THE PARTIES IN COURT: AMERICAN POLITICAL PARTIES UNDER THE CONSTITUTION

Vol. 24 No. 10 (October 2014) pp. 518-523

THE PARTIES IN COURT: AMERICAN POLITICAL PARTIES UNDER THE CONSTITUTION by Robert C. Wigton. Lanham, MD: Lexington Books. 2013. 392pp. $120.00. ISBN: 978-0-7391-8967-2.

Reviewed by Graham G. Dodds, Department of Political Science, Concordia University (Montreal), g.dodds@concordia.ca.

When even casual observers of American politics are familiar with CITIZENS UNITED, a new tome on how the judiciary has addressed legislative regulation of political parties is likely to be a welcome resource. In THE PARTIES IN COURT, Robert Wigton considers the vague constitutional status of American political parties and maps out how courts have judged their regulation. As every student of American politics well knows, even though political parties are not provided for in the Constitution and the Founding Fathers feared them, parties have long been a central part of American politics and government. How they’ve been regulated is thus an important political, legal, and constitutional matter.

In Wigton’s telling, the legislative regulation of U.S. political parties initially involved Progressive-era anti-corruption reforms like the Australian or secret ballot and direct primaries, but it expanded considerably from the mid-twentieth-century onward. According to Wigton, “The tide of history in this country has clearly favored increasing government regulation of party activities” (p. 33), such that “modern American political parties are generally regulated more heavily and in more detail than parties in most other Western nations” (p. 37).

In addition to the issue of the degree of the regulation of parties, there is also the matter of its locus. And as Wigton notes, while Congress has on occasion passed laws to govern political parties in some fashion, most of the legislative regulation of political parties in the U.S. has occurred at the state level. The development of laws governing parties is therefore important for considerations of federalism, but it is also important for inter-branch relations, as Wigton explains:

State legislatures have been the primary engines for imposing regulations on political parties. But their overt partisanship makes them unlikely places for developing a balanced and comprehensive approach to the role of parties in our governmental system. The task of making progress in this area has thus by default fallen to the judiciary which, though hardly nonpartisan, is generally able to take a longer and more objective view of such matters (p. 344).

The judiciary has endeavored to sort out a host of issues relating to the regulation of political parties. In many cases, this has entailed trying to make a judgment about the extent to which parties are private organizations and therefore entitled to substantial autonomy or governmental deference and the extent to which their activities have a public impact sufficient to warrant greater governmental intervention. Wigton contends that “Since the late nineteenth-century American political [*519] parties have been gradually converted from primarily private associations into quasi-public entities akin to public utilities” (p. 37).

Beyond questions of state action, Wigton notes that other constitutional principles that have often come up in litigation about parties include the political question doctrine, freedom of association, the Fourteenth Amendment’s equal protection clause and the nationalization of the Bill of Rights, and the right to political participation (per the Fifteenth Amendment). Regardless of the particular constitutional questions that come up, Wigton says that the judicial treatment of these matters suggests that judges are quite divided about the value of political parties. As Wigton writes, “On the one hand are those judges who regard political parties as ‘facilitators of democracy,’ relying on their roles as aggregators of political majorities in both elections and government. The opposing camp of judges … tends to see parties as corruptors of the political process and government” (p. 341).

In what might be regarded as the book’s primary thesis, Wigton says, “Our objective will be to determine how far the courts have progressed in reconciling the independence of the political parties with ideals of democratic selection” (p. 49). In his discussion of all these matters, Wigton covers over 500 court cases, some of which involve multiple substantive and jurisprudential points. To organize this mass of information, the book utilizes a version of the well-known tripartite division of parties’ activities first articulated by V. O. Key and Frank J. Sorauf, with separate chapters on parties’ internal activities, parties in the electoral process, and parties in government.

Parties’ Internal Activities

The regulation of parties’ internal activities includes things like how parties are officially recognized (which is often a matter of what percent of the vote a party must receive in order to appear on future ballots), the sections or committees into which parties are organized and how their personnel obtain their positions, and how official nominees and delegates to national conventions are selected. Obviously those things are at the heart of how parties operate, so “State laws which seek to place limitations on how political parties organize and govern themselves internally are the most serious threat to party independence” (p. 72). However, says Wigton, “as parties increasingly enter the public arena through performance of more electoral activities they should expect to be subjected to greater governmental supervision” (p. 73), and legislatures have indeed imposed various regulations on them.

Wigton’s discussion of cases that have concerned the regulation of parties’ internal activities focuses on several main areas. First, there is the issue of intra-party elections, with cases such as LYNCH V. TORQUATO (1965). Second, starting in the 1970s, Wigton sees a shift to cases that involved the First Amendment and free association questions, like MARCHIORO V. CHANEY (1979), ANDERSON V. CELEBREZZE (1983), TASHJIAN V. REPUBLICAN PARTY OF CONNECTICUT (1986), and EU V. SAN FRANCISCO COUNTY DEMOCRATIC CENTRAL COMMITTEE (1989). Third, there is the issue of the selection of presidential convention delegates, as addressed in cases like O’BRIEN V. BROWN (1972), COUSINS V. WIGODA (1975) and DEMOCRATIC PARTY V. [*520] WISCONSIN EX REL. LA FOLLETTE (1981).

Seeking to discern a general trend in cases about parties’ internal activities, Wigton notes that courts have struggled to draw a line between party activities that should be subject to state regulation “and those that should be largely free of such regulation” (p. 117). Beyond noting that difficulty, Wigton says that courts appear to be willing to grant parties greater freedom concerning their internal organization, while being more sympathetic to regulations that more directly relate to the nomination process. Also, he says that “Generally, the federal courts have been much more deferential to the independence and autonomy of the national party organizations than they have been to the state party organizations” (p. 113).

Parties In The Electoral Process

In terms of the regulation of political parties in the electoral process, there are laws that concern campaign finance, the disclosure of sponsors of political advertising, ballot access, and primary elections. And as with the regulation of parties’ internal activities, the regulation of their electoral activity is mostly at the state level. According to Wigton, “The only significant federal legislation here is the Federal Election Campaign Act (FECA)” of 1971 (pp. 133-4).

Nevertheless, there is a significant history of major federal cases dealing with the regulation of parties and campaign financing, and Wigton traces that development from BUCKLEY V. VALEO (1974) to FEC V. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE (1993 and 2000), MCCONNELL V. FEC (2003), and CITIZENS UNITED V. FEC (2010). Wigton’s book was published a few months before the Supreme Court decided MCCUTCHEON V. FEC (2014), striking down aggregate limits on how much an individual could give to political parties during a two-year election cycle.

In terms of state-level campaign finance regulation, Wigton discusses NIXON V. SHRINK MISSOURI GOVERNMENT PAC (2000), which he regards as the Court’s “most important modern ruling dealing with state campaign laws” (p. 172). The Court’s decision barely mentioned political parties per se, but it granted states significant leeway in regulating campaign finance, and “Most lower court decisions since Shrink Missouri have upheld state efforts to regulate the financial side of their electoral processes” (p. 174).

Beyond campaign finance, Wigton’s discussion of parties’ electoral activities includes cases that concern anti-fusion laws, elections in which the ballot includes a candidate’s name but not his or her party affiliation, “blanket” or “jungle” primaries that combine candidates of different parties, and whether primaries are open or closed. He also considers the judicial treatment of third parties, with a discussion of TIMMONS V. TWIN CITIES AREA NEW PARTY (1997), in which the Court seemed divided about whether a state interest in stability could justify a substantial burden on third parties.

Parties In Government

Wigton’s chapter on the regulation of parties in government (which he terms [*521] “incumbent political parties”) addresses two main issues: political patronage and partisan gerrymandering. While political patronage is “one of the most venerable traditions in America” (p. 258), Wigton contends that “The Supreme Court did not directly deal with the many issues raised by political patronage until 1976” (p. 262). That year, in ELROD V. BURNS, the Court sought to distinguish between public employees who were in “policy-making positions” and those who were not, and it said that the former could be subject to patronage reprisals while the latter could not (p. 364). The case is also noteworthy for Justice Powell’s dissent, in which he extolled the value of patronage. In RUTAN V. REPUBLICAN PARTY OF ILLINOIS (1990), the Court took up the issue of what sorts of government actions could trigger the protections that ELROD afforded some governmental employees, and in that case Justice Scalia’s dissent sought to validate patronage as important to the strength of political parties. According to Wigton, “In recent years, the circuit courts generally seem to have been intent on preserving, or even expanding, the class of high-level public employees who remain subject to patronage hiring and firing” (pp. 281-2).

Wigton says that “the courts’ willingness to rein in political patronage” stands in sharp contrast to “the general reluctance of the courts to employ judicial power to combat partisan gerrymandering” (p. 303). He claims that “There has been virtually no congressional interest in regulating state and local electoral redistricting” (p. 287), and while courts have often struck down racial gerrymanders, they have been much more permissive regarding partisan gerrymanders, “Despite the similarities between the two types of gerrymandering” (p. 311). Wigton discusses cases like DAVIS V. BANDEMER (1986), VIETH V. JUBELIRER (2004), and L.U.L.A.C. V. PERRY (2006) and says the Court is divided about whether partisan gerrymandering “should be analyzed under First Amendment principles or under equal protection” (p. 349). He concludes that “The judiciary’s handling of partisan gerrymandering … has not progressed much beyond a thorough exposition of the issues and choices involved” (p. 314).

THE PARTIES IN COURT is well researched and very well documented: each of the substantive chapters is followed by hundreds of detailed endnotes spread over 18-24 pages. It is also well written and easy to read (if a bit dry), though there are more than a few typographical errors. The book’s structure and its clear divisions within each chapter render it easy to follow, and it does a very good job of covering a lot of material; it is both comprehensive and comprehensible.

The book’s main scholarly contribution is as an informational resource, and it may serve as an authoritative reference. But its more interesting parts are the few areas in which Wigton presents his own views. Wigton wishes to employ the tripartite model of political parties not just to disentangle judicial decisions about their regulation (i.e., the organizational scheme of the book), but also to govern how courts should approach their decision-making. As Wigton explains, “My objective is to develop guidelines that preserve the ‘desirable’ activities and contributions of parties while simultaneously curbing some of the problems and ‘abuses’ that political parties can bring to government and elections” (pp. 342-3).

That objective sounds perfectly even-handed, but for Wigton it is explicitly predicated on a view that parties are both central and essential to the well-functioning of the American political and governmental systems: “political parties are the keystone of the political system and their proper functioning is a vital element in the success of representative government” (p. 343). Obviously, placing such a high value on political parties leads to great suspicion of their regulation. As Wigton puts it, “Given their vital role in American politics, parties appear to be deserving of considerable freedom from governmental control” (p. 33). He further contends, “What appears to be needed at this time is for the courts to create and enforce a bright-line boundary protecting the core activities of parties from further erosion by government regulation” (p. 345).

Wigton suggests that some aspects of parties merit more regulation while others deserve less, as the tripartite model suggests that regulation of parties’ internal functions and their activities in government “is relatively easy” (p. 351). However, “In the electoral arena parties’ roles are more mixed and the costs and benefits far less certain” (p. 351), which is why “The regulation of political parties in the electoral realm has always posed the most difficult questions” (p. 349).

In terms of parties’ electoral activities, Wigton suggests that regulation should be lighter for primaries than in the general election (pp. 219-220). And he also sees a need for less regulation in the two areas in which he says party regulation is more straightforward, as he wants less regulation of parties in government (p. 315), and he says the “historic erosion of the private side of political parties now imperils the benefits associated with independent, autonomous, and vigorous political parties” (p. 71).

Different readers, like different legislators and different judges, may come to different conclusions, but Wigton’s book should be appreciated by a broad audience. THE PARTIES IN COURT will be of particular interest to scholars of political parties and election laws, and it is suitable for graduate or advanced undergraduate students.

REFERENCES:

Key, V. O. 1964. POLITICS, PARTIES, AND PRESSURE GROUPS. New York: Crowell,.

Sorauf, Frank J. 1968. PARTY POLITICS IN AMERICA. Little Brown..

CASE REFERENCES:

ANDERSON V. CELEBREZZE, 460 U.S. 780 (1983).

BUCKLEY V. VALEO, 424 U.S. 1 (1976).

BAKER V. CARR, 369 U.S. 186 (1962).

CITIZENS UNITED V. FEDERAL CAMPAIGN COMMITTEE, 558 U.S. 310 (2010).

COUSINS V. WIGODA, 419 U.S. 477 (1975).

DAVIS V. BANDEMER, 478 U.S. 109 (1986).

DEMOCRATIC PARTY V. WISCONSIN EX REL. LA FOLLETTE, 450 U.S. 107 (1981). [*523]

ELROD V. BURNS, 427 U.S. 347 (1976).

EU V. SAN FRANCISCO COUNTY DEMOCRATIC CENTRAL COMMITTEE, 489 U.S. 214 (1989).

FEDERAL ELECTION COMMISSION V. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE, 839 F. Supp. 1448 (D. Colo. 1993).

FEDERAL ELECTION COMMISSION V. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE, 213 F3d 1221 (10th Cir. 2000).

LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) V. PERRY, 548 U.S. 399 (2006).

LYNCH V. TORQUATO, 343 F. 2d 370 (3rd Cir. 1965).

MARCHIORO V. CHANEY, 442 U.S. 191 (1979).

MCCONNELL V. FEDERAL ELECTION COMMISSION, 540 U.S. 93 (2003).

MCCUTCHEON V. FEDERAL ELECTION COMMISSION, 134 S. Ct. 1434 (2014).

NIXON V. SHRINK MISSOURI GOVERNMENT PAC, 528 U.S. 377 (2000).

O’BRIEN V. BROWN, 409 U.S. 1 (1972).

RUTAN V. REPUBLICAN PARTY OF ILLINOIS, 497 U.S. 62 (1990).

TASHJIAN V. REPUBLICAN PARTY OF CONNECTICUT, 479 U.S. 208 (1986).

TIMMONS V. TWIN CITIES AREA NEW PARTY, 520 U.S. 351 (1997).

VIETH V. JUBELIRER, 541 U.S. 267 (2004).

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©Copyright by author, Graham G. Dodds.

RE-FRAMERS: 170 ECCENTRIC, VISIONARY, AND PATRIOTIC PROPOSALS TO REWRITE THE U.S. CONSTITUTION

Vol. 24 No. 10 (October 2014) pp. 516-518

RE-FRAMERS: 170 ECCENTRIC, VISIONARY, AND PATRIOTIC PROPOSALS TO REWRITE THE U.S. CONSTITUTION by John R. Vile. Santa Barbara, California: ABC-Clio. 2014. 397pp. Cloth $89.00. ISBN: 978-1-61069-733-0.

Reviewed by Stephen M. Griffin, Tulane Law School, sgriffin@tulane.edu.

John R. Vile is a respected constitutional scholar at Middle Tennessee State University who has written a number of works on the constitutional amendment process in the United States. This area of inquiry has been somewhat neglected by scholars over the years, but not because of a lack of effort on the part of Professor Vile. He has authored books on the history and theory of constitutional amendment, along with many other works on the U.S. constitutional system.

One of Professor Vile’s more interesting projects has been to examine not only proposals for amending the U.S. Constitution, but sweeping visions that propose to rewrite the whole document. He published an earlier book in 1991, REWRITING THE UNITED STATES CONSTITUTION, which was an examination of about 40 of the 170 proposals he summarizes in his new book RE-FRAMERS.

RE-FRAMERS is divided into fourteen chapters reviewing such rewriting proposals arranged in chronological order from the Founding to the Obama administration. Most of the chapters summarize proposals to rewrite the Constitution in each historical era. Judging by Vile’s summaries, most proposals have been put forward since the beginning of the twentieth century. Such proposals were apparently few and far between in the early republic and the nineteenth century.

The first two chapters cover proposals to have a constitution for the colonies, including Benjamin Franklin’s well known Albany Plan of Union, a review of the Articles of Confederation, and a short description of the adoption of the Constitution. The review of the 170 proposals to rewrite the Constitution begins in earnest in Chapter 3, from a proposal by Edmund Pendleton to restrict the sort of centralized government advocated by the Federalists to John C. Calhoun’s theory of concurrent majorities, to a description of the constitution of the Confederacy, to Francis Lieber’s 1865 proposals, some of which resembled the soon forthcoming Fourteenth Amendment.

This diverse set of nineteenth century proposals for reform gives the flavor of the rest of Vile’s book. Each proposal is summarized in roughly three to fifteen paragraphs; making this book more of a reference work. The book contains an occasionally interesting collection of reform ideas, but does not have a strong thesis.

At the same time, I do not wish to downplay the usefulness of having Professor Vile collect a large number of often fugitive and hard to find proposals that show how much effort some Americans have put into the task of imagining ways to improve the Constitution, even if they have been largely ignored. Noted academics such as J. Allen Smith, Charles Merriam (president of the American Political Science Association in 1924-1925 as Vile notes), William Yandell [*517] Elliott and Charles Hardin enter the picture in the twentieth century. But the Captain Ahab of constitutional “re-framers” has to be New Deal “brain trust” member Rexford Tugwell, who worked for decades on forty drafts of a new Constitution, finally published in 1974 in his largely unreadable work THE EMERGING CONSTITUTION.

As the twentieth century rolls on, one theme becomes apparent – the isolated and somewhat idiosyncratic character of reform proposals. Comprehensive attempts to reimagine or rewrite the Constitution have seemingly not figured in the social movements that have sponsored significant constitutional changes, such as the civil rights movement or the women’s movement. These movements have argued for new interpretations of the Constitution, not new amendments or another constitutional convention. A second theme emerges, particularly with reference to works like Tugwell’s – these re-framers often spend so much time working out in minute detail how the Constitution should be changed that they lose track of the more important prior question of why it should be changed, particularly given changing historical circumstances. That is, proposals for rewriting the Constitution often do not seem firmly connected to the world around them. Although I would argue that the burden of proof for constitutional reforms should not be set too high, the authors Vile summarizes frequently assume rather than argue for the necessity of reform.

To be sure, once we arrive in the 1980s, we are arguably in the contemporary era of such proposals. One of the lead proposals to reframe the Constitution in the 1980s was issued by the Committee on the Constitutional System (CCS) a collection of distinguished citizens including Washington attorney Lloyd Cutler, Senator Nancy Landon Kassebaum of Kansas and C. Douglas Dillon, a former Secretary of the Treasury. They issued a report worrying about divided government, loss of accountability, and gridlock. Noted political scientist James Sundquist advanced a similar critique at the same time and the CCS proposals received wide notice. Here I think Vile’s account could have been more useful to future scholarship if he had separated proposals, such as CCS, that received at least some public discussion from proposals that were essentially ignored as off the wall. Although I understand Vile’s book is a collection, I think it is useful to alert readers unfamiliar with the 1980s to the relative prominence of some proposals over others.

Another reason to highlight the CCS proposals is that a number of the proposals Vile examines in the 2000s relate to CCS concerns, although other new themes are introduced. So Vile reviews serious critiques of dysfunctional government and proposals for reform put forward by leading scholars such as Robert Dahl, Mary Becker, Cass Sunstein, James Buchanan, Sanford Levinson, Larry J. Sabato, and Lawrence Lessig alongside many other lesser known proposals. There are similarities among the proposals by leading scholars Vile could have usefully developed, but his reference work approach prevents noting the common elements. If anything, the number of well-regarded scholars who advocate substantial constitutional reform seems to be increasing as we move toward the present. At the end of the book, Vile includes an interesting chapter on “Constitutional Reform in Cyberspace,” summarizing proposals that have been made online.

The book concludes with two chapters of summary and analysis. Chapter 13 is devoted to “Constitutional Reform and Constitutional Archetypes.” Vile identifies [*518] fifteen questions that the framers of the Constitution and the re-framers have continued to ask. These questions include whether it should be easier or harder to amend the Constitution, whether the nation should be more or less centralized, should the presidency be stronger or weaker, and whether the nature of the judiciary should be changed. In Chapter 14, “Analysis and Conclusions,” Vile examines briefly topics such as the occasions for reform proposals, the pace of proposals and even the occupations of proponents of change. He notes that the pace of proposals has picked up since the 1960s, which is my own impression as well. Perhaps Americans are more willing to question their constitutional arrangements today than they have been in the past. If so, they will find Vile’s book a valuable resource for their continuing debates.

REFERENCES:

Tugwell, Rexford G. 1974. THE EMERGING CONSTITUTION. New York, NY: Harper’s Magazine Press.

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© Copyright 2014 by the author, Stephen M. Griffin.

A THEORY OF SHIELD LAWS: JOURNALISTS, THEIR SOURCES, AND POPULAR CONSTITUTIONALISM

Vol. 24 No. 10 (October 2014) pp. 513-515

A THEORY OF SHIELD LAWS: JOURNALISTS, THEIR SOURCES, AND POPULAR CONSTITUTIONALISM by Dean C. Smith. El Paso: LFB Scholarly Publishing LLC. 2013. 297pp. Cloth $80.00. ISBN: 978-1-59332-615-9.

Reviewed by Eric B. Easton, University of Baltimore School of Law, eeaston@ubalt.edu.

The term “shield law” is shorthand for a testimonial privilege that allows a journalist to refuse to disclose the source of a story. Shield laws may be enacted by legislatures or created by courts. They may be broadly or narrowly written with respect to the persons entitled to the privilege, the venues where the privilege may be exercised, and the conditions imposed upon their use.

Much of the shield law literature focuses on the Supreme Court’s refusal to find a testimonial privilege in the First Amendment in the 1972 case of BRANZBURG V. HAYES or on the repeated failure by Congress to enact a statute providing journalists a testimonial privilege in federal courts. Dean Smith’s new book offers a different focus: the legislative enactment of 40 state shield laws.

Smith’s work opens with “the real story” of the nation’s first state shield law, enacted in Maryland in 1896. Until Smith set the record straight, it had been generally accepted that the law was enacted in response to the jailing of a BALTIMORE SUN reporter in 1886. Smith shows conclusively that the Maryland shield law was actually enacted in response to a national campaign to protect reporters in the wake of a Washington bribery scandal in 1894.

According to Smith, the quest for a Federal shield law began in 1929, when reporters from Hearst’s WASHINGTON TIMES exposed a number of speakeasies catering especially to members of Congress. Legislation was introduced soon after the reporters were jailed for refusing to reveal their sources. The effort failed, but the continuing lobbying campaign ultimately generated shield laws in eleven more states between 1929 and 1949.

Smith follows with a case study from 1968 in which University of Oregon student-journalist Annette Buchanan refused to reveal her source for a story on marijuana use among fellow students. Buchanan was held in contempt, and her appeal to the state Supreme Court failed. But the case did stimulate renewed discussion of a constitutional privilege and the development of a model state shield statute.

Wisely omitting a laborious reconstruction of the BRANZBURG case, which has been thoroughly dissected in the literature, Smith’s history focuses on the aftermath, including serious efforts to enact a federal privilege and the enactment of eight more state statutes – including one in Oregon, often wrongly attributed to the BUCHANAN case. He also goes into some detail on the qualified privileges recognized in nine of the thirteen federal circuit courts of appeal between 1972 and 1986.

Smith’s penultimate chapter discusses the half dozen state shield laws enacted in the 1990s and seven more enacted in the new century. Along the way, he considers the persistent issue of who is a journalist (and therefore covered by the shield), an issue complicated by the rise of Internet-based [*514] media. He concludes with a call for lobbying to bring modern shield laws to all 50 states and to enact federal shield law legislation.

Had Smith written nothing more than this historical survey, his book would have been a useful addition to the literature. The perspective is fresh throughout and the narrative is frequently revelatory. Two principal achievements: setting the record straight regarding the origins of the ground-breaking Maryland shield law and placing BRANZBURG firmly in the middle of the shield law saga, rather than the beginning and the end of the conversation.

But Smith has something more in mind. Using the state shield laws ostensibly to test a theory of “non-judicial precedents” developed by Michael Gerhardt (2008), Smith seems to be making the case that a testimonial privilege is a constitutional requirement under the First Amendment. The U.S. Supreme Court just hasn’t figured that out yet.

By non-judicial precedent, Gerhardt means “any past constitutional judgment made outside the courts which public authorities try to invest with normative authority.” Smith points to state statutory shield laws before and after BRANZBURG as examples of non-judicial precedents that constitute “important pieces in a larger infrastructure that, taken as a whole, creates what we popularly think of as freedom of the press.”

In each chapter, Smith places the legislative activity in Gerhardt’s theoretical context. Thus, the lobbying that led to Maryland’s 1896 shield law, while advocating a legislative remedy, was articulating First Amendment norms – even before the First Amendment claim had become a viable legal argument. The dialogue on constitutional values had begun, and would continue through the lobbying for a federal shield law aftermath of the speakeasy exposé in 1929.

At the conclusion of Smith’s chapter on Annette Buchanan, he points out that Gerhardt’s theory would predict that the dialogue could have one of two possible outcomes: either the popular conception of constitutional rights would be adopted by courts or it would remain outside the judicial sphere and continue to implement constitutional values through legislation. In his chapter on the aftermath of BRANZBURG, Smith shows that what actually happened was a combination of the two possibilities. More state legislatures enacted shield laws – statutes revolving in constitutional law orbit (Lupu 1993) – even as many federal circuit courts created their own versions of the privilege.

Good histories always seem to end too soon, and Smith’s is no exception. Smith appears to have stopped writing while enactment of a federal shield law, once again, seemed within the realm of possibility. The Senate, at least, was arguably on the way to resolving the sticky issue of who should be covered with a test that describes the conduct of prospective witnesses, rather their employment status.

This generally acceptable solution, coupled with the fact that “who is covered” had not been that significant in recent cases, leads Smith to minimize the problem somewhat. Of course, that very issue returns with a vengeance to undermine congressional negotiations in the wake of the WikiLeaks affair, which occurred after Smith’s historical account concludes.

Smith’s application of Gerhardt’s theory of non-judicial precedents to the historical account of shield laws is quite satisfying and [*515] very likely to send the reader back to the original source for a closer look. Smith offers several avenues for further research, both practical and theoretical, including some on which he has already embarked. At a moment when progressive legislation at the federal level seems remote, and scholarship in support of such legislation seems futile, Smith’s marriage of history and theory affords some hope that we are nevertheless participating in the evolution of constitutional doctrine.

REFERENCES:

Gerhardt, Michael. 2008. THE POWER OF PRECEDENT. Oxford, UK: Oxford University Press.

Lupu, Ira. 1993. “Statutes Revolving in Constitutional Orbits.” VIRGINIA LAW REVIEW 1.

CASE REFERENCES:

BRANZBURG V. HAYES, 408 U.S. 665 (1972).

OREGON V. BUCHANAN, 436 P.2d 729 (Ore. 1968).


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© Copyright 2014 by the author, Eric B. Easton.

PERFECTING THE CONSTITUTION: THE CASE FOR THE ARTICLE V

Vol. 24 No. 10 (October 2014) pp. 510-512

PERFECTING THE CONSTITUTION: THE CASE FOR THE ARTICLE V
AMENDMENT PROCESS by Darren Patrick Guerra. Lanham, MD: Lexington
Books. 2013. Hardback $75.00. ISBN: 978-0-7391-6838-7.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University, shoff@desu.edu.

Author Darren Patrick Guerra, an associate professor of political science at Biola University (CA), acknowledges that this book is the manifestation of his “deep interest in American Constitutionalism and its preservation of ordered liberty for over two hundred years” (Preface, ix). Equating the future of the Constitution with the retention of Article V procedures, he seeks to defend its precepts by examining the etiology of amendment provisions in initial state constitutions, probing the manner by which amendment features were integrated into the Constitution via Article V, and by presenting and challenging various criticisms lodged against the current amendment process. He uses documentary evidence from constitutions and ratifying conventions as well as relaying the views of leaders at various junctures in American history who confronted the need to define, defend, or decry amendment provisions.

Part I of the book is labeled Creation of Article V; it encompasses four of nine chapters. Chapter 1 depicts how the unwritten, evolutionary English constitution furnished no formal means for change, resulting in informal shifts of power that occurred without awareness or agreement of Americans. Guerra makes an analogy between Article V and the Song of Sirens from the story of Odysseus in that they both possess the traits of self-discipline, prudence, and wisdom. Establishment of an official amendment procedure prevents abuse of power and maintains popular sovereignty. Chapter 2 meticulously outlines how new state constitutions dealt with the amendment question. Perhaps surprisingly, amendment provisions were found in just seven of thirteen original state constitutions. But half was better than none, as an unwritten constitution “hid the powers of government in a swirling and confusing mix of precedents, traditions, decisions, and fragmented documents…”(p. 54).

Chapter 3 examines how the unreasonable requirement of state unanimity for amendments crippled the Articles of Confederation and helped the momentum toward replacement. Because amendment features were a part of the Virginia Plan at the Constitutional Convention of 1787, they were seen as a legitimate if not difficult method for change. Article V of the Constitution specifies a two-step procedure for amendments. But like the other six articles of the Constitution, its approval at the Philadelphia convention did not guarantee enactment: the assent of nine state ratifying conventions was necessary. Special attention is given to the how Article V fared in such meetings in Connecticut, Massachusetts, Virginia, New York, and North Carolina. The author notes the importance of creating a balance between simple majority vote and unanimity for amendments. Chapter 4 discusses how [*511] individual leaders regarded the Article V amendment process. For instance, fellow Virginians James Madison and Thomas Jefferson debated the best way to formulate the approval stage of the amendment process. And another Virginian, first president George Washington, referred to amendment principles three times in his 1796 Farewell Address, according to Guerra. Overall, Guerra finds that the views of “key founders show that Article V was not merely an afterthought, but a vital aspect of the Constitution that was fully engrained in the fabric of American politics and American Constitutionalism” (p. 129).

Part II of the text is titled Criticism of Article V and contains the remaining five chapters. In Chapter 5, the author describes increasing challenges to the consensus, which typified the Founding era. In particular, the rise of a competing constitutional vision—Progressive thought—“brought an emphasis on direct democracy and harnessing governmental power to address growing social concerns; in this context Article V became seen as an overly rigid and formalistic means of altering the nation’s fundamental law” ( p. 135). In subsequent chapters, the arguments of Progressives and contemporary opponents of Article V are delineated and debated.

To the criticism that the Article V amendment process is too difficult (Chapter 6), the author finds that the procedure was utilized five times between 1913-1933. The fact that 81 percent of amendments proposed by Congress have been ratified, that a successful amendment has been added to the Constitution once every 8.2 years on average, and that the time between passage and ratification of amendments was shorter in the 20th century than in the previous century shows that the supermajority requirement is not impossible to overcome. To the charge that Article V is undemocratic (Chapter 7), the author identifies a plethora of reform proposals involving the amendment process, which were introduced in Congress from 1864 to 1928. He rejects the national referendum alternative to Article V as inimical to American federalism and claims that Article V mitigates the tendency toward majority tyranny. To the charge that the procedure described in Article V is too formal (Chapter 9), the author presents the views of three scholars supporting that position and responds to each. Certainly, the 1937 debacle for President Franklin Roosevelt involving his plan to alter the composition of the U.S. Supreme Court demonstrated the public’s disdain for replacing Article V with ad-hoc political moves.

In the Conclusion, Guerra summarizes the previous material and clearly compares upholding Article V with maintaining the rule of law. He contends that, in the end, “scholars and citizens alike should take care to fully assess Article V, and its contribution to American Constitutionalism, before endorsing radical departures from its procedures for legitimate amendment” (p. 231).

In examining other scholarly work on the constitutional amendment process, two patterns of literature are apparent. First, some scholars and jurists focus on the amendment process itself. John Vile’s study of constitutional amendments includes a historical survey and a comparison with other techniques for revision. Former U.S. Supreme Court Justice John Paul Stevens (2014) identifies six specific suggestions for [*512] constitutional amendment, encompassing areas such as the death penalty, campaign finance, sovereign immunity, and gun control. Second, there are those writers who take diverse positions on whether the judicial or legislative branches should possess the authority to make pseudo-amendment changes to the Constitution. In his edited book, David Schultz (1998) brings together a series of essays, which discuss using the courts to achieve social change, an idea that was strongly rejected by Mark Tushnet in his book against judicial supremacy. While Michael Bamberger’s (2000) study portrays the irresponsible passage of unconstitutional legislation by Congress, Colton Campbell and John Stack’s (2001) edited book includes cases where Congress’ interpretation of the Constitution is viewed as upholding rights.

Guerra’s book, while not the first in the area of constitutional amendments, clearly takes the topic to the next level of scholarship in several ways. His research into how new state constitutions dealt with the amendment process is extraordinary, as is the specific chronology of amendment coverage at the 1787 Constitutional Convention. He effectively meshes the views of the Constitution’s framers throughout the text to justify his positions. The most apparent shortcoming is a lost opportunity to discuss in detail those constitutional amendments passed but not ratified as a way to substantiate the difficulty yet legitimacy of the Article V. However, this does not detract from the dual strengths of the study: successfully integrating an objective historical overview with a determined defense of the Constitution’s amendment process.

REFERENCES:

Bamberger, Michael A. 2000. RECKLESS LEGISLATION: HOW LAWMAKERS IGNORE THE
CONSTITUTION. New Brunswick: Rutgers University Press.

Campbell, Colton C., and John F. Stack, Jr., eds. 2001. CONGRESS CONFRONTS THE
COURTS: THE STRUGGLE FOR LEGITIMACY AND AUTHORITY IN LAWMAKING. Lanham, MD: Rowman and Littlefield Publishers, Inc.

Schultz, David. 1998. LEVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang Publishing, Inc.

Stevens, John Paul. 2014. SIX AMENDMENTS: HOW AND WHY WE SHOULD CHANGE
THE CONSTITUTION. New York: Little, Brown, and Company.

Tushnet, Mark. 1999. TAKING THE CONSTITUTION AWAY FROM THE COURTS. Princeton:
Princeton University Press.

Vile, John. 1994. CONSTITUTIONAL CHANGE IN THE UNITED STATES: A COMPARATIVE STUDY OF THE ROLE OF CONSTITUTIONAL AMENDMENTS, JUDICIAL INTERPRETATIONS, AND LEGISLATIVE AND EXECUTIVE ACTIONS. Westport, CT: Praeger Publishers.

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©Copyright 2014 by the author, Samuel B. Hoff.


THE AMERICAN CONVENTION ON HUMAN RIGHTS: CRUCIAL RIGHTS AND THEIR THEORY AND PRACTICE

Vol. 24 No. 10 (October 2014) pp. 507-509

THE AMERICAN CONVENTION ON HUMAN RIGHTS: CRUCIAL RIGHTS AND THEIR THEORY AND PRACTICE by Cecilia Medina. Translated by Peter Krupa. Cambridge, UK: Intersentia. 2014. Softcover $98.00. ISBN 9781780681016.

Reviewed by Sheryl Symons, Department of Political Science, Binghamton University (SUNY), sgeissi1@binghamton.edu.

Cecilia Medina presents a detailed account of the development, subsequent application, and interpretation of human rights law in THE AMERICAN CONVENTION ON HUMAN RIGHTS: CRUCIAL RIGHTS AND THEIR THEORY AND PRACTICE. Medina's book is a description and an analysis of the Inter-American Court's early interpretation of law set forth in the American Convention. The statute creating the Court entered into force in January 1980, and as of the writing of this book, the Court was still in its early stages of developing a body of jurisprudence. Medina notes that, although she could have updated the book, she purposely wanted to portray in an "uncluttered manner" the operations of the Court during a time when cases arose out of circumstances that were the result of a tumultuous period of autocratic regimes. Her focus on this period also avoids the nuances that develop as case law advances and legal actors become more sophisticated operators in the system. These design choices facilitate her parsimonious presentation and explanation of complex human rights theory.

While keeping a tight focus on the Inter-American system, Medina highlights the reciprocal nature of international law, in that international legal actors borrow and build from one another's juridical deliberations and decisions. Throughout every chapter, Medina notes laws and legal precedent in international and regional human rights bodies that have influenced decision-making in the Inter-American Court. This not only demonstrates her broad knowledge base of the human rights legal regime and the necessary inter-dependence of actors within the international system, but aids her audience in understanding how and where the American system fits in the international regime. Another strength is Medina's use of primary sources, which is notable, and indicates the time and effort invested in this research. For example, Medina uses travaux preparatoires, or working group reports and records, as evidentiary sources of her interpretation of rights.

Medina is careful to note that the concept of reciprocity, as applied to international sources of law, also characterizes the relationship between international and domestic law. She credits domestic law as a source of general legal principles and interpretive guidelines for international law. Medina also notes that we must consider State conditions when attempting to understand the application of the Convention by the Court. On this point, Medina delivers countless examples that serve to clarify our understanding of the cultural, historical, political and economical viewpoints of States and how those considerations shape the Inter-American States human rights system.

The first chapter provides a general legal framework, defining key concepts of the Convention, such as State obligations to respect, ensure, guarantee, cooperate or take measures, and state responsibility, [*508] suspensions, and restrictions. The next six chapters are an in-depth treatment of American Convention Articles grouped with regard to particular rights. These include the right to life, the right to humane treatment, the right to personal liberty, the right to due process, rights related to administration of justice, and the right to judicial protection.

Chapter Two focuses on the Right to Life (Article 4). Here, Medina underscores the complexity of protecting the right to life as the "debate on how and to what degree this right is guaranteed is strongly affected by philosophical and religious positions and beliefs that are at times difficult to reconcile" (p. 39). The concept of a person's right to life is further complicated by issues such as when that right becomes an obligation to preserve life by another party, the death penalty, and, of course, the issue of when life is considered to begin. This chapter also provides a detailed analysis of enforced disappearances—a right that appears again in later chapters. The right against enforced disappearance is only just becoming legalized in the United Nations system (the Convention against Enforced Disappearance entered into force in 2010 and as of this writing, there are only 43 States Parties). Medina's early analysis of this right, in relation to the rights of the American Convention, is quite interesting; mainly because her interpretation predates the offering of the international convention and is well developed for its time.

In the third chapter, Medina discusses the Right to Humane Treatment (Article 5), elsewhere known as the right against torture. She points out that the American Convention is in contrast to the European and UN Conventions against torture, which do not elaborate the right of all people to have their physical, mental and moral integrity respected. The American Convention also establishes prohibitions on certain types of conduct and identifies private parties as well as public officials as perpetrators. The American Convention does not require that acts of torture be carried out for a specific purpose; rather, the Convention uses more expansive wording – "any other purpose." Medina's discussion of lack of intent in this chapter is insightful and offers one possible resolution to making a finding for or against violation of this right when it involves self-defense, confinement, or medical treatment.

The Right to Personal Liberty (Article 7) is covered in Chapter Four. Medina first notes the different connotations and interpretations of the terms liberty and security. For purposes of Article 7, personal liberty is generally construed as confinement, while personal security implies humane treatment. Medina then moves to a consideration of the general requirements for all deprivations of liberty—legality and absence of arbitrariness. A good portion of the chapter is devoted to deprivation of liberty in criminal proceedings (e.g., writ of habeas corpus, arrest, detention facilities).

The last three chapters can be characterized as rights related to the administration of justice. The fifth chapter examines the Right to Due Process (Article 8). Medina notes that in the American Convention, due process applies not only to judicial proceedings but also to actions before procedural bodies. This broadens the impact of due process protection to essentially include a defense against virtually any act of the state that can affect an individual's rights. Chapter Six is a discussion of two Articles, Freedom from Ex Post Facto Laws (Article 9) and Right to Compensation for Miscarriage of Justice (Article 10) as well as the principle of legality. Finally, Chapter Seven examines the Right to Judicial [*509] Protection (Article 25). Individuals are entitled to have their rights protected efficiently by domestic authorities via a judicial remedy. This is known as the right to an amparo remedy. This chapter sets forth the State obligations under the American Convention to provide its citizens with effective and efficient judicial remedies when their rights have been violated.

An oddity of the book is that it abruptly ends after the discussion of the right to judicial protection. Although the book is not an attempt to answer a research question or make a particular point, a conclusion would aid the reader in tying the concepts together and getting an overall sense of where difficulties for the Court lie. It is understandable that Medina may have purposely left the subject open since she states that she intends to elaborate on the book's coverage of American Convention articles at some future time (as stated in the Preface). However, it would have been interesting to include, from the author's point of view, a comparative analysis of the Court's approach to the various rights.

Medina's description of the rich historical context within which the American Convention originated, her interpretive study of selected human rights, and explication of the Inter-American Court’s evolution makes a significant contribution to both the legal and social science disciplines. Contrary to social scientists' static treatment of the subject, Medina's method and discourse emphasize the dynamic nature of international human rights law that is progressive and reactive to changing contexts. I suspect that Medina's work will, at a minimum, give social scientists pause when considering empirical approaches to treaty ratification or court decision-making.

The book advances understanding for human rights scholars specializing in international law or human rights theory, as well as legal scholars or comparativists focusing on states of the Americas. The book is of limited use for generalized studies or undergraduate curricula given the dense and complex approach to the subject matter. Medina's treatment of the subject is quite technical and, given her field of expertise, aimed at an audience assumed to be already familiar with legal theory and terminology. This is unfortunate because the book could have a wider impact if it were written in a less technical manner. For example, the subject matter could be adapted in a way more accessible to undergraduate curricula, for which there is a serious lack of good human rights theory texts. As the book is written, it can be used for lecture preparation but is likely to only appear on upper-level special topics syllabi. Medina's book is appropriate, however, for graduate-level courses on human rights theory or international law.

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©Copyright 2014 by the author, Sheryl Symons.

FIGHTING WESTWAY

Vol. 24 No. 9 (September 2014) pp. 504-506

FIGHTING WESTWAY by William W. Buzbee. Cornell University Press. 2014. 312pp. Hardback $79.95, paperback $24.95. ISBN: 978-0801479441

Reviewed by Nicholas Guehlstorf, Southern Illinois University, nguehls@siue.edu

FIGHTING WESTWAY is a fluid historical narrative that offers rich political discernments about a legendary case study of environmental politics. Buzbee’s chronological account and legal analysis of the rise and fall of the proposed redevelopment of an interstate along the Lower West Side of Manhattan island is accomplished with an inspirational, firsthand, objective, third-party storyline. This easy to read text has a comprehensive exploration of the key legal components of the ecological and economic battle in New York City that came to its political climax in the United States in the 1980s. The fourteen chapter book is very approachable to younger readers as the first couple pages draw parallels to Boston’s “Big Dig” transportation project and makes current references to the reconstruction efforts in New York after the loss of the twin towers. Further, the epilogue prompts the student of environmental law to consider how a similar science and citizen debate would fare today.

The author, an experienced environmental scholar, is insightful on numerous fronts but is profound when discussing what he refers to as the regulatory war. Buzbee describes regulatory wars as somewhere in between the law and politics with significant input from citizens who are invested in the issue at hand, politicians who may use the events to catapult their careers, interest groups who seek to protect specific assets, and governmental groups who may need to intervene (pp. 32-33). Buzbee’s war is not one of a simple policy dichotomy between green consciousness and unsustainable greed, rather, a drawn out legal melee stretched over four presidential administrations, resulting in shifting allegiances and varying political pressures for both State and Federal agencies caught up in the political fight. This impressive engineering project that was to be constructed with significant Federal monies created a coalition of environmental groups, local lawyers, citizen activists against New York City government, both of New York’s Senators, trade unions, real estate developers, and banks.

Westway—a reference noted by all environmental policy instructors—was a proposal to replace the West Side Highway in New York City, an elevated 1930 construction project that provided access to a once thriving port and section of the city. In 1971, regulators proposed to remodel the highway with a massive landfill 1,000 feet out into the Hudson River which would add 227 acres to Manhattan’s West Side. The infrastructure proposal drew notable opposition from environmentalists who were against filling in the waters of the already blighted Hudson River, as well as urban advocacy groups and citizens concerned about wasteful government spending and air pollution resulting from increased traffic. In the end, an environmental impact statement [*505] (EIS) requirement created a stumbling block for the project in the form of the striped bass, a species whose primary breeding grounds were located in the Hudson River and Chesapeake Bay. According to agency scientists at National Marine Fisheries and Fish and Wildlife Services, the area to be redeveloped was a crucial overwinter habitat for the threatened fish. Scientists involved in the study asserted that destruction of the ecosystem would lead to a considerable decline in the East coast striped bass population. The Army Corps of Engineers, which held responsibility for issuing permits, chose instead to cite the opinion of a biologist who asserted that the striped bass was a hearty and tough species able to sustain the effects of the fill. The EIS decision by the Corps was the final undoing of Westway, as two trials would later call the agency’s decision making into question following the discovery of inconsistencies between biological data and conclusions by other Federal agencies. The critical errors made by the Corps in regard to inconsistencies between the draft, supplemental, and final EIS created an “arbitrary and capricious” legal decision. Westway’s last chance lay with Congress, who voted to cut off the project’s funding days before the budget trade-in deadline. Drama continued, however, as trade-in funds were approved shortly after all was scuttled by Governor Mario Cuomo and Mayor Ed Koch.

Buzbee occasionally interrupts his lengthy history lesson with extraneous descriptions in an attempt to excite and entice different reader interests, a technique which unfortunately takes away from his own brilliant investigation. The desire to address a larger audience is admirable, but updating old news clippings with captions that correspond to the era’s prominent business and political figures is not needed. These current affairs and scandalous discussions, albeit entertaining, are distracting from the take-home message of the protracted legal battle: the ultimate decision on the project is attributed to regulatory science and judicial interpretation of environmental regulatory agency responsibilities. Buzbee brilliantly pens, “And when the fight eventually lands in court, victories secured before key regulatory agencies or political officials will be trumpeted to argue that the judge should show deference and keep out of the political realm. Victors before agencies will argue that courts should not displace the agency’s more expert and politically accountable judgments” (p. 44). Multiple audience scholarship seems to result in needless repetition or a senseless detail as the author repeatedly makes key points at various times to restate previous ideas for different perspectives. For instance, Buzbee doggedly explainsThe New York Department of Environment and Conservation permit for the project was held up by a failure of the Westway developers to prove that air pollution from the project would not be out of compliance with the requirements of New York’s State Implementation Plan for the Clean Air Act.This victory is not indispensable environmental history because it was short lived and the lengthy discussion of all the players is too thorough, since Westway’s planners simply modified their application to limit citizen exposure to highway pollution. Another limitation of FIGHTING WESTWAY is in regard to environmental justice, a concept that Buzbee acknowledges at points in the text but never [*506] actually deconstructs as a meritorious topic. Large-scale urban development projects are often promoted with the intent of revitalizing blighted areas and improving economic conditions within a city. Buzbee should have tapped into the contentious literature, scholarship, or advocacy of environmental justice because grand urban redevelopment enterprises are appealing to active citizens and government officials alike, but unserviceable to the silenced, disadvantaged, or marginalized at risk populations. Environmental justice was not formalized until after the Westway battle, and Buzbee missed a respectable opportunity to juxtapose environmental law and resource allocation in an urban area as he could have discussed the just argument of mass-transit ridership and exclusive benefits of massive construction projects.

These critiques aside, FIGHTING WESTWAY draws on an incredible amount of research from the primary actors in the courtroom battles that ultimately defined Westway’s place in history. The story is a thoroughly detailed look into how regulatory policies function, are challenged, and can be altered. The importance of citizen activism in holding the relevant agencies accountable is great because the intent of environmental laws via citizen-suit provisions is a lesson that needs to be understood by public administrators and politicians. Buzbee’s ability to address the middle ground between law and politics in which regulatory wars are fought by using a noteworthy historical framework allows students to gain an understanding of the varied influences in urban planning and development. The politics of Westway also provide insight into regulatory dysfunction, as both state and federal agencies contest each other’s administrative power and occasionally succumb to outside political pressure which culminates in poor administrative decision-making.

FIGHTING WESTWAY is an excellent case study that illustrates the numerous facets of environmental law, which captivates the reader in a holistic fashion better than any edited book of case studies. Those who supported the addition of a stretch of interstate roadway, including key federal figures as well as state and local heads, found their strength in numbers and the ability to access and acquire information surrounding the proposed project. The opponents--citizens, lawyers, and environmental researchers--found success in delays and the ability to dissect incorrectness in the powerbrokers and managerial elites’ arguments. In the fatal demise of the project, Buzbee asserts that supporters’ failure to erect five miles of interstate highway was of their own doing. Even with their seemingly endless access to data, engineering, and financial backing, the sad end was the result of inaccurate communication about key planning documents. FIGHTING WESTWAY does not affirm that the data provided in the course of the planning stages was knowingly altered; rather Buzbee offers a lesson that ignoring scientifically accessible risks signifies a clear regulatory error that needs to be comprehensively understood, not just casually referenced in an environmental lecture.

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© Copyright 2014 by the author, Nicholas Guehlstorf.



IN OUR HANDS: THE STRUGGLE FOR U.S. CHILD CARE POLICY

Vol. 24 No. 9 (September 2014) pp. 500-503

by Elizabeth Palley and Corey S. Shdaimah. New York: New York University Press. 2014. 276pp. Cloth $30.00. ISBN: 9781479862658.

Reviewed by Jenny Diamond Cheng, Vanderbilt University Law School, jenny.d.cheng@vanderbilt.edu.


As difficult as it is to explain a political event, it may be even more challenging to explain a nonevent. In their ambitious new book, IN OUR HANDS: THE STRUGGLE FOR U.S. CHILD CARE POLICY, professors of social work Elizabeth Palley and Corey Shdaimah tackle the question of why there has been no large-scale social movement for universal government-supported child care in the United States. Drawing on literature from various related disciplines, as well as their own interviews with policy advocates, the authors conclude that any push for universal child care in this country will require concerted political action towards a generally more expansive vision of government's appropriate role.

Palley and Shdaimah begin from the premise that the absence of a universal child care policy in the U.S. is a phenomenon that warrants explanation. The authors argue that the current system, in which each family must individually navigate a patchwork of private, often substandard, child care options, amounts to "a major social welfare crisis" (p. 6). They note that while child care problems are undoubtedly more acute for lower-income families, nearly all American parents struggle to find accessible, affordable, high-quality care for their young children. Other industrialized countries have addressed this as a public concern. Why, they ask, has there been so little political mobilization for change in the United States?

The first two-thirds or so of the book are devoted to an overview of the political landscape. Drawing on research from a wide range of scholars, the authors trace the history of child care policy in the U.S. Palley and Shdaimah suggest that public policy debates have been characterized by “a continued ambivalence about the appropriate role and purpose of government in child care and early education of young children” (p. 47). They detail the political testimony behind key pieces of federal legislation; these include Head Start, the Comprehensive Child Development Act (CCDA) of 1971, which would have funded universal preschool but was vetoed by President Nixon, the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (a.k.a ‘welfare reform’), and the Family and Medical Leave Act.

The authors argue that the current patchwork of state and federal programs "is predicated on . . . [a] causal story . . . that parents’ need for child care is an unusual, unexpected, or temporary condition” (p. 118). Programs such as Head Start and the Child Care Development Fund are designed for families in poverty, and federal and state parental leave laws offer only very restricted, time-limited protections to a subset of new parents. This is in sharp contrast to the vision of universal child care that motivated the CCDA back in the early 1970s, let alone the far more robust child care policies in other highly industrialized economies.

Palley and Shdaimah go on to heighten this contrast, detailing not only the shortcomings of the contemporary U.S. child care framework but also offering brief overviews of possible alternatives. They emphasize that government-supported child care policy takes many forms, some of which might be better suited to the American context than others. Social welfare-oriented Western European nations such as France, Sweden, and Denmark provide substantial universal child care support, of course, but the authors note that countries like England and Canada, which have more market-based economies, [*501] also offer models of successful child care policies that the U.S. might do well to emulate. Indeed, Palley and Shdaimah describe two domestic programs that already provide subsidized, high-quality child care: the U.S. military child care system; and Educare, a public-private partnership that supports care for low-income children. Such programs, they suggest, might offer preliminary models for a more universal national child care policy.

In the last third of the book, the authors present their own original data, the results of a study of child care and early education activists. Palley and Shdaimah interviewed twenty-three advocates and researchers in the area, asking them about their organizations’ efforts and challenges. Drawing on these surveys, the authors seek to explain why advocacy organizations have not coalesced around a broader social movement for universal child care.

One key problem, according to Palley and Shdaimah, is that child care advocates are divided amongst themselves about priorities and strategies. Some organizations identify child care as primarily about work support for parents, especially poor mothers. Others are mainly concerned with improving the quality of care. A number of policy advocates have tried to reframe child care as ‘early childhood education,’ particularly for low-income children, on the theory that public educational services for three- and four-year olds are more politically palatable than government-funded babysitting for infants. Other activists disagree with this approach and have concentrated on custodial care.

The authors note that the activists they interviewed do, in fact, often work together. Furthermore, their interview subjects overwhelmingly supported a broader vision of government-supported universal child care. However, believing universal care to be simply of out of the realm of political possibility, many advocates feel as though they have no choice but to focus on narrower goals. In particular, many of the respondents have strongly prioritized support for low-income families, for both practical and ideological reasons. Philanthropic priorities and strategies further reinforce this fragmentation.

Palley and Shdaimah conclude the book with a passionate call for redefining child care as an urgent, public problem. They argue that this requires, above all, strong advocacy for a more expansive vision of government itself. Progressives must push back against a conservative movement that has successfully defined government as the problem and has fiercely opposed both taxation and public spending. Universal child care can only happen as part of such a bigger social movement. "Ultimately," they conclude, "we do not need more information or more models and we do not need minor changes to existing policies. We need a revolution" (p. 220).

This book's main contribution, and it is a valuable one, is to illuminate some of the specific organizational and strategic hurdles that lie in the way of a universal, government-supported child care system. Many commentators have lamented the United States’ failure to establish such a system, and indeed, as noted above, the first part of this book is mainly a synthesis of the substantial literature examining child care policy both outside and inside the U.S. However, Palley and Shdaimah's research into what child care advocates actually think about their own work brings a unique perspective on this issue. Their discussion of these interviews, which happily includes a number of quotes from subjects, is both interesting and thought-provoking. Based on this research, the authors are able to offer a remarkably fine-grained critique of current advocacy efforts, along with very specific recommendations for change. Indeed, at a moment when quantitative research methods seem to increasingly dominate the social science world, this work is a useful reminder that for some questions, there is simply no [*502] substitute for systematic, thoughtful, qualitative research.

IN OUR HANDS was clearly a labor of love for its two authors. Both Palley and Shdiamah's interest in child care policy evolved out of their respective research in other areas of child and educational policy, but just as importantly, they are themselves both mothers of young children. In notable departures from academic convention, they make a point of thanking their children's caretakers and teachers by name in the acknowledgments, they mention their children in their author descriptions, and the book ends with a short afterword in which Palley and Shdaimah briefly describe their personal struggles to find affordable, high-quality childcare. The book is scholarly in tone and scope, but there is an underlying note of urgency that amplifies the authors' arguments

In constructing their survey, Palley and Shdaimah reached out to groups that they assumed would oppose government-supported universal child care, mainly conservative pro-business organizations. However, only one opponent – Phyllis Schlafly of the Eagle Forum -- was willing to participate in the study. Through no fault of their own, then, the authors' research therefore overwhelmingly reflects the perspectives of advocates who, like the authors themselves, strongly support a much more expansive federal family policy.

This is unfortunate, because at times the book's commitment to a particular normative vision seems to obscure some important complexities. Some commentators have noted, for example, that from certain perspectives the American small-government, market-oriented approach to family policy has actually been quite successful. Political scientist Kimberly Morgan, who has closely compared child care policies in several Western European countries and the U.S., points out that the American system has resulted in both relatively high rates of maternal employment and a lively market for child care services, both for-profit and nonprofit (Morgan 2006). Furthermore, while in some countries low birth rates have been an impetus for national family policies, the United States continues to have one of the highest fertility rates among developed nations (Central Intelligence Agency).

This is certainly not to say that the authors' critique of the status quo is unfounded. As Palley and Shdaimah emphasize, the current system has devastating consequences for low-income families. Indeed, Morgan too suggests that the U.S. model benefits higher-income women at the expense of poorer women, not least of all child care workers themselves. And the authors' core argument, that advocates must work to reframe child care as a public rather than a private issue if they are to make any meaningful political progress at all, seems unassailable.

However, contrary to Palley and Shdaimah's claim that "we do not need . . . more models," the best hope for a more comprehensive child care system in the United States may in fact require just that. Edward Zigler, who, as the first head of the Office for Child Development and chief of the Children's Bureau, helped to draft the 1971 Comprehensive Child Development Act, has asserted that today, such legislation would be "unrealistic both pragmatically and politically" (Zigler, Marsland and Lord 2009). Any workable U.S. child care program will have to be tailored to the particular realities of this country, which include substantial ethnic, economic, and religious diversity, a tradition (albeit somewhat waning) of local control of education; and a relatively flexible economy. In the end, this may well be the work of policy wonks, rather than revolutionaries, after all.

IN OUR HANDS is a thoughtful, carefully written book that is a welcome addition to the literatures on child care policy, social movement theory and organizational politics. [*503]


REFERENCES

Central Intelligence Agency. "The World Factbook." https://www.cia.gov/library/publications/the-world-factbook/rankorder/2127rank.html (September 2, 2014).

Morgan, Kimberly J. 2006. WORKING MOTHERS AND THE WELFARE STATE: RELIGION AND THE POLITICS OF WORK-FAMILY POLICIES IN WESTERN EUROPE AND THE UNITED STATES. Stanford: Stanford University Press.

Zigler, Edward, Katherine Marsland, and Heather Lord. 2009. THE TRAGEDY OF CHILD CARE IN AMERICA. New Haven: Yale University Press.

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©Copyright 2014 by the author, Jenny Diamond Cheng.