DELEGATING RIGHTS PROTECTION: THE RISE OF BILLS OF RIGHTS IN THE WESTMINSTER WORLD

by David Erdos. New York: Oxford University Press, 2010. 272pp. Cloth $99.00. ISBN: 9780199557769.

Reviewed by David G. Barnum, Department of Political Science, DePaul University. Email: dbarnum [at] depaul.edu.
pp. 185-191

This medium-length but very impressive book undertakes to explain the adoption (and the timing of the adoption) of various types of "bills of rights" in three "Westminster-style democracies" – Canada, New Zealand and the United Kingdom – and the failure of a fourth such democracy – Australia – to follow suit. Erdos devotes limited attention to the experience of other countries, but his comparative observations are pertinent and insightful. In particular, the book includes a brief but quite detailed discussion (in its final chapter) of Israel's 1992 adoption of Basic Laws on human rights.

Erdos’s overriding purpose is to use the "national experiences" of the four countries on which he focuses as a vehicle for proposing "a new explanation for the deliberate adoption of a bill of rights in stable, advanced democracies" (pp.4-5). To achieve this purpose, he offers very useful chapter-long descriptive case studies of the genesis and adoption of some form of a bill of rights in Canada, New Zealand, and the United Kingdom, and the failure of the bill of rights project in Australia. More importantly, he seeks to comprehend these individual national experiences through the lens of what he calls a "postmaterialist trigger thesis," or PTT. The thesis is a two-part explanatory tool that argues that adoption of a bill of rights was secured in three countries "by the confluence of [1] the gradual development of background forces conducive to change (most notably the growth of a powerful postmaterialist rights constituency) and [2] a political trigger which [provided elite political actors with] an immediate rationale and impetus for [reform]" (p.5). Conversely, what was missing in the case of Australia – a country in which there also existed a "strong civil liberty and social equality constituency, clearly committed to securing a bill of rights" – was "the presence of a clear political trigger providing elites with an impetus for change" (p.8).

It is worth mentioning at the outset why the presence or absence of a "political trigger" is critical to Erdos' theory of bill of rights adoption in Westminster-style democracies. There are perhaps two main reasons. First, the deliberate adoption of a bill of rights will constitute (or at least will be perceived to constitute) a significant transfer of power from legislative and/or executive political elites to the judiciary. Since support for adoption of a bill of rights among "elite political actors" is essential, but since such actors "will usually recoil from such proposals," a "concrete trigger providing a clear and specific political rationale and impetus" for reform will be required (p.5). Second, while the democracies on which Erdos focuses all qualify as "post-[*186] materialist societies," they also have in common a "British-descended Westminster political culture, with its strong defence of parliamentary sovereignty and distrust of formalized rights provisions" (p.26). This distrust provides an additional compelling reason to identify the political trigger or triggers that lead, often after years or even decades of debate, to adoption of some form of a bill of rights. In addition, of course, it is plausible, as Erdos convincingly argues, that the nature of the political trigger will influence not only the adoption of a bill of rights but also both "the precise timing of change" and "the type of bill of rights adopted, including [both] its strength and, generally, its scope" (p.27).

COMPARATIVE CRIMINAL JUSTICE AND GLOBALIZATION

by David Nelken (ed). Farnham, Surrey, England: Ashgate, 2011. 228 pp. Cloth $104.95. ISBN: 9780754676812.

Reviewed by Caryl Segal, University of Texas at Arlington (retired).
pp.181-184

This volume opens with the statement that the theme is “to compare crime and criminal justice phenomena across different cultures and societies in the light of the processes known as globalization” (p.1). Globalization analyzes how conflicts and development in far flung localities impact local crime and security concerns. Traditional comparative studies explain differences by focusing on the individual nations. National laws and societal cultural terms are studied for their impact on the law.

Unlike many verbose introductions to multi-author volumes, Nelken summarizes the various chapters in a terse but illuminating manner. In six pages, Nelken whets your appetite to read and contemplate the differences and similarities between conventional comparative criminology and the globalization of criminal justice. Political scientists, public administrators, and sociologists should find a great deal of useful material in the various chapters.

Nelken authored the first chapter, which covers the current disconnect between increased punitiveness and lowered crime rates in the United States, Britain, and Wales. Unlike the United States, Britain and Wales use short terms of imprisonment. Nelken stresses the important difference between continental and common law systems with the latter’s attention being directed to the insulation/responsiveness based on political direction and/or social expectations. He opines that studying prison rates alone leads to distorted conclusions. A discussion of the changing faces of tolerance and their impact on prison rates concludes the chapter.

AMERICAN POLITICIANS CONFRONT THE COURT

by Stephen M. Engel. New York: Cambridge University Press. 406pages. $99.00 Cloth. ISBN: 9780521192958. $32.99. Paper. ISBN: 9780521153980.

Reviewed by Tom S. Clark, Department of Political Science, Emory University. TClark7 [at] emory.edu.
pp177-180

Since the days of Jefferson, antagonism between the elected branches of government and the federal judiciary has been a regular characteristic of American government. Nearly every undergraduate who takes a class in American government or constitutional law certainly learns the story of Marbury v. Madison, a case in which the Supreme Court came in direct conflict with the Jefferson Administration and was able to escape the battle arguably even stronger than it had been before. Stephen Engel’s American Politicians Confront the Court offers a new perspective on the nature of these conflicts, specifically focusing on how their tenor and content have evolved over the course of American history. Engel’s argument, which he develops through a series of detailed qualitative, historical narratives of periods of conflict between politicians and the Court, is that the very meaning of conflict has changed from one of true institutional threat during the early years of the Constitution to one of more tolerant institutional rivalry in the modern era. I suspect this book will provide much grist for the mills as scholars seek to incorporate Engel’s descriptive empirical work on political development into theoretical accounts of institutional evolution, political legitimacy, and the separation of powers.

Engel’s argument is essentially that the terms of constitutional political debate have evolved over the past 220-plus years and that the nature of political confrontations with the Court bears witness to those patterns. The first 70 years of the Constitution were characterized by civic republicanism, which was a mode of constitutional discourse in which each side of a debate believed itself to be the true defenders of the Constitution. Opposition views were not only wrong but were illegitimate and threatening to the stability of the system. However, over the course of the nineteenth century, that view of opposition changed. Engel (pp.55-56) argues there were two important developments that are critical to understanding how American politics changed.

[First] is the shift from understanding opposition outside the bounds of parliamentary debate as wholly illegitimate to acknowledging opposition as unavoidable and finally to accepting it as non-threatening; and second is the transition from being hostile to all political parties to accepting a party as an organizational form and finally to promoting multiple party competition.

DEFENDING CONGRESS AND THE CONSTITUTION

by Louis Fisher. Lawrence: University Press of Kansas, 2011. 358pp. Cloth $39.95. ISBN 9780700617982. Paper $24.95 ISBN 9780700617999.

Reviewed by Brett W. Curry, Department of Political Science, Georgia Southern University. Email: bcurry [at] georgiasouthern.edu.

pp.173-176

Defending Congress and the Constitution is a refreshing, accessible, and iconoclastic book. Louis Fisher, one of the most respected authorities on constitutional history and the separation of powers, channels his considerable expertise toward two related goals—puncturing the myth of judicial supremacy and reminding readers of the many ways in which Congress has protected and defended individual liberties and rights. In systematic fashion, Fisher presents a vigorous historical and normative defense of coordinate constitutional construction and labels the notion that the American constitutional system was intended to make the courts infallible “judicial idolatry” (p.18).

Despite its title, Fisher’s book is neither unswerving in its defense of Congress nor subtle in critiquing the Supreme Court. Indeed, one of Fisher’s main lines of argument is that Congress has willingly abdicated a number of its duties and, as a consequence, has unduly strengthened the judiciary’s grip on constitutional interpretation. In the opening pages, Fisher contends that “A single surrender [by Congress], however, modest, sets a precedent for the next. Power abdicated is not likely to be recovered” (p.2). Whether such capitulations are the result of Congress providing for expedited review of constitutionally-debatable legislation rather than grappling with those constitutional questions itself (pp.215-216), exhibiting a willingness to defer to the “expertise” of others (p.272), or demurring from criticizing the Court’s decisions (p.321), Fisher repeatedly emphasizes that members of Congress have a duty to protect the institution’s power. Indeed, he insists members violate their oaths of office when they fail to do so (p.3).

Chapter 2, entitled “Unpacking Marbury,” offers Fisher’s account of the classic 1803 case and its implications. Importantly, in addition to reviewing and assessing the fundamentals of the decision itself, the chapter reminds readers that John Marshall’s Court actually utilized judicial review to legitimize and ratify the actions of Congress and the President in areas such as the Commerce and Necessary and Proper Clauses (p.43). Fisher also proffers considerable historical evidence to buttress his conclusion that “The framers never intended to vest in the Court final authority over the meaning of the Constitution” (p.45). Given recent and impending inter-branch disagreements over issues such as campaign finance reform and health care, Fisher issues a prescient reminder to politicians and citizens alike that the resolution of such matters cannot and, in his view, “should not be the special province of a small group of persons who happen to occupy the Supreme Court bench” (p.47).

DECISION MAKING BY THE MODERN SUPREME COURT

by Richard L. Pacelle, Jr., Brett W. Curry, and Bryan W. Marshall. New York: Cambridge University Press, 2011. 278pp. Paper $27.99. ISBN: 9780521717717.

Reviewed by Charles C. Turner, Department of Political Science, California State University, Chico. Email: ccturner [at] csuchico.edu.

pp.170-172

In Decision Making by the Modern Supreme Court presents a broad look at the factors underlying the U.S. Supreme Court’s corpus of decisions for the period 1954 (using Brown v. Board of Education as a starting point) to 2000. The authors should be commended for attempting a ‘Grand Unified Theory’ of sorts – one that addresses and integrates the leading theories of judicial decision making. Although that theory itself is not an unqualified success, there is much to recommend the text. It works well as both a broad introduction to the leading theories of judicial decision making and as an empirical test of ideas the authors develop.

Pacelle, Curry, and Marshall begin their outline of the Modern Court by making a case for Brown as the beginning of a new era. Their careful approach to history and the development of ideas foreshadows the effective approach of using narrative to describe issue evolution they will take later in the book. From this beginning, they go on to discuss the main theoretical constructs scholars have developed for explaining why justices decide the way they do. The authors cover a wide swath of scholarship, framing the discussion into three familiar categories of models: attitudinal, legal, and strategic. In addition to serving as a useful literature review, this part of the text also lays the groundwork for the central argument that follows.

The authors’ theory posits something many scholars of judicial politics probably believe: rather than one camp getting it right, the three leading attempts to account for judicial decision making are all somewhat right. The key is in knowing the specific circumstances in which one model should move to the forefront. The authors offer a typology based on the grounds for the decision (statutory or constitutional) and the salience of the issue (relatively high or low). They posit that in highly salient (that is, civil rights and civil liberties), constitutional cases, the attitudinal model will offer the best explanations. On the other hand, less salient (economic), statutory cases are the ones most likely to be controlled by precedent, as the legal model would predict.

CHILDREN’S SOCIO-ECONOMIC RIGHTS, DEMOCRACY AND THE COURTS

by Aoife Nolan. Oxford: Hart Publishing, 2011. 336 pp. Cloth $110.00. ISBN: 1841137693.

Reviewed by Alice Hearst, Department of Government, Smith College. Email: ahearst [at] smith.edu.

pp.166-69

In Children's Socio-Economic Rights, Democracy, and the Courts, Aoife Nolan offers a densely argued defense of judicial involvement in the enforcement of children’s socio-economic rights. Nolan, a senior lecturer in law at Durham University in the UK, delves deeply into the objections most frequently voiced when courts take an active role in enforcing socio-economic rights: that such rights are too indeterminate or are too polycentric to be resolved by judges; that judicial action in this arena violates separation of powers principles central to institutional integrity and reflects the worst kind of counter-majoritarian excess; and that, even if those objections can be overcome, judicial actions are likely to be inefficient or counterproductive to children’s interests.

Children, Nolan points out, “are disproportionately represented amongst the poor, whether such poverty is defined in absolute, relative or other terms” (p.xxvii), with permanent effects on children’s life chances. Socio-economic rights, she argues, offer one of the few avenues out of such poverty, as only those rights can increase children’s access to health care, education and other resources. When the Convention on the Rights of the Child shifted the discourse about children’s welfare from one of charity to rights, the possibilities for elevating children’s concerns seemed to offer hope for concrete action. However, because children have no effective voice in democratic politics, the vindication of their rights through traditional channels is not likely to occur, Nolan argues, with the result that courts must be willing to enter the fray. Nolan does not argue that courts are the best suited among state actors to further children’s socio-economic rights. Rather, she argues that judicial action is justifiable when other institutions fail to respect or enforce such rights.

Nolan’s discussion of children’s unique disempowerment in a democracy in Chapter Two is enlightening. As she points out, the assumption that children’s interests are inevitably represented by parents or other actors is simply untenable. While protecting children’s interests is often a good rhetorical strategy for elected officials, those interests are likely to fall by the wayside if and when they conflict with claims asserted by other groups, especially when those groups have the ability, denied to children, to vote. Moreover, elected officials will tend to privilege the interests of some children over others – they are particularly unlikely to support programs for children who are viewed as potentially disruptive of mainstream values.

COSMIC CONSTITUTIONAL THEORY: WHY AMERICANS ARE LOSING THEIR INALIENABLE RIGHT TO SELF-GOVERNANCE

by J. Harvie Wilkinson III. New York, NY: Oxford University Press, 2012. 161 pp. Hardcover $21.95. ISBN: 9780199846016.

Reviewed by Zachary Baron Shemtob, Department of Criminology and Criminal Justice, Assistant Professor, Central Connecticut State University. Baronshemtob [at] gmail.com.

pp.162-165

Throughout Cosmic Constitutional Theory, Judge J. Harvie Wilkinson III praises the virtues of judicial self-restraint in what he sees as an age of pernicious activism. Though Wilkinson’s lament is nothing novel, he finds a unique source of blame: According to Wilkinson, unified constitutional theories of interpretation have enabled unbridled judicial discretion, allowing judges to mask ideological decisions under the guise of neutral principles. While Wilkinson explicitly rejects constructing his own theory, he seems to inadvertently endorse a form of restrained pragmatism.

As a judge on the United States Court of Appeals for the Fourth Circuit, J. Harvie Wilkinson III has certainly practiced the restraint he preaches. Wilkinson’s restraint-based forefathers argued that judges should only strike federal or state legislation clearly unconstitutional, or statutes neither rooted in the founding document’s explicit text or its succeeding history (Thayer 1893). Indeed, according to a recent study, Judge Wilkinson has upheld more legislation than almost any other circuit court judge, refusing to show favoritism based on either a measure’s liberal or conservative nature (Yung 2011). Perhaps more striking is Wilkinson’s condemnation of both the Supreme Court’s decisions in the liberal Roe v. Wade and the more conservative District of Columbia v. Heller, as well as his admission that, while he may be uncomfortable with it as a matter of policy, Wilkinson believes the Affordable Care Act’s individual mandate is constitutional (Wilkinson 2012).

FIVE MASTERS OF INTERNATIONAL LAW

by Antonio Cassese. Oxford and Portland, OR: Hart Publishing, 2011. xix+286pp. Paper $40.00. ISBN: 9781849461207.

Reviewed by H.G. Callaway, Philadelphia, PA.

pp. 154-161

Focused on five prominent scholars of international law, and casting light on the related institutions which frequently engaged them, the present book provides insight into chief currents of international law during the last decades of the twentieth century. Spanning the gap, in some degree, between Anglo-American and continental approaches to international law, the volume consists of short intellectual portraits, combined with interviews, of selected specialists in international law. The interviews were conducted by the editor, Antonio Cassese, between 1993 and 1995 though the present volume was published only last year.

Cassese, an Italian jurist and international lawyer, was Professor of International Law at the University of Florence (1975-2008) and specialized in public international law. Among other posts held, he was the first President of the International Criminal Tribunal for the former Yugoslavia, the first President of the Special Tribunal for Lebanon and chaired the UN Inter-national Inquiry into Crimes in Darfur. He authored International Law (2005), a comprehensive commentary on the subject (which makes a fine companion volume to the present book). He was also editor in chief of the Oxford Companion to International Criminal Justice (2009) and founded the Journal of International Criminal Justice. His work has been credited as providing a chief impetus in the revival of inter¬national criminal law from its post-Nuremberg hiatus.

THE COALITION AND THE CONSTITUTION

by Vernon Bogdanor. Oxford and Portland, OR: Hart Publishing, 2011. 162 pp. Cloth $40.00. ISBN: 9781849461580.

Reviewed by Geoffrey Wandesforde-Smith, Department of Political Science, University of California, Davis. Email: gawsmith [at] ucdavis.edu.

pp.149-153

The author of this short but thoroughly enjoyable and, I think, very important book has written on both parts of his topic before (Bogdanor, 1983, 2009). Others have broadly surveyed the history of coalition politics and government in Britain (Butler, 1978; Searle 1995; Powell, 2004; Oaten, 2007). Still others have written at length about particular coalition governments in British history (Smart, 1999; Morgan, 1979), including the present coalition of Conservatives and Liberal Democrats cobbled together when the 2010 British general election, in early May of that year, failed to give either the incumbent Labour government of Gordon Brown or any single major opposition party a mandate (Laws, 2010).

Indeed, notwithstanding the oft-quoted and rather sour observation Benjamin Disraeli made about the English not having much affinity for coalitions in their politics, in 1852, when Disraeli was Chancellor of the Exchequer and faced a coalition defeat of his budget, the actual politics of coalitions over the years have received a not inconsiderable amount of scholarly attention. So, too, have the prospects for electoral and governing coalitions that might realign British party politics, particularly on the left (Joyce, 1999).

One great value of this new book by Bogdanor is that it weaves together all this earlier work on British coalition politics. In the process, it also shows how great the gap is between the expedient rationale for the present Coalition Government of David Cameron (the Conservative Prime Minister) and Nick Clegg (the Liberal Democrat Deputy Prime Minister) and mainstream academic assumptions about the origins, desirability and value of coalitions in British political life.

ALL THE MISSING SOULS: A PERSONAL HISTORY OF THE WAR CRIMES TRIBUNALS

by David Scheffer. Princeton and Oxford: Princeton University Press, 2012. 570pp. Cloth $35.00. ISBN: 9780691140155.

Reviewed by Edward Gordon, Honorary Vice President, American Branch, International Law Association. E-mail: gordon23 [at] gmail.com.

pp.144-148

David Scheffer was senior advisor and counsel to Madeleine Albright from 1993 to 1996, when she was the US ambassador to the UN, and ambassador-at-large for war crimes issues thereafter until the end of the Clinton Administration. The two roles placed him at the center of international efforts to establish criminal tribunals to bring to justice leading perpetrators of atrocities in the Balkans, Rwanda, Sierra Leone and Cambodia, and to create the first permanent international criminal tribunal, the International Criminal Court (ICC). All the Missing Souls recounts these efforts, their successes and the frustrations encountered in achieving them.

“[T]he task,” Scheffer makes clear from the outset, “was not to construct a new legal order of perfect justice where every war criminal from the top leaders on down to the foot soldiers would be prosecuted. Rather, the challenge centered on building tribunals that would hold political and military leaders to account for the atrocity crimes unleashed on innocent civilian populations for which they were primarily responsible. By the turn of the century, it was no longer plausible to argue that there was a logical or moral basis for leadership impunity” (p.3).

The viciousness of the atrocities and the number of victims they claimed are staggering. In Cambodia, during the Pol Pot era (April 1975 to January 1979), an estimated 1.7 million people perished at the hands of the Khmer Rouge, and millions more victims envied the dead. In Kosovo, in March 1977 alone, half a million persons were displaced as a result of ethnic cleansing. In Rwanda, over a period of a hundred days in 1994, an estimated 800,000 women, children and men were massacred. The rampage that targeted civilians in Sierra Leone in February 1998 created some 600,000 refugees.