by Rebecca E. Zietlow. New York, NY: New York University Press, 2006. 288pp. Cloth. $45.00. ISBN: 9780814797075.
Reviewed by Barry N. Sweet, Department of Political Science, Sociology, and Philosophy, Clarion University of Pennsylvania. Email: BSWEET [at] clarion.edu.
Rebecca Zietlow has written an informative book that questions a popularly held belief that courts have been the primary protectors of minority rights. She argues that Congress, more often than not, has been the primary protector of minorities. To support this argument, she compares the historical roles of the courts and Congress in terms of protecting minority rights. When assessing these roles, a comparison of relative strengths and weaknesses as institutions is also provided. She argues that Congress as an institution is better equipped to protect minority rights. Zeitlow focuses on a particular type of rights which she refers to as “rights of belonging.” These are rights of inclusion that ensure that all members in our national community can participate equally. The rights of belonging are distinct from citizenship rights because the latter create “insiders” and “outsiders.” Rights of belonging bring “outsiders” into the community.
The historical analysis is done in Chapters Two through Five. Four key time periods are examined, the period before the Civil War, the Reconstruction Era, the New Deal, and the Civil Rights Era. In only one of these time periods did the courts take the lead in expanding rights of belonging, namely the Civil Rights Era. In the period prior to the Civil War, neither Congress nor the courts had much to be proud of in terms of protecting individual rights or rights of belonging. Zeitlow indicates that Congress’ nonfeasance was the result of an inability to act. Despite Madison’s efforts, Congress was not given any power to enforce the rights provided in the Constitution and the Bill of Rights. Instead of Madison’s “federal negative” or legislative veto over state legislatures, the Supremacy Clause was placed in the Constitution. This compromise meant that the federal courts, rather than Congress, would have the job of protecting individual rights. Perhaps as important as Congress’ lack of power, was its lack of political will to protect individual rights. This was no more evident than in the struggle over the issue of slavery. Congress enacted fugitive slave laws in 1793 and 1850, both of which favored the slaveholder over slaves and free blacks. Even if Congress had wanted to act, the Supreme Court handed down decisions that made it extremely difficult. The most notable decision was DRED SCOTT v. SANFORD. This decision propelled the United States toward civil war because it precluded a congressionally formulated resolution of the slavery issue.
The next period to be examined is the Reconstruction Era. It is during this era that Congress not only took the lead in expanding rights of belonging, but had to work against restrictive Supreme [*420] Court rulings. The Republicans came out of the Civil War with a firm control over Congress. They were even able to override many of President Johnson’s vetoes of Reconstruction legislation. The Republicans were determined to provide the newly freed slaves with rights of belonging, making them members of the national community. Zeitlow provides a nice summary of the Republican legislative tour de force in the area of civil rights. The Thirteenth, Fourteenth, and Fifteenth Amendments are discussed, as well as the 1866 Civil Rights Act, the Enforcement Acts of 1870 and 1871, and the Civil Rights Act of 1875. Unfortunately, the effect of this legislative effort was severely limited by Supreme Court decisions. In the SLAUGHTER-HOUSE CASES and the CIVIL RIGHTS CASES the Court gutted much of the Republican effort to protect the freed slaves. First, the Court so narrowly read the privileges and immunities protection of the Fourteenth Amendment that is was virtually nonexistent. Second, the Court limited Congress’ section five enforcement power in the Fourteenth Amendment to only remedying state action. The chapter concludes with a brief discussion of the debate over the meaning of the Fourteenth Amendment.
The third period to be examined is the New Deal Era. Zeitlow states that most constitutional scholars focus on the changes in federalism and the separation of powers. However, these changes were accompanied by an expansion of the rights of belonging. New Deal legislation created rights for workers and established a “federal safety net.” Chapter Four then goes into a rather detailed analysis of the Wagner Acts’s legislative history. The struggle between the courts and Congress was basically a replay of the Reconstruction Era. Congress tried to expand rights, and the Supreme Court placed obstacles in its path. The Great Depression saw wide-scale unemployment, eventually creating a climate that was more supportive of the right to organize. Roosevelt’s National Industrial Recovery Act (NIRA) provided a statutory basis for the right to organize. Business responded by creating “company unions.” Furthermore, NIRA lacked a mechanism for enforcement. The result was increased tension between labor and management and a surge in strikes. Senator Robert Wagner responded by introducing a bill to enable workers to pick their own representatives. It is at this point that two different arguments in support of Wagner’s bill were framed. Wagner was more concerned about economic equality, while others were more concerned about labor unrest and its subsequent disruption of the economy. Both felt that labor’s right to organize was the solution.
Chapter Four appears to present an error in economic data. Zeitlow reports that more than 1.47 million workers were involved in strikes in 1934 and that this represented “51.1 percent of the country’s total workforce” (p.74). This would suggest an unimaginably low national workforce of less than 3 million people out of a population of over 120 million. Perhaps the 1.47 million represents 51.1 percent of the unionized workforce. [*421]
Chapter Four then provides a nice history of the lobbying efforts of the proponents and opponents of Wagner’s bill. Also important in the struggle to get the Wagner Act passed was the activities of the Supreme Court. In May of 1935 the Court struck down NIRA as unconstitutional in the SCHECHTER POULTRY decision. Zeitlow suggests that in an ironic way this decision made passage of the Wagner Act easier. Opponents of the bill felt that they could avoid the political fallout of voting against the bill because the Court would strike it down anyway. The SCHECHTER decision also persuaded Wagner to shift his argument for the bill from one of economic equality to quelling labor unrest. The constitutionality of the Wagner Act was uncertain, especially after the Supreme Court struck down the Bituminous Coal Act which provided for collective bargaining. After the 1936 election and in response to Supreme Court decisions, Roosevelt unveiled his court-packing scheme. There was widespread condemnation of Roosevelt’s plan, plus it became a moot point after the Court upheld the Wagner Act in NLRB v. JONES & LAUGHLIN STEEL CORP. The chapter concludes with a brief discussion of the limited reach of the Wagner Act, partially as a result of passage of the Taft Hartley Act. Zeitlow also discusses the New Deal’s failure to address the issue of race. This failure was the result of a split in the labor movement over race and Roosevelt’s dependence on southern Democrats.
Chapter Five covers passage of the 1964 Civil Rights Act. Zeitlow describes the passing of this act as “momentous,” and it certainly was. In terms of rights and race relations, it was transformational. The civil rights era, however, did not start with the 1964 Civil Rights Act. The clearest starting point would be BROWN v. BOARD OF EDUCATION. Even this landmark case was foreshadowed by SMITH v. ALLWRIGHT, striking down all white Democratic primaries, and SHELLEY v. KRAEMER, striking racial restrictive covenants. The difficulty in enforcing BROWN made it clear that the other branches had to act. Additionally, a significant amount of discrimination occurred in the private sector, rather than being state sponsored. The Civil Rights Cases discussed earlier limited the reach of the Fourteenth Amendment to state action. Getting around this obstacle further emphasized the need for congressional action. Zeitlow indicates how the sight of police dogs and fire hoses prompted President Kennedy to take action. Kennedy sent an expanded civil rights bill to Congress. Tragically, it took the Birmingham bombing and Kennedy’s assassination to propel the bill forward. Zeitlow succinctly lays out the necessity for bipartisan cooperation and the key role of Republican Senator Everett Dirksen in defeating a filibuster. After passage, the Civil Rights Act of 1964 successfully withstood a constitutional challenge. A year later the Voting Rights Act of 1965 was passed. A number of other pieces of legislation expanding rights of belonging are also briefly mentioned at the end of the chapter.
Chapter Six outlines the argument that state legislatures may be best suited for expanding rights of belonging. In theory [*422] a federal system works to protect liberty, with divided powers and competing sovereigns. More recently, advocating states’ rights has generally been avoided because of the close association with segregation and racism. Interestingly, before the Civil War policymakers in the North and the South used states’ rights arguments for formulating their own policies on slaves. After the Civil War the Fourteenth Amendment significantly altered the division of power between the states and the national government. Nonetheless, the states have still been, at times, in the forefront of expanding rights of belonging. Zeitlow provides a number of examples, for instance Wyoming allowing women to vote, Wisconsin’s unemployment compensation, and minimum wage laws in Massachusetts. Smaller political units, such as states and cities, allow smaller interest groups to have a voice. These smaller political units provide a “sense of political community and accountability” (p.134). Gays and lesbians have been able to achieve political gains that are not possible yet on a national scale. Furthermore, as the states and cities experiment with policies that expand rights of belonging, the policies gain legitimacy. As legitimacy is gained, national acceptance follows, and the policies start to spread nationwide. Congress has generally passed legislation that creates and protects a floor for rights of belonging. The states are free to provide additional rights and protections.
Zeitlow cites three examples where Congress passed legislation that prohibited states from expanding rights of belonging – the Fugitive Slaves Acts of 1793 and 1850, and the Defense of Marriage Act (DOMA) of 1996. However, the latter piece of legislation differs in one significant way from the first two. The DOMA does not restrict what the states can do internally. It simply states that the federal government will only recognize a marriage between one man and one woman, and that is all that any state has to recognize. States are free to experiment with their own policies on same-sex relationships. Zeitlow essentially concludes the chapter by reiterating the need for Congress to set a uniform baseline of rights. Following Justice Brennan’s argument for new judicial federalism, the states should then be free to build on the baseline set by Congress.
In Chapters Seven and Eight, Zeitlow argues that Congress, as an institution, is better suited than the courts for protecting rights of belonging. Some of the institutional advantages that Congress has over the courts “include the legitimacy of democratic rule, the flexibility of legislatures for fashioning remedies, the transparency and accountability of congressional debate, [and] the enforceability of legislation” (p.146). “When legislatures act to remedy . . . exclusion, their recognition of this injury in and of itself sends a strong message of inclusion. . . . When rights of belonging are defined and enforced through the political process, the process encourages a national dialogue over the meaning of these rights and the values that underlie them” (p.166). Judicial enforcement of rights lacks the legitimacy gained from community engagement in the political process. [*423]
However, Zeitlow reminds us of Justice Robert Jackson’s position that the Bill of Rights was supposed to remove some subjects from the political arena, beyond the reach of majoritarian institutions. In other words, the courts are to act as countermajoritarian institutions that protect minority rights. Zeitlow then succinctly summarizes the work of scholars who argue that the courts have not acted consistently as countermajoritarian protectors of individual rights. Even when the courts do act to protect the rights of individuals, rights of belonging are not necessarily advanced. “[R]ights of belonging are equality-based rights, court enforcement will tend to privilege liberty interest over equality interest because courts tend to favor individual interest over collective interest” (p.162).
In conclusion, the argument that the Supreme Court has sometimes played an obstructionist role in the expansion of rights is not a novel one. It is fairly obvious that the Court impeded progress during Reconstruction and the New Deal. However, the merits of Zeitlow’s book are twofold. First, she introduces and incorporates the concept of “rights of belonging” into the debate about which branch has been more progressive, and which branch is more capable of being progressive. Second, her book provides a detailed, yet highly readable, historical description of the struggle for inclusion. It is written at a level that should be accessible to an upper-level undergraduate majoring in political science or history. The book would be an appropriate supplemental text in a course on civil liberties and civil rights.
BROWN v. BOARD OF EDUCATION, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
CIVIL RIGHTS CASES, 109 U.S. 3, S.Ct. 18, 27 L.Ed. 835 (1883).
NLRB v. JONES & LAUGHLIN STEEL CORPORATION, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937).
SCOTT v. SANDFORD, (19 Howard) 393, 15 L.Ed. 691 (1857).
SCHECTER POULTRY CORP. v. UNITED STATES, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935).
SLAUGHTERHOUSE CASES, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1873).
SHELLEY v. KRAEMER, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).
SMITH v. ALLWRIGHT, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944).
©Copyright 2007 by the author, Barry N. Sweet.