIONS OF MINORITY RIGHTS

Vol. 26 No. 2 (June 2016) pp. 26-27

EQUAL RECOGNITION: THE MORAL FOUNDATIONS OF MINORITY RIGHTS, by Alan Patten. Princeton: Princeton University Press, 2014. 344pp. Hardcover $45.00. ISBN: 978-0691159379.

Reviewed by Philip A. Dynia, Department of Political Science, Loyola University New Orleans. Email: dynia@loyno.edu

Alan Patten, a professor of politics at Princeton, explains in the Preface that his interest in the questions of nationalism and culture he addresses in this book developed because of a Canadian upbringing that included formative political memories of Canada’s struggles with cultural diversity. Occasionally, readers may struggle through his sometimes dense and extremely nuanced philosophical analyses. Those readers who persist, and who share his passion for political theory, will finish EQUAL RECOGNITION with a sense of satisfaction and admiration for Patten’s efforts. Others may be left wondering about the value of his work to multicultural conflicts in the “real” world.

At the very outset, Patten acknowledges that many Americans, his own friends and acquaintances included, may be puzzled by this work. The United States has been and remains today and will undoubtedly continue to be a culturally diverse society. The ability of these varying cultures to enjoy their differences is firmly entrenched in American constitutional traditions and protections. At the same time, Patten avers, most Americans would reject the idea that public institutions ought officially to protect or accommodate the cultural differences that exist here. Perhaps the best indicator of this general skepticism is the relative absence of any major social movement devoted to preserving or promoting distinct cultures within the United States. In the last half-century American society has been reshaped (sometimes in major ways) by social movements centered on issues of race, class, gender, disability, and sexuality. But for the most part all of these movements have pursued a goal of integration—they seek full inclusion of marginalized or subordinated groups into a unified American citizenship. The fabled American “melting pot.”

What one does not see in the American experience of the late 20th and early 21st centuries is any large-scale campaign to achieve the rights of minority cultures to remain different. In this respect, Patten tells us, the rest of the world looks much more like Canada than it does the United States, facing problems and puzzles about the nature and value of culture that are familiar from the Canadian experience though they may arise in a variety of different shapes or forms.

Patten attempts, briefly and arguably half-heartedly, to persuade us that the questions he addresses are relevant to the United States. As a world power, he suggests, the United States is expected to take positions on demands for cultural recognition and self-determination that regularly appear on the world stage. He also believes that many of the questions he explores are important to American readers because the right approach to cultural minorities within the United States is not fully settled; moreover, growing numbers of Spanish-speaking immigrants are beginning to exhibit levels of confidence and self-organization that may place questions about minority cultural rights onto the future American political agenda.