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:

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.


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:

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.


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:

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).


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:

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.


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:

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.


Vol. 25 No. 7 (July 2015) pp. 102-103

FINDING JUSTICE: A HISTORY OF WOMEN LAWYERS IN MARYLAND SINCE 1642 by Lynne A. Battaglia (ed.). Staunton, Virginia: George F. Thompson Publishing. 2015. 352pp. Cloth $58.50. ISBN: 978-1938086298.

Reviewed by Mark Kessler, Department of Multicultural Women’s and Gender Studies, Texas Woman’s University. Email:

This engaging volume was produced as part of the Finding Justice Project, a collaborative effort among a small group of judges, lawyers, and legal academics to recover and illuminate neglected histories of women in law in Maryland. Sponsored by the Maryland Women’s Bar Association Foundation, the project sought to identify and learn about the work and lives of as many women lawyers as possible practicing in Maryland since 1642. For this purpose, a research team collected information from many sources, including records of the names along with signatures of all who received bar admission, court records describing the cases in which women lawyers participated, birth and death certificates and census records of their families, and newspaper reports regarding the professional and personal lives of some women lawyers in the state. One product of these efforts is a list of nearly 25,000 women admitted to the Maryland bar through 2014, a list reproduced in an appendix organized by year of admission that is printed on nearly 100 pages (pp. 173-268).

We learn in the Preface that the Project initially hired an author to write a book based on the data collected. After the author withdrew, The Honorable Lynne A. Battaglia, the editor of this volume and a central advocate for the Project, developed a new plan to produce an edited collection to include several chapters written by a variety of women practitioners with different themes related to women in law, with emphasis on particular women in law, and with a focus on various historical moments. Although the chapters are generally brief in a book that includes only 167 pages of text prior to appendices, together they present a coherent and interesting portrait of the many challenges and opportunities experienced by diverse women interested in legal careers in Maryland over time. The chapters are well organized and conceived, and the details provided regarding legal careers in Maryland are often quite fascinating.


Vol. 25 No. 6 (June 2015) pp. 99-101

AMERICA’S EXPERIMENT WITH CAPITAL PUNISHMENT: REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF THE ULTIMATE PENAL SANCTION by James R. Acker, Robert M. Bohm, and Charles S. Lanier (eds). 3rd edition. Durham, North Carolina: Carolina Academic Press. 2014. 759 pp. ISBN: 978-1-61163-385-6.

Reviewed by Mary Welek Atwell, Department of Criminal Justice (retired), Radford University,

This is a classic collection of articles written by many of the most prominent scholars in the field of capital punishment. It has been released in a third edition, following earlier versions published in 1998 and 2003. Given the size and scope of the book, it would seem to be designed primarily for use in classes focusing on the death penalty for upper level undergraduate or graduate students. It would certainly expose such students to many of the significant questions and issues they should explore in learning about how capital punishment functions in the United States.

Like all anthologies, AMERICA’S EXPERIMENT WITH CAPITAL PUNISHMENT provides articles of varying appeal. Perhaps the volume would be more valuable if it were a bit less inclusive. A problem is not that the topics are insignificant, but rather that some the chapters are dated. The late Ernest van der Haag’s famous article on deterrence (a reprint of an earlier version) is largely of historic interest as it was widely discussed when first published several decades ago. With very little data, he maintains not only that the death penalty prevents murders but also that abolition would be immoral. The next article “Is Capital Punishment an Effective Deterrent for Murder,” which cites research that challenges van der Haag’s thesis is an exact reprint of the article from the 2002 edition. Again, although the arguments are interesting, much work has been done in the thirteen years since its earlier publication. Chapter 10, “Is Capital Punishment an Effective Deterrent for Murder: An Updated Review of Research and Theory,” is, as the title indicates, more current. It not only raises questions about the validity of the rational choice theory that underlies arguments in favor of deterrence, but looks at research that examines other decision-making models. A student wishing to become familiar with contemporary research on the issue would do well to concentrate on this chapter by Apel, DeWitt, and Bellandi.
A lengthy piece (over 40 pages), “Roots” by Robert Blecker focuses on the Old Testament and ancient Greece as sources of guidance for current capital punishment policy. He argues that an alternative to abolishing the death penalty is finding a “jurisprudence of informed emotion,” a moral intuition that will not do away with capital punishment but allow the procedure to be justly administered. He seems to suggest that the impulse to execute murderers is fundamentally inseparable from human nature. He does not explain why the United States is almost alone among developed countries in legitimizing this impulse.