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 (pp. 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 (pp. 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 (pp. 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 (pp. 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 (pp. 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 (pp. 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.

ATTACKING JUDGES: HOW CAMPAIGN ADVERTISING INFLUENCES STATE SUPREME COURT ELECTIONS

Vol. 26 No. 1 (May 2016) pp. 22-25

ATTACKING JUDGES: HOW CAMPAIGN ADVERTISING INFLUENCES STATE SUPREME COURT ELECTIONS, by Melinda Gann Hall. Stanford: Stanford University Press, 2015. 264pp. Cloth $90.00 ISBN: 9780804787956 Paper $27.95 ISBN: 9780804793087.

Reviewed by Virginia A. Hettinger, Department of Political Science, University of Connecticut. Email: virginia.hettinger@uconn.edu

With the publication of ATTACKING JUDGES: HOW CAMPAIGN ADVERTISING INFLUENCES STATE SUPREME COURT ELECTIONS, Melinda Gann Hall provides valuable new empirical evidence regarding the effects of judicial elections on the electorate and the judiciary. Hall demonstrates that state supreme court elections have a great deal in common with legislative and executive elections, even (especially) when judicial candidates are the subjects of attack ads.

In the first chapter, Hall provides thorough coverage of the legal and political backdrop against which judicial elections occur and the scholarly literature. The literature review includes key points from the political science literature on negativity in American politics. The public does not like attack/issue ads, yet they seem to work because they provide more information than positive advertisements. Hall explains the informational limits of traditional judicial campaigns, which usually emphasize experience, values, and temperament. She also reviews the expansive condemnation of United States Supreme Court’s ruling in REPUBLICAN PARTY OF MINNESOTA V. WHITE (2002), which freed judicial candidates from state laws that restrict issue-based campaigning. The vast array of ills that are purported to flow from this decision include problematic alliances between candidates and interest groups, damaged perceptions of fairness and due process, and a loss of judicial legitimacy.

Chapter 2 of ATTACKING JUDGES, provides a historical perspective of judicial selection that traces the transition from appointment to partisan and nonpartisan election to merit selection. The remainder of the second chapter presents the first of Hall’s empirical evidence. These discussions provide pre- and post-WHITE comparisons for electoral contestation, incumbent defeat, and ballot roll off. According to Hall, opponents of judicial elections, and the WHITE decision in particular, allege that electoral contestation will increase, incumbents will be defeated more often or lose vote share, and ballot roll-off will increase as a result of the WHITE decision. The time series data suggest either little change over time or the continuation of trends in place before the WHITE decision. Analysis of variance results show statistically significant differences on incumbent defeat, incumbent vote share, and roll-off post-WHITE, but only in partisan elections. These results are opposite the expectations that Hall associates with critics of judicial elections.

Chapter 3 turns to campaign advertising. While data limitations mean there is no systematic evidence prior to 2002, Hall draws on other scholars to demonstrate that nasty campaigns, even those involving televised advertisements, are not a product of the post-WHITE era. Hall’s systematic data from 2002 to 2008 demonstrate that the proportion of contested races with television advertising increased approximately 50 [*23] percent between 2002 and 2004. Televised advertising remains the norm, though Hall notes that Kritzer (2015) documented a slight decrease in 2010 and 2012.

The three categories of advertisements used throughout the balance of the book include “promote” ads, which focus on the candidate they were meant to support without mentioning the opponent. “Contrast” ads draw comparisons between the two candidates, and “attack” ads focus (negatively) on the opponent. As noted above, the proportion of contested races involving television advertising jumped between 2002 and 2004 and almost all of these races relied on promote ads, in fact, many relied exclusively on promote ads. Contrast and attack ads appear in fewer races and the data do not show a substantial jump in the use of either of these types of ads even though television advertising increased. The only way the WHITE decision led to a spike in the number of races with negative advertising, would be if that spike occurred immediately in 2002, thus escaping notice in the available data.

MAKING FOREIGNERS: IMMIGRATION AND CITIZENSHIP LAW IN AMERICA

Vol. 26 No. 1 (May 2016) pp. 16-21

MAKING FOREIGNERS: IMMIGRATION AND CITIZENSHIP LAW IN AMERICA, 1600-2000, by Kunal M. Parker New York: Cambridge University Press, 2015. 259 pp. Cloth $99.99 ISBN-10: 1107030218 Paper $24.99 ISBN-10: 1107698510

Reviewed by Anna O. Law, Department of Political Science, City University of New York, Brooklyn College. Email: alaw@brooklyn.cuny.edu

On the subject of writing, the Haitian-American writer Edwidge Danticat once said, “When you write, it’s like braiding your hair. Taking a handful of coarse unruly strands and attempting to bring them unity” (1995, 220). Indeed, this is also the goal of academic writing, to bring a jumble of ideas, data/evidence, and theories into some semblance of accord. Professor of Law and historian Kunal Parker has managed to accomplish just this task by combining a wide range of literatures that usually stand apart under one theory, into a concise and lucid volume.

Making Foreigners manages to contribute to the scholarship in the areas of: U.S. immigration law and policy, Latino Studies, Native American Studies, African American studies, women’s studies, Asian Americans, and studies of the poor. What the groups represented in all these literatures have in common is that at one time or another, the American state (both national and subnational) has purposely treated them as if they were immigrant foreigners, also known in the U.S. immigration and nationality code as “aliens.” Indeed Parker is challenging the traditional understanding of “alien” and “foreigner” as the people who come from a place outside of the U.S., into U.S. territory and, citizenship as a package of rights to be conferred on outsiders by insiders upon arrival.

His entire thesis is that geographically reliant conceptions of citizenship, nationality, and foreignness are wholly inadequate to capture the actual U.S. pattern and practice of making whole groups of insiders into outsiders while still in their own country. Parker maintains that traditional conceptions of “foreigner” and “alien” elide the U.S.’s physical relocation and deportation of insiders, the restriction of movement within and across U.S. territory of insiders, the “indiscriminately mingling of citizens with aliens” for bureaucratic expediency or in time of war, “the subjecting of domestic populations with the legal disabilities comparable to those visited upon aliens”, and the refusal to recognize that long-term residents may at some point have claims to being insiders despite not having the proper immigration documents (p. 5). All of these, Parker submits, are examples of the American state rendering insiders foreigners within their own nation.

Chapter 2 begins in the colonial period and tracks the diverse range of immigrants coming to the British colonies, most of them in unfree statuses; these groups included African slaves, indentured servants, redemptioners, and convicts. Despite the generousness of the JUS SOLIS birthright citizenship grant to most white ethnics, the benefits of citizenship were withheld to native-born blacks and Native-Americans. Moreover, the poor and free blacks were greatly restricted in their movement within and across U.S. territory. Following the logic of Elizabethan poor laws, the poor were designated as “foreign” not based on [*17] whether they were actually from an overseas destination, but based on whether they were “settled” in a locality and therefore the financial responsibility of the town.

LORDS OF SECRECY: THE NATIONAL SECURITY ELITE AND AMERICA’S STEALTH WARFARE and POWER WARS: INSIDE OBAMA’S POST-9/11 PRESIDENCY

Vol. 26 No. 1 (May 2016) pp. 6-15

LORDS OF SECRECY: THE NATIONAL SECURITY ELITE AND AMERICA’S STEALTH WARFARE by Scott Horton. New York: Nation Books. 2015. 272pp. Cloth $26.99. ISBN: 978-1-56858-745. Paper $15.99. ISBN: 9781568585178. E-book $15.99. ISBN: 978-1-56858-488-1.






LORDS OF SECRECY: THE NATIONAL SECURITY ELITE AND AMERICA’S STEALTH WARFARE by Scott Horton. New York: Nation Books. 2015. 272pp. Cloth $26.99. ISBN: 978-1-56858-745. Paper $15.99. ISBN: 9781568585178. E-book $15.99. ISBN: 978-1-56858-488-1.
POWER WARS: INSIDE OBAMA’S POST-9/11 PRESIDENCY by Charlie Savage. New York: Little, Brown and Co. 2015. 784pp. Cloth $30.00. ISBN: 978-0-316-28657-2. E-book $15.99. ISBN: 9780316286682.

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

Two important books provide different perspectives on the workings and the impact of the national security state.

Scott Horton is a human rights lawyer and Harper’s Magazine contributing editor. LORDS OF SECRECY begins with his extended reflections on democratic theory and the implications of bureaucratic secrecy for the health of a democratic system. Horton then describes the rise of the current national security state and its current practices of drone warfare, war on whistleblowers, and unilateral executive war-making in Libya and Syria, assessing each in the context of his democratic concerns. He concludes with an overview of specific areas where secrecy can and cannot be justified, and proposes a list of needed reforms to the current system.

Horton’s lords of secrecy are those occupying key positions in the several agencies with national security responsibilities. They use their control of classified information not just to protect the nation but to enhance their own power, vis a vis each other as well as Congress and the public. “Secrecy is highly corrosive to any democracy….[D]ecisions … are removed from the democratic process and transferred to the apex of the secrecy system, where only the lords of secrecy can influence them” (p. 17). The traditional checking powers of Congress and public opinion are severely eroded. While other factors have contributed to this erosion, secrecy is perhaps the most powerful. As the size of the national security apparatus has grown over the years, the zeal and capacity of Congress to oversee and manage it has shrunk. In response to public protests against the Vietnam War, elites moved toward a volunteer army, heavy reliance on defense contractors, and lower casualty military technologies (such as drones), all combining to dampen public vigilance about the costs of war-making.

Horton traces our vision of democracy back to ancient Athens, where direct engagement of citizens with affairs of state was a core concept. Despite the vast differences between the two polities, we still use remarkably similar rhetoric of freedom and democracy in justifying our war-making. Yet, for Athenians, “direct democratic participation in questions surrounding war and peace was the very essence” of democracy (p. 31). That included essential questions of strategy, such as choosing military leaders and honoring or punishing them. Athenians benefited from their conception of active, knowledge-based democracy, for which Horton credits Protagoras. Enlightenment thought and the [*7] new American state embraced analogous ideas of knowledge-based democracy. Though secrecy was sometimes needed in diplomatic and military affairs, the Founders recognized that voters must have access to sufficient information on major issues, including questions of war and peace. Modern thinkers like Dewey, von Hayek, Popper and Habermas elaborated new defenses of knowledge-based democracy. Yet recent American leaders “have mobilized the language of fear historically used by authoritarian states to foreclose questioning. And in their obsession with secrecy and surveillance technologies they implicitly present democracy as something weak….” (p. 33). “[U]nbridled secrecy is a dagger pointed at the heart of democracies, threatening to invalidate their claim to be democracies in the first place” (p. 50).

Horton moves from normative political theory to the empirical studies of Weber, Simmel, Shils, Moynihan and Rourke. As he summarizes their findings, bureaucrats love secrets and are always tempted to conceal anything that might embarrass them or reduce their political influence. They will say that an enemy could use the information to harm the country, but more often than not the real concern is for the bureaucrat personally or the agency. Secrecy produces a government that is more poorly informed and more corrupt. Horton illustrates with four examples of sustained wrongdoing involving CIA officers and contractors.

The available safeguards include self-restraint, enforced by Inspectors General (Horton does not focus on the presidential role), congressional oversight, the courts, and investigative journalism. Shils and Rourke, writing in the 1950s, were relatively optimistic about the robustness of these. Moynihan’s 1997 Commission Report took a far dimmer view: “The national security state developed a vast secrecy system which basically hid from us our own mistakes” (p. 77). The Commission proposed sweeping reforms, and presidents adopted several; yet the annual volume of classification continued to accelerate, from 6 million documents in 1996 to 15.6 million in 2003.

Remarking on the complete lack of accountability for decisions leading to and during the second Iraq War, Horton traces the technological and institutional innovations since World War II that produced this situation. The 1947 National Security Act formalized a new culture of secrecy born at Los Alamos, created the CIA, and authorized it to engage in covert actions, subject to presidential authorization and congressional oversight. The Act specified that secrecy classifications could not be invoked against such oversight, but “the bureaucrats had different ideas” (p. 100). With the Vietnam War, it became clear that Congress was no match for the lords of secrecy, with their vast budgets and staffs. The war was launched and escalated with a minimum of democratic deliberation. Its failure led to several reforms, including the War Powers Resolution, but the bureaucrats developed effective countermeasures. “Two hundred years of American military and civic tradition went out the window” (p. 108).

Drone warfare is a further extension, beyond the volunteer army and employment of contractors, of the drive to depoliticize war-making. “The armed drone has one attribute … that endears it to the national security elites: it is a consummately secret weapon” (p. 110). The rules for targeting and the number of casualties—especially civilian casualties—are closely held. Yet the only topic capturing public attention has been the four occasions when US citizens were targeted, even though the Due Process clause protects “persons,” not “citizens”. The circumstances were leaked, but the [*8] but the Office of Legal Counsel (OLC) opinion outlining the legal justification was withheld, until a court ordered its partial disclosure. Horton also notes that the drone program is run by the CIA and not the Pentagon, which arguably violates the National Security Act. He calls for broader debate about the costs and procedures of drone warfare.

Horton next examines the impact of recent large-scale leaks and official responses. Edward Snowden’s disclosures, for example, “contained frank appraisals and explanations of NSA programs that often directly contradicted what NSA leaders had given to the public and to Congress, and that congressional leaders had then parroted” (p. 130). Congressional oversight was not fulfilling the hopes of those who founded the national security state, and the checking role of the media was utterly dependent on leakers. Yet the protections available to whistleblowers are sorely inadequate. Internal complaints are commonly futile, and disclosure to the media and the public are generally not protected. Instead, recent administrations have made unprecedented use of the Espionage Act against leakers. The pattern reflects the power of the lords of secrecy: decisions to prosecute are political, and the powerful routinely break the law with no consequences whatsoever. The Obama administration’s oversight of national security elites is weak. “The core change that helps explain the sudden proliferation of whistleblower prosecutions is an internal restructuring of the Justice Department [under] the 2005 Patriot Act reauthorization” (p.248). Whereas the previous system included some political accountability, under the new system, decisions to prosecute are “effectively taken by lawyers who understand their role fundamentally as serving the intelligence community” (p. 149). They ignore the fact that leaks can stimulate valuable debates and policy changes. Prosecutions, Horton argues, should be reserved for the most exceptional circumstances. Curiously, he does not entertain the proposition that First Amendment protection for leakers is an indispensable feature of our democratic system. It is true that the courts have not embraced this idea, but that perhaps reflects what Horton terms “the supine attitude adopted by most of the federal judiciary toward assertions of secrecy” (p. 132).

THE CIVIC CONSTITUTION: CIVIC VISIONS AND STRUGGLES IN THE PATH TOWARD CONSTITUTIONAL DEMOCRACY

Vol. 26 No. 1 (May 2016) pp. 3-5

THE CIVIC CONSTITUTION: CIVIC VISIONS AND STRUGGLES IN THE PATH TOWARD CONSTITUTIONAL DEMOCRACY, by Elizabeth Beaumont. New York: Oxford University Press. 2014. 343pp. Cloth. ISBN: 978-0199940066. $49.95

Reviewed by Steven B. Lichtman, Department of Political Science, Shippensburg University, Email: SBLichtman@ship.edu

One of the most notable features of contemporary debates about judicial review is the emergence of the “popular constitutionalism” school. As prominently represented by scholars such as Larry Kramer (2004) and Mark Tushnet (1999), popular constitutionalists insist that the Supreme Court should not have the monopoly on judicial decision making that it has maneuvered to acquire. Many such scholars couch their argument in the perils of judicial supremacy, but many others – Kramer, in particular – focus on the Framers’ purported intentions that the American people should play a major role, and perhaps a dispositive role, in interpreting and applying the Constitution.

It is probably inaccurate to shoe-horn Elizabeth Beaumont’s marvelous new book into the popular constitutionalism school, because a critique of judicial review is not the thrust of her project. But it is certainly accurate to suggest that she shares a perspective with popular constitutionalists, in that she likewise stresses that constitutional development is not a relentlessly top-down process driven largely by institutions and institutional actors. A la Kramer, she believes that much can be learned about the Constitution by studying the people themselves; not only as a prism for constitutional beliefs, but also as a process for adapting the Constitution to political and historical change, and redefining the contours of the Constitution as fundamental American law.

Crucially, this is a process that occurs over the wide sweep of American history. Contrary to Originalists who insist that the meaning of a constitutional provision is fixed at the time of its adoption (and that any ambiguities in the meaning are to be resolved by consulting the divinable intentions of the drafters), Beaumont maintains that constitutional meaning is contestable, and further that these contests are broad-based. It is the people, not the officials, who establish and redefine constitutional meaning.

Moreover, it is not only the people of the founding era who performed this task. The seminal strength of this impeccably researched book is Beaumont’s account of the constitutional contributions of social movements in the 19th and 20th centuries. It is not only the rivalry between Federalists and Anti-Federalists that shaped the Constitution. We must also, Beaumont reminds us, contemplate the impact of the abolitionist movement and the women’s suffrage movement on the evolution of the Constitution.

LAW AND REVOLUTION IN SOUTH AFRICA: UBUNTU, DIGNITY, AND THE STRUGGLE FOR CONSTITUTIONAL TRANSFORMATION

Vol. 26 No. 1 (May 2016) pp. 1-2

LAW AND REVOLUTION IN SOUTH AFRICA: UBUNTU, DIGNITY, AND THE STRUGGLE FOR CONSTITUTIONAL TRANSFORMATION, by Drucilla Cornell. New York: Fordham University Press. 2014. 224pp. Paperback $24.00. ISBN: 978-08232-57558-4.

Reviewed by Kawu Bala, Bauchi State Judiciary, Nigeria. Email: kabaaz@gmail.com

The likelihood of using the law to totally change a society will depend on the way the law is structured and applied in that particular society. Drucilla Cornell’s LAW AND REVOLUTION IN SOUTH AFRICA: UBUNTU, DIGNITY, AND THE STRUGGLE FOR CONSTITUTIONAL TRANSFORMATION examines the “ultimate failure” of societal change in post-Apartheid South Africa within the policies of the ANC (p. xi). South Africa, which Cornell discusses, gained democratic independence on April 27, 1994 with the “miraculous” collapse of the Apartheid regime. Along with its “revolutionary” transformation from the policy of racial discrimination not much is perhaps achieved looking at the question of “economic transition” under post-Apartheid ANC (p. 3). LAW AND REVOLUTION IN SOUTH AFRICA is divided into three parts; and in the book Cornell is seen fighting for the recognition of uBuntu.

In LAW AND REVOLUTION IN SOUTH AFRICA the author leads us to find out whether the majority rule being spearheaded by the ANC has succeeded in line with its much touted current policy that is dictated by the “Washington Consensus” (p. 4). What needs to be seen is the way South Africa is governed. This is the reality in South Africa as the ANC has forsaken its revolutionary credentials and embraced democracy (p. 8). Is that working? Well, to break up the colonial structure does mean that its tentacles will naturally go. It sounds illusionary to think so when analysing an elite transition to power. Is it not the ANC that first voluntarily adopted in Africa the exploitative structural adjustment programme? Let me digress a little, I recently watched a documentary aired by Aljazeera network titled, “Miners Gunned Down.” The said documentary film is about South African miners who protested their poor work condition, low wages, among others. What happened to them? These hapless miners were gunned down in cold blood by their own brethren in the security service without recourse to the rule of law. One of the individuals interviewed tried to show that it was the fault of the defenceless miners, and that person was formally a union leader in the mining industry. He was presumably, before the unfortunate incidence, speaking on behalf of the miners. He changed tune and said so just because he now has managed to acquire shares in the mining company in question, and so anything goes no matter how ugly or illegal. There are numerous incidences like this in South Africa. The dilemma is seen from the eyes of those who thought law alone could revolutionize a society. Much truly needs to be decisively done to have equality entrenched in Africa. Thus, it is revolution, in my opinion, that will create a good law in a given society and not the other way round.

This review evaluates how the book by Cornell elucidates some of the problems associated with the “new” South Africa. In Part I, “Should Critical Theory Review Revolution?” Cornell deals with the economic hegemony, which unfortunately is at the centre of affairs in South Africa [*2] (p. 22). This is the dilemma confronting many developing countries. It is like surviving between the devil and deep blue sea with nowhere to go. The neoliberal ideals are everywhere and, like elsewhere, South Africa is yet to answer the “question of what would constitute postapartheid development” (p. 23). Arguably democracy is the best form of government but not the kind of democracy that the majority suffers in terms of bad economic and administrative policies that are being reeled out. Regarding this key issue, one will agree with Cornell that “radical democracy” is what is needed in South Africa (p. 44). This is the only kind of democracy that will respect the votes of the people and establish justice and fairness. Democratization came with great hope, especially in Africa, but people are yet to see democracy’s much-talked-about benefits. Cornell’s assertion is relevant in the current circumstance where democracy is manipulated just to serve the narrowly predefined interest of global capitalism.