JUDICALIZING EVERYTHING? THE CLASH OF CONSTITUTIONALISMS IN CANADA, NEW ZEALAND, AND THE UNITED KINGDOM

Vol. 35, No. 01 (March 2025) pp. 11-13

JUDICALIZING EVERYTHING? THE CLASH OF CONSTITUTIONALISMS IN CANADA, NEW ZEALAND, AND THE UNITED KINGDOM, by Mark S. Harding. Toronto: University of Toronto Press, 2022. 181 pp. Cloth $39.95. ISBN 9781487528485. Ebook $42.95. ISBN: 9781487528508.

Reviewed by Christopher Manfredi. Department of Political Science. McGill University. Email: christopher.manfredi@mcgill.ca.

Mark Harding has written a short and readable book that applies a comparative lens to two separate debates within the literature on judicial politics and constitutionalism. The first debate, which occupies most of Harding’s analysis, is that between political and legal constitutionalism. The central question of this debate is whether rights are better protected by political institutions (political constitutionalism) or through development and application by the judiciary (legal constitutionalism). The second debate is between liberal and post-liberal constitutionalism, with the former conceptualizing constitutional rules as largely protecting individuals from government overreach, and the latter understanding constitutions as imposing positive obligations on government to regulate the private sphere to achieve a broader conception of liberty. Harding’s book examines how these debates have played out within the final appellate courts of Canada, New Zealand, and the United Kingdom.

In the interest of full disclosure, I should recognize my own biases at the outset of this review. My scholarship places me squarely in the camp of political constitutionalists who support liberal constitutionalism. However, in the context of the Westminster parliamentary systems that are the subject of Harding’s book, this positioning should not be misunderstood as nostalgia for a bygone era of parliamentary supremacy. Canada’s 1982 constitution clearly replaced parliamentary supremacy with constitutional supremacy. In my view, the debate between political and legal constitutionalism in Canada is not about preserving parliamentary supremacy (as it might be in New Zealand or the United Kingdom), it is about identifying the appropriate institutional locus for constitutional interpretation. Legal constitutionalism places this locus clearly in the courts to the extent that the judiciary enjoys a monopoly on constitutional interpretation, especially with respect to rights. A post-1982 Canadian political constitutionalist recognizes a new critical role for judicial review but also recognizes a coordinate role for political institutions in constructing constitutional meaning.

It should also be noted that, although legal constitutionalism has become the dominant perspective among post-liberal constitutionalists in Canada, this was not always the case. Indeed, many of the early critics of entrenching rights in the Canadian constitution—like Andrew Petter, Allan Hutchinson, and Michael Mandel—were post-liberal constitutionalists highly sceptical of legal constitutionalism (Hutchinson and Petter 1988, Mandel 1989). They saw political institutions as the principal source of progressive social and economic policies, and courts as the principal obstacle to those policies. Their position was grounded in the U.S. experience, where the U.S. Supreme Court’s progressive record was relatively short, spanning a 20-year period from Brown v. Bd. of Ed. (1954) to Roe v. Wade (1973). It also found support in early Canadian Charter of Rights cases, especially involving organized labour. Whether the post-liberal orientation of Canadian legal constitutionalism is now permanent is an open question.

THE SLOW VIOLENCE OF IMMIGRATION COURT: PROCEDURAL JUSTICE ON TRIAL

Vol. 35 No. 01 (March 2025) pp. 8-10

THE SLOW VIOLENCE OF IMMIGRATION COURT: PROCEDURAL JUSTICE ON TRIAL, by Maya P. Barak. New York University Press, 2023. pp. 240. Cloth $89.00. ISBN: 9781479821037. Paper $30.00. ISBN: 9781479821044.

Reviewed by: Luzmarina García. Department of International and Multicultural Education. University of San Francisco. Email: lagarcia@usfca.edu.


The Slow Violence of Immigration Court: Procedural Justice on Trial by Maya Pagni Barak examines the paradoxes that exist in plain view in both the American legal system and society at-large. This work lays out, at last, a comprehensive timeline in the immigration court process, laying out the steppingstones and the issues with each stage, noting institutional procedures and objectives, and examining enlightening interviews with immigration attorneys and moving narratives of immigrants that are/have gone through the courts.

The author, an Associate Professor of Criminal Justice Studies at the University of Michigan–Dearborn, challenges the prevailing belief in the effectiveness of procedural justice within an unjust immigration system. Barak argues that conventional approaches, such as improving due process and bureaucratic changes, fail to address systemic issues and do little to increase immigrant compliance with deportation orders. Barak conducted formal, in-depth interviews with 36 individuals between 2014 and 2016, comprised of Guatemalan, Honduran, and Salvadoran immigrants in deportation proceedings, their family members, and licensed immigration attorneys. The study also involved visits to two East Coast immigration courts, where Barak observed numerous deportation hearings. The author advocates for a shift away from strategies emphasizing the appearance of justice, urging a focus on genuine justice to promote collective well-being and human dignity in addressing the flaws of the immigration court and system.

In Barak’s work, I identified paradoxes that are vital for understanding how immigration courts exercise a “slow violence” (Pagni Barak 2023, p. 152). First, immigrants express positive opinions of the court even as they are going through its procedures, while attorneys who work within the courts express negative opinions of the process, resources, and judges’ behavior. Second, the ideal of due process versus the reality that is exercised in immigration courts is a stark contrast. Issues such as respondent language proficiency, translation quality, and video conferencing issues, which are only a few of the problems in the process, do not allow for a fair day in court. Next, there is the conflicting legal consciousness that is developed in an environment of both accurate legal information and fallacies. Legal consciousness refers to the “ways people understand and use the law,” including “the way people conceive of the ‘natural’ and normal way of doing things, their habitual patterns of talk and action, and their commonsense understanding of the world” (Merry 1990, p. 5). Barak describes how immigrants develop legal consciousness through dual socialization—in their countries of origin and in the U.S. Immigrants, therefore, bring formal knowledge of the legal systems in their origin countries but learn about American law through family stories, friends, and media. Barak also presents the paradox of immigrants’ admiration of the rule of law versus their proclivity for following the rules. Essentially, the promise of rule of law is a motivating factor for many immigrants to come to the U.S., but this admiration turns to cynicism if there is a deportation ruling in their own case. Thus, immigration law is seen as inadequate for immigrant needs in the minds of many interviewees, which causes them to justify non-compliance with adverse rulings.

RESPONSIVE JUDICIAL REVIEW: DEMOCRACY AND DYSFUNCTION IN THE MODERN AGE

Vol. 35, No. 01 (March 2025) pp. 1-7

RESPONSIVE JUDICIAL REVIEW: DEMOCRACY AND DYSFUNCTION IN THE MODERN AGE, by Rosalind Dixon. Oxford University Press, 2023. pp. 295. Cloth $105.00. ISBN: 978-0-19-286577-9.

Reviewed by: Mark Rush. Department of Politics. Washington and Lee University. Email: rushm@wlu.edu.

In Responsive Judicial Review, Rosalind Dixon seeks to re-establish or, at least, re-strengthen, the case for judicial activism and review. In so doing, she takes the reader on a tightly but elegantly argued story that addresses arguments against judicial activism, the role of courts in a democracy, and the uncertainty posed by contemporary debates about whether democracy is backsliding or evolving (Carothers and Press; Cianetti and Hanley). She weaves her narrative by drawing upon the vision of a representation-enforcing judicial review set forth by John Hart Ely. She sees this role as one that best manages the countermajoritarian tension that inheres in judicial review. Yet, her vision is grounded on the premise that democracy is now manifesting myriad symptoms of dysfunction. As a result, she regards the judiciary as perhaps the one institution that can perhaps diagnose and respond to the causes of that dysfunction. Thus, she seeks to design a “responsive” theory of judicial review that is informed by “a concern about the degree to which, absent judicial intervention, various sources of democratic dysfunction are likely to be reversible by future legislative or executive action” (p. 6).

Yet, courts must remedy democratic dysfunction while preserving the dynamism and responsiveness in the other branches of government. In this respect, Dixon sets a perilous course between the Scylla of debilitating democracy as a result of too much reliance on judicial remedies and the Charybdis of letting dysfunctional democracy careen towards a dystopian post-liberal or post-democratic alternative.

In this spirit, Dixon calls upon Ely’s spirit in order to update it.

As constitutional scholars in the 2020s, the challenge we face is to do justice to the intellectual inheritance Ely has given us, but in a way that is fit for purpose in a truly globalized constitutional universe, where the threats to democracy are manifold and increasing by the day. In doing so, our task is also to develop a theory of judicial review that responds to both the promise of courts as potential guardians of democracy and democratic values, and the inevitable limits on courts’ capacity and legitimacy in performing this role (p. 15).

With this statement, Dixon essentially offers the reader two books. One is on the role of courts in a democracy; the other is a book about what democracy is and how it is evolving. Dixon therefore offers an important opportunity to update Ely’s American-centered vision and theory of judicial review. Yet, by acknowledging the need to address the role of courts in a correspondingly broader, more global, and evolving notion of democracy, Dixon demonstrates that her task is quite challenging. To the extent that democracy is that much more complex than the vision underpinning Ely’s analysis, and to the extent that democracy is an increasingly contested concept, divining a role for courts and judicial review is that much more of a challenge. Yet, she meets it with great success.

THE SECOND FOUNDING: AN INTRODUCTION TO THE FOURTEENTH AMENDMENT

Vol. 34 No. 04 (July 2024) pp. 44-47

THE SECOND FOUNDING: AN INTRODUCTION TO THE FOURTEENTH AMENDMENT, by Ilan Wurman. New York: Cambridge University Press, 2020. pp188. Paperback $20.99. ISBN: 978-1-108-82395-1. Online $20.99 ISBN: 978-1-108-91495-6.

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

While perhaps not a sequel in Marvel fans’ sense of the term, Ilan Wurman’s The Second Founding: An Introduction To The Fourteenth Amendment follows up on his first book, published in 2017. Legal scholar Wurman wrote A Debt Against The Living: An Introduction To Originalism “to introduce originalism to a broader audience” through acquainting readers with prominent originalist-oriented scholarship (p. 4). This time Wurman turns the reader’s attention to originalist debates over the Fourteenth Amendment to “explain[] the debates, provide[] the best arguments of the various sides, and then offer[] [his] own position” (p. 4) on the original meaning of critical components within Section 1 of the amendment. More broadly, he aspires to demonstrate that, given its emphasis on non-discrimination, “[t]he original meaning of the 14th amendment is not scary” (p. 144). While his success with this latter goal is debatable, Wurman pulls together a great overview of prominent originalist scholarship and historical context that provides a thought-provoking potential alternative to polarized takes on the amendment’s application in civil liberties and civil rights cases.

While attending to Section 1’s birthright citizenship provision along the way, Wurman’s points of focus are the intended meanings of the Fourteenth Amendment’s Due Process, Equal Protection, and Privileges or Immunities Clauses, respectively. The book follows a clear path laid out in its Introduction. Part One walks the reader through Wurman’s originalist takes on these respective clauses, informed by antebellum law and prominent legal writings available prior to the amendment’s drafting. Part Two lays out the historical context that provided the impetus for the drafting of the amendment, while Part Three applies Wurman’s interpretations to several past Supreme Court decisions to see how they might play out under his reading of the clauses. In the course of his assessments, Wurman provides a good overview of debates within prominent originalist scholarship. Keeping his take on the amendment firmly within the bounds of originalism, Wurman seeks a third way between a very constraining originalism and what he sees as the unrestrained discretion of the Supreme Court throughout much of the last several decades. Overall, he views these three key clauses as “sufficiently capacious to apply to new and important contexts, but not so capacious as to be open-ended invitations to judges to import their own extratextual values into the constitution” (p. 4).

Eschewing heavy reliance on the legislative history of the amendment’s journey through Congress, Wurman turns instead to pre-American Revolution English

CONSTRUCTING BASIC LIBERTIES: A DEFENSE OF SUBSTANTIVE DUE PROCESS

Vol. 34 No. 04 (July 2024) pp. 40-43

CONSTRUCTING BASIC LIBERTIES: A DEFENSE OF SUBSTANTIVE DUE PROCESS, by James E. Fleming. Chicago: The University of Chicago Press, 2022. pp. 280. Paper $30.00. ISBN: 9780226821405. Cloth $95.00. ISBN: 9780226821399.

Reviewed by: Emily Zackin, Department of Political Science, Johns Hopkins University. Email: ezackin1@jhu.edu.

The Fourteenth Amendment bars states from depriving any person of life, liberty, or property without due process of law. Courts have interpreted this provision not only as a procedural protection but also as a guarantee of substantive rights, often rights that are not explicitly enumerated in the text of the Constitution. This way of reading the Fourteenth Amendment, known as substantive due process, has a bad reputation. In his important new book, Constructing Basic Liberties: A Defense of Substantive Due Process, James Fleming offers an earnest, thoughtful, and thought-provoking response to its many and varied critics.

Substantive Due Process, Fleming explains, has been haunted by the ghost of two notorious cases: Dredd Scott v. Sandford (1857) and Lochner v. New York (1905). Because Dredd Scott did not center on an interpretation of the liberty described in the Due Process Clause, Fleming denies that it is a substantive due process case and makes no attempt to defend it. However, he devotes a chapter to Lochner, arguing that the real problem with the majority’s opinion was not that it was grounded in a substantive due process argument about an unenumerated liberty (liberty of contract), but that economic liberties, like liberty of contract, do not actually require robust judicial protection. What the Lochner Court got wrong, on this account, is not that it protected a fundamental, unenumerated right through substantive due process, but that the particular right it protected was already safe from majoritarian attack. Though many conservatives are likely to disagree with the claim that economic liberties require little judicial protection, it is far from idiosyncratic. In fact, the Supreme Court also expressed this conviction in its creation and practice of rational basis review throughout the second half of the twentieth century.

Of course, vanquishing the ghost of Lochner cannot fully reassure those fearful of substantive due process. This specific case is haunting precisely because it points to a more general concern: that the doctrine of substantive due process empowers unelected and unaccountable judges to decide on a list of basic rights, with no way to ensure that the list is anything other than a judicial fabrication. In other words, the doctrine of substantive due process seems to endow the Supreme Court with an unbounded capacity to determine the meaning of the Constitution.

As I read it, the core claim of Constructing Basic Liberties is that judges can draw reasonable boundaries—they can define a set of unenumerated liberties without simply making things up. In fact, Fleming argues that after 1937, the Supreme Court performed

THE STORY OF CONSTITUTIONS: DISCOVERING THE WE IN US

Vol. 34 No. 04 (July 2024) pp. 36-40

THE STORY OF CONSTITUTIONS: DISCOVERING THE WE IN US, by Wim Voermans. Cambridge University Press, 2023. pp. 388. Cloth $90.00. ISBN: 9781009385046. Paper $29.99. ISBN: 9781009385084.

Reviewed by: Mark Rush. Department of Politics. Washington and Lee University. Email: rushm@wlu.edu.

The Story Of Constitutions is a series of reflections—meditations, perhaps—on why there are so many constitutions and why they seem to permeate every aspect of human history and civilization. This is a thoughtful work that will leave the reader pondering—frequently—over Voermans’ observations as he moves from and through sociology, anthropology, economics, and politics to offer observations about what makes constitutionalism so pervasive and what leads to constitutional success or demise.

He begins and ends with an acknowledgment that his observations are based in part on some obvious tensions. Humans began as nomadic, isolated beings. Over time, they settled, engaged in agriculture and urbanization, and laid the groundwork for the development of mass societies. In so doing they made it more difficult to foster and propagate the one, key element of any society—trust (p. 256). Fortunately, as he notes, communication technology has advanced in harmony with the growth of population (p. 343). Accordingly, humans have managed to manufacture and rearticulate new notions of trust that make it possible to develop constitutional norms that bind societies together despite their size and the corresponding anonymity that such scale imposes on interpersonal relationships (pp. 342-43).

In the introduction, Voermans sets forth a broad assessment of human nature and the evolution from nomadic to agrarian to urban society to comment on the social aspect of human nature and the extent to which the development of constitutions is a natural by-product of this. As humans began to settle and the size of human society grew from the family to the tribe to the nation, scale, complexity, and efficiency required the establishment of trust-based rules: “Constitutions largely consist of clever mixes of elements that facilitate the two pillars of social cooperation: trust and recognition” (p. 25). This led to the creation of “abstract institutions such as law” that “decrease uncertainty, anxiety and distrust—all of which stand in the way of large-scale human cooperation,” particularly with regard to commercial activity (p. 26). Hence, the book embarks on a voyage to explain how societies establish a collective, cooperative, shared identity that enables them to organize such abstract, trust-based rules.

A question that arises from the introduction and pervades the book concerns the genesis of the power to promulgate and empower those “abstract institutions” and enable them to generate

SUPREME BIAS: GENDER AND RACE IN U.S. SUPREME COURT CONFIRMATION HEARINGS

Vol. 34 No. 04 (July 2024) pp. 31-35

SUPREME BIAS: GENDER AND RACE IN U.S. SUPREME COURT CONFIRMATION HEARINGS, by Christina L. Boyd, Paul M. Collins, Jr., and Lori A. Ringhand. Stanford University Press, 2023. pp. 290. Cloth $120.00. ISBN: 9781503632691. Paper $30.00. ISBN: 9781503636880.

Reviewed by Elizabeth A. Lane. Department of Political Science. North Carolina State University. Email: elane3@ncsu.edu.

Supreme Court confirmation hearings are arguably the most salient job interviews imaginable. For the most part, nominees have very similar backgrounds—degrees from top law schools, impressive clerkships, and previous experiences as judges and advocates. These nominees, however, are not treated equally during Senate Judiciary Committee (SJC) hearings. Ample research attributes rapid-fire, difficult, or even rude questioning to ideological differences between senators and nominees (Farganis and Wedeking 2014; Schoenherr, Lane, and Armaly 2020). That, however, is not the full story.

In the timely new book, Supreme Bias: Gender and Race in U.S. Supreme Court Confirmation Hearings, authors Christina L. Boyd, Paul M. Collins, Jr., and Lori A. Ringhand push the field beyond partisan politics to consider other aspects that influence the dynamics of Supreme Court confirmation hearings. Specifically, they examine how gender and racial stereotypes, which color social interactions for so many, manifest in unequal treatment during these salient events.

One (of many) of the great things about this book is the background information provided in the first two chapters. Chapter 1 provides historical information on how the federal judiciary slowly diversified over time. It begins with stories of gender and racial diversity on the Supreme Court specifically, then moves to broader federal judicial diversity. Like other work on this topic, it focuses on Jimmy Carter’s presidency as a significant inflection point but, importantly, it provides a more comprehensive overview dating back to FDR’s presidency. The authors do so to make the point that, despite the fact that the federal judiciary is not a representative institution, descriptive diversity increases trust, confidence, and institutional legitimacy in significant ways.

The second chapter explains the Supreme Court confirmation process from vacancy to presidential selection, and the Senate’s role in the confirmation. It is a thorough, yet concise, historical overview of