QUEER ALLIANCES: HOW POWER SHAPES POLITICAL MOVEMENT FORMATIONS

Vol. 32 No. 4 (April 2022) pp. 48-50

QUEER ALLIANCES: HOW POWER SHAPES POLITICAL MOVEMENT FORMATIONS, Erin Mayo Adam. Stanford, Stanford University Press, 2020. pp. 240. Paperback $ 26.00. ISBN 978-1-503-61279-2. Hardcopy $85.00. ISBN 978-1-503-61035-4.

Reviewed by Cyril Ghosh, Department of Government and Politics, Wagner College. Email: cyril.ghosh@wagner.edu.

Erin Mayo-Adam’s QUEER ALLIANCES: HOW POWER SHAPES POLITICAL MOVEMENT FORMATIONS is a superbly-researched and vital, addition to the scholarship on law and politics, social movements, legal mobilization theory, immigration, and sexuality and politics. The book also has the additional advantage of actually delivering on what it promises to deliver in its opening pages, which, as one knows well, is not something one can always count on.

Mayo-Adam invites us here to look at that which is away from the limelight. We can learn something, she correctly decides, if we pause for a minute and look at the progressive work that is being done by those who do not appear on our television sets, those who do not get profiled in the NEW YORKER, and those whose names do not appear in case studies we download from the Kennedy School of Government’s website.

In other words, Mayo-Adam wants us to understand both that – and why – our knowledge about social movements is incomplete, and by extension not very sophisticated at all, if we do not take stock of the social justice work that is being done by those who are (to borrow a term from postcolonial theory) the subaltern.

More specifically, Mayo-Adam investigates, using a queer methodology, and while drawing upon interviews and participant-observation, two episodes of coalition-formation and fragmentation in the context of what she refers to as “rights episodes” – Washington’s Referendum 74 campaign for marriage equality and Arizona’s immigrants’ rights campaign against SB 1070 – to discover the factors that contribute toward coalitions forming and fracturing. Each of these episodic movements centers around a specific set of rights demands without inevitably getting reduced to them but also not always being able to successfully achieve or exceed them.

In these rights episodes, we find, on occasion, concrete advances that get codified in the law. We also find,

BIRTHING A MOVEMENT: MIDWIVES, LAW, AND THE POLITICS OF REPRODUCTIVE CARE

Vol. 32 No. 4 (April 2022) pp. 43-47

BIRTHING A MOVEMENT: MIDWIVES, LAW, AND THE POLITICS OF REPRODUCTIVE CARE, by Renée Ann Cramer. Stanford: Stanford University Press, 2021. pp.288. Cloth $90.00. ISBN: 978-1-503-60983-9. Paper $30.00. ISBN: 978-1-503-61449-9.

Reviewed by Carol Nackenoff. Richter Professor Emerita. Department of Political Science. Swarthmore College. Email: cnacken1@swarthmore.edu.

Midwifing is embodied work, and Cramer’s Birthing a Movement engages in embodied scholarship. This project began in California in 2006 and itself has been a labor of love, with storytelling front and center.

Cramer has been personally engaged in the effort she studies. Locating herself in this story, Cramer recounts her own intellectual journey, birthing her own son, the friendships she forged along the way, and even the dog she acquired in the course of this work. She is self-conscious about her positionality, making her own commitments to feminist scholarship and reproductive justice clear. The book is engaging, provocative, and well-written. The introduction and conclusion are richly theoretical, and the interior chapters contribute to theorizing from experience. Becoming part of the discourse in an academic discipline is part of her story, and Cramer draws parallels between developments in the midwifery movement and changes in methods, substantive areas of research, and shifts toward multidisciplinarity among law and society scholars.

BIRTHING A MOVEMENT aims to join legal mobilization scholarship and social movement studies, demonstrating in this context how law and consciousness are mutually constitutive. Focusing on the everyday life of the law and on the production of legal consciousness, Cramer finds inspiration in the work of MIT Anthropologist Susan Silbey (2005, 2019). Cramer looks at the expression of legal consciousness that develops in the “...daily, lived experiences [of] midwives, mothers, people-who-give-birth, and consumers” (p. 15). She seeks to understand midwives and advocates who view themselves as political and legal actors seeking to end the twentieth century criminalization of lay midwifery spurred by the AMA and state regulators. Cramer tells the stories of people and of organizations involved in efforts to enable and expand safe practices of midwifery without the fear of prosecution and incarceration.

Cramer recognizes that her story is part of a larger narrative involving laws regulating reproduction in the United States. However, this study fits well with other state-level histories of forced sterilization, anti-miscegenation, and marriage regulation in which motherhood has been used to advance state goals. It is also part of a saga about inequality, including long-term racially disparate birth outcomes for laboring mothers and their offspring in hospital settings—not just indignities but in mortality rates—though the medical establishment touts hospital births as far safer than home births.

BIRTHING A MOVEMENT examines a period of rapid change in the legal status of midwifery at the state level, which is still ongoing. During the 1980s, a renaissance of midwifery was underway, in part driven by feminist organizing and publishing around reproductive issues and reproductive care.

JUDGE & PUNISH: THE PENAL STATE ON TRIAL

Vol. 32 No. 4 (April 2022) pp. 36-42

JUDGE & PUNISH: THE PENAL STATE ON TRIAL, by Geoffroy de Lagasnerie. Palo Alto: Stanford University Press, 2018. pp.210. Hardcover $25.00. ISBN: 978-1-503-60578-7.

Reviewed by Malcolm M. Feeley. Jurisprudence and Social Policy Program. School of Law. University of California at Berkeley. Email: mfeeley@law.berkeley.edu.

The author, French sociologist Geoffroy de Lagasnerie, begins his book saying he planned to undertake an ethnography of French criminal trials. But, he abandoned the project because upon reflection, he realized that ethnography tells us nothing we do not already know. However, before he gets on with his new project, he offers some insights from his aborted ethnography: French judges are not very bright, court-appointed psychologists are egocentric, the trial process is an empty ritual, and thousands of those charged with crimes each year are found not guilty. But above all, he asserts that ethnography is not good social science; like political theory, legal theory, and psychology, it has little to offer in the study of society. Indeed, it is not sociology at all. Sociology is the effort to understand the parts in light of the whole, and no other human sciences do this. Certainly not ethnography.

In the process of elaborating on this truth in the first part of his book, the author dismisses Kant, Rousseau, and Habermas, and with barely a comment, discards Hannah Arendt and Max Weber to the trash bin in a few scattered paragraphs. He then rambles on about Durkheim’s theory of legal evolution, without noting that it has been discredited by ethnologists. Having done this, he goes on to make what he appears to regard as an important original observation: law is socially constructed and shaped by power. Having made this pronouncement, he then suddenly shifts focus, and summarily convicts and banishes French sociologist, Didier Fassin, without trial and indeed without leveling any real charges other than for having committed the offense of ethnography. However, there is no real way to get a sense of de Lagasnerie’s views on Dassin, or any other writers and subjects he mentions, since there is no sustained discussion of anyone’s work, and there is no index to be able to double check.

There is, however, a lot of first person singular; plumage is fluffed repeatedly as if to inform the reader, “I have the truth.” So, what is this blinding truth that the author encounters on his way to Damascus to commit ethnography? What does de Lagasnerie’s new and reformulated project reveal? It is not unusual for ethnographers to abandon their initial ideas and premises once they gain their bearings in the field. But, they usually do so because they have stumbled upon other more compelling issues that demand their attention. Here, however, the shift is more dramatic. The author has an epiphany; ethnography is worthless, indeed less than worthless in that it obscures reality, supports the status quo, and ignores the social.

De Lagasnerie tells us that he now wants to reflect on sociology and the nature of the penal state, instead of pedestrian truisms of ethnography. The author appears to have discovered this insight almost alone, and without the help of Victor Hugo, Charles Dickens, E.P. Thompson, Antonio Gramsci, Althusser, Rusche and Kirchheimer, David Garland, let alone Karl Marx and the voluminous literature on law and social control in his wake. Nor does he seem to consider Niklas Luhmann’s insight that law is an essential fact and all-pervasive part of the social condition.

The author discovers that law is socially constructed and that it mystifies both the state and power, and in doing so, obscures the pervasiveness of violence promulgated by the penal state through law. He goes on to inform us that law’s violence is successful for two reasons.

DISABILITY IN INTERNATIONAL HUMAN RIGHTS LAW

Vol. 32 No. 3 (March 2022) pp. 32-35

DISABILITY IN INTERNATIONAL HUMAN RIGHTS LAW, by Gauthier de Beco. Oxford: Oxford University Press, 2021. pp.240. Hardcover $99.00. ISBN 978-0-19-882450-3.

Reviewed by Francesca Parente, Department of Political Science, Christopher Newport University. Email: francesca.parente@cnu.edu

Gauthier de Beco’s DISABILITY IN INTERNATIONAL HUMAN RIGHTS LAW examines the philosophical and historical roots of the Convention on the Rights of Persons with Disabilities (CRPD), particular rights protected by the treaty, and the implementation of certain rights contained therein. What is most impressive about this work is that it goes far beyond merely explaining what the rights of the disabled are under international human rights law – which, I should note, would already be a contribution, given the focus on older treaties such as the International Covenant on Civil and Political Rights, the Convention Against Torture, and the Convention on the Elimination of Discrimination Against Women in the literature. Rather, de Beco’s work strives for something more ambitious: examining “how the [Convention on the Rights of Persons with Disabilities] has transformed the very notion of human rights through its consideration for distinct forms of embodiment and how this consideration can spill over in the entire field” (p. 1).

Chapter 1 begins with the historical background on the adoption of the CRPD, which was adopted by the UN General Assembly in 2006. The author characterizes the CRPD as the “cousin” of the Convention on the Rights of the Child (CRC), which entered into force in 1990, as both “international instruments go much further than merely prohibiting discrimination” (p. 19). This is evidenced by both treaties’ nuanced understanding of intersectional discrimination, or when “people are discriminated against on the basis of several different grounds” (p. 22). As such, the CRPD is not only concerned with the rights of disabled people as a group, but also pays special attention to how particular groups of disabled people – disabled women, children, and the elderly – might require additional protections that recognize their multifaceted identities and memberships in marginalized groups.

The second and third chapters take a step back and examine different models of disability and models for including the disabled in society, respectively. For readers familiar with human rights scholarship, but new to the field of disability studies, these two chapters may be the most difficult chapters to understand because they are theoretical and conceptual. However, de Beco does an admirable job explaining the different models and philosophies in a way that is accessible to those of us who are hearing about them for the first time. In Chapter 2, we learn that the CRPD has adopted the social model of disability, which “sees disability as a product of societal organization” (p. 30) and “highlights the need for the removal of the various barriers that hinder participation in society” (p. 36). Understanding this model as the basis of the CRPD helps explain why some of the rights within the treaty are articulated the way they are. In Chapter 3, de Beco explains how capabilities and recognition theories provide better conceptual lenses through which to view the treatment of disability in the CRPD. Capabilities theory “stipulates that society must be arranged so as to enhance people’s own capabilities” (p. 54) while recognition theory “highlights the necessity of providing an equal social status to all members of society” (p. 61). While de Beco argues that combining capabilities theory and recognition theory “can prove useful for the inclusion of disabled people” (p. 61), the discussion would have been strengthened by more explicit discussion of the language in the CRPD that encompasses one or both of these views.

In Chapter 4, de Beco makes good on his promise to elucidate the contributions of the CRPD to the very notion of human rights. He begins by problematizing the implicit assumption

THE MAKING OF REVERSE DISCRIMINATION: HOW DEFUNIS AND BAKKE BLEACHED RACISM FROM EQUAL PROTECTION

Vol. 32 No. 03 (March 2022) pp. 28-31

THE MAKING OF REVERSE DISCRIMINATION: HOW DEFUNIS AND BAKKE BLEACHED RACISM FROM EQUAL PROTECTION, by Ellen Messer-Davidow. Lawrence: University Press of Kansas, 2021. pp.392. Paper $29.95. ISBN: 978-0-7006-3221-3.

Reviewed by Lauren Foley. Department of Political Science. Western Michigan University. Email: lauren.foley@wmich.edu.

Early university affirmative action cases brought before the Supreme Court paint a confusing picture: one white male plaintiff and one predominantly white university defendant arguing about civil rights. How were minority voices excluded from litigation and the resulting opinions? How did the facts of systemic racism become the analytical lens of reverse racism? “Why did court opinions [seek] to detach the factual filaments of minority exclusion from the nodes of equality principles?” (p. 3). In THE MAKING OF REVERSE DISCRIMINATION, Ellen Messer-Davidow examines DEFUNIS V. ODEGAARD (1974) and REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE (1978) to argue that the development of colorblind legal-judicial discourse “bleached racism from Equal Protection.” Participants constructed this white-centered narrative by choosing language that slanted or omitted facts, narrowing the story through time and action framing, and using specious reasoning to link facts to the dispute.

Scholars of affirmative action, constitutional development, and racial politics should read this book for the richly detailed empirical work Messer-Davidow brings to these early affirmative action in higher education cases. Looking far beyond traditional case materials, she excavates the facts that were neglected in the adversarial process, including wider systemic discrimination in the relevant cities, state educational pipeline discrimination, and bias in standardized testing that case amici writers fought unsuccessfully to have included in the DEFUNIS and BAKKE trial records and judicial opinions. As a result, she demonstrates that DEFUNIS and BAKKE articulated constitutional principles based on flawed and misleading factual records. Messer-Davidow accomplishes this feat through archival work on thousands of pages of contextual materials, particularly those neglected by the actual trial participants, and extensive interviews with advocates involved in these cases. She brings analytical frames and tools of discourse analysis to legal scholarship that will help future scholars of the law find the same language practices in other cases, likely with similarly misleading results.

THE MAKING OF REVERSE DISCRIMINATION lays bare the slanted, obscured, and omitted facts of these affirmative action cases. In the DEFUNIS case, Messer-Davidow brings to light facts that were omitted from the trial record and ignored on appeal. The first set of facts reveals the systemic and educational pipeline racism in Seattle at the time of the alleged admissions discrimination. The trial transcript relied upon abstracting language to hide these facts, referring to “cultural conditions” that created barriers to access, an evasive, euphemistic way to refer to poverty and systemic racism (p. 66). Second, Messer-Davidow exposes the influence campaign of the DeFunis family, which leveraged connections to the University of Washington Board of Regents in an attempt to access special treatment and preference in favor of DeFunis’s application. The lawsuit came to target alleged special treatment for racial minorities only after the DeFunis family’s efforts at obtaining special treatment from the Regents failed. Third, the facts show that the case was racialized: whereas the initial complaint was made against UW Law for exercising out-of-state applicant preference, it shifted to focus on racial minority preferences. Messer-Davidow unpacks this racialization as a “complex discursive process of imprinting racial grammars on social phenomena” (p. 79).

To future scholars writing about race and constitutional development, the book offers a valuable warning

HIDDEN LAWS: HOW STATE CONSTITUTIONS STABILIZE AMERICAN POLITICS

Vol. 32 No. 3 (March 2022) pp. 24-27

HIDDEN LAWS: HOW STATE CONSTITUTIONS STABILIZE AMERICAN POLITICS, by Robinson Woodward-Burns. New Haven: Yale University Press, 2021. pp.355. Paper $45.00. ISBN: 9780300248692.

Reviewed by James Cauthen. Department of Political Science. John Jay College, CUNY. Email: jcauthen@jjay.cuny.edu.

Over twenty years ago, Alan Tarr began his introduction to UNDERSTANDING STATE CONSTITUTIONS by describing the widespread scholarly neglect of state constitutions and equating constitutional theories that addressed only the federal Constitution to “propounding a literary theory that pertains to a single novel.” (Tarr 1998, p. 1). Although scholars of American constitutionalism continue their focus on the federal Constitution, there has been a growth of outstanding studies addressing state constitutions. HIDDEN LAWS: HOW STATE CONSTITUTIONS STABILIZE AMERICAN POLITICS by political scientist Robinson Woodward-Burns can be added to that group.

In HIDDEN LAWS, Woodward-Burns evaluates state constitutions through a broader lens than used in many previous works, viewing them not just as documents organizing sub-national governments that allocate and limit their powers but also as significant instruments of national constitutional politics. Compared to their national counterpart, a unique feature of state constitutions is the relative ease through which they are revised and amended. In contrast to the twenty-seven amendments to the U.S. Constitution, states have held over 200 constitutional conventions and have ratified over 140 constitutions and over 7,500 amendments. Woodward-Burns asserts that this frequent revision and amendment is not just intended to deal with matters in the states, but it also serves to address and resolve national constitutional controversies. While explanations of American constitutional stability include near insurmountable Article V amendment requirements, partisan and institutional realignment, judicial review, and popular reverence, Woodward-Burns argues that this stability also flows from our system of dual constitutionalism. In areas of concurrent powers, pressure for national constitutional change oftentimes is channeled to the states, where the more flexible amendment and revision processes help to guide and stabilize national constitutional development. To Woodward-Burns, appreciating this role is essential for a complete understanding of American constitutionalism.

Woodward-Burns presents his argument through a process of constitutional reform that he labels “conflict decentralization.” He theorizes that constitutional controversies can emerge at the national or state level, and their path to resolution not only depends on the nature of the constitutional issue, but also the source of the controversy and the behaviors of national and state actors in response to it. For example, in areas where there is federal preemption, both the pressure for reform and the reform itself, oftentimes through judicial interpretation, occurs at the national level. Conversely, some constitutional controversies begin in the states and are completely resolved through state constitutional reform, obviating the need for national actor involvement. The remaining two paths of constitutional development under his theory are those where national constitutional controversy leads to state constitutional reform (devolution), either by national deference or direction, and those where state constitutional controversy leads to national constitutional reform (elevation), either through national imitation, or intervention. These paths may occur partially or completely, and oftentimes in cycles. For example, when state reform prompts unsuccessful national reform, it may result in additional efforts at state reform.

Woodward-Burns tests his theory of conflict decentralization across six eras, each given its own chapter, beginning with the period leading up to the 1787 convention and continuing through 2020. After the initial chapter discussing how state constitutional experimentation influenced the development of the federal Constitution, he presents in subsequent chapters case studies of three to four national constitutional conflicts occurring during that period. He also observes state constitutional activity on these same topics, whether through amendment, revision, or judicial interpretation. He then discusses how this state reform interacts with and impacts national debate and reform. The extent to which these constitutional conflicts and debates are documented and presented in his case studies is impressive. For example, to identify his cases, he created a dataset of 11,969 federal amendments proposed since 1788, which were coded by subject. He then developed a second data set of state constitutional revisions and amendments covering the same period.