MORE ESSENTIAL THAN EVER: THE FOURTH AMENDMENT IN THE TWENTY-FIRST CENTURY

by Stephen J. Schulhofer. Oxford University Press, 2012. 199 pp. Cloth $21.95. ISBN 978-0-19-539212-8

Reviewed by Don Crowley, Department of Political Science, University of Idaho.
Crowley [at] uidaho.edu

pp.232-235

This is a very good and readable book and a very useful addition to Oxford’s Inalienable Rights series. Stephen Schulhofer, the Robert McKay Professor of Law at New York University, skillfully combines an historical overview of the purposes and functions of the Fourth Amendment with a reasonably lively account of how the U.S Supreme Court has steadily abandoned many of the core principles embedded in the Fourth Amendment. This, of course, is not a new story and for those who have followed the Court’s approach to the Fourth Amendment and Schulhofer certainly isn’t advancing an argument that hasn’t been voiced before. Indeed Justice Brennan proclaimed in 1984 that the Court’s “victory over the Fourth Amendment was now complete.” (U.S v. Leon, 1984, Justice Brennan dissenting). Brennan’s comment was perhaps overstated in 1984 but Schulhofer’s account skillfully documents the Court’s continuing assaults on the Fourth Amendment’s core principles. Anyone looking for a short but persuasive argument detailing the Court’s “victory over the Fourth Amendment” should consider this work.

Professor Schulhofer begins by advancing the argument that too many people believe that the Fourth Amendment is primarily designed to “protect criminals or to shield information that is at best disreputable” (p.11). Those who see themselves as good law-abiding citizens see little value in the Fourth Amendment because they have nothing to hide. While Schulhofer offers no empirical support suggesting how many people really believe that the Fourth Amendment is of no value to them, he is probably right that too many neglect the larger function that the Fourth plays in preserving an open society. Schulhofer emphasizes that “no less than freedom of speech or the press, protection from unwarranted government surveillance ranks among these core liberties that are essential to democracy” (p.13).

In the second chapter Schulhofer recounts how the Fourth Amendment grew out of the English common law tradition of resisting “general warrants” carried out by an executive without judicial approval. The opposition to such general warrants carried over to the American colonies as seen in the outcries against “writs of assistance” aimed at enforcing unpopular British laws. This opposition to general searches or fishing expeditions unmoored from evidence linking a particular person to a particular crime ultimately became the cornerstone of the Fourth Amendment. Schulhofer argues that the “peculiar structure” of the Fourth Amendment gives rise to part of our modern interpretative problem. While the second part of the Amendment clearly asserts [*233] that warrants can only be issued by a judge (“neutral magistrate”) on the basis of probable cause and must identify the places and things to be searched, the opening clause only speaks to not violating the people’s right against “unreasonable searches and seizures.” Thus the possibility arises that a search can be “reasonable” without having first obtained a warrant. The irony here is that if it is not necessary to get a warrant based on probable cause then why would government officials ever get one. It would always be easier to avoid obtaining a warrant and simply argue later that a search was “reasonable.” One answer would be that what makes a search “reasonable” is obtaining a warrant based upon probable cause. While the Court has never firmly adhered to that position the typical answer to this puzzle has been to argue that the general rule is to obtain warrants based upon probable cause while acknowledging that sometimes it isn’t reasonable to insist on a warrant. Or, as Justice Stewart put it in Katz, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions” (Katz v. U.S, 1967).

THE AMERICAN LEGAL PROFESSION IN CRISIS: RESISTANCE AND RESPONSES TO CHANGE

by James. E. Moliterno. New York: Oxford University Press, 2013. 252pp. Cloth $85.00. ISBN13: 978-0-19-991763-1.

Reviewed by Herbert M. Kritzer, University of Minnesota Law School. Email: kritzer [at] umn.edu.

pp.227-231

James Moliterno’s The American Legal Profession in Crisis: Resistance and Responses to Change joins a raft of recent books about the looming crisis facing the legal profession (e.g., Susskind 2008; Morgan 2010) and/or the legal academy (Tamanaha 2012). What sets this book apart is Moliterno’s recognition that the profession has bounced from crisis to crisis to crisis for more than 100 years, and that many of the more contemporary crises are echoes of crisis of the past. This is particularly true for the lament that legal practice has become a business rather than a profession, a lament that is now well over 100 years old (Galanter 1996, p.552) .

Moliterno’s core argument is that the profession, by which he generally means the organized profession and/or the elite members of the profession, has repeatedly failed to be forward looking as it confronted the then perceived crises. Rather, the profession has largely sought to preserve the status quo, or even tried to return to an imagined golden age (which never really existed). He attributes this failing to the profession’s tendency to look inward rather recognizing that change in the world where lawyers work is natural and beyond the control of the profession.

Moliterno develops his argument through ten chapters, eight of which discuss a particular issue or set of issues that the profession struggled with, or in a few cases, is still struggling with. Chapter 1 lays out the core dilemma as Moliterno sees it: the legal profession has never figured out how to deal with the changing world in which it exists, and consequently when change comes along the profession finds itself trying to fight those changes rather than figuring out how it must adapt to the change. As he sees it, “The law is a crisis-prone profession” (p.1) finding itself confronted with yet another crisis “every decade or so.” More importantly, as each crisis came along, the profession chose to look “inward and backward” for solutions rather than looking toward the future and trying to learn from what others in society were doing. Part of the challenge as Moliterno describes it is who or what speaks on behalf of the profession: judges, lawyers and their multitude of organizations (local organizations, specialist organizations, the American Bar Association, law firms), the legislatures of the states where professional regulation formally resides, or academic lawyers who control the education of future lawyers and hence function as gatekeepers for those who seek to become members of the profession?

So what are the crises of the 20th and 21st centuries that have presented challenges to the legal profession? Moliterno [*228] identifies eight crises that have occurred more or less in sequence:

NEOCONSERVATIVE POLITICS AND THE SUPREME COURT: LAW, POWER, AND DEMOCRACY

by Stephen M. Feldman. New York: New York University Press, 2012. 240 pp. Cloth $45.00. ISBN: 978-0-8147-6466-4.

Reviewed by Joseph Mello, Assistant Professor of Political Science, DePaul University. Email: joseph.f.mello [at] gmail.com

pp.223-226

In Neoconservative Politics and the Supreme Court, Stephen Feldman explores the history and impact of neoconservative ideology – a label that is often used in American politics, but is seldom fully understood. This book is an important contribution to a growing body of scholarship exploring the growth and success of the conservative legal movement in America. Feldman seeks to answer two broad questions in this book: what is a neoconservative, and what impact has neoconservative ideology had on the Supreme Court? He takes up the first question in chapters 2-4. Here Feldman explains that “neoconservative” is not simply a catch-all term for anyone on the “far right,” but a political philosophy with a distinct and historically developed meaning. The second question is taken up in chapters 5-6. Here Feldman analyzes a number of court cases, and attempts to measure the impact of neoconservative thought on modern Supreme Court jurisprudence.

Throughout the book, Feldman argues that neoconservatives are motivated by a critique of pluralist democracy and a desire to return to the republican democratic principles of the founding generation. In chapter 2, he provides a historical analysis of the decline of republican democratic principles, and the rise of pluralist democracy. Republicanism is based on the idea that political decisions should be made for the “common good,” while pluralism celebrates the pursuit of individual self interests. Neoconservatives argue that the shift away from republican democratic principles occurred as a result of an aggressive ideological push by Franklin Roosevelt and his New Deal Coalition. Feldman argues though that the real cause of this shift was not ideological, but the product of structural changes in the American polity. Factors such as industrialization, urbanization, and immigration all led to the development of a heterogeneous population with no common interest to pursue. This led to the adoption of interest group politics which culminated with FDR’s New Deal Coalition.

Chapter 3 explores a second major element of neoconservative thought, the critique of moral relativism. Feldman begins the chapter with an overview of the works of Leo Strauss, who he argues provides the roots of neoconservative political ideology. Strauss, writing in the aftermath of WWII, offers a biting critique of pluralist democracy and moral relativism. He criticizes the fact-value distinction which argues that while we can use facts and reason to discover answers to empirical questions, values are issues which have no right or wrong answers. Instead Strauss believes that there must be some moral absolutes to guide us. For neoconservatives, these [*224] ideas would lead to the condemnation of “morally bankrupt” systems of Fascism and Communism, strong support for Democracy as the best form of government, and support for traditional values as a mechanism for creating responsible citizens.

Chapter 4 provides a detailed discussion of the rise of neoconservative thought and its impact on American politics. The first half of the chapter explores the emergence of neoconservatism during the 1960s as a reaction to the anti-war and counter-culture movements. Neoconservatives opposed these movements, which they believed undermined “American values,” because they expressed support for moral relativism and offered biting critiques of the wisdom of promoting American-style Democracy abroad. Neoconservatives also voiced opposition to welfare and affirmative action policies, which they argued undermined core values of hard work and self reliance. In foreign policy, they embraced anti-Communism, and after the fall of the Soviet Union, supported the use of military intervention to promote Democracy and bring about regime change abroad.

WHY TOLERATE RELIGION?

by Brian Leiter. Princeton, New Jersey: Princeton University Press, 2013. 187pp. Cloth $24.95. ISBN: 9780691153612.

Reviewed by Kevin R. den Dulk, Department of Political Science, Calvin College. Email: kdendulk [at] calvin.edu.

pp.219-222


The title of Brian Leiter’s Why Tolerate Religion? conveys at least three meanings. The first speaks to Leiter’s primary intention, which might be summarized by asking a more specific and substantive question: Are there compelling moral reasons for governments to tolerate religion differently than any other claim of conscience? His central claim in the book is that no such reasons exist. The second meaning is closely related to the first: Are there compelling reasons for governments to provide exemptions from generally applicable laws for any claim of conscience, religious or otherwise? Leiter argues that governments owe no such exemptions. But it is likely some readers will come away from the book detecting yet another implied meaning to the title. In his relentlessly empiricist assumptions about religious faith, not to mention his numerous acerbic asides about some religionists, Leiter can appear to be asking a rhetorical question: Why put up with religious claims at all – not religion relative to other claims of conscience, but religion itself?

These are all provocative questions, of course, and Leiter’s answers can be polarizing. Some will see principle and fairness in his perspective; others will see intellectual hostility and ominous signs of state suppression. The differences will depend on readers’ elemental assumptions about the nature of both the state and religion. For my part, I came away with a mixed view: While Leiter breezes past too many of his own assumptions in this short book filled with bracing ideas, the clarity and energy of his position will surely help sharpen the lines of the debate about state toleration of religion.

Leiter begins his answer to his primary question by exploring the “general structure” of principled arguments for state toleration of non-conformist ideas and actions (including beliefs and actions that are not “religious”). He insists that a principled form of toleration must be justified on moral and/or epistemic grounds, and he invokes what he takes to be the most important philosophical options: Kantian (the early Rawls is “paradigmatic”) and utilitarian forms of moral arguments, as well as a Millian form of epistemic argument (i.e., toleration is justified when “it contributes to knowledge of the truth”). Leiter moves briskly here, laying out these positions in Chapter 1 in less than twenty pages (pp.7-25). In fact, he describes more than he argues in this section; one senses that he is asking readers simply to stipulate that these options “capture the main principled positions” (p.15). [*220]

This raises the question of audience straightaway: Leiter hoped that by highlighting these two prominent traditions of moral thought (and not taking sides) his argument would have a “broader resonance” (p.x), but his stipulations will undoubtedly put off those readers who are not compelled by Kantian and utilitarian assumptions, including a wide range of scholars who reject these traditions on principled grounds rooted in religious presuppositions. As Leiter presses on, we find that he simply flatly rejects such presuppositions as failing modern tests of “evidence and common sense,” to use his oft-repeated phrase. His key example, which comes later in the book, is John Finnis’s theory of natural law, which Leiter dispatches in a few pages that illustrate the stark lines of disagreement about what counts as a “rational.” More on that later, but I simply note here that I was left wondering how his overall argument would have unfolded if Leiter attempted to appropriate rather than reject the new natural law perspective as one of the “main principled positions.”

RELIGION IN PUBLIC SPACES: A EUROPEAN PERSPECTIVE

by Silvio Ferrari and Sabrina Pastorelli (eds). Surrey, UK: Ashgate Publishing, 2012. 391pp. Cloth $134.995. ISBN: 978-1-4094-5058-0.

Reviewed by Darren Walhof, Department of Political Science, Grand Valley State University. Email: walhofd [at] gvsu.edu

pp.216-218

This edited volume is part of a European Commission research project called “RELIGARE ,” or “Religious Diversity and Secular Models in Europe. Innovative Approaches to Law and Policy,” which broadly examines the protection of religious freedom in Europe. The eighteen essays, written primarily by legal theorists and sociologists, focus on the religious freedom issues raised by the public presence of religion in a diverse range of European countries, including the UK, Turkey, Italy, Bulgaria, the Netherlands, and Switzerland. The book is divided into three parts. Essays in Part I address theoretical questions about religion and the ever-changing conceptions of “public” and “private.” The second and third parts focus on case studies of the enactment and regulation of religion through religious apparel and dress codes (Part II) and through places of worship (Part III).

The essays in the first part of the volume helpfully introduce some of the concepts and categories at issue. In their chapter, Jean-François Gaudreault-DesBiens and Noura Karazivan contrast common law and civil law traditions in terms of the relationship between the state and religion. Most importantly, they argue that the state in countries with civil law traditions tends to be viewed abstractly as the bearer of sovereignty and thus as an end in itself, which in turn makes it easier to justify restrictions on religious practices for the sake of protecting the state or republic. In countries with common law traditions, in contrast, the state is primarily seen as a pragmatic means of implementing democratic will and protecting individual rights, with the result that restrictions on religious practices are less likely to be accepted.

The distinction between common and civil law traditions also arises in Silvio Ferrari’s chapter that concludes Part I, though it would have nicely introduced the volume. Ferrari identifies three broad patterns of the relationship between religion and the state in Europe. In the first, the dominant, traditional religion serves as a broad civil religion within which religious pluralism is situated, as in Italy. The second pattern, most evident in France, founds civic identity on a set of secular principles, ensuring that the public sphere and the state are shorn of religion. The third pattern, which he identifies with the common law tradition of the U.K., aims at broad religious pluralism within the limits set by human rights. Ferrari notes that all three approaches are being strained by increasing pluralization and publicization of religion, provoking a rethinking of the public sphere. Toward this end, he helpfully conceptualizes the public sphere in terms of three overlapping spaces: the common space, which people necessarily enter to get to [*217] work, engage in commerce, or participate in social life; the political space, where public debate takes place; and the institutional space, which includes legislatures, courts, and other places involving decision-making with enforcement power. Ferrari persuasively argues that this differentiated conception of the public sphere can help us think more clearly about the public presence of religion.

As with many edited volumes, the chapters do not always cohere well into a unified whole. The biggest gap in this case is between theory and practice, manifested in the book as the difference between the theoretical chapters of Part I, on the one hand, and the two parts containing the case studies, on the other. The chapters on religion and dress codes in Part II are primarily detailed descriptions of the legal situations in Turkey (by A. Emre Öktem and Mehmet C. Uzun), the United Kingdom ( by Javier Garcia Oliva), Italy (by Sabrina Pastorelli), and Bulgaria (by Maya Kosseva and Iva Kyurkchieva). The descriptions are generally clear and informative, and these essays could serve as helpful reference material for other researchers. But some further attempt to connect these cases to the concepts and categories outlined in Part I would have enriched our understanding of the broader questions about public and private, and also lent more coherence to the volume.

THE ORIGINAL COMPROMISE: WHAT THE CONSTITUTION’S FRAMERS WERE REALLY THINKING

by David Robertson. New York: Oxford University Press, 2013. 324pp. Hardcover. $29.95. ISBN: 9780199796298.

Reviewed by Kevin R. C. Gutzman, Department of History, Western Connecticut State University. Email: gutzmank [at] wcsu.edu.

pp.213-215

Political scientist David Brian Robertson here offers a novel approach to the Philadelphia Convention of 1787. Rather than focus on one participant or tell the general story of the Convention chronologically, Robertson undertakes to describe the Convention’s decisions discretely. In doing so, however, he stresses ways that decisions made earlier in the gathering affected those made subsequently.

The Original Compromise is divided into eighteen chapters. The first lays out his argument, the next five describe the reasons for the Philadelphia Convention and the approaches to dealing with them that delegates favored, chapters 7-12 explain the Convention’s course regarding the proposed government’s structure, the next five deal with the overarching issue of the extent of the power to be lodged in the new government, and the last summarizes the book.

Robertson asserts that the Framers faced two imperatives: to strengthen the central government of the U.S.A. and to keep that government republican. Both were difficult tasks, he says, but the two together were very, very hard. The Framers’ problem was compounded by the diversity of the delegates and of the political societies to which they were beholden. Perforce, the Convention’s work became a kind of rolling compromise, with early decisions limiting the conclave’s freedom of action in regard to matters considered later on.

In general, Robertson takes a Federalist approach: he accepts the contention that the Confederation Government had too little power, along with the corollary that many – sometimes he and they think virtually all – of America’s civic difficulties in 1787 grew out of that problem. Beyond that, his account of the Convention necessarily stresses the symbolic role of George Washington, the mostly quiet example of Benjamin Franklin, the strategic initiative and oratorical contribution of James Madison, and the leadership role played by Roger Sherman. (One wishes that Robertson had had the advantage of access to the fine recent Sherman book by Mark David Hall (2012).)

In chapter 3, Robertson considers the revision project itself. The first section, “Was it Necessary and Timely to Reconstruct the Nation’s Government?” betrays one of his key assumptions: that the U.S.A. was a nation in 1787 rather than a federal republic in Vattel’s sense. He makes short work of the related question whether the Convention had authority to propose replacement of the Confederation with a completely new government, quoting George Mason to the effect that the Confederation’s government had been dissolved “by the [*214] appointment of this Convention to devise a better one” (p.37).

Since the Philadelphia Convention began according to James Madison’s script, taking up his Virginia Plan off the bat, Robertson begins chapter 4 with consideration of Federalist 10. Although written after the Convention, that essay recapitulated notes and letters written by the Virginian in the months leading up to the Convention, and Virginia’s proposals in the Convention’s early days reflected the ideas that essay would soon make public.

GOVERNING IMMIGRATION THROUGH CRIME: A READER

by Julie A. Dowling and Jonathan Xavier Inda (eds). Stanford: Stanford University Press, 2013. 320 pp. ISBN: 9780804778800 Cloth $90.00 ISBN: 9780804778817 Paper $29.95 ISBN: 9780804785419 E-book $29.95

Reviewed by Kevin R. Johnson, School of Law, University of California, Davis. Email: krjohnson[ at] ucdavis.edu

pp.208-212

For several years, immigration scholars have criticized the increasing reliance on the criminal law (and criminal penalties) to enforce the U.S. immigration laws, which historically have been enforced through civil sanctions. Juliet Stumpf encapsulated the growing body of scholarly criticism in her seminal work “The Crimmigration Crisis,” a path-breaking article reprinted in Governing Immigration Through Crime.

The criminalization of U.S. immigration law has proceeded relatively quickly through a variety of steps. Congress in the last 25 years has systematically reformed the immigration laws so that increasing numbers of crimes can result in the removal of lawful permanent residents from the country. Exhibiting an Alice in Wonderland-like quality, the immigration laws today frequently classify misdemeanors as “aggravated felonies,” thus subjecting a lawful permanent resident to near-mandatory removal from the United States. The harshness of the removal grounds has led a conservative Supreme Court on several occasions to intervene; for example, the Court in 2013 halted the virtually mandatory removal of a long term resident of the United States guilty of possession of a few grams of marijuana for personal use (Moncrieffe v. Holder). Congress also has required the mandatory detention of the ever-expanding category of “criminal aliens,” which has created a huge, and growing, immigrant detention industry (McLeod 2012).

Beginning in earnest during the George W. Bush administration, U.S. immigration authorities have worked increasingly closely with state and local law enforcement authorities to remove noncitizens from the United States. The Obama administration has enlisted state and local police in efforts to enforce the U.S. immigration laws. Many states have passed immigration enforcement laws relying on the criminal law ostensibly designed to encourage undocumented immigrants to “self deport.” In addition to extension of an expensive fence along the U.S./Mexico border, U.S. immigration authorities have dramatically increased enforcement operations to levels never previously seen before in U.S. history. Last but not least, the crime of “illegal re-entry” into the United States has been prosecuted ever-aggressively by the U.S. government, contributing to docket congestion in the federal courts and a large increase in the number of Mexican nationals imprisoned in the United States.

The increased use of the criminal law to regulate immigration has had dramatic impacts. In President Obama’s first five [*209] years in office, his administration set records by removing roughly 400,000 immigrants from the United States annually; he has by a large margin deported more noncitizens than any President in U.S. history. It is noteworthy that removals have not been limited to undocumented immigrants but include many lawful permanent residents who have lived in the country for many years. Hundreds of thousands of removals have resulted in the destruction of hundreds of thousands of families, communities, and lives. Although the administration claims to focus on serious criminal offenders, many of those caught in the enforcement net are at best small time criminals, including persons arrested for traffic infractions such as lacking driver’s licenses for which undocumented immigrants are not eligible in most states.

BOILERPLATE: THE FINE PRINT, VANISHING RIGHTS, AND THE RULE OF LAW

by Margaret Jane Radin. New Jersey: Princeton University Press, 2013. 233pp. $35.00 Cloth. ISBN 9780691155333.

Reviewed by Kimberley Fletcher, Department of Political Science, University at Albany, SUNY. Email: kfletch [at] albany.edu.

pp.205-207

Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law by Margaret Jane Radin is a lucid, historical, and contemporary evaluation of boilerplate, which is defined as “the fine-print terms and conditions” that we become subject to “when we click ‘I agree’ to buy products or services on the internet,” hire a car, rent an apartment, enter an employment contract, “buy tickets for the theater or sports events,” (p.8) sign up for a cellphone carrier, or even attend an event at a public park (pp.117-119). As consumers we must enter into a legal universe devised by the firm to engage in transactions. Boilerplate is therefore understood as “standardized form contracts,” but ones that by their very nature circumvent legal protections.

Since the law deems boilerplate to be a “method of contract formation” (p.9) this analysis is a valuable, systematic, and insightful examination of an important area of contracts. From the start, Radin quickly insists that boilerplate not only affects each and every one of us but also that these kind of contract consumes all aspects of our modern lives. Most of us, Radin argues, are unaware that as consumers on a daily basis we forfeit our legal rights that we presume are guaranteed, through the legal forms prepared and widely used (Radin might even go so far as to say exploited), by businesses. These documents habitually cancel rights to a jury trial and impose arbitration, which Radin identifies as being favorable to businesses. Records are not kept of the decisions reached in these instances and class actions are not permissible. Other boilerplate state that if a consumer does decide to take the matter through the legal system, he or she must first file suit in a state of the businesses choosing that specifically prohibits class action. So for example, a resident of one state is therefore forced to go to another state to file suit or else give up his or her right to be heard by a court. Not only are these forms widespread, they are rarely read, and rarely understood by the consumer. In fact, as Radin points, we have all, at some time or another “agreed” to boilerplate that do not even require a signature, such as parking lot tickets.

If boilerplate is so pervasive, and a direct infringement on our rights, why don’t consumers read them? Radin’s answer is simple: they would not understand the terms and conditions anyway. Unfortunately, and I think Radin has a valid point here, most consumers believe the forms are unenforceable, or that consumers do no t believe they will be put in a situation where they will need to sue (p.12). These forms are favorable to how businesses operate, and further the courts have found in their favor when cases have made their way into our legal system. The bottom line, Radin notes, even the Supreme Court undermines our [*206] democratically earned rights.

Those entities demanding consumers sign boilerplate call them contracts, even though the vast majority does not read them. Moreover, businesses are cognizant that as consumers we have little choice but to accept the terms and conditions, unless we have a viable alternative to refuse their service or product. Under the rule of law we are purportedly guaranteed legal redress when aggrieved, but as Radin demonstrates throughout, boilerplate habitually denies us opportunities of legal reparation and upsets our laws creating an imbalance of power between the consumer and those supplying the goods and services. Boilerplate points out the disheartening truth about boilerplate. Not only are we not protected by our judicial system, but our legislatures, even though they have attempted at times to enact into law bills that would protect us, boilerplate can simply delete these protections through the convenience of these kinds of ever-present forms. When questions reach a judge concerning whether a boilerplate is legally overreaching, courts in many instances, and in a number of jurisdictions, have excused mere negligence in favor of the business

FIRST AMENDMENT INSTITUTIONS

by Paul Horwitz. Cambridge, MA: Harvard University Press, 2013. 367pp. Cloth $49.95. ISBN: 9780674055414.

Reviewed by Ruthann Robson, Professor of Law and University Distinguished Professor, City University of New York (CUNY) School of Law.

pp.202-204

Law Professor Paul Horwitz thinks First Amendment doctrine and theory is a mess. It’s a sentiment that almost everyone familiar with the subject shares, especially as it relates to “free speech.” Look at any law school casebook: the tables of contents vary as do the cases under similar headings. For litigators, arguments about which doctrine should apply – rather than how doctrine should apply – often predominate. For courts, selecting applicable precedent is vexing.

To highlight just one example of this pervasive problem, Christian Legal Society v. Martinez (CLS), decided by the United States Supreme Court in 2010, involved the refusal of University of California Hastings College of Law to recognize the student chapter of the Christian group because the group discriminated on the basis of sexual orientation, violating the school’s nondiscrimination policies. As Horwitz writes, the Court’s opinion was “an exercise in slotting” (p.235). Was the conflict properly resolved under the “public forum doctrine” or “freedom of association”? The Court’s majority chose a “limited public forum” analysis, rendering what Horwitz describes as a “dryly technical decision.” For Horwitz the opinion illustrates the “broader lesson” of how “ill-suited” present doctrine is to the resolution of controversies such as CLS. Most scholars who have analyzed CLS and most judges who have attempted to apply CLS would not disagree.

Horwitz’s goal, however, is to replace this predicament with “the institutional approach.” Building on the work of other scholars, Horwitz provides the most sustained, nuanced, and well-reasoned argument for an “institutional turn” in First Amendment jurisprudence. Horwitz argues that institutions “form a central part of the infrastructure of public discourse” (p.3) and should be recognized as such. He suggests that the doctrinal categories of the law should be redrawn to reflect the centrality of certain institutions to public discourse. Thus, the fact that the CLS controversy involved the institution of a university would become paramount. Horwitz interestingly contends that whether the university is a public one, such as University of California, or a private one, such as Princeton, should make little difference. This contention has the potential to jettison the state action requirement applicable to all of constitutional law as well as the basic theoretical orientation of the United States Constitution that protects individuals from the government, but not from each other (with the exception of the Thirteenth Amendment’s abolition of slavery and involuntary servitude).

Horwitz contrasts the institutional turn with what he terms “acontextuality.” On this view, institutionalists are realists in [*203] contrast to the formalists who strictly apply doctrine without considering context. In Horwitz’s Habermasian phrasing, institutionalists reject the law world in favor of the “life-world.” But this acontextual critique is not as well-founded as Horwitz’s thesis that First Amendment doctrine is incoherent. Indeed, one might argue that First Amendment doctrine often suffers from being overcontextualized; Horwitz’ provides an example of such when he considers “media-specificity” in free press cases, including the notorious expression in Metromedia, Inc. v. City of San Diego (1981) that the Supreme Court is dealing “with the law of billboards” (p.39). Moreover, Horwitz promotes Justice Antonin Scalia to the position of the “foremost advocate on the Supreme Court of an acontextual approach to constitutional law” (p.61), a label that many would dispute. Scalia could just as easily be accused as being driven by an overly contextual approach: racial and sexual minorities always lose and corporations always win, no matter the First Amendment doctrine to be applied. Thus, the problem may not be institutionalism as opposed to acontextualism, but valuing of different contexts and life-worlds.

At the heart of Horwitz’s endeavor is his definition and elaboration of specific institutions central to the First Amendment. Without using the term “civil society,” he evokes it: First Amendment institutions are not “just any place in which social life occurs,” he argues (emphasis in original). Instead:

THE HARM IN HATE SPEECH

by Jeremy Waldron. Cambridge, Massachusetts: Harvard University Press, 2012. 304pp. Cloth $26.95. ISBN: 978-0-674-06589-5.

Reviewed by Catherine Lane West-Newman, Department of Sociology, The University of Auckland, New Zealand. Email: l.westnewman [at] auckland.ac.nz

pp.198-201

Just what may be said to constitute hate speech is contestable. If nothing else, the ‘hate’ element in the phrase ensures this, for emotions are always, on some level, experienced subjectively. For the purpose of his engagement with the subject Waldron describes ‘the phenomenon that is sometimes called “hate speech”’ as ‘publications which express profound disrespect, hatred, and vilification for the members of minority groups’ (p.27).

In this most contentious and controversial area it nevertheless seems that even those most committed to protecting ‘freedom’ of speech do not deny that such a phenomenon exists. Instead, they rather claim that there is simply no good enough reason for the state to suppress it through law. The debate between those who deny the need for such controls on speech and those who support them or at least argue the case for some level of restraint has been at its most interested and vehement in the United States of America. So it is not surprising that this current intervention is a substantially augmented version of the argument presented in Jeremy Waldron’s Oliver Wendell Holmes Lectures given at Harvard under the title of ‘Dignity and Defamation: The Visibility of Hate’ in 2009 and subsequently published in the Harvard Law Review in 2010. Waldron is careful to point out (several times) that his purpose here is not directly to advocate hate speech laws for the United States but rather to explicate why some societies have chosen to have them.

There are several good reasons why this is a book to which students of law and of politics should be exposed. First, because it seeks to raise doubt about the blanket assumption all too often made in the U.S. that First Amendment freedom of speech is such an overarching good for all (would-be) democratic societies that it must inevitably trump all other conceivable goods that might possibly be undermined by its unfettered exercise. And within the space of that doubt there is room to consider also the harms that hate speech brings; indeed, one reviewer has commented that this book might also have been called ‘The Harm in Free Speech’ (Fish 2012). The second reason for recommending this book is because of the care with which it traces some of the harms that free speech may, under particular circumstances, do both to the individuals who are its object and to any society that tolerates, even defends, such harm. And finally, because it is written with clarity and precision and illustrated with examples that bring the realities of hate speech to life, the book offers an exemplary pedagogy of rights and conflicts of rights.

In an introductory chapter Professor Waldron describes his ‘modest intention to offer a characterization of hate speech laws as we find them in Europe and in [*199] the other advanced democracies of the world’ (p.11) and to offer a reminder of instances where legislators and judges in America have in fact addressed the problem that such laws are designed to control. In so doing he offers an American audience information about countries that are effective working democracies where the value of open communication of ideas is respected and that nonetheless regard their hate speech regulations not as violations of a right of free speech but rather as a way to facilitate the human rights of all their citizens.

REASONABLE ACCOMMODATION: MANAGING RELIGIOUS DIVERSITY

by Lori G. Beaman (ed.). Vancouver and Toronto: UBC Press, 2013. 240pp. Hardcover $94.00. ISBN: 978-0-7748-2265-7. Paper $35.95. ISBN: 978-0-7748-2276-3.

Reviewed by Narendra Subramanian, Department of Political Science, McGill University. Email: Narendra.subramanian[at] mcgill.ca

pp.194-197

Responses to the demands of religious minorities to maintain certain practices they value have often been framed in recent years as matters of “reasonable accommodation” in Canada and various other Western societies. This volume critically explores the implications of approaching minority rights in terms of reasonable accommodation in law and public discourse, primarily in Canada where the majority of the contributors are based, but also in Britain, France and Australia. The essays argue that such an approach inaccurately presumes that the rules applied to most citizens are inclusive and based on equality; that when minorities demand space to maintain certain cultural practices, they demand exemption from such rules and thus wish to depart from principles of equality; that the ill-defined majority may set the terms of minority accommodation either because they embody superior values, they are taken to have had a longer ancestral presence in the society, or merely because they are numerically preponderant; and that the boundaries between the majority and minorities are fixed. Some of them suggest alternative ways to address minority rights.

Peter Beyer identifies the shifting boundaries between the majority and minorities, natives and newcomers, through Canadian history, and points out that the norm, implicit or explicit, with reference to which people assessed whether particular minority religious practices should be accommodated was neither consistently Christian nor consistently secular. He claims that questions of religious accommodation have arisen recently primarily with regard to morally conservative religious norms with which many are uncomfortable. While various prejudices have influenced the kinds of religious practices that people consider worthy of public presence, Beyer argues that one inevitably needs to address with reference to secular criteria what kinds of religious content might be compatible with building a pluralistic society.

Solange Lefebvre examines how Canadian courts have addressed issues of religious freedom in a context in which people feel freer to assemble individualized religious-spiritual repertoires attuned to their specific circumstances and intuitions, and constitutional discourse attaches considerable value to individual rights. She shows that in many recent cases, the courts balanced the consideration of religious freedom and of other fundamental rights, and framed religious freedom as a right related to a particular individual’s beliefs, including the right to depart from religious orthodoxies. Nevertheless, judges assessed the sincerity of litigants’ proclaimed religious beliefs partly with reference to [*195] the dominant precepts and dogmas of their religion. Lefebvre believes that they could rely far more on the litigants’ specific beliefs, but that references to dogma remain appropriate some actors conform to orthodoxy coexists while others construct individualized beliefs.

To address demands to accommodate particular beliefs and practices, Avigail Eisenberg argues, one needs to assess the identity claims associated with these demands. She highlights how the absence of such assessment vitiated the public debate about Islamic arbitration tribunals in Ontario. The debate focused on the abstract principles of women’s rights and multiculturalism, and did not consider why many Muslims value religious arbitration, how such tribunals address family disputes based on Islamic law, and whether they may in the process address women’s rights. In the process, the debate misrepresented Canadian multiculturalism as incompatible with liberal values, enabled Islamophobic representations of Islamic law, and led to legislation banning the private arbitration of family disputes, foreclosing the possibility of state regulation of such tribunals, perhaps to ensure that they take account of Charter rights. To prevent the marginalization of minority voices, Eisenberg urges that the relevance of contested minority beliefs and practices to religious identity be considered through equitable and open public discussion.