by Marjorie S. Zatz, Doris Marie Provine, and James P. Walsh (eds). New Orleans: Quid Pro Quo Books, 2013. 184pp. Paperback. $28.99. ISBN: 978-1610271639.
Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.
“The quest for justice is perennial and elusive,” the editors of this thin and compelling volume tell us in the introduction, a “potent source of disagreement and conflict throughout human history” (p.3). Indeed, a definition of justice has beguiled and befuddled western political philosophers from Plato to the present. Socrates asked anyone he could find for its meaning and got little in the way of satisfaction. Rawls asked everyone to imagine they knew nothing about themselves or their neighbors in order to come to some basic agreement about its principles. Amid seemingly intractable conflicts, a clear sense of what is and is not just recedes further, leaving adversaries more frustrated. In those moments we tend throw out communal reason and are inevitably reduced to defining justice the way Justice Potter Stewart famously defined obscenity: “I know it when I see it.” The problem, of course, is that everyone sees things differently.
Yet, despite its elusiveness, that something called justice exists remains self-evident. In the American context, conceptualizing justice usually entails a dependence on two other deeply held self-evident truths: liberty and equality. On one side, justice is measured against how much personal freedom I am afforded to pursue my “happiness;” on the other, it is weighed against the guarantee that I have to be treated equally vis-à-vis others. Fine, but that doesn’t get us very far either: an attempt to put meat on the bones of these abstract principles predictably raises more questions than answers. My freedom to pursue happiness might impede your guarantee of equal opportunity, and vice versa. Doesn’t justice demand that we draw a line between these and other competing “rights”? If so, where?
Which leads us to the business of the law. In American jurisprudence, the bodies of law constituted to address questions of freedom and equality fall broadly under the category of civil rights and civil liberties. In the most general sense, LAW AND THE QUEST FOR JUSTICE is a concise meditation on liberties and equal rights in the United States. But as the editors point out in their introduction, the question of justice is always there in the foreground. The book is organized around two “problems”: 1) the problem of equality and exclusion on the basis of characteristics, and 2) the problem of balancing state intrusion into one’s private life and liberties. The contributors are a “Who’s-Who” of left-leaning legal scholars, journalists, philosophers, and policy makers, including: Charles Ogletree, Jack Greenberg, Lani Guinier, John Ecohawk, Anthony Lewis, Robert Reich, Linda Greenhouse, Janet Napolitano, and Erwin Chemerinsky. Originally, most of [*459] the rather brief essays were a series of separate public lectures delivered, over the course of twelve years, in honor of the great legal scholar John P. Frank, who passed away in 2002. As co-editor, and Frank’s protégé and law partner, James Walsh explains in the Afterword that Frank was deeply involved in many landmark legal cases before the Court, including BROWN V. BOARD OF EDUCATION and MIRANDA V. ARIZONA. Sensing a connection between the twelve lectures and Frank’s illustrious career, Walsh and his colleagues decided to put them together in the volume.
Thus, with but a few exceptions, LAW AND THE QUEST FOR JUSTICE reads very much like a series of public lectures. While the essays collected here are not necessarily recent nor even original (Guinier’s chapter on affirmative action is a reprint of her 1998 article in the KENTUCKY LAW JOURNAL, and Greenhouse’s essay on the Supreme Court is adapted from her 2007 article in the JOURNAL OF LAW AND POLICY) there is enough material to provide interesting context and side conversations for any law-related course on civil rights and liberties. While space does not allow me to focus on all twelve essays, I’ll offer a few highlights from the volume.
Jack Greenberg’s essay on BROWN V. BOARD OF EDUCATION more than fifty years on is an indispensable contribution to the perennial debate over the landmark decision. Greenberg pushes back on the argument made by many that BROWN was either wrongly decided or that the decision itself did not produce the social change it is widely credited with (See, for instance, Bell's “Dissenting” in WHAT BROWN V. BOARD SHOULD HAVE SAID, , or Rosenberg's THE HOLLOW HOPE: CAN THE COURTS BRING ABOUT SOCIAL CHANGE? ). His firsthand account of the ensuing years after the decision is unassailable: “[Thurgood Marshall] and those around him, including myself, were not even contemplating BROWN's application in the North. But we had seriously underestimated the vehemence of the reaction to BROWN in the South” (p.26). He points to the numerous obstacles erected to thwart the desegregation order, including the Congressional Manifesto drafted by southern lawmakers, a Declaration of Interposition and Nullification, and the creation of numerous State Sovereignty Commissions. In case that was not enough, foes of desegregation also flooded the courts with a mountain of litigation. In Greenberg’s retelling, tactical comparisons of the immediate post- BROWN period to the pre-Civil War era that led to secession are not wildly off the mark. Importantly, despite the backlash Greenberg maintains that the Court’s decision in BROWN lit an interminable fire. “In response to all of this opposition, BROWN and Southern resistance fighters helped to create a Civil Rights Movement that developed and flourished” (p.27). Greenberg does not go so far as to suggest that there would never have been a Civil Rights Act or Voting Rights Act without BROWN. But he is certain those laws would not have passed so quickly thereafter. Contrary to what scholars such as Gerald Rosenberg and others argue about its impact, it is clear to Greenberg that BROWN was the catalyst for the entire Civil Rights Movement that followed. It provided the moral and legal guidepost for, well, everything.
But what if the BROWN decision had gone [*460] the other way, and the PLESSY decision was reaffirmed? Greenberg offers a chilling counterfactual scenario: An emboldened segregationist faction that would continue to resist change throughout the South; the intense radicalization of the Civil Rights Movement built not on nonviolence but on militant Black Nationalism; an increasingly hostile (white) public empowering a more aggressive response by state and federal law enforcement authorities; and an unsuccessful end to the Montgomery Bus Boycott, since the Supreme Court cited BROWN in its decision. In world affairs, Greenberg theorizes an ominous domino effect. Greece’s anti-communist government may have fallen to its foes in the wake of the continuance of American apartheid, threatening the entire Western alliance during the Cold War. The Soviet Union would have probably been successful in getting African and Asian nations to denounce American racial practices before the UN’s General Assembly. The Red Brigades may have successfully overthrown the Italian government, while leftist parties throughout Central and South America may have prevailed. Meanwhile the fabric of American society would have continued to come apart at the seams. Greenberg intimates, in other words, the unthinkable: the United States just might have lost the Cold War were it not for BROWN. A grandiose theory indeed – but too outlandish? Perhaps not.
The essays in the volume devoted to the problem of state intrusion approach it rather predictably through the lens of 9/11. While of interest in its own right, most of what is offered here breaks little new ground, and at times feels a bit outdated (though admittedly Guantanamo Bay is still open for business and American troops still patrol the Afghan landscape). The premise throughout these middle chapters is that, if the first casualty in war is truth, the second is usually civil liberties. Both Anthony Lewis and Geoffrey Stone make this case convincingly. Stone’s piece offers a nice recitation on the history of civil liberties in the United States during wartime – Lincoln’s suspension of habeas corpus eight times, the Espionage Act of 1917, Japanese internment camps during World War II, McCarthyism, the Pentagon Papers. Judith Resnik’s essay is an in-depth look at the rights of the accused in Guantanamo Bay in the context of MIRANDA and what she terms “democratic detention.” In the volume’s shortest piece “Security and Civil Rights in a Post 9/11 World,” Department of Homeland Security Secretary Janet Napolitano contends that there is a just balance between national security and the right to privacy, and that the Obama Administration had struck that balance successfully. “We must embracethe fact that considering all of our rights – from security to privacy – in these challenging situations is not an impossible task, but rather a calling that our nation and its leaders must heed,” Napolitano writes (p.115).
While reading these chapters one gets a sense that this material adds little to the debate over these contentious issues. Nonetheless, while it may be nothing new to those of us who lived it and taught it over the last decade, it may be new to students. Combining these readings with an in-depth look at some of the remarkable Supreme Court decisions on enemy combatants – RASUL V. BUSH (2004), HAMDI V. RUMSELD [*461] (2004), BOUMEDIENE V. BUSH (2008) – will certainly prove useful in the classroom. Further, much of this material could possibly serve as context for debates over the more current issues in government intrusion and the right to privacy such as the classified materials released by Bradley Manning and Edward Snowden through websites such as WikiLeaks and news outlets such as The Guardian and the Washington Post. What does justice require when government collects “big data” on all of its citizens – and when some of those citizens strike back by using their professional position to release classified information on those programs? Where does “national security” end and the public’s right to know begin?
Ironically, the most interesting and relevant chapter in LAW AND THE QUEST FOR JUSTICE is probably the one with the least obvious connection to civil rights, liberties, and justice – the last one of the volume, “Reconceptualizing Federalism” by the distinguished legal scholar Erwin Chemerinsky. Those of us who teach American government and law will readily admit that one of the least appealing or understood subjects for students is our system of federalism. Chemerinsky finds a way to not only make the subject matter engaging, but also to tie federalism to questions of freedom, equality, and ultimately justice through a reading of the recent Supreme Court case upholding most of the Affordable Care Act. Chemerinsky posits that conservatives have misused the mantle of “federalism” in order to thwart progressive social change through mostly bogus arguments: “I have been continually struck by the absence in case law of careful exploration of the values of federalism” (p.162). In Chemerinksy’s view, arguments for federalism such as limiting the federal government’s tyranny, enhancing democracy by allowing governance closer to the “people,” providing laboratories of experimentation, and protecting and advancing liberty turn out in the end to be hollow slogans rather than thoughtful considerations of the role that federalism plays in advancing American values.
Alternatively, Chemerinsky offers a vision of federalism (what he calls Federalism as Empowerment) that includes a vigorous role for the federal government in the advancement of liberty and equality. He outlines five principles: 1) a robust reading of the commerce clause to regulate activity (or inactivity) between foreign nations, Indian tribes and the states; 2) the ability of Congress to tax and spend for “the general welfare”; 3) allowing Congress to use the powers included in the Reconstruction Amendments to enforce the underlying equality all of them sought to secure; 4) reinstating a literal reading the Tenth Amendment that would allow states to do anything except that which is prohibited by the Constitution; and 5) ensuring that sovereign immunity should not be a bar to suits (pp.169-71).
Chemerinsky then takes some of these principles and applies them to NATIONAL FEDERATION OF INDEPENDENT BUSINESS V. SEBELIUS, the recent landmark decision on the ACA. In NATIONAL FEDERATION, the Court in a 5-4 decision ruled that the individual mandate was constitutional under the scope of Congress’s taxing power. However, also in a 5-4 decision the Court found that the individual mandate was not a constitutional [*462] exercise of the Congress’s powers under the Commerce Clause. Finally, in a 7-2 decision, the Court held that Congress lacked the power to deny all Medicaid funding to any state that did not comply with new conditions for Medicaid. Not surprisingly, Chemerinsky argues that the Court went one-for-three on the decision; in his view all the provisions of ACA would have been found to be constitutional had the Court adopted the federalism-as-empowerment principles. He concludes that NATIONAL FEDERATION should be a jumping off point for a new conversation about American federalism which gets “past conservative rhetoric about federalism and states’ rights and press[es] hard for an alternative vision of federalism” (p.176).
Chemerinsky’s essay is unique in that few other chapters in LAW AND THE QUEST FOR JUSTICE shed light on recent Supreme Court decisions. Admittedly, that is not the purpose of the volume. Rather, its strength lies in how the chapters contextualize questions of racial and ethnic equality and the right to privacy from government intrusion. The other strength of the book is the quality of the writing and the caliber of the contributors. Its bend is decidedly liberal. But given that the essays are offered in honor of the life and work of John Frank, that is not at all a bad thing.
Bell, Derrick. 2002. “Dissenting.” In WHAT BROWN V. BOARD SHOULD HAVE SAID: THE NATIONS TOP LEGAL EXPERTS REWRITE AMERICA’S LANDMARK CIVIL RIGHTS DECISION, ed. Jack Balkin. New York: New York University Press, 185-206.
Rosenberg, Gerald. 2008. THE HOLLOW HOPE: CAN THE COURTS BRING ABOUT SOCIAL CHANGE? Second Edition. Chicago: University of Chicago Press.
BOUMEDIENE V. BUSH, 553 U.S. 723 (2008).
BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954).
HAMDI V. RUMSFELD 542 U.S. 507 (2004).
MIRANDA V. ARIZONA, 384 U.S. 436 (1966).
NATIONAL FEDERATION OF INDEPENDENT BUSINESSES V. SEBELIUS, 132 S.CT. 2566 (2012).
PLESSY V. FERGUSON, 163 U.S. 537 (1896).
RASUL V. BUSH, 542 U.S. 466 (2004).
Copyright 2013 by the author, Christopher Malone.