A CITIZEN’S GUIDE TO THE CONSTITUTION AND THE SUPREME COURT: CONSTITUTIONAL CONFLICT IN AMERICAN POLITICS

by Morgan Marietta. New York, NY: Routledge, 2013. 217pp. Cloth, $120. ISBN: 978-0415843799. Paper $19.95. ISBN 978-0415843812.

Reviewed by Stephen A. Simon, Department of Political Science, and Program in Philosophy, Politics, Economics, and Law, University of Richmond. Ssimon [at] richmond.edu

pp.90-92

In one sense, A CITIZEN’S GUIDE TO THE CONSTITUTION AND THE SUPREME COURT, by Morgan Marietta, is exactly what the title suggests: an introductory text that assumes readers have little to no specialized knowledge on the book’s central subjects. Marietta, however, has rendered certain fundamental decisions about the book’s direction that make it especially valuable in a specific way that is suggested by the subtitle: “Constitutional Conflict in American Politics.” Hearing the title alone, one might imagine a relatively dry text that walks the reader in a ploddingly dutiful manner through the Constitution’s history and provisions, followed by sections on judicial procedure and major Court decisions. While there may well be a place for such a text, this reader was happy to find that this book was not that book.

A CITIZEN’S GUIDE treats the Constitution as a frame for debate, not as a list of rules. Studying the Constitution, then, is not a matter of learning established principles, but of understanding crucial axes of disagreement. The recognition of constitutional discourse as inherently conflictual fits hand in glove with the book’s focus on methods of interpretation. It emphasizes that debates over interpretive methods are crucial to constitutional study regardless of the particular doctrinal area one is considering. Since constitutionality and justice are not coextensive, entering constitutional debates necessarily entails taking positions on interpretive questions that transcend the merits of specific cases. Indeed, Marietta aims the book at preparing readers for forming their own views on these interpretive questions so that they can join constitutional debates in an informed manner.

The recognition of constitutional law as conflictual to the core is reflected in the book’s basic architecture. Marietta identifies nine “points of conflict” about interpretation, concerning such matters as federalism, the legitimacy of judicial review, and the question of whether the founding document is essentially religious or secular in character. Part I consists of nine chapters, each devoted to one point of conflict. Part II is constructed around the presentation of four competing schools of interpretation: originalism, textualism, common law constitutionalism, and living constitutionalism. After individual chapters on each of the four schools of interpretation, Part II includes a chapter entitled “Comparing Schools of Interpretation,” which provides guidance on working from one’s views on the points of conflict to understandings of the clashes between the schools. This [*91] discussion introduces six additional issues on which the schools take varying positions, including what they consider the most and least important part of the Constitution. The chapter is followed by one applying the ideas examined to ROE V. WADE and another applying them to a range of contemporary cases.

The book’s most distinctive contribution is the manner in which it connects the nine points of conflict with the four competing schools of interpretation. Marietta invites readers to consider their views on each of the nine points as a precursor to identifying the school of interpretation that they consider most appropriate. This approach is useful because it breaks down the clash between competing schools into more fundamental axes of disagreement. It also allows the reader to see why certain ideas tend to cluster together, although they need not do so. The discussion observes that the interpretive schools do not differ only on their positions on each of the nine points, but also on which of the points they consider most pivotal. Thus, the defining positions of textualism, for example, are: (1) that the Constitution itself is a complete source of interpretive guidance; (2) that precedents in themselves are of relatively little importance to interpretation; and (3) that interpretation should focus on the text’s plain meaning rather than searching for transcendent principles. By contrast, the defining positions of living constitutionalism are: (1) that judicial review, including the power of courts to recognize social change, should be viewed as legitimate and expansive; (2) that interpretation requires consultation of various sources outside the constitutional text; and (3) that sound interpretation necessarily entails consideration of general principles embedded in the document as a whole.

HATE THY NEIGHBOR: MOVE-IN VIOLENCE AND THE PERSISTENCE OF RACIAL SEGREGATION IN AMERICAN HOUSING

by Jeannine Bell. New York: New York University Press, 2013. 259pp. Cloth $30.00. ISBN: 978-0-8147-9144-8.

Reviewed by Jared D. Perkins, Department of Political Science, University of North Texas. Email: jaredperkins[at]my.unt.edu.

pp.86-89

In 2012, more than 5,700 bias-motivated hate crimes were committed in America, with 48.3 percent of these offenses motivated by racial bias alone (Federal Bureau of Investigation 2012). A subset of these crimes were committed in or around the homes of the targets, and included vandalism, arson and property damage, often intended to signal to the targets of the attacks that they are not welcome in the neighborhood. In HATE THY NEIGHBOR: MOVE-IN VIOLENCE AND THE PERSISTENCE OF RACIAL SEGREGATION IN AMERICAN HOUSING, Jeannine Bell investigates racially-motivated hate crimes that occur around the time individuals move into a neighborhood, which she terms “anti-integrationist violence.” Bell explores this underaddressed area of racially biased attacks, highlighting the ways that they are distinct from other race-motivated hate crimes and the increased need for law enforcement to confront the unique factors related to cases involving anti-integrationist violence. This book is a much-needed addition to the literature on race and hate crimes in the United States, and raises awareness of the need to address the causes and consequences of anti-integrationist violence.

Chapters 1 and 2 focus on the historical evolution of housing integration between racial minorities, primarily African-Americans, and whites in the United States. Bell notes that before the Civil War, racial integration in housing was far more common and large shifts did not start occurring until the end of the nineteenth century. After the end of reconstruction, residential communities started to use legal tools, such as segregation ordinances, to restrict neighborhoods to white families. With the increase in African-American migration into urban centers in the early twentieth century, tension over housing integration increased and segregation was sometimes enforced using violent means, with mobs creating inhospitable environments for racial minorities moving into white neighborhoods. Bell also documents the way that the federal government institutionalized segregation in housing through the issuing of Federal Housing Administration loans, which were based on guidelines that discouraged racial integration. Even when African-Americans were able to find housing in a predominantly white neighborhood and were spared mob violence, they often found that the property they sought to purchase had a restricted covenant attached to it which forbade the sale of the home to racial minorities. Bell notes that even after the Supreme Court struck down racial covenants as unconstitutional, similar covenants instructed realtors not to sell to “undesirable peoples” and thus perpetuated de facto housing [*87] segregation.

Looking specifically at the history of anti-integrationist violence, Bell finds that over time the perpetrators changed from being largely organized groups, such as the Ku Klux Klan or neighborhood associations, to individuals who felt threatened by a member of a racial minority moving into their neighborhood. Accompanying this shift was the implementation of the Fair Housing Act as a solution to anti-integrationist violence and its underlying causes. However, Bell notes, both in the historical context in Chapter 2 and in discussing the Act's current efficacy in Chapter 6, that it is not an adequate tool to address racially-biased hate crimes that are designed to intimidate the targets to leave a neighborhood. Finally, Bell concludes her historical survey by discussing the passage and implementation of hate crimes legislation that was designed to elevate the status of acts of anti-integrationist violence from petty crimes to offenses that deserve specialized attention from law enforcement.

THE TOKYO ROSE CASE: TREASON ON TRIAL

by Yasuhide Kawashima. Lawrence, KS: University Press of Kansas, 2013. 189pp. Cloth $34.95 ISBN: 978-0-7006-1904-7. Paperback $17.95 ISBN: 978-0-7006-1905-4.

Reviewed by Staci L. Beavers, Department of Political Science, California State University San Marcos. Email: sbeavers [at] csusm.edu.

pp.83-85

While many Americans might recognize the name "Tokyo Rose" if they ran across it, few are likely to know the tragedy behind the infamous but apocryphal radio moniker. Yasuhide Kawashima's THE TOKYO ROSE CASE: TREASON ON TRIAL introduces a new generation of readers and the broader public to an historically significant failure of the criminal justice system.

Kawashima's brief volume brings to life the heartbreaking story of Iva Toguri d'Aquino. As a young American citizen marooned in Japan during World War II, d'Aquino worked for a time as one of Radio Tokyo's English-speaking radio personalities. She became known to Americans after the war as the infamous "Tokyo Rose," a radio personality who allegedly tortured Allied troops with taunts about the comforts of civilian life they had left behind, the faithlessness of their women, and their poor prospects for winning the war.

Yet "Tokyo Rose" herself never existed, as the stage name was never used by any of Radio Tokyo's English-speaking broadcasters (pp.27-28, 40-41). As for d'Aquino, Kawashima draws on existing accounts to describe her American patriotism while she was stranded behind enemy lines during the war. Her "Zero Hour" broadcasts were scripted by Allied POW's working subversively to undermine Japanese propaganda efforts and broadcast more Allied-friendly entertainment without raising the suspicions of their Japanese captors (pp.29-33). Yet after Japan's surrender, d'Aquino was brought back to the U.S. in military custody, accused of treason for allegedly broadcasting reports and commentary undermining American troop morale. Convicted of treason on one of eight counts in a highly questionable trial, d'Aquino was sentenced to prison, stripped of her citizenship, and assessed a hefty fine that the U.S. government went to great pains to collect. Only after she earned parole and successfully faced down the government's attempts to deport her did a public campaign to win a presidential pardon gain momentum. Yet Kawashima explains how, after an unjust prosecution cost Iva Tugori d'Aquino her freedom, her reputation, her marriage, and years of litigation to fight deportation, President Ford's 1977 pardon provided only a partial restoration of justice for d'Aquino, who died in 2006.

Kawashima appeals for what he argues is a more just resolution: a posthumous exoneration through a court order acknowledging the government's misconduct throughout the case. Fittingly, Peter Irons' trailblazing effort to win writs of coram nobis for Fred [*84] Korematsu and other Japanese Americans unjustly prosecuted during World War II provides the foundation for such a writ here (pp.160-166). However, Kawashima never addresses whether such an option is even available for the deceased, perhaps a doubtful prospect (see, for example, Wolitz, 2009).

A PRINCIPLED STAND: THE STORY OF HIRABAYASHI v. UNITED STATES

by Gordon K. Hirabayashi with James A. Hirabayashi and Lane Rio Hirabayashi. Seattle, WA: University of Washington Press, 2013. 217pp. Cloth, $29.95. ISBN: 978-0295992709.

Reviewed by James C. Foster, Political Science, Oregon State University-Cascades. Email: james.foster [at] osucascades.edu.

pp.77-82

In 1955, Pete Seeger, the recently deceased folk singer and activist, famously sang “Oh, when will they ever learn?” Twelve years earlier, in the Summer of 1943, Gordon K. Hirabayashi journaled: “In a position and circumstance like [mine], a fellow has a chance to do a lot of meditating and reflecting. . . . [T]he stars that I have seen for years had a fresh appearance. . . . They seemed to be viewing the feverish ways of man, saying, “When will he ever learn?” (p.146). Hirabayashi had cause to reflect. His “position and circumstance” in that mid-World War II Summer found Hirabayashi temporarily stranded on a deserted roadside near Umatilla, Oregon, awaiting a lift in the wee hours of the morning, while “thumbing” his way from Spokane to Tucson to serve a nine-month sentence, following a conviction that had been upheld by the U.S. Supreme Court in HIRABAYASHI V. UNITED STATES (1943). Hirabayashi had been convicted of violating – he would say resisting – the federal curfew and exclusion orders mandated by a series of post-Pearl Harbor presidential, legislative, and military edicts targeting persons “of Japanese descent.” In a deeply ironic episode, because as the U.S. Attorney in Spokane told Gordon “I don’t have travel funds” (p.145), Hirabayashi had to devise his own way to travel 1,600 miles to the Catalina Federal Honor Camp in order to serve his time. His trek took two weeks.

Both Pete Seeger and Gordon Hirabayashi took principled stands throughout their lives. Each, in his own honorable way, touched untold people’s lives while furthering social justice. Both suffered consequent slings and arrows. Seeger’s tool was his banjo, emblazoned with the Guthrie-like slogan: “THIS MACHINE SURROUNDS HATE AND FORCES IT TO SURRENDER.” Hirabayashi’s unwaveringly resolute approach, while less dramatic, was no less effective. Equally, Seeger and Hirabayashi employed the power of words. Each lived exemplary lives.

However inspiring and pertinent a comparison of Seeger’s and Hirabayashi’s principled stands may be, Review readers rightly expect work product assessments, not testimonials. Alright then: A PRINCIPLED STAND is an essential supplement. It adds previously missing biographical and sociological aspects to the literature parsing a telling episode in the “Politics of Prejudice” (Daniels, 1962), culminating when the United States government, after the Pearl Harbor attack, initially regulated the free movement of, then rounded up, excluded, and confined in concentration camps, nearly 120,000 persons of [*78] Japanese descent from February 1942 until January 1945 (Kashima, 2003). Two thirds of these people were American citizens, including Gordon Hirabayashi.

A brief sidebar: the book’s subtitle is misleading. A PRINCIPLED STAND is so much more than strictly the story of HIRABAYASHI V. UNITED STATES, the 1943 U.S. Supreme Court decision. The subtitle would more accurately read “The Story BEHIND HIRABAYASHI V. UNITED STATES,” or “The Story UNDERNEATH HIRABAYASHI V. UNITED STATES.” What’s in a preposition? Better still: “HIRABAYASHI V. UNITED STATES: THE BACKSTORY.” Then again, it would be hard to improve on the title of Theodore Dreiser’s magnum opus: AN AMERICAN TRAGEDY. Regardless, Gordon Hirabayashi tells HIS story. He also shares stories about his family, his friends, and his associates. Additionally, he relates engaging and revealing encounters with a variety of bit players in this very American chronicle. His narrative is historically mortifying. It also is heart-warming and personally triumphant.

THE POLITICAL POWER OF PROTEST: MINORITY ACTIVISM AND SHIFTS IN PUBLIC POLICY

by Daniel Q. Gillion. Cambridge and New York: Cambridge University Press, 2013. 205pp. Hardcover $85.00 ISBN 978-1107031142. Paperback: $27.99 ISBN: 9781107657410.

Reviewed by Jonathan Goldberg-Hiller, Professor of Political Science, University of Hawai‘i

pp.73-76

Daniel Q. Gillion’s book argues that racial and ethnic protest actions influence federal politicians and policies, and it offers an innovative quantitative methodology to bring protest back into the viewfinder of political behaviorists. While behaviorists have long been debating the significance of protest, many other sociolegal scholars and historians, few of which are acknowledged in this book, have looked toward protest events as rich sources of political meaning, tracking the discursive transformations and rhetorical innovations that such events have caused (McCann 1994; Frymer 2008; Epp 1998), and examining the broad international contexts in which American governmental elites have operated (Skrentny 2002; Dudziak 2000). Gillion situates his research in between the study of protest mechanics and elite theories of response to social movements in order to explain the linkage mechanisms by which protests make a measurable difference. It is here that his book brilliantly expands upon the behaviorist tradition, marshaling evidence for the causal importance of protest. But it is also in this liminal theoretical space that the book fails to sharpen a critical edge that might demonstrate not only how protest creates progressive politics, but also how it often fails to bring about justice (Piven and Cloward 1978).

Gillion develops a theory of the “continuum of information” to explain how protest provokes government response. Information is expressed by protest movements in several ways: the levels of contention, organizational structures of protest movements, the “signals of ideological preference” (p.20), and political framing. While a number of these aspects involve expressive politics, Gillion aggregates them as the continuum of information responsible for “cueing” government actors into the concerns of ethnic and racial communities. What drops out in this amalgam of “information” are the rhetorical lifeworlds of protests. It is telling, for instance, that while Gillion notes that Rep. Maxine Waters called the 1991 Los Angeles protest following the Rodney King beating a “rebellion” (p.62) he retains the common moniker “riot” for such protests throughout the book. Information, for Gillion, reflects a cybernetic concern for the self-maintenance of social order, and protest events are quantified in sophisticated ways that model a neural network where sufficient stimulation of various sorts provokes a synaptic response. My analogies here are designed to highlight the tradeoffs of such an approach: on the one hand, the book casts a wide net that can assess the various modes in which disruptive protest politics matters. Gillion even accounts for the effects of counter-protests (which have been [*74] shown elsewhere to be a significant dynamic of contemporary minority-rights politics (Dudas 2008; Goldberg-Hiller 2004)) as though they are inhibitions on the signals sent to officials; only when minority protests surpass the intensity of anti-minority -rights signals do they come to matter. On the other hand, the interior of the “black box” opened by such an approach remains rather gray: we don’t learn much about how rights language or other rhetoric involved in minority protests, for instance, matter to government response, nor can we see the manner that government responses recursively condition protest environments.

In the central chapters of the book, Gillion examines the significance of protest in Congress, the Presidency and the Supreme Court, demonstrating statistical models of impact derived from interesting, spatialized and temporalized measures of protest events (Chapter 2: “Measuring Information in Minority Protest” is one of the best of the book.) Gillion demonstrates that protests make a difference at the congressional district level, even where collective responses are weak. One example of his findings: 50 or more racial or ethnic protest events in a representative’s district translates to a 5% greater likelihood of a liberal vote favoring minority issues, and protests matter even for encouraging minority representatives to take pro-minority positions. It is hard to know, absent detailed historical analyses, how substantively significant these finding are, but his study offers statistical support to other scholars wishing to bring more light to these relationships.

NOT GUILTY: ARE THE ACQUITTED INNOCENT?

By Daniel Givelber and Amy Farrell. New York and London: New York University Press, 2012. 187pp. Cloth $35.00. ISBN:978-0-8147-3217-5.

Reviewed by C.L. Segal, University of Texas-Arlington (retired).

pp.69-72

NOT GUILTY: ARE THE ACQUITTED INNOCENT? by Givelber and Farrell should have used ‘looking at Kalven and Zeisel’s classic study 50 years later’ as its subtitle. They never expressly answer the subtitle’s question or even discuss the issue.

The authors rely upon National Center for State Court data to reach their comparisons and conclusions between juries and judges. References to the findings of Kalven and Zeisel are found throughout the book. Interestingly, 50 years have apparently displayed few major differences in how judges and juries make decisions. These decisions continue to be reached in much the same manner, according to data presented by Givelber and Farrell.

Givelber and Farrell emphasize data that showed how often judges agreed with jury findings. There was more agreement with guilty verdicts than with acquittals.

Judges and juries disagreed about the strength of 40% of cases and data showed that juries were likely to acquit in 45% of cases of disagreement. There is need for further study into the reasons for this deviation. The authors believe that there is a racial cast to these findings, but here, as throughout the book the argument is underdeveloped: they offer no reason in support of their hypothesis.

Judges indicated that they were more likely to convict Blacks at a higher rate than those of other races. Judges were also more frequently in agreement with jury verdicts of acquittal when defendants were White or Hispanic rather than Black. The authors conclude that the jury and not the judge has greater success in treating defendants of all races comparably. No explanation is put forth to help understand this phenomenon.

While judges are listening to the evidence to determine sufficiency, they are not necessarily listening to resolve credibility issues. Jurors, in contrast, are reported to weigh witness credibility very heavily. It often is the subject of extensive deliberations and the basis of the verdict.

The NCSC data that was analyzed by the authors found that in only 11% of the cases did judges and juries agree on not guilty verdicts. This is quite a large discrepancy when compared to the agreement when there is a finding of guilt. Once again the authors do not put forth any hypothesis or rational for this.

It is hard to understand why the authors omit mention of the influence of the media in comparing jurors today and those who sat as decision-makers 50 years ago. I do not mean to imply that [*70] the media influences whether a defendant is found guilty or acquitted. Rather, because of the large number of criminal related programs, jurors today are usually knowledgeable about a courtroom and the various players involved in a case, criminal or civil.

HUNGER, HORSES, AND GOVERNMENT MEN: CRIMINAL LAW ON THE ABORIGINAL PLAINS, 1870-1905

by Shelley A.M. Gavigan. Vancouver: UBC Press. 2012. 274pp. Cloth $95.00/$99.00 US. ISBN: 978-0-7748-2252-7. Paper $34.95/$37.95 US. ISBN:978-0-7748-2253-4

Reviewed by Jeffrey Sanders, Department of Social Sciences and Cultural Studies, Montana State University-Billings. Jsanders [at] msubillings.edu

pp.66-68

In this meticulously researched work Professor Gavigan examines the introduction of Canadian criminal law in the western plains of Canada following 1870. In doing so she examines some of the consequences of behavior of two colliding cultures at the interface of time and values; with one culture group being the indigenous people of the western plains of Canada and the other being the Canadian government and its representatives. This volume is part of a series published by the UBC Press for the Osgoode Society for Canadian Legal History.

Gavigan’s first sentence sets the tone for the rest of the book, “This book tells a little-known story, relying on voices seldom heard” (p.3). She researches court records searching for the consequences of criminal law being applied to First Nations people in the years shortly following the implementation of the Indian Act of 1876. Professor Gavigan notes and defines the differences between ‘high law’ and ‘low law’ and acknowledges that, “It is low law, however, that affects most people…and most directly affects the poor, marginalized, the vulnerable and the oppressed….” (p.13). And from here the author takes the reader on a little known, but well researched tour of low law of the Canadian plains in the latter half of the 19th century. She closely examines the court records of Hugh Richardson who was the first magistrate with whom the First Nations of Saskatchewan had to deal. In order to do this she delves into a niche of time and activities with a bifocal lens that combines good legal historical reporting with a look at the dynamics of the indigenous people of that time who had to deal with the newcomers (Canada’s) sense of values and legal power. In doing so Gavigan combines legal history with sociology and anthropology and examines the results of First nations being both defendants and plaintiffs, informers, witnesses and interpreters. The latter role of interpreter is particularly important when dealing with people trying to figure out each other’s world view and sense of values.

It has often been noted how hard and generally inaccurate it is to judge one culture’s behaviors by another culture’s values. This is exactly the focus and goal of this book, that is, an examination of early low court criminalization cases (read people involved) caught in the jaws of relatively newly enforced Canadian laws. And Gavigan is quick to state, and herein lies one of the main contributions of this book, that while the common view of the Indian Act 1876 was seen as an attempt at forced [*67] assimilation (which it partly was) she argues that the activities of the First nations involved were not so much criminalized by the act rather, “They were prosecuted as Indians – not as criminals – for violating the Indian Act, for not conforming to the behavior required of Indians by this legislation” (p.22). In fact she demonstrates that First Nations’ political leaders also used the police and court system to defend and advocate for their people as plaintiffs.

In order to take on the above challenge data were gathered from two major sets of Hugh Richardson’s criminal court records. One is from his time as stipendiary magistrate (1876-1886) and the other is from his tenure as Supreme Court judge of the North-West Territories (1887-1903). Gavigan also analyzed data from other justice of the peace records as well as from prison records and newspaper articles to mention just a few of her many sources, all of which add depth to the accuracy of her findings.

In her first chapter Professor Gavigan describes the legal framework and the introduction of criminal law in the Canadian Plains during the last three decades of the 19th century. In order to do that she contextually describes the history and importance of the Hudson Bay Company (HBC) as the major European agency in the entire Indian Territories until that area was acquired by Canada. When HBC was the primary administering agency First Nations policy was mainly of non-intervention into the social lives of First Nations. However, that dramatically changed when Canada instituted its new legal codes. The personal lives and conduct of First Nations people were tremendously changed and influenced when the economic base of the HBC was supervened by the formal assimilation policies of the Indian Act. Gavigan’s careful and diligent research from individual court and newspaper records amply present this as such. As a case in point her research is so meticulous that she notes different spellings of the same person’s name from different sets of records. She clearly follows the dilemma of a young man who was tried for stealing a horse under the new set of laws while just a few years prior that same behavior would have been culturally appropriate for a young man trying to impress his sweetheart or prove his manhood.

GHOST DANCING WITH COLONIALISM: DECOLONIZATION AND INDIGENOUS RIGHTS AT THE SUPREME COURT OF CANADA

by Grace Li Xiu Woo. Vancouver: UBC Press, 2011. 360pp. Cloth $85.00/$94.00 (US). ISBN: 978-0-7748-1887-2. Paperback $34.95/$37.95 (US). ISBN: 978-07748-1888-9.

Reviewed by Kate Puddister, Department of Political Science, McGill University. Email: kate.puddister [at] mail.mcgill.ca

pp.63-65

In GHOST DANCING WITH COLONIALISM Grace Li Xiu Woo embarks on an ambitious task. Woo aims to categorize the jurisprudence of the Canadian Supreme Court through a binary analysis of colonialism versus decolonialism/postcolonialism. To achieve this, she takes her readers through a densely written examination of British imperialism and colonial history, a review of Kuhn’s theory of paradigms, an analysis of the social construction of categorization and prototypes, and a description of colonial/postcolonial paradigmatic models. All of this is completed to lay the groundwork for her analysis of Supreme Court judgments on the topic of aboriginal and treaty rights as defined by section 35(1) of the Constitution Act, 1982. While this foundational work, which comprises approximately half of the text, is at times a dense and challenging read, it leads readers to Woo’s significant scholarly contribution: the expert legal analysis of sixty-five indigenous rights cases. It is through this project that Woo ultimately attempts to answer the question: “Is the Supreme Court of Canada colonial or postcolonial?”

Before Woo presents her legal analysis and thrust of the book’s argument, she provides a historical review of British imperialism and Canadian colonialism. Essentially, she sets out to refute the misconception that Canada is without a colonialist past, a fallacy that even the learned members of the Supreme Court of Canada have perpetuated. To demonstrate this misconception, she outlines the many anomalies of the indigenous experience and the vestiges of imperialism that are still perpetuated by Canada. Indigenous political rights have been routinely denied or ignored throughout Canadian history, beginning with the fact that no indigenous nation took part in the negotiations that lead to Canadian Confederation in 1867. Although treaties signed between the Crown and indigenous groups describe a relationship that is based on distinct and separate sovereignties, indigenous peoples are assumed to be part of the Canadian polity. Additionally, while section 91(24) of the Constitution Act 1867 provides the Parliament of Canada jurisdiction over “Indians and lands belonging to Indians,” this provision is implemented in a legislature that routinely lacks any substantial indigenous voice and representation. Woo also finds that the granting of franchise to indigenous people is not evidence of inclusion of indigenous groups in Canadian society. Instead, it can be understood as an act of colonialism. The granting of franchise is a further imposition of Canadian [*64] citizenship on groups without their consent. These facts, among many other detailed examples provided by Woo, demonstrate that Canada not only has colonial past but also routinely exercises this brand of colonialism in present-day indigenous relations. Woo further explains that this relationship between indigenous people and Canada stands in opposition to the norms of international law that have progressed to reject the conquest model in favour of one based on popular consent.

Moving beyond this review of Canadian indigenous relations, Woo delineates between colonialism and postcolonialism. Colonialism is comprised of the imposition of an external normative system, with a coercive foundation (military, economic, or social) that serves to perpetuate an inequitable distribution of resources, and the denial of political representation/ voice. Postcolonialism is identified by the self-determination of laws, a process that is consensual, a distribution of power that is equitable, and a respect of minority rights and alternative opinions (pp.91-93). With these characteristics established, Woo creates a dichotomist framework for her legal analysis. She analyzes the Supreme Court’s record as a colonialist institution through several categories: judge, parties, issues, procedure, venue, evidence, concept of law, reasoning, values, and perspective. For example, a judge can be viewed as either an alien decision maker (colonial) or a peer decision maker (postcolonial). The decision can be founded on reasoning that is either declaratory (colonial) or principle explanation (postcolonial). The perspective of the Court’s action could be either ethno-/egocentric (colonial) or demonstrate respect/place for others (postcolonial). This framework is applied to all of the Court’s decisions concerning section 35(1) from 1982 to 2006, resulting in the analysis of 100 judgments for 65 different cases.

FATHER, SON, AND CONSTITUTION: HOW JUSTICE TOM CLARK AND ATTORNEY GENERAL RAMSEY CLARK SHAPED AMERICAN DEMOCRACY

by Alexander Wohl. Lawrence, KS: University Press of Kansas, 2013. 486pp. Cloth $39.95. ISBN: 978-0-7006-1916-0.

Reviewed by Aaron J. Ley, Department of Political Science and Public Administration, University of North Dakota, aaronley [at] gmail [dot] com.

pp.58-62

Very rarely in American history do a father and son duo exercise the power that Tom and Ramsey Clark wielded as Attorneys General, respectively for Harry S. Truman and Lyndon B. Johnson. It is made even more remarkable by the fact that this father-son duo exercised power in divergent ways and that Tom Clark was a sitting US Supreme Court Justice at the same time that Ramsey Clark was rising through the ranks of the Justice Department (Justice Clark would step down in order to pave the way for Ramsey’s nomination to Attorney General). Alexander Wohl, a former United States Supreme Court Fellow and Adjunct Professor at American University’s Washington College of Law, describes the evolution of the policy positions taken by the Clarks in his dual biography of the pair. His purpose is to “examin[e] a number of key periods, policies, and legal conflicts in which these two important legal figures were involved, [so that] we may better understand how and why our nation reaches the decisions it does today, how we strike the difficult balance between our individual liberties and our government’s power over us, and perhaps even how to apply the lessons learned to contemporary issues” (p.6).

If you are an academic that is interested in a methodologically sophisticated analysis that examines a number of different theoretical propositions, then FATHER, SON, AND CONSTITUTION may not be for you. But that does not mean that this comprehensive study lacks merit. Wohl successfully describes in detail two important historical figures who are under-studied despite their critical role in the development of American legal policy. It is for this reason that I think this book is an important contribution to the literature, especially for those who teach courses in constitutional law. If you are anything like me, you are interested in painting a vivid picture for students about the historical and political context in which the US Supreme Court is making its decisions and this book provides a number of examples of the power struggles that shaped politics from the Roosevelt Administration to the Johnson Administration and even to this day. What follows are some of the strengths of Wohl’s examination of the Clark family saga, followed with a small dose of critical commentary.

In his well-researched analysis, Wohl relies on primary and secondary sources to describe how the Clarks were raised, how they came to power, how they exercised power, and how they continue to influence American legal policy after stepping down from their positions of power. From personal interviews with [*59] Ramsey Clark to the examination of Justice Clark’s papers at the Harry S. Truman Library, Wohl sketches a portrait of the Clarks that “span[s] the ideological spectrum and reflect[s] the exigencies of their times” (p.2). We learn from this analysis that the Clarks trace their ancestry to men who fought on the side of the Confederacy during the Civil War. Ironically, both Tom and Ramsey Clark played a critical role in securing victories on behalf of the Civil Rights movement, victories that included Justice Clark’s vote in BROWN V. BOARD OF EDUCATION (1954) and Ramsey Clark’s involvement in the passage and enforcement of the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

While the Clarks were significant contributors to the recognition of important civil rights, such was not always the case for the politically pragmatic Tom Clark. We learn that before Tom Clark was elevated to the Supreme Court, he held important positions in the Roosevelt Administration that required him to oversee the internment of Japanese Americans, upheld in KOREMATSU V. UNITED STATES (1944), a role that Clark would later come to regret and describe as a mistake in his professional life. Due to his loyalty to the administration, and his successful investigation and prosecution of fraud in connection with the war effort, the elder Clark was eventually promoted to Assistant Attorney General where he was head of the Antitrust Division and later the Criminal Division. When Truman became president, he elevated Clark to Attorney General where he began executing a groundbreaking legal strategy by filing amicus curiae briefs with the Supreme Court and the lower federal courts in important civil rights cases. This was made all the more remarkable by the fact that both Truman and Clark were raised in the segregated states of Missouri and Texas, respectively. Their efforts culminated in the production of the famous presidential report, “To Secure These Rights,” and Clark was responsible for “work on both legal and political aspects of the president’s civil rights agenda [that] played a significant role in helping educate the nation and setting the stage for the civil rights revolution of the 1960s” (p.93).

ORIGINALISM AND THE GOOD CONSTITUTION

by John O. McGinnis & Michael B. Rappoport. Cambridge and London: Harvard University Press, 2013. 312pp. Cloth $39.95. ISBN: 978-0674725072.

Reviewed by Whitley Kaufman, Departments of Philosophy and Global Studies, University of Massachusetts Lowell. Email: Whitley_Kaufman [at] uml.edu

pp.52-57

Law professors John McGinnis and Michael Rappoport provide what they claim is a “new normative defense of constitutional originalism” (p.2). It is an attempt to respond to the problem of establishing a justification for the originalist doctrine, “the view that the Constitution should be interpreted according to its original meaning” (p.1). They reject the notion that originalism simply follows from the concept of law or the idea of the rule of law, as other originalists have argued (p.4). What is needed, they think, is a moral and political defense of why originalism and only originalism can produce a just society: “our central argument for originalism is that it preserves the benefits of a desirable Constitution” (p.12). Throughout the book, the authors have the unfortunate tendency of lawyers to tell you what they’re going to say, then say it, then tell you what they have said. As a result, the writing can become repetitive. Nonetheless, this method at least promotes the virtue of clarity, a point on which the authors excel.

McGinnis and Rapport present two “basic claims”: first, that a good constitution “is one that promotes the welfare of the people and that such a constitution should be followed,” and second, that “passing a constitution through a strict supermajoritarian process provides the best method” for creating a good constitution (p.19). The argument, they insist, relies on minimal normative assumptions: “we merely assume that good consequences are produced by a constitution that incorporates the core principles of the liberal tradition and has the support of the people” (p.11). More controversially, they adopt the moral theory of “welfare consequentialism,” a version of utilitarianism, which holds simply that one should aim at producing the greatest welfare for the people. To be precise, they adopt a variant of consequentialism known as “rule-consequentialism,” the idea that the best way to maximize welfare is to “follow settled rules and practices” (p.24).

The essence of the argument, according to the authors, can be captured in three premises:

First, desirable constitutional provisions (or as we also call them, entrenched laws) should take priority over ordinary legislation because such entrenchments establish a structure of government that preserves democratic decisionmaking, individual rights, and other beneficial goals. Second, appropriate supermajority rules are a sound method of producing legitimate and desirable entrenchments and no superior method is available. Third, the Constitution and its amendments [*53] have been passed in the main under appropriate supermajority rules, and thus the norms entrenched in the Constitution tend to be desirable.

They conclude: “From these premises, it follows that the desirability of the Constitution requires that judges interpret the document based on its original meaning because the drafters used that meaning in deciding whether to adopt the Constitution” (p.11).