THE SECOND FOUNDING: AN INTRODUCTION TO THE FOURTEENTH AMENDMENT

Vol. 34 No. 04 (July 2024) pp. 44-47

THE SECOND FOUNDING: AN INTRODUCTION TO THE FOURTEENTH AMENDMENT, by Ilan Wurman. New York: Cambridge University Press, 2020. pp188. Paperback $20.99. ISBN: 978-1-108-82395-1. Online $20.99 ISBN: 978-1-108-91495-6.

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

While perhaps not a sequel in Marvel fans’ sense of the term, Ilan Wurman’s The Second Founding: An Introduction To The Fourteenth Amendment follows up on his first book, published in 2017. Legal scholar Wurman wrote A Debt Against The Living: An Introduction To Originalism “to introduce originalism to a broader audience” through acquainting readers with prominent originalist-oriented scholarship (p. 4). This time Wurman turns the reader’s attention to originalist debates over the Fourteenth Amendment to “explain[] the debates, provide[] the best arguments of the various sides, and then offer[] [his] own position” (p. 4) on the original meaning of critical components within Section 1 of the amendment. More broadly, he aspires to demonstrate that, given its emphasis on non-discrimination, “[t]he original meaning of the 14th amendment is not scary” (p. 144). While his success with this latter goal is debatable, Wurman pulls together a great overview of prominent originalist scholarship and historical context that provides a thought-provoking potential alternative to polarized takes on the amendment’s application in civil liberties and civil rights cases.

While attending to Section 1’s birthright citizenship provision along the way, Wurman’s points of focus are the intended meanings of the Fourteenth Amendment’s Due Process, Equal Protection, and Privileges or Immunities Clauses, respectively. The book follows a clear path laid out in its Introduction. Part One walks the reader through Wurman’s originalist takes on these respective clauses, informed by antebellum law and prominent legal writings available prior to the amendment’s drafting. Part Two lays out the historical context that provided the impetus for the drafting of the amendment, while Part Three applies Wurman’s interpretations to several past Supreme Court decisions to see how they might play out under his reading of the clauses. In the course of his assessments, Wurman provides a good overview of debates within prominent originalist scholarship. Keeping his take on the amendment firmly within the bounds of originalism, Wurman seeks a third way between a very constraining originalism and what he sees as the unrestrained discretion of the Supreme Court throughout much of the last several decades. Overall, he views these three key clauses as “sufficiently capacious to apply to new and important contexts, but not so capacious as to be open-ended invitations to judges to import their own extratextual values into the constitution” (p. 4).

Eschewing heavy reliance on the legislative history of the amendment’s journey through Congress, Wurman turns instead to pre-American Revolution English

CONSTRUCTING BASIC LIBERTIES: A DEFENSE OF SUBSTANTIVE DUE PROCESS

Vol. 34 No. 04 (July 2024) pp. 40-43

CONSTRUCTING BASIC LIBERTIES: A DEFENSE OF SUBSTANTIVE DUE PROCESS, by James E. Fleming. Chicago: The University of Chicago Press, 2022. pp. 280. Paper $30.00. ISBN: 9780226821405. Cloth $95.00. ISBN: 9780226821399.

Reviewed by: Emily Zackin, Department of Political Science, Johns Hopkins University. Email: ezackin1@jhu.edu.

The Fourteenth Amendment bars states from depriving any person of life, liberty, or property without due process of law. Courts have interpreted this provision not only as a procedural protection but also as a guarantee of substantive rights, often rights that are not explicitly enumerated in the text of the Constitution. This way of reading the Fourteenth Amendment, known as substantive due process, has a bad reputation. In his important new book, Constructing Basic Liberties: A Defense of Substantive Due Process, James Fleming offers an earnest, thoughtful, and thought-provoking response to its many and varied critics.

Substantive Due Process, Fleming explains, has been haunted by the ghost of two notorious cases: Dredd Scott v. Sandford (1857) and Lochner v. New York (1905). Because Dredd Scott did not center on an interpretation of the liberty described in the Due Process Clause, Fleming denies that it is a substantive due process case and makes no attempt to defend it. However, he devotes a chapter to Lochner, arguing that the real problem with the majority’s opinion was not that it was grounded in a substantive due process argument about an unenumerated liberty (liberty of contract), but that economic liberties, like liberty of contract, do not actually require robust judicial protection. What the Lochner Court got wrong, on this account, is not that it protected a fundamental, unenumerated right through substantive due process, but that the particular right it protected was already safe from majoritarian attack. Though many conservatives are likely to disagree with the claim that economic liberties require little judicial protection, it is far from idiosyncratic. In fact, the Supreme Court also expressed this conviction in its creation and practice of rational basis review throughout the second half of the twentieth century.

Of course, vanquishing the ghost of Lochner cannot fully reassure those fearful of substantive due process. This specific case is haunting precisely because it points to a more general concern: that the doctrine of substantive due process empowers unelected and unaccountable judges to decide on a list of basic rights, with no way to ensure that the list is anything other than a judicial fabrication. In other words, the doctrine of substantive due process seems to endow the Supreme Court with an unbounded capacity to determine the meaning of the Constitution.

As I read it, the core claim of Constructing Basic Liberties is that judges can draw reasonable boundaries—they can define a set of unenumerated liberties without simply making things up. In fact, Fleming argues that after 1937, the Supreme Court performed

THE STORY OF CONSTITUTIONS: DISCOVERING THE WE IN US

Vol. 34 No. 04 (July 2024) pp. 36-40

THE STORY OF CONSTITUTIONS: DISCOVERING THE WE IN US, by Wim Voermans. Cambridge University Press, 2023. pp. 388. Cloth $90.00. ISBN: 9781009385046. Paper $29.99. ISBN: 9781009385084.

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

The Story Of Constitutions is a series of reflections—meditations, perhaps—on why there are so many constitutions and why they seem to permeate every aspect of human history and civilization. This is a thoughtful work that will leave the reader pondering—frequently—over Voermans’ observations as he moves from and through sociology, anthropology, economics, and politics to offer observations about what makes constitutionalism so pervasive and what leads to constitutional success or demise.

He begins and ends with an acknowledgment that his observations are based in part on some obvious tensions. Humans began as nomadic, isolated beings. Over time, they settled, engaged in agriculture and urbanization, and laid the groundwork for the development of mass societies. In so doing they made it more difficult to foster and propagate the one, key element of any society—trust (p. 256). Fortunately, as he notes, communication technology has advanced in harmony with the growth of population (p. 343). Accordingly, humans have managed to manufacture and rearticulate new notions of trust that make it possible to develop constitutional norms that bind societies together despite their size and the corresponding anonymity that such scale imposes on interpersonal relationships (pp. 342-43).

In the introduction, Voermans sets forth a broad assessment of human nature and the evolution from nomadic to agrarian to urban society to comment on the social aspect of human nature and the extent to which the development of constitutions is a natural by-product of this. As humans began to settle and the size of human society grew from the family to the tribe to the nation, scale, complexity, and efficiency required the establishment of trust-based rules: “Constitutions largely consist of clever mixes of elements that facilitate the two pillars of social cooperation: trust and recognition” (p. 25). This led to the creation of “abstract institutions such as law” that “decrease uncertainty, anxiety and distrust—all of which stand in the way of large-scale human cooperation,” particularly with regard to commercial activity (p. 26). Hence, the book embarks on a voyage to explain how societies establish a collective, cooperative, shared identity that enables them to organize such abstract, trust-based rules.

A question that arises from the introduction and pervades the book concerns the genesis of the power to promulgate and empower those “abstract institutions” and enable them to generate

SUPREME BIAS: GENDER AND RACE IN U.S. SUPREME COURT CONFIRMATION HEARINGS

Vol. 34 No. 04 (July 2024) pp. 31-35

SUPREME BIAS: GENDER AND RACE IN U.S. SUPREME COURT CONFIRMATION HEARINGS, by Christina L. Boyd, Paul M. Collins, Jr., and Lori A. Ringhand. Stanford University Press, 2023. pp. 290. Cloth $120.00. ISBN: 9781503632691. Paper $30.00. ISBN: 9781503636880.

Reviewed by Elizabeth A. Lane. Department of Political Science. North Carolina State University. Email: elane3@ncsu.edu.

Supreme Court confirmation hearings are arguably the most salient job interviews imaginable. For the most part, nominees have very similar backgrounds—degrees from top law schools, impressive clerkships, and previous experiences as judges and advocates. These nominees, however, are not treated equally during Senate Judiciary Committee (SJC) hearings. Ample research attributes rapid-fire, difficult, or even rude questioning to ideological differences between senators and nominees (Farganis and Wedeking 2014; Schoenherr, Lane, and Armaly 2020). That, however, is not the full story.

In the timely new book, Supreme Bias: Gender and Race in U.S. Supreme Court Confirmation Hearings, authors Christina L. Boyd, Paul M. Collins, Jr., and Lori A. Ringhand push the field beyond partisan politics to consider other aspects that influence the dynamics of Supreme Court confirmation hearings. Specifically, they examine how gender and racial stereotypes, which color social interactions for so many, manifest in unequal treatment during these salient events.

One (of many) of the great things about this book is the background information provided in the first two chapters. Chapter 1 provides historical information on how the federal judiciary slowly diversified over time. It begins with stories of gender and racial diversity on the Supreme Court specifically, then moves to broader federal judicial diversity. Like other work on this topic, it focuses on Jimmy Carter’s presidency as a significant inflection point but, importantly, it provides a more comprehensive overview dating back to FDR’s presidency. The authors do so to make the point that, despite the fact that the federal judiciary is not a representative institution, descriptive diversity increases trust, confidence, and institutional legitimacy in significant ways.

The second chapter explains the Supreme Court confirmation process from vacancy to presidential selection, and the Senate’s role in the confirmation. It is a thorough, yet concise, historical overview of

THE RULE OF LAWS: A 4,000-YEAR QUEST TO ORDER THE WORLD

Vol. 34 No. 03 (May 2024) pp. 26-30

THE RULE OF LAWS: A 4,000-YEAR QUEST TO ORDER THE WORLD, Fernanda Pirie. New York: Basic Books, 2021. 570pp. Cloth $35.00. ISBN: 9781541617940. Ebook $19.99. ISBN 9781541617957.

Reviewed by Brian Z. Tamanaha. John S. Lehmann University Professor, Washington University in St. Louis. Email: btamanaha@wustl.edu.

The Rule of Laws is an impressive achievement. Oxford anthropology Professor Fernanda Pirie traces the historical trajectory of a number of great legal traditions of the world (mainly Mesopotamian law, Hindu law, Chinese law, Roman law, Jewish law, Islamic law, Civil law, Common law, and international law), while, along the way, providing detailed close-ups of many particular manifestations of law, including Irish law, Icelandic law, colonial law, Tibetan law, and more. Written in lively prose, Pirie treats readers to an unmatched historical tour of law around the globe over the past four millennia, drawing on a broad range of studies by historians, anthropologists, legal scholars, religious scholars, and other fields. No other work of world history covers law with such scope and depth. These qualities make The Rule of Law a commendable work of popular history that many readers will find informative and well-worth reading.

What is a terrific book for a popular audience, however, can be problematic for an academic audience. Popular audiences seek informative, entertaining, and readable treatments of a given subject. Academics demand that concepts be carefully defined and consistently applied, that empirical claims be backed by evidence, and that complex matters be treated with nuance. These respective objectives can be reconciled, but sometimes they clash. In several critical respects, it appears (to me) that academic concerns gave way to the demands of popular consumption.

The book is presented as a history of “law” and of “the rule of law.” In the Introduction, Pirie declares, “The rule of law [emphasis added] has a history, and we need to understand that history if we are to appreciate what law is [emphasis added], what it does, and how it can rule our world for better, as well as for worse” (p. 14). Her exploration purports to show that “law” and “the rule of law” emerged together in the distant past, gradually ascending and spreading over 4,000 years of human history. Although they coincide, law and the rule of law are not the same (Pirie emphasizes that China has had law for over two millennia, but not the rule of law). Thus, it is essential to understand each notion separately as well as how they relate to one another.

Scholars have long debated the meaning of “law” and have long debated the meaning of “the rule of law.” Pirie eschews these debates, giving readers no hint that each notion is the source of endless scholarly disagreement. Avoidance of theoretical complexity is a defensible strategy for a popular book,

THE EU AND CONSTITUTIONAL TIME: THE SIGNIFICANCE OF TIME IN CONSTITUTIONAL CHANGE

Vol. 34 No. 03 (May 2024) pp. 23-25

THE EU AND CONSTITUTIONAL TIME: THE SIGNIFICANCE OF TIME IN CONSTITUTIONAL CHANGE, Massimo Fichera. Edward Elgar Publishing, 2023. pp. 180. Cloth $115.00. ISBN: 9781789908992.

Reviewed by Nathan Griffith. Department of Political Science. Belmont University. Email: Nathan.Griffith@belmont.edu.

The EU and Constitutional Time is a normative and descriptive work, which is not a particularly felicitous combination. The book also suffers from a lack of clarity in organization and sometimes in substance, which makes it difficult to report on what exactly its thesis is, or how well the work supports it. This is especially problematic as normative rather than causal theory, since it makes it difficult to assess the reasoning (rather than evidence) that should support this vision of what should be over others.

The third chapter provides an excellent example to highlight both some of the excellent descriptive work and the visible seams in the organization. The title of the chapter is “The Rule of Law and Populism.” The first section of the chapter is “Recent Case Law on the Rule of Law/Democratic Backsliding and Comparison with the US Nullification Doctrine.” The six pages of that section give a clear, concise, and insightful account of the nullification dispute, from the Virginia and Kentucky Resolutions to Calhoun and Webster. Yet there is no definition of democratic backsliding, nor even an explicit use of the term until the penultimate sentence. There is no comparison of that constitutional debate (or even dispute) with recent EU case law or even recent events in the EU. Instead, the penultimate paragraph of the chapter begins with: “To a limited extent…some parallels can be drawn between the nullification crisis and the current state of affairs in the EU—as seen in Chapter 2” (p. 55). No parallels follow. The reference to the previous chapter does not help; that chapter was an abstract, theoretical discussion of how constitutions change through discursive constituent power. Nor is there a discussion of recent case law—though the section references cases involving Hungary and Poland, even the names of the cases appear only in the footnotes, and there is no further discussion of them or how they develop or illuminate case law.

The next section of the chapter is a discussion of populism. It is again in turns enlightening and disjointed or ineffective. The author presents a clear and concise summary of the critiques populism tends to make of liberal democracy, and relays (from Benjamin Arditi) perhaps the best metaphor for the role of populism in democracy, that of a drunken party guest who offends through both lack of manners and willingness to say what no one else will. But the author then repeats three more lists that mostly echo the first, without discussing how they relate or differ.

He claims that “none of the main tenets of populism are necessarily in contradiction with EU constitutionalism as such,” (p. 58) when the tenets involve the will of the people, where people is restricted to “authentic” people, whose sovereignty should not be circumscribed or circumvented. This rather stretches the meaning

THE GUN DILEMMA: HOW HISTORY IS AGAINST EXPANDED GUN RIGHTS

Vol. 34 No. 03 (May 2024) pp. 18-22

THE GUN DILEMMA: HOW HISTORY IS AGAINST EXPANDED GUN RIGHTS, Robert J. Spitzer. New York, NY: Oxford University Press, 2022. 200 pp. Hardcover. $32.99. ISBN: 978-0197643747.

Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University. Email: bpeabody@fdu.edu.

Robert Spitzer’s meticulously researched and engaging new book argues that many of today’s judges and Second Amendment activists have weaponized history. They deploy crabbed and incomplete accounts of our past to make the case that most gun laws depart from our civil liberties traditions, and are the innovative “product of modern American society” (p. 76). In six pithy chapters, Spitzer shows that the “opposite is true” (p. 76). From colonial times to the present, federal and state gun regulations emerged whenever new weapons or technology posed threats to public safety. Legislation restricting firearms is, therefore, popular, recurring, deeply rooted, and “as old as the country” (p. 19).

In Chapter One, the author makes the preliminary case that American history is replete with ongoing and substantively-varied gun regulations. In recent years, however, a new generation of ideologically-driven lawyers and judges have ignored this record and warped history to expand gun rights. Here Spitzer distinguishes “Gun Rights 1.0” (relatively modest efforts to establish an “individual right of citizens to own handguns for personal self-protection in the home”) from today’s “Gun Rights 2.0” (based on aggressive readings of the Second Amendment that challenge a wide range of existing gun laws and upset an established “equilibrium” between gun rights and safety)(pp. 2-3).

At the heart of Gun Rights 2.0 is the constitutional theory of originalism, which aspires to filter out judges’ “contemporary values and preferences” by identifying what the constitutional text meant at the time it was written. In the context of the Second Amendment, this entails “turning the clock back to an imaginary past” in which there were few legal gun restrictions and the individual right to bear arms was purportedly placed in an “exalted position” (p. 22). Spitzer identifies a number of “terminal flaws” (p. 22) associated with originalism, especially its reliance on “bad” history to cloak an ideological and “ends oriented” conservative jurisprudence (p. 20). Contrary to the claims of its adherents, originalism does not discipline its practitioners or constrain their activism, that is, their willingness to overturn existing legislation and disrupt established case law.

So far, these points will be mostly familiar to students of constitutional law and history. But the rest of The Gun Dilemma digs deeper,