SPEAK FREELY: WHY UNIVERSITIES MUST DEFEND FREE SPEECH

Vol. 29 No 3 (March 2019) pp. 34-39

SPEAK FREELY: WHY UNIVERSITIES MUST DEFEND FREE SPEECH, by Keith E. Whittington. Princeton: Princeton University Press, 2018. 232 pp. Cloth $24.95. ISBN 978-0-691-18160-8.

Reviewed by Wayne D. Moore, Department of Political Science, Virginia Tech. Email: wmoore@vt.edu.

In SPEAK FREELY, prominent constitutional scholar Keith Whittington argues that universities in the United States should uphold free speech. This is a timely book on an important topic of widespread interest. Whittington’s analysis is cogent, crisp, well-reasoned, and widely accessible.

This book offers a doubly “internal” perspective toward speech within universities. First, it is written by a highly esteemed faculty member at Princeton University, one of “the great universities on the East Coast” (p. ix). Second, the book largely brackets questions about “external” legal limits on universities, such as the guarantees of free speech in the First Amendment to the U.S. Constitution, along with statutory limits. Whittington instead focuses on how “members of the academic community itself [should] understand their own interests in the free speech debate” (p. 6). His elaboration of “internal” rationales for protecting speech on college and university campuses is interesting in light of the heightened scrutiny of these institutions from the “outside.”

Although many of his arguments operate at a more general level, Whittington is especially critical of current efforts to exclude conservative voices from university life. The preface frames problems of free speech with reference to efforts by students and “outside agitators” to silence and threaten conservative speakers. The final chapter urges universities to counter ideological ostracism and promote viewpoint diversity on campus by being more open to fuller representation of “thoughtful conservative scholars and teachers” (p. 178). Throughout the book, he criticizes universities for their predominantly left-leaning biases.

The book has four main chapters. Chapter 1 articulates Whittington’s view of the primary mission of modern universities. While acknowledging that additional demands have been placed upon institutions of higher education, both historically and in the modern world, he emphasizes that “[a]t heart, the mission of a university is to produce and disseminate knowledge” (p. 13). In handling this and other issues, the book generally groups together public and private universities as well as colleges.

Chapter 2 draws on two strands of political thought to support Whittington’s argument that free speech is integral to this mission of universities to produce and disseminate knowledge. Whittington identifies the first strand with Jeffersonian arguments that free speech is essential to “republican” governance. A key lesson learned from controversies involving the Alien and Sedition Acts of 1798, Whittington claims, was that a power to limit speech was likely to be abused, and thus “no one could be trusted with the power to suppress or punish controversial speech” (p. 36). Instead, at least within the political realm, it was best to “err on the side of liberty and let the people themselves hear all sides and weigh the value of the speech” (p. 36). According to Whittington, these arguments resonated with and reinforced important strands of “the liberal tradition” rooted in claims of individual liberty (pp. 36-37). More specifically, he relies on several branches of John Stuart Mill’s arguments in ON LIBERTY that support an expansive conception of principles of free speech based on its roles in advancing knowledge. In this context, Whittington also endorses U.S. Supreme Court Justice Oliver Wendell Holmes’ argument in ABRAMS V. UNITED STATES (1919) that “the best test of truth is the power of the thought [*35] to get itself accepted in the competition of the market” (p. 45). Shifting the metaphor, Whittington acknowledges that “[n]ot everyone is as optimistic [as Justice Holmes] about the power of truth to prevail in the marketplace of ideas” (p. 46). But he claims that “the university is precisely the type of environment where a ‘free trade in ideas’ is encouraged and ideas are placed in ‘open and free competition’” (p. 46).

JUDICIAL ELECTIONS IN THE 21ST CENTURY

Vol. 29 No. 3 (March 2019) pp. 31-33

JUDICIAL ELECTIONS IN THE 21ST CENTURY, by Chris W. Bonneau and Melinda Gann Hall (eds.). New York: Routledge, 2017. 282pp. Paperback $47.95. ISBN: 978-1-138-18589-0.

Reviewed by David Hughes, Department of Political Science & Public Administration, Auburn University at Montgomery. Email: david.hughes@aum.edu.

Save for the early efforts of pioneers like Philip Dubois and Melinda Gann Hall, it is unclear when public law would have begun taking state courts seriously. Perhaps it was inevitable, however, that the shifting tone of judicial elections from the late 1980s to the early 2000s was destined to get people’s attention. Rising campaign costs, biting televised attack ads, and a liberalized speech environment left many in the legal community—and not a few political scientists—concerned that vigorous campaigns would undermine judicial impartiality or legitimacy.

In 2007, largely in response to the evolving nature of judicial elections, Matthew J. Streb organized the first major anthology devoted to these themes, RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS. Its contributions reflected the deep sense of ambivalence many felt toward judicial elections at that time. More than a decade has passed since Streb’s text, and the volume of scholarly research on state courts has grown exponentially. Significant new theoretical, methodological, and empirical advances have been made in a remarkably short time, and these advances justify reflection on what we have learned during this span and what research questions still demand our attention.

JUDICIAL ELECTIONS IN THE 21ST CENTURY, edited by Chris W. Bonneau and Melinda Gann Hall, helps to fill this void. It picks up where RUNNING FOR JUDGE (2007) left off: How have judicial elections affected the politics of the judiciary since the turn of the century? For long-time observers of judicial elections, its themes will ring familiar: How do expensive campaigns affect judicial selection and legitimacy? How independent, diverse, or representative are state judges? How do these factors vary within the judicial hierarchy?

Much of the research in JUDICIAL ELECTIONS reflects how our understanding of these institutions has changed in recent years. Many of the concerns raised by judicial reform advocates in favor of eliminating judicial elections have simply not stood up to empirical scrutiny. For example, Michael Nelson reminds us that judicial elections are often legitimacy enhancing; Melinda Gann Hall and Matthew J. Zalewski show how campaign advertising has diminished in recent years, even taking on a more positive tone; and Drew Noble Lanier and Mark S. Hurwitz reveal that elected courts produce benches that are, on average, no less diverse than appointed ones. Other examples abound.

The contributions to JUDICIAL ELECTIONS are, as the editors explain in their introductory chapter, largely original, accessible to a general audience, evidence-based, and written by many of the field’s leading scholars. One might expect that a collected work such as this would find its authors returning to the themes with which they are already associated in the scholarly literature. And while readers might anticipate some of the hypotheses, data, or findings based upon their familiarity with these previous works, no such familiarity is needed as each chapter presents new, interesting, and accessible information.

RETHINKING U.S. ELECTION LAW: UNSKEWING THE SYSTEM

Vol. 29 No. 3 (March 2019) pp. 27-30

RETHINKING U.S. ELECTION LAW: UNSKEWING THE SYSTEM, by Steven Mulroy. Cheltenham, UK and Northampton, MA: Edward Elgar, 2018, 187pp. Cloth $115.00. ISBN 948-1-78811-750-0

Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: rushm@wlu.edu.

Steven Mulroy’s RETHINKING U.S. ELECTION LAW: UNSKEWING THE SYSTEM is a concise and refreshing book on U.S. election law. The book takes the reader on a tour through the various and profound shortcomings of the country’s reliance on single-member districts (SMDs) and demonstrates that, so long as these SMDs remain the principal building block of U.S. elections, little can be done to resolve the many ailments that afflict the process. It is a powerful, thoughtfully-reasoned and clearly-written argument in favor of electoral reform.

Mulroy begins by reviewing the undemocratic aspects of the Electoral College and the Senate, working through the standard criticisms. First, both institutions overrepresent smaller states. The Electoral College winner (and, therefore, the president) may not always win a majority of the popular vote. In the Senate, states representing a minority of the American population can prevent the passage of legislation supported by Senators who represent a majority of the population. With the filibuster, any one member of the Senate can stop the legislative process almost indefinitely. As a result, both institutions block the will of the majority and are, therefore, undemocratic.

There is no disputing Mulroy’s analysis, reasoning or conclusion. I certainly agree. But, the fact that the Electoral College and Senate are designed to be un- or counter-democratic is not necessarily grounds to call for their removal or reform. On the one hand, there is no gainsaying that the minoritarian aspects of both institutions have been rendered inflammatory due to the recent polarization of politics, partisanship and political discourse in the United States. While recent election results have been the cause of tremendous consternation and analysis among pundits and scholars – George W. Bush and Donald Trump were both elected without a majority of the popular vote – it is, on the other hand, reasonable to pause and ask whether the country should restructure some or all of its institutions in response to recent political changes that have occurred independent of or despite those structures.

The Electoral College reflects the great compromise that led to the creation of a bicameral Congress in which the states were represented by population in the House of Representatives and on equal footing in the Senate. During the Founding Era, there was, as there is now, understandable concern that a minority of large states could dominate the national agenda. So, the bicameral Congress balances the fears of rule by a tyrannical majority in the House against rule by a similarly tyrannical minority in the Senate.

Granted, the nature of politics at the end of the 18th century is not a useful guide to managing politics in the 21st century. Still, it is important to keep in mind that the constitutional system was designed to check those majority factions that Madison wrote about in FEDERALIST 10. Converting the elected branches of the government to a strictly majoritarian set of institutions would radically change the conduct of politics and might generate even more constitutional challenges to legislation in the courts.