BOOKS-ON-LAW/Book Reviews - July 2001; v.4, no.5
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Contents
  • Chesterman, Simon. Just War or Just Peace: Humanitarian Intervention and International Law. Review by Virginia Brown Keyder.
  • Epps, Garrett. To an Unknown God: Religious Freedom on Trial. Review by Robert S. Peck.
  • Gray, Christine. International Law and the Use of Force. Review by Virginia Brown Keyder.
  • Kessler, David. A Question of Intent: A Great American Battle with a Deadly Industry. Review by Joseph A. Page.
  • Leiter, Brian (editor). Objectivity in Law and Morals. Review by Dennis Patterson.
  • Sollors, Werner (editor). Interracialism: Black-White Intermarriage in American History, Literature, and Law. Review by Peter Wallenstein.
  • Steele, James B. & Donald L. Barlett. The Great American Tax Dodge: How Spiraling Fraud and Avoidance Are Killing Fairness, Destroying the Income Tax, and Costing You. Review by Janet Spragens.
  • Strossen, Nadine. Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights. Review by Robert J. Delahunty. Reply by Marjorie Heins.
  • Whichard, Willis P. Justice James Iredell. Review by Donald L. Doernberg.
  • White, Edward G. The Constitution and the New Deal. Review by Tinsley E. Yarbrough.
  • Talkback
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Reviews

Tobacco War: Dispatches from the Battlefield
by Joseph A. Page

A Question of Intent: A Great American Battle with a Deadly Industry
David Kessler
New York, NY: Public Affairs, 2001
Cloth: $27.50
Pp. xiv, 492
ISBN: 1891620800

When President George H.W. Bush tapped a young pediatrician with a law degree to head the Food and Drug Administration (FDA) in 1990, there was little indication that his nominee would become the most controversial commissioner in the agency's history. True, David Kessler had a certain brashness about him. (I remember once hearing industry types grumble about his lack of deference when he appeared, not long after his appointment, before an audience composed mostly of corporate officials and employees.) But who could have expected him to make the dramatic move of labeling smoking a "pediatric disease," as a prelude to his enlistment of the FDA in the crusade against a small group of powerful companies that had been successful up to then in avoiding both meaningful regulatory control over their conduct and financial responsibility for the vast harms associated with their products?

In the first years of his term in office, Kessler took a number of measures that vitalized the FDA. He helped streamline the drug-approval process to make new treatments expeditiously available to victims of AIDS and other serious diseases; aimed a message-sending seizure of misbranded orange juice at corporations hoping to profit from the FDA's prior indifference to economic fraud; won presidential endorsement of his agency's tough position on the labeling of fat in meat products; struggled to prevent the pharmaceutical industry from over-promoting drugs to physicians; and navigated bureaucratic shoals, such as overly aggressive congressional oversight, that had long created headaches for Commissioners of Food and Drugs. (Indeed, a thoughtful monograph on how he addressed these and other non-tobacco issues would be a welcome contribution to our understanding of the process of food and drug regulation.)

But it was the challenge of bringing the FDA's legal authority and resources to bear on America's number-one public-health tragedy that fired his imagination and soon consumed him with Captain Ahab-like intensity, as he set out in search of secrets shrouding how the tobacco industry was making use of nicotine in cigarettes. A Question of Intent: A Great American Battle with a Deadly Industry is his personal account of the quest, and of the FDA's effort to use what it discovered to justify taking regulatory action against the marketing of cigarettes.

The United States Supreme Court ultimately frustrated the FDA after Kessler left the agency (see FDA v. Brown & Williamson Tobacco Corp. (2000)), but he has remained active in the anti-smoking movement, with his public statements as well as the extensive supplemental research he did for this book. The conclusion he reaches in A Question of Intent that the only solution to the smoking problem is the breaking up of the industry into small units closely regulated by the federal government, a prescription that would strip "Big Tobacco" of its vaunted political influence reveals the extent to which his experience at the FDA has radicalized his thinking.

Of Wars & Battles

The title and subtitle of Kessler's book provide important insights into its substance. He does describe in riveting detail a "great American battle" (and he labors mightily, if not altogether successfully, to avoid making it seem like "his battle"). However, he provides readers with an inadequate sense of its place in the grueling war that had been waged for decades, and still continues, against the so-called "merchants of death."

In addition, his single-minded focus on the "question of intent" (whether tobacco companies meant their products to affect a function of the human body, in such a way as to bring them within the statutory definition of "drug" or "medical device") runs suddenly and unexpectedly aground, especially for readers unfamiliar with the story, when the Supreme Court turns a blind eye to all the evidence tending to establish the requisite mindset on the part of various cigarette manufacturers and yanks the jurisdictional rug out from under the FDA. Kessler posits simply that the closely divided Court rendered its decision on ideological grounds (indeed, the five-to-four split duplicated the subsequent line-up of the Justices in Bush v. Gore (2000)), an explanation that is consistent with his book's title but that ignores the anguished tone of Justice O'Connor's majority opinion and slights its substance and significance.

The FDA's entry into the tobacco wars was, of course, not an independent sortie, but rather the latest in a series of thrusts by the federal government and of successful dodges or parries by the cigarette companies. Indeed, the industry deftly converted one of the most important initiatives, an effort by the Federal Trade Commission in the early 1960s to regulate the labeling and advertising of cigarettes, into legislation that mandated only a warning on packs (which at the same time had the effect of making it easy for tobacco companies to establish assumption of risk as a defense in lawsuits brought by smoking victims). (See G. Lee Fritschler, Smoking and Politics: Policymaking and the Federal Bureaucracy (Appleton-Century-Crofts, 1969); Elizabeth Drew, "The Quiet Victory of the Cigarette Lobby: How It Found the Best Filter Yet - Congress," The Atlantic Monthly, September 1965.) The FDA's move under Kessler also had an interactive relationship with contemporaneous lawsuits seeking to hold the companies liable for some of the vast harm associated with their products, since information unearthed by the agency and by plaintiffs' attorneys proved to be of inestimable value on both fronts. Furthermore, the defenses adopted by the industry had to take into account pressures from both the lawsuits and the agency.

The difficulty with writing a book like A Question of Intent derives from the fact that it is really just one piece of a larger tapestry. For the big picture, one must turn to the definitive work, Richard Kluger's Pulitzer-Prize-winning Ashes to Ashes: America's Hundred-Year Cigarette War, the Public Health, and the Unabashed Triumph of Philip Morris (Vintage 1997), a history of the long, grueling struggle between the tobacco industry and public-health advocates and others seeking to regulate the production and marketing of cigarettes, or the imposition of tort liability on the tobacco companies for smoking-related harm. Kluger includes an account of the FDA's foray, up to a decision by a lower court upholding it in principle. Kessler tells that story in exhaustive detail, until the point of the Supreme Court's invalidation of the FDA regulation imposing controls on the distribution of cigarettes. A Question of Intent thus joins a shelf of books that focus on discrete aspects of the tobacco wars. (See, for example, Stanton A. Glantz & Edith N. Balbach, Tobacco War: Inside the California Battles (University of California Press, 2000), describing efforts to raise the California excise tax on cigarettes as a method of funding a comprehensive state tobacco-control program; Philip J. Hilts, Smoke Screen: The Truth Behind the Tobacco Industry Cover-up (Addison Wesley, 1996), a New York Times reporter's account of efforts by the cigarette companies to conceal their marketing strategies and the dangers of smoking; and Dan Zegart, Civil Warriors: The Legal Siege on the Tobacco Industry (Delacorte Press, 2000), the story of how one plaintiff's trial attorney took on "Big Tobacco.")

History vs. Memoir

In writing about a single campaign in a war, an author must choose between a descriptive narrative informed by hindsight, and a chronological account recording each episode as it appeared to and produced reactions from a protagonist. Kessler opts for the latter approach, which enables him to provide, both consciously and subconsciously, a subtle form of self-criticism. His text recounts lessons learned from the bitter taste of experience, and what is omitted from it, mostly in matters of background and context, provides similarly useful insights.

Kessler's story begins in earnest with his response to petitions from anti-smoking activists, asking the FDA to take regulatory action against cigarettes. In a letter that clearly signaled the end of the agency's longstanding "hands-off-tobacco" policy, he announced that the FDA would mount an investigation into whether cigarette vendors did in fact intend for their products to have a drug-like effect on smokers. What offered hope that this might justify the agency's assertion of authority over cigarettes was new evidence suggesting that the tobacco companies might be manipulating the nicotine, a known addictive, in the cigarettes they were marketing.

The bulk of the book reads like a good detective story, as agency investigators, spurred on by Kessler, systematically uncover facts pointing to the conclusion that the tobacco companies not only knew they were selling an addictive product, but also took active and deliberate measures to make certain their cigarettes would deliver to smokers sufficient nicotine to achieve a level of addiction that would maximize sales of their products.

Anything Goes

The countermeasures taken by the industry provide some of the most gripping moments in Kessler's narrative. These include the targeting of an FDA investigator with a civil harassment suit based on false testimony that the key witness later told Kessler a tobacco company made him provide; the personal vilification of the author; and the nauseating performances of key members of Congress as they danced to the industry's tune and did everything they could to block FDA from regulating cigarettes. In addition, one of the companies filed a costly defamation suit against ABC-TV for the telecast of a program exposing how companies used nicotine in their cigarettes. (The documentary alleged that one of the companies "spiked" its cigarettes with nicotine, an allegation the network prematurely admitted was untrue in agreeing to a settlement.)

There is some indication that Kessler and his agency were unprepared for the ferocious defense mounted by the cigarette manufacturers. Indeed, the author admits that at the outset he "had no idea what it meant to challenge the tobacco industry." (90) Yet the fight-to-the-bitter-end strategy and no-holds-barred tactics used by "Big Tobacco" and its acolytes have remained constant ever since independent scientists, persistent plaintiffs' lawyers, public-spirited legislators and courageous bureaucrats first began to challenge the tobacco industry's immunity from regulatory control and financial responsibility for harm linked to its products.

For example, on the judicial front, the first wave of lawsuits brought by smokers attempting to recover damages in tort from manufacturers in the 1950s and 1960s (as described in Robert L. Rabin, "Institutional and Historical Perspectives on Tobacco Tort Liability," in Robert L. Rabin & Stephen D. Sugarman, eds, Smoking Policy: Law, Politics, and Culture (Oxford University Press, 1993)) broke against an impregnable sea wall, as the companies pursued a policy of spending their adversaries into financial exhaustion and ultimate surrender, and argued, without apparent embarrassment, first that there was inadequate scientific evidence to link smoking and cancer; secondly, that they did not know and in the exercise of due care could not have known about the risks posed by cigarettes; and thirdly, that smokers should be held to have knowingly and willingly assumed the risks of smoking. In the second wave of litigation in the 1980s, the companies again out-lawyered plaintiffs for example by converting tort suits into morality plays that in effect put the individual plaintiffs on trial for opting to continue to smoke.

On the one hand, Kessler was obviously well aware of the free-choice strategem used successfully in civil actions, during which jurors often had demonstrated skepticism about how difficult it was for plaintiffs (or decedents) to stop smoking. Indeed, he astutely turned this ploy on its head when he argued before a congressional committee that by manipulating delivery levels of an addictive drug present in their products, the industry was denying smokers the right to make a free decision.

On the other hand, Kessler seemed rather surprised, or at least dismayed, when some of the most talented food-and-drug attorneys in Washington appeared on behalf of the industry and put their formidable skills to work in devising the best possible arguments against the FDA regulation. One of the memorable moments in the book is when a pair of former general counsels of the agency appeared at the table for industry with a third, who argued the climactic argument before the Supreme Court. "I was bothered less by the legal skills that these three were providing than by the support for the tobacco industry that their presence implied," notes Kessler. (380)

Playing to the Public

Kessler displayed savvy in his timing when he released a letter disclosing that the FDA would look into the use of nicotine in cigarettes as a possible prelude to regulatory action. ABC-TV was about to telecast its ill-fated documentary on nicotine, and Kessler scooped the network by several days on the publicity front.

He failed to anticipate, however, that a congressional subcommittee would immediately schedule hearings, and that he would be forced to defend his decision before his investigators had time to do their work. The Democrats on the subcommittee were interested in flogging the industry, while the Republicans used the occasion to demand from Kessler sensitive information about his sources, so they could pass it on to the cigarette companies. (His refusal to do so provoked vitriol as well as threats from frustrated members.) Thus, what Kessler perhaps naively hoped would be a dispassionate search for truth by his agency became embroiled in partisan wrangling and industry-inspired attempted sabotage a turn of events consistent with past practices by "Big Tobacco."

Kessler also expresses annoyance at the claim by industry defenders that the FDA's hidden agenda was to ban the sale of cigarettes. But if the Supreme Court had upheld the agency's jurisdictional claim, it thereby would have had the necessary authority to declare cigarettes to be adulterated and misbranded medical devices, and prohibit their shipment in interstate commerce. The agency, however, made a specific finding that an outright ban at this time would be more detrimental to the public health than the restrictions it was proposing, and that in the exercise of its discretion it would leave cigarettes on the market. Claiming that the agency already had resolved to prohibit the marketing of cigarettes was a misrepresentation (similar, as Kessler points out, to the TV commercials by the dietary-supplement industry claiming that FDA's efforts to regulate it masked an intent to ban the sale of vitamins), but the valid point remained that if cigarettes were in fact medical devices, the FDA would have statutory authority to take them off the market. This turned out to be a point vigorously stressed in legal arguments against the FDA's tobacco rule.

More Than Intent

A critical assumption underlying the agency's effort to curtail smoking by young people was that the regulation would stand or fall on the ability to prove that cigarettes were instruments intended to affect a function of the human body, and thus fell within the scope of the statutory definition of medical device. The FDA's theory was that nicotine, an ingredient in cigarettes, was a drug by definition, since it was meant to affect a bodily function; cigarettes were drug-delivery devices; and the agency had discretion to treat either nicotine as a drug or cigarettes as medical devices. It would opt for the latter approach, since the FDA's statutory authority to regulate medical devices was more expansive and flexible than its authority to regulate drugs, and would enable the agency to place restrictions on the promotion and marketing of cigarettes to children and adolescents.

The original version of the statute, enacted in 1906, regulated only food and drugs, and defined the latter as substances either listed in certain published compilations or intended to cure, mitigate or prevent diseases. In 1938, the Act was substantially amended, inter alia, to cover medical devices, whose definition tracked that of drugs, and the definitions of both drugs and medical devices were expanded to include substances or devices intended to affect the structure or function of the human body. Until 1994, the FDA had never sought to classify cigarettes as medical devices, and had taken the firm position that it had no evidence to establish that cigarette makers intended their products to affect a bodily function (even though the addictive quality of nicotine was well known), since there was nothing explicit in the labeling or promotion of cigarettes to suggest this state of mind on the part of manufacturers. However, the agency once had taken enforcement action against a tobacco company that sold cigarettes for which it was making a variety of disease-prevention claims, and which therefore could be classified as drugs.

What was different this time was the agency's search for and discovery of what it averred was sufficient proof that manufacturers were intentionally manipulating nicotine levels to maintain a desired degree of addiction in smokers the essence of the story told by Kessler in A Question of Intent. Perhaps as a means of making sure that the regulation covered even manufacturers whom the FDA could not prove were manipulating nicotine levels, the agency added two other somewhat less persuasive contentions: first, since companies could foresee that nicotine would affect a function of the body, they should be held to have intended that effect; and second, since many consumers smoke cigarettes because of their addictive effect, manufacturers should be considered to have desired that effect.

Kessler does not discuss any of the legalistic objections industry lawyers and others raised to the FDA's assertion of jurisdiction over cigarettes. He creates the impression that if the agency was correct on its factual allegation of manipulation, the battle would be won. But a Supreme Court majority refused to address this claim and ruled against the agency because other provisions of the statute, consequently enacted laws and "common sense" all indicated that Congress never meant to include cigarettes within the definition of drug or medical device. Kessler concludes that "attitudes toward government regulation determined the vote . . . [T]here was no evidence we could have presented to sway those five justices." (384) But it is not clear that all the Justices voting against the FDA were looking for facts, since the majority opinion turned on arguments about statutory interpretation. Perhaps Kessler felt that a book written for the general public was not the medium for serious discussion of the actual bases for the majority's decision, but he does the Court a disservice by suggesting that such grounds did not exist.

Consequences

The FDA's regulatory experiment with cigarettes occurred at a time when a number of states were suing the industry to recover for past Medicaid payments to smokers for cigarette-related illnesses, and plaintiffs' attorneys were besieging it with a new wave of class-action and individual tort claims. The potential financial impact of these suits, some of which asked for punitive damages, were of much greater concern to the tobacco companies than the FDA's assertion of jurisdiction. "Big Tobacco" attempted to reach a so-called "universal settlement" through federal legislation that would provide for substantial payments to the states, exemption from liability to individual smokers and limited FDA jurisdiction enabling the agency to do much of what its proposed regulation would have done. Kessler joined anti-smoking advocates in opposition to the settlement, and it foundered. However, the possibility of new legislation enabling the agency to do most of what it had sought to do remains very much alive.

What Kessler and his troops at the FDA accomplished was to help change both public opinion and the political atmosphere in ways that seem to have stripped the cloak of invincibility from the tobacco industry, which has begun to lose tort-based suits. If effective regulation should come to pass and alleviate the horrific public-health consequences of smoking, major credit must go to Kessler for his imagination, tenacity, and courage in going where no prior FDA commissioner had dared to venture, and in fighting the good fight for a cause well worth espousing.

Joseph A. Page is a Professor at the Georgetown University Law Center, where he has taught Food and Drug Law since 1980.

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Feminism and Pornography
by Robert J. Delahunty

Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights
Nadine Strossen
New York, NY: New York University Press, 2nd edition, 2000
Paper: $18.95
Pp. lvi, 320
ISBN: 0814781497

Pornography is big business. X-rated programming brings in billions for providers of satellite and cable television services. The Internet may become an even more important purveyor. Already, "adult" content is the biggest business on the Web, with an estimated $2 billion in annual sales. Web-tracking firms report that about six million Web users spend at least eleven hours a week at sex sites. Many users spend more than eighty hours each week. All this is apart from books, magazines, films, and live acts. And the business is growing.

What causes Americans to demand so much pornography? That is hard to say. The answer may be, in part, that our culture at its core remains deeply Puritan. (As Professor Nadine Strossen notes, "Americans' attitudes toward sexual expression not to mention toward sex itself continue to reflect inconsistency at best, hypocrisy at worst." (xxiii)). Sexual imagery, language, invitations surround us on all sides, but seem to remain forbidden, enticing, dangerous, dirty. Pornography on this account emerges as the vector sum of the conflicts between lust and inhibition, curiosity and revulsion. In any case, whatever the cause, American business has discovered that sex (along with almost everything else) can be commodified, packaged, and sold to a mass market. The result? As in so many other ways, American life becomes coarser, uglier, more impoverished, more dehumanized.

"Conservatives" and, much more recently, feminists such as Andrea Dworkin and Catherine MacKinnon, have strenuously argued that pornography has such evil effects although they differ in what the evils are. "Liberals" and, now, feminists such as Nadine Strossen reply that pornography's good effects (usually identified as forms of sexual/political "liberation") outweigh the bad, and that in any case the attempt to censor pornography would produce more evils than it would prevent. The debate within feminism has odd similarities to the older debate between "conservatives" and "liberalism," and Professor Strossen often seeks to exploit the resemblances, to the (assumed) discomfort of her feminist adversaries.

Each side in this four-cornered debate has something important right. The "conservatives" have been right to point out the corroding effects of pornography on the heart and the imagination. (More subtly, they are right in trying to locate the demand for pornography in defective conceptions of sexuality.) The "MacDworkinites" (as Strossen calls them) are right to link pornography to the exploitation and degradation of women. But, in my view, the "liberals" and feminists like Strossen are right to argue that censorship is not the remedy. Even setting apart the problem, for a democracy, of attempting to suppress a commodity that so many millions among us demand to have, the effort would be effective only in driving pornography underground, would damage civil liberties, would sweep in great works of art and literature (as well as a good many other works of lesser value), and would inhibit the kinds of variety, saltiness, and freedom of expression to which we are accustomed and entitled. If you are in doubt of the dangers of such censorship, consider (as Strossen invites us to do) the "hate speech" codes prevalent on university campuses. Or better still, think of that paradigm of the wasteful, costly, ill-conceived, ineffective government program the "War on Drugs."

So far I agree with Strossen's conclusions in this vigorous and well-documented book. (Incidentally, this new edition of the 1995 original includes a spirited "Foreword" by Wendy Kaminer and a useful new introduction by Strossen herself.) The central flaw in the book, as I see it, is one to which Strossen is driven by her overall argumentative strategy: if the MacDworkinites say that pornography is bad both intrinsically and in its effects, then Strossen feels compelled to argue that it is a positive good. The argument against censorship glides into an argument for pornography. But Strossen's case against censorship is more than powerful enough to stand on its own, and does not need the further, hugely unconvincing, effort to demonstrate the value of pornography.

Let me suggest an analogy between pornography and marijuana. First, there are powerful reasons to think that the government should not be criminalizing the sale or use of the substance that the vices of prohibition aggravate the problem it addresses. Second, it may be plausible to argue (I have no opinion about this) that the adverse effects of marijuana have been exaggerated. (Strossen does a good job in Chapter 12 of rebutting the claim that pornography causes violence against women.) Third, it is plausible to say that the use of marijuana in some circumstances (e.g., as a painkiller for the terminally ill) can be a good. Likewise, as Strossen maintains, pornography may be good for some users (the isolated, the lonely, and those for whom sex, for whatever reason, can be at most a virtual reality). But, fourth, is it really true that a society in which marijuana was regularly and routinely used on an everyday basis by tens of millions of people was better, all else equal, than a society in which as a result not of law but of social attitudes such use was far less common? That seems to me obviously false. Yet Strossen is committed to making that kind of claim on behalf of pornography. The lurking ambiguity in the title of Defending Pornography "Is it a defense of a right to consume pornography, or of pornography as a good in itself?" has to be resolved in favor of saying: "It is both."

Why does Strossen think of pornography as (often, at any rate) a positive good? She argues for that view in her Chapter 8, "Positive Aspects of Pornographic Imagery." This is by far the weakest and thinnest chapter in her book; occasionally, it is absurd. Pornography, it turns out, has in Strossen's mind several welcome effects. Sometimes it "depicts women in nonsubordinated roles" (161), such as having their boots on a man's neck. (162) It can serve as a useful sex instruction device (163-64) or as a form of safe sex. (164) It can "enhance women's ability to attain sexual pleasure on their own" in masturbating. (166) It can improve women's morale and self-image, and encourage the user to ask the boss for a pay raise. (167) It functions as a kind of "samizdat" for gays and lesbians (167) and helps them to network. (168) It provides the vicarious excitements of "unreal rape." (170-74) Having catalogued these rather trivial "positive aspects" of pornography, Strossen then incongruously argues that pornography has sweeping social and political consequences. She describes such "profeminist aspects of pornography" (175) as its advocacy of "sexual adventure, sex outside of marriage, sex for no reason other than pleasure, casual sex, anonymous sex, group sex, voyeuristic sex, illegal sex, public sex." (175-76) Pornography has a "subversive quality [that] challenges the entire status quo;" it is "'a fantasy of an extreme state in which all social constraints are overwhelmed by a flood of sexual energy.'" (176)

Never mind that Strossen's account of these "positive aspects" of pornography does not sit well with her later arguments that pornography does not provoke violence against women: if pornography really were as radically "subversive" as she assumes, it could hardly fail to lead to violent ends, whether in the form of violent sexual experimentation or in the form of political violence. Never mind, either, that pornography can hardly be said to have such revolutionizing effects in our society when, as Strossen herself notes, it is now served up "for in-room viewing" in "hotels all over the United States, including some of the finest." (165) Strossen seems never to have considered the notion, made familiar decades ago by the Frankfurt School, that sexual permissiveness (including pornography) serves to stabilize and to depoliticize a society like ours, to serve as a device that reinforces social and political controls.

These criticisms hardly glance at what is really wrong with Strossen's argument here. Her fundamental (and banal) error is the failure to recognize that our sexual thoughts and fantasies form and sustain our dispositions to behave in certain ways; that such dispositions are the elements either of a virtuous character, or of a vicious one; that the kind of character we have either promotes or retards our capacity to flourish as human beings that is, to achieve happiness, or not; that the virtue or habit of character specifically directed to sexual desire, traditionally called temperance, is an essential condition of human flourishing, and therefore a precondition of the fullest happiness; and that, in short, where there is no virtue of temperance, there can be no erotic love, but at best a counterfeit of it. The line of reasoning to which I am alluding here forms part of a secular morality of the virtues, and does not depend on religious premises (although it is consistent with them). It originates in Aristotle, and has more recently been developed, subtly and profoundly, by Roger Scruton in Sexual Desire: A Moral Philosophy of the Erotic 322-47 (1986). Pornography on this account is not a good because (in brief) its regular and repeated use tends to "neutrali[ze] the capacity for love." Id. at 338.

Defending Pornography assumes, uncritically and without awareness, a now-commonplace, but shallow, ethic of "liberation." For all the book's undoubted merits, it cannot overcome that signal defect.

Robert Delahunty practices law in Washington, D.C.

Editors' Note: For related Books-on-Law reviews on pornography regulation, see the exchange on Catharine A. MacKinnon & Andrea Dworkin, editors. In Harm's Way: The Pornography Civil Rights Hearings (Harvard University Press, 1998).

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Defending Strossen
by Marjorie Heins

Robert Delahunty has no quarrel with Nadine Strossen on one fundamental proposition: the First Amendment protects, and ought to protect, pornography. As he rightly says, "even setting apart the problem, for a democracy, of attempting to suppress a commodity that so many millions among us demand to have," censorship "would damage civil liberties, would sweep in great works of art and literature (as well as a good many other works of lesser value), and would inhibit the kinds of variety, saltiness, and freedom of expression to which we are accustomed and entitled."

But Delahunty has a big problem with Strossen's further argument: that pornography has positive, substantive value. He wants Strossen to distance herself as so many civil libertarians have done before her from that slimy, vulgar stuff. Strossen should take the moral high road, he believes, and proclaim that even though, of course, she defends to the death those other people's right to produce and enjoy pornographic entertainment, she condemns its base values and poor taste.

The great value of Strossen's book, Defending Pornography, though, is precisely that she does not take this high-minded approach. She likes porn, and isn't afraid to say so; moreover, she assembles a series of potent arguments for its positive social role. Unlike Delahunty, she does not labor to distinguish "variety" and "saltiness" affirmative values in his worldview from the coarseness and vulgarity that he deplores, although these distinctions are, of course, highly subjective. To paraphrase a famous Supreme Court decision, one person's vulgarity is another's saltiness.

I have to admit that like Delahunty, I find most contemporary commercial porn hopelessly crude, unerotic, and indeed unwatchable. But I question whether it has the widespread deleterious social effects with which he taxes it, and I am open to Strossen's arguments that in fact it does positive good. Moreover, despite my sympathy with Delahunty's aesthetic preferences, I applaud Strossen for precisely the reasons that Delahunty condemns her her willingness to go that extra distance and make the case for, yes, commercial, crass, and often really tasteless erotica. By aligning herself with sex-positive feminists who celebrate porn's ability to stimulate sexual fantasy for both men and women, as well as aid women in exploring their orgasmic potential, Strossen opens up precisely the conceptual possibilities that Delahunty would primly reject: that porn, in its way, may be more moral than are some of our conventional homilies about love and sex; that it may provide an important escape valve from the pressure cooker of modern life; that, at worst, it's just harmless libidinous fun; and, most importantly, that it is not simplistic, one-dimensional, or easy to pin down.

Sexual fantasy is a deeply puzzling, and of course interesting, phenomenon. As Strossen and others have pointed out, rape fantasies are extremely common among women, few if any of whom really want to be raped. There is no question that pornography helps many couples improve their sex lives; it is often prescribed by sex therapists for this reason. (It is useful not only, as Delahunty assumes, to "the isolated, the lonely, and those for whom sex . . . can be at most a virtual reality.")

I recall an episode on L.A. Law some years ago when the newly married Stewart and Ann, unable to conceive a child, undergo fertility treatment. The first step, of course, is for Stewart to produce a sperm sample for testing. The physician's assistant discreetly shepherds him toward the restroom, where a stack of pornographic magazines are available to assist him. What could be more wholesome, more family-friendly, than this salutary use of pornography to arouse its most predictable effect?

I don't claim that all married people are thrilled by the beneficial uses of pornography. I am reminded of a caller on a recent radio talk show, complaining that her husband's "pornography addiction" had ruined their sex life: he couldn't get those fantasies out of his head. I had to wonder: if he's a good lover, and as long as he doesn't force you to act out some fantasy against your will, what's the big problem? Fantasizing during sex is common enough, probably because it heightens excitement. Surely, that's better than thinking about the shopping list, and losing arousal in the process. The primary sex organ, as many pundits have noted, is the brain.

Yes, one hears occasional accounts of men committing sexual crimes whose details derive from a work of pornography. But given the vast popularity of commercial porn and the law-abiding nature of most of its consumers, the industry can no more be blamed for such aberrations than Oliver Stone can be blamed for psychopaths who act out scenes from Natural Born Killers, or publishers of the Bible for murderers who believe Armageddon is at hand.

Delahunty, at least, does not go the full reductionist route of pro-censorship MacDworkinites (as Strossen calls them), and specifically charge pornography with causing rape, misogyny, and sex discrimination though at one point he comes close. For the most part, his indictment is broader and subtler: the ubiquity of commercial porn cheapens the social tone and carries us ever further from that white-picket-fence past where presumably sexual violence, rape, and other intemperate behavior did not exist. A mythical past in which, incidentally, millions of Americans were ignorant of female sexuality, wracked with guilt over masturbation, or trapped in miserable marriages.

Certainly, there is much to discuss and debate concerning the eternal appeal, artistic merit, and complex effects of pornography, erotica, and sexual fantasy in general. Of course, pornography has been with us at least since ancient Greek and Roman times; its appeal is universal. And as Strossen notes, a number of scholars, mostly female, are seriously exploring the field; studies such as Laura Kipnis's Bound and Gagged and Linda Williams's Hard Core: Power, Pleasure, and the "Frenzy of the Visible" have helped legitimize porn studies on many campuses.

Even students below college age, I would suggest, are better served by sexuality and media literacy education that examines the functions and myths of pornography than by taboos and censorship laws that make it a crime to communicate material that is "patently offensive," "prurient," and lacks "serious value" for minors (the three elements of the Supreme Court's current 'harm to minors' censorship test). Next term, the Court will consider whether just such a criminal law, censoring communications on the World Wide Web, is constitutional. But whatever the courts decide the First Amendment rights of minors to be and at the moment they are at a rather low ebb 釦he fact remains that from the standpoint of public policy, educating youth about sexuality, including its seamier aspects, is far more likely than censorship to aid them in navigating the turgid waters of our sex-soaked culture, and in developing responsible sexual values and behavior.

In the final analysis, it is Delahunty's reductionism his unwillingness to acknowledge the complexity and ambiguity inherent in porn as in other works of human imagination that dooms his critique, as it dooms the similar arguments of other critics who tread the intellectual road of high virtue for example, Rochelle Gurstein, Neil Postman, and Roger Shattuck. Their tendency to oversimplify, to reduce pornography to an unambiguous exercise in vulgar amorality, ignores the multiple levels on which erotic storytelling operates. True, much pornography is crude, and as Strossen says, portrays the arguably irresponsible joys of "sexual adventure, sex outside of marriage, sex for no reason other than pleasure." But pornographic representations including their incessant themes of dominance and submission, teachers and pupils, doctors and nurses are variations on libidinous themes whose psychic and cultural origins are still largely mysterious. Certainly, they are not simply propaganda for libertinism as opposed to "temperance" (Delahunty's word for virtue); they cannot be reduced to one-dimensional messages as if they were no more than advertisements for candy or soda pop.

It is, thus, wrongheaded to charge, as Delahunty does, that the wide availability of sexual fantasy via pornography, some of it crudely portrayed, defeats temperance in real life. Japan is a common example of the contrary: as Patrick Smith pointed out in Japan: A Reinterpretation, the violent pornography prevalent in that country "is an outlet for people whose social roles are rigid and confining." Likewise, pornography flourished just beneath the superficially proper surface of Victorian England. Is there no room for catharsis or paradox in Delahunty's cosmology?

Actually, Delahunty contradicts his own argument when he points out that "sexual permissiveness (including pornography)" may stabilize and depoliticize a society rather than revolutionize it. Porn, despite the many liberating personal effects for which Strossen argues, thus probably functions on a social level more as a form of relief from societal pressures than as a path to political revolution or community-wide sexual nirvana. But in that case, it really can't be blamed, as Delahunty would have it, for the end of love, romantic commitment, or civilized restraint as we know it.

Delahunty's error, in sum, is his reductionist approach to the vast and fascinating subject of pornography that Strossen explores with such enthusiasm i.e., his distaste for ambiguity and his apparent impatience with the multiple levels on which even bad art operates. Wendy Steiner put it nicely in her 1995 book The Scandal of Pleasure: "We will not be led into fascism or rape or child abuse or racial oppression through aesthetic experience" (and, I would add, we will not be led into "intemperance" either); "the more practiced we are in fantasy, the better we will master its differences from the real."

Marjorie Heins is the author of Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth (Hill & Wang, 2001), and directs the Free Expression Policy Project at the National Coalition Against Censorship. From 1991-98 she directed the ACLU's Arts Censorship Project.

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The Law of Unintended Consequences
by Robert S. Peck

To an Unknown God: Religious Freedom on Trial
Garrett Epps
New York, NY: St. Martin's Press, 2001
Cloth: $24.95
Pp. x, 289
ISBN: 0312262396

Small and seemingly simple disputes can metastasize into something that its antagonists could never have anticipated. If the law of unintended consequences has substantial application to life in general, it seems to have special bearing to U.S. Supreme Court cases. A case can arrive at the High Court framed, briefed, and argued one way, only to emerge from that crucible unrecognizable to any of its protagonists.

For example, Mapp v. Ohio (1961) began when police, searching for a bombing suspect, barged into the wrong house and attempted to justify their intrusion by searching for something, anything, to charge its inhabitant. When they found arguably lewd materials in a basement trunk, they charged Dollree Mapp with obscenity. In the Ohio Supreme Court, a majority of justices found that the materials fell within protected speech, and the case went to the U.S. Supreme Court as a First Amendment case. It emerged from that crucible as a landmark Fourth Amendment decision that applied the exclusionary rule to the states.

A similar transformation occurred in Employment Division v. Smith (1990). Without briefing or argument from the parties, the Court changed the case from the application of strict scrutiny to a specific set of facts into a landmark reinterpretation of the Free Exercise Clause. After Smith, no longer would the government need a compelling state interest to burden religious practice significantly. Instead, a neutral law that is generally applicable will survive any claim that it unduly burdens religious conduct.

Nonreligious Experimentation Gives Rise to the Redefinition of Free Exercise

The Smith case had its genesis with a white man who lost his job after ingesting peyote at a Native American religious ceremony, which he added to learn more about it. In To an Unknown God, University of Oregon law professor Garrett Epps tells the story of how that sympathetic experimentation became a turning point in constitutional history. In parsing out the beginnings of the dispute, Epps reveals something that the Court itself did not realize. The Court's opinion in the case characterizes both plaintiffs, Alfred Smith and Galen Black, as members of the Native American Church and counselors at a private alcohol and drug rehabilitation facility, an error perpetuated in the 2001 edition of a new casebook on Religious Freedom by Judge John T. Noonan and Valparaiso University law professor Edward McGlynn Gaffney, Jr.

Smith and Black were both employed at the same rehabilitation facility in Oregon, though in very different capacities. They were both fired after ingesting peyote, classified by the federal Drug Enforcement Administration as a Schedule I drug, at separate religious ceremonies. There, the similarities behind their stories end.

In To an Unknown God, Epps reveals that Black was not a Native American, but a white man. He was not a member of the Native American Church, but had attended a single ceremony to learn about it. Black, a native of Kansas, did not boast an exemplary history. He had bounced around the country for a long time, generally making his living as a mechanic. When drinking proved his undoing, he first sought rehabilitation and then work as a resident assistant at an Oregon inpatient treatment facility, which happened to serve many local tribal members. His proximity to that culture attracted him to Native American spirituality. Eventually, Black sought more information about the Native American Church and its peyote ritual. On his first visit to a peyote ceremony, his thirteen-year-old son in tow, Black tried a small amount after being assured that peyote was a sacrament and not a stimulant. The experience energized and excited him, leading Black to believe that his participation would enable him to serve the facility's Native American clientele better. On the way back from the ceremony and while still in the throes of his new-found exhilaration, Black revealed his participation to his employer, who considered it inconsistent with the clinic's treatment regime. Black was immediately suspended and eventually fired.

Guilt by Association

A counselor at the same facility, the dignified 63-year-old Native American Al Smith was also a recovering alcoholic. As a boy, he was brought up in the Klamath culture, largely unaware of the outside world. At age seven, he was thrust into that world when he was sent to a Catholic boarding school. At that early age, he began what might be fairly described as a career of resisting the taking away of his culture. When he finished school, he followed a downward spiral that found him a beggar and a drunk. In 1957, he awoke in an awful state and resolved to change his life. Alcoholics Anonymous provided the path, which he began to leaven with bits and pieces of Native American culture. By the time he took a job with the Oregon facility that had just hired Black, he was an experienced and successful counselor.

Although Smith barely knew Black, Black had consulted him on how to discover more about the peyote ceremony. Smith originally had planned to go with Black, but did not. Nonetheless, after Black revealed his participation in the ceremony, Smith was accused of participating as well. When he denied the charge, he was warned that he would be terminated if he ever used peyote. The accusation deeply offended Smith, who read his reprimand as an injunction against his going to his church. All the old animosities against the destruction of his heritage and the attempt to impose another welled up. The confrontation soured the still-new employment at the facility and resulted in other actions by management that continued to discourage Smith.

At about the same time, Black began to make noises about suing, accusing the facility of racial discrimination. Alarms went off in the Native American community, for Black would not be an appropriate representative for their interests. They wondered how a white man who knew little of their church could vindicate Native American religion. More likely, they thought, his lawsuit would only do damage. Smith was urged to take a leadership role in resolving the issue. After anguishing over the way his religion was being treated, and balancing that against the consequences to himself and his young family if he stood up for principle, Smith decided to participate in a peyote ceremony, and was promptly fired.

Two Sympathetic Antagonists

In many ways, the tale Epps tells is the story of two people, Smith and then-Oregon Attorney General David Frohnmayer. In giving the tale a human dimension beyond the law, Epps uses skills he has honed as a journalist and novelist to good effect to portray sympathetic antagonists. Smith comes across as a man who embodies Native American spirit and resolve. A veteran of his own wars with alcoholism, who emerged stronger and committed to accomplishing things in life when others would have thought their time had passed, Smith stoically marches on during the legal battle, even when his own people seemed to lose heart for the fight they had once urged upon him.

Frohnmayer is also given multiple dimensions. A member of a prominent Oregon family with designs on the state governorship, this Type-A personality thirsts for the opportunity to sink his teeth into a constitutional issue that would engage his intellect. He sees the battle over this case as an opportunity to uphold basic values. In his view, peyote use is plainly criminal, and no one engaged in criminal conduct should be eligible for government unemployment benefits. His take on the case is influenced by the frustrations he experienced in dealing with Rajneeshpuram, a town that was taken over by followers of an Indian holy man who attempted to oust the previous residents and create a place where they wrote their own laws.

It would not have been hard for Epps to give Frohnmayer a cardboard quality that readers would have found unappealing. Instead, Epps follows a personal story that was occurring simultaneously with the case. Throughout the multi-year litigation, Frohnmayer struggles greatly to find a way to save his daughters from a rare, inherited disease that proves fatal despite his efforts. The tale of that struggle not only highlights Frohnmayer's humanity but his own deeply religious nature. One of the ironies of the eventual outcome is that, in pursuing his cause, Frohnmayer realizes that the end result adversely affects even his own religion.

Still, despite his attempt to be evenhanded, Epps's sympathies are clearly with Smith. In reality, the book is Smith's story. That focus is both the book's strength and weakness. It exposes the reader to Native American life and sorrows, and permits the narrative to flow in compelling fashion. Even if the book did no more than this in the context of Smith's personal crusade for respect for Native American religion and ways, it would be a valuable and insightful contribution to the literature that has grown up around individual Supreme Court cases.

A Story About People and Not Law

But the legal reader ultimately craves more. By focusing on Smith so thoroughly, the legal story receives far less attention than it deserves. The lay reader is not provided with as powerful an understanding about the importance of Smith as a legal precedent or why mainstream religions reacted with the alarm they did to its rewrite of free exercise law. The story briefly recounted of the broad-based coalition that arose to pass the Religious Freedom Restoration Act (RFRA) is inappropriately harsh about the tactical decisions it made to stay as broad as possible, to restore strict scrutiny, and, among the members that were sympathetic, to pursue a federal right for Native American religion to use peyote in separate legislation that was also enacted. Epps gives little credit for the coalition's theory that Congress could guarantee greater protection of religion by statute than the Supreme Court found that the Constitution provided. Although the Court reached the conclusion that Congress had no such power in City of Boerne v. Flores (1999), the conclusion was not such a foregone one. In Flores, the Court invalidated the RFRA's applicability to the states. Epps's short sketch of the elements that broke the logjam enabling the RFRA to pass Congress by overwhelming margins misses the drama involved, much as his portrayal of the events leading up to Smith captures it.

While the legal side of the story does not receive the same kind of treatment that the human side of it does, Epps hardly ignores the law. Yet, it appears as that the legal side has less interest for him. Perhaps, as a law professor, it seemed too familiar. Nonetheless, there are small quibbles that might be taken with his characterization of the law. One that stood out was the assertion that Oregon's 1857 Constitution was the second oldest state constitution in the country, lining up behind only Massachusett's 1780 Constitution. Ohio's and Indiana's preceded Oregon's by six years.

Epps portrays only one villain in this episode Justice Antonin Scalia, author of the Smith decision. In Epps's view, Scalia was positively Machiavellian in the way he schemed to achieve this result. While the rest of the book lets the story unfold as the drama takes it, the author indulges his own outrage when he directs his venom at Scalia's tactics and opinion for the Court. Epps's disappointment and anger seem out-of-place, no matter how valid, in the context of the story told. Here, as with the rest of the book, that outrage should have been expressed in the voices of others who were involved in the subsequent events to undo the damage of the opinion.

By failing to place the decision fully in the larger context of religious liberty principles presumably because Epps sees the story more about Native American religion than religion more generally he misses an opportunity to demonstrate, much as the Civil Rights Movement did, that everyone's freedom is intimately connected. When one discounts Native American religion as something less worthy of respect and protection than those that fit within majoritarian values, those very values are threatened as well. The focus on Native Americans could still have been served and appreciation deepened by tying its fate elegantly with that of all religions. And a fascinating story told with wonderful warmth would have been even better.

Robert S. Peck is president of the Center for Constitutional Litigation in Washington, D.C. and is a member of the adjunct faculties at Washington College of Law, American University, and George Washington University Law School. His most recent book is Libraries, Cyberspace and the First Amendment (ALA Press, 2000). As a First Amendment lawyer for the American Civil Liberties Union, he helped draft and lobby passage of the Religious Freedom Restoration Act, which was the ultimately unsuccessful congressional response to Employment Division v. Smith, the subject of the book reviewed.

Editors' Note: Robert S. Peck has written previously for Books-on-Law, including a review of Michael A. Bamberger's Reckless Legislation: How Lawmakers Ignore the Constitution (Rutgers University Press, 2000) and a review of Dennis J. Hutchinson's, The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White (Free Press, 1998).

For reviews of related interest on Books-on-Law, see Thomas G. West's review of John T. Noonan's The Lustre of Our Country: The American Experience of Religious Freedom (University of California Press, 1998); Thomas C. Berg's review of Shawn Francis Peters's Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution (University Press of Kansas, 2000); H. Jefferson Powell's review of Vincent Crapanzano's Serving the Word: Literalism in America from the Pulpit to the Bench (The New Press, 2000); and Judge Karen G. Seinfeld's review of Milner S. Ball's Called by Stories: Biblical Sagas and Their Challenge for Law (Duke University Press, 2000).

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Might and Rights: Law, Force, and Humanitarian Intervention for the New Century
by Virginia Brown Keyder

Just War or Just Peace?: Humanitarian Intervention and International Law
Simon Chesterman
New York, NY: Oxford University Press, 2001
Cloth: $70.00
Pp. 326
ISBN: 0199243379

International Law and the Use of Force
Christine Gray
New York, NY: Oxford University Press, 2000
Cloth: $74.00 / Paper: $29.95
Pp. 256
ISBN: cloth 0198765282 / paper 0198765274

There is a case for saying that the Europeans lived in the Westphalian system until the humanitarian intervention
in Kosovo in 1999
.

湧eal Ascherson "Reflections on International Space" London Review of Books, May 24, 2001

Humanitarian intervention was not invented with Kosovo. Hugo Grotius (1583-1645) himself upheld the medieval right of sovereigns to use force against those who "excessively violate the law of nature or of nations in regards to any persons whatsoever." Over the following centuries, however, the force with which the principle of absolute state sovereignty unfolded left humanitarian intervention, like other remnants of natural law, with little purchase. It has, however, continued to occupy legal scholars in their quest to reduce the unpalatability of strict legal positivism in matters concerning large-scale violations of what the world has come to accept as human rights.

Three and one-half centuries after Westphalia laid the basis for the sovereign state, one-half a century after Article 2(4) of the United Nations Charter prohibited members from using force against one another, and ten years after the end of the international lawlessness that constituted the Cold War, courts and scholars alike are stepping up their efforts to reconcile international law with actual practice. This is a formidable task. If Westphalia imperfectly brought an end to the legitimacy of conquest, its remit extended only to a handful of newly emerging European states. While the UN Charter purported to end conquest and aggression as modes of operation, its powerful members consented to this from a position more than knee-deep in racism and colonialism, which sharply reduced their potential for universal application. (See Paul Gordon Lauren, The Evolution of International Human Rights (University of Pennsylvania Press, 1998) for one of the best treatments of this subject to date.) And if the UN International Tribunals for Yugoslavia and Rwanda are engaged in pulling the legal rug out from under human rights abuses and war itself by criminalizing acts which humans have long accepted as inevitable, the potential for universalizing such principles is sharply compromised by the failure of the U.S. to participate and, more to the point, its attempt to undermine the International Criminal Court established under the Rome Statute.

There is no doubt that the cause of human rights is making great strides. The legality of the use of force in pursuit of varying goals and of humanitarian intervention in particular, however, remains problematic. What is new is the ability to approach the legal questions "as if" the same rules will apply to all the players. The age of conquest is over. Colonialism remains only in specks here and there. Warring ideologies and their lawless methods are in remission, and the rule of law appears to be on the ascent. How sovereign states and international organizations will approach an increasingly functional body of law designed to protect individuals from serious abuse by governments requires a thorough evaluation of what has been done up to now. Two slim volumes (each under 300 pages) from Oxford University Press, International Law and the Use of Force by Christine Gray (2000) and Just War or Just Peace?: Humanitarian Intervention and International Law by Simon Chesterman (2001) address these issues from a contemporary perspective. A short summary of the role of international law in recent decades is offered here to put these works in perspective.

NATO's actions in Kosovo gave renewed life to the question, posed by Oppenheim early in the present century, of whether a state automatically subjects itself to outside intervention when it "commits cruelties against and persecution of its nationals in such a way as to deny their fundamental human rights and to shock the conscience of mankind." (Chesterman, 2) If consensus exists that intervention is justified and contrary to accusations of "neo-colonialism" by self-serving leaders, there does seem to be such a consensus the question remains as to whether the means justify the end. In other words, are other states or the "international community" justified in using implements of war to stop or prevent a state from violating what arguably have become international legal norms? Moreover, who exactly is the "international community" and what legal powers have sovereign states actually surrendered to it?

For more than one-half a century, international law has been moving beyond the Westphalian task of bestowing and maintaining state sovereignty. Though the UN Charter was indeed a milestone in terms of international law, it was also a strong endorsement for the principle of absolute sovereignty. During the final brutal decades of colonialism and the Cold War, state sovereignty (at least for the colonizing and cold warrior states) prevailed over human rights all acts were justified as necessary to fight the good fight. Over the past decade, however, the balance has shifted, and the rights of individuals to be protected from large-scale state abuse have gained considerable recognition. Whether the use of force constitutes the best legal means of solving a growing raft of international humanitarian crises is perhaps the central question of international law today.

Diplomacy, Litigation, & Force

Supplementing traditional diplomatic efforts of often-limited effect, litigable challenges to absolute state sovereignty have achieved considerable success. In terms of compensation for individual victims of state abuse, the European Court of Human Rights, within its 43-member sphere, has established firmly that violations by states of individual and group rights will not pass without consequence or compensation. In terms of criminal sanctions, procedures embodied in the Yugoslav and Rwandan Tribunals, which gave new life to Nuremberg principles as well as procedural principles being cited in a growing number of national prosecutions of civil and military dictators are no longer seen as exceptional.

Today, it is widely acknowledged that states do not have absolute power over their inhabitants, and that individuals, minorities and other groups have the right to be free from serious abuse by their governments. The question remains, however, of how far beyond diplomatic efforts and international human rights litigation the "international community" may go to enforce these rights on behalf of those powerless to do so themselves.

Giving the U.N. Teeth

Over the past decade, the issue of the use of force at the international level to prevent or stop gross violations of human rights within and between sovereign states has become the focal point for assessing the role of the only real international institution with the potential of answering these needs, the UN Security Council. In a world where the values first spelled out in the Universal Declaration of Human Rights have become, in fact, increasingly universal (as witnessed by their embodiment in a growing number of legally binding and widely ratified international instruments), some see armed intervention as a matter of "putting your money where your mouth is." Others see it as a means by which powerful countries protect their interests. In either case, the question of the legality of force remains. And, even if it is legal or on the road to becoming so, is it desirable? These are questions addressed by Simon Chesterman and Christine Gray in these two works.

But Is It Legal?

Without the backing of law, armed intervention can easily become just another form of domination, particularly given the lopsided structure of world power a way to disable states with which one has ideological disputes. This was basically the case throughout the Cold War. Armed intervention during this period often created as many problems and hostilities as it purportedly set out to solve. Even freed of its Cold War trappings, a powerful state that engages in numerous self-proclaimed acts of humanitarian intervention within a short period of time as did the U.S. over a period of eight months in 1998-1999 (Sudan, Afghanistan, Iraq and Kosovo) might well call into question the validity of its claim to be acting on behalf of the international community in pursuit of humanitarian aims. The attempt to locate the international legal foundations of the use of force, and in particular for the purposes of "humanitarian intervention," therefore, has become one of the most important topics of international law at the beginning of the new century.

Nuremberg & Beyond

Absolute sovereignty is popularly believed to have suffered its first body blow in the Nuremberg Tribunals. The architects of Nuremberg were careful, however, to cast the Tribunals as "military," thus limiting the jurisprudential effects of its output. Many still question whether the Tribunals arose in response to acts of domestic barbarity (which, as it turns out, many nations were willing to turn a blind eye to at the time) or aggression against other sovereign states. The drafters of the UN Charter were, in any case, careful to maintain the edifice of sovereignty. Seeking to establish rules that would guarantee peace and stability first and foremost, the legacy of Nuremberg was largely silent until the UN Tribunals for Yugoslavia and Rwanda began in the 1990s and until the U.K. House of Lords' decision in the Pinochet extradition proceedings in 1998 gave an important national voice, for the first time, to international legal principles embodied in Nuremberg.

While this trend can only develop further in the coming years, particularly in the context of the International Criminal Court, it is already clear that litigation alone will never suffice effectively to protect individuals and groups from state barbarity. Given humans in general and states in particular being what they are, there will always be a need at least for the possibility of outside force to secure civil rights protection from state abuses. Today, the legal basis of such force lies exclusively in the UN Charter of 1945. This document is, therefore, the focal point these two books.

The Charter System

The Charter establishes that one of the declared purposes of the UN is to "maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace." (Art. 1[1]) Less emphasized, and largely submerged during the Cold War, is the goal of achieving "international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion." (Art. 1[4])

Guidelines for achieving these goals include the well known Article 2(4) proviso that "All Members shall refrain in their international relations from the threat or use of force against territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." Article 2(7) reinforces this expression of state sovereignty: "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII."

Chapter VII comprises Articles 39-51 of the Charter under the heading "Action with respect to threats to the peace, breaches of the peace and acts of aggression." In brief, these articles assign to the UN Security Council the dual function of determining whether such acts have taken place and deciding on measures to be taken (including economic and communication "interruptions" (Art. 41) and when these determined to be inadequate, military force (Art. 43). Of particular significance is Article 51, which provides that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."

In the Real World

Simple enough, the uninitiated might say. The Charter limits the unilateral use of force unless exercised in self-defense or as a means of collective security sanctioned by the Security Council. Over the years, however, threats to and breaches of the international peace have been subject to widening interpretations. Self-defense, in particular, has expanded from border threats and incursions, and protection of nationals abroad, to real and anticipated issues involving refugees, the potential of regional instability, and terrorism as grounds for acts of anticipatory self-defense.

The excesses of the Cold War constitute one important reason that generations of lawyers have failed to view international law as "real law." The often excessively vague, but necessarily careful, diplomatic language of the Charter has certainly contributed to this perception as well. Whatever its past achievements (and they should not be underestimated), the Charter stands today as the only foundational instrument likely to succeed in providing a basis on which state barbarity may be brought under control without the medicine becoming more lethal than the disease. Chesterman's and Gray's works thankfully bring the Charter to life in a way that is bound to prove useful for the future.

Virtually ignored by all but legal scholars until the fall of the Wall (with the exception of applications surrounding South Africa's apartheid), the operation of the UN Charter resurfaced in the public imagination with the Iraqi invasion of Kuwait. Since Kosovo, however, numerous writers legal scholars among them have tried to put legal meat on the bones of the use of force in the context of humanitarian intervention.

These new books by Chesterman and Gray add an important dimension to this body of work. Both rest on the unstated premise that although considerable progress has been made in the last decade to undermine the notion of sovereign immunity for individual criminal liability for international crimes, not a whole lot has been achieved in terms of staving off humanitarian disasters brought about by ruthless leadership. Legal mechanisms to bring to trial officials suspected of crimes ranging from torture and rape to genocide are often too few and too late. Like diplomacy, litigation often pales in effect when compared to the use of force. These works seek to describe and delimit the use of force in such situations.

Dr. Gray sets out the legal issues surrounding the use of force in seven broadly delineated chapters: (1) Law and force; (2) The prohibition of the use of force; (3) Invitation and intervention; (4) Civil wars and the use of force; (5) Self-defense and Collective self-defense; (6) The UN and the use of force; and (7) Regional peacekeeping and enforcement actions.

She casts a wide net. Her initial chapter describes the scope of the law on the subject, and deals with questions ranging from international customary law on the use of force (as interpreted in the International Court of Justice decision in the 1986 Nicaragua case) to the failure of UN resolutions to provide a coherent definition of force in questions involving self-determination of colonial peoples or recovering territory illegally seized by another state. She notes the over-emphasis on the U.S. perspective and the arbitrary, politics-driven nature of U.S. state practice, most visible in the Iraqi and Kosovo events. She refers in this connection, as well, to the question of the role of the widely representative UN General Assembly, often criticized by western powers for unfavorable interpretations of aggression under the Charter, as compared to the narrow but more authoritative Security Council. This first chapter sets out the daunting range of international legal questions, provisions, and interpretations that surround the issue of the use of force in general.

Various debates are set out in their political and legal contexts, providing a blueprint of where the debates might go in the coming years. Gray draws our attention to the fact that the most commonly cited articles of the Charter, namely 2(4) and 51, which originally related to inter-state conflicts, must now be reinterpreted to deal with the more common situations where international force is called upon to deal with internal state conflicts. This is both obvious and central to the issue of how far outsiders will be legally permitted to intervene. It is important to remember that Article 2(4) was designed not only to preserve international peace and security, but also to ensure that powerful states retained the wherewithal to engage in acts deemed necessary to run empires without outside interference. Conflicts over the past decades occurred, and continue to occur, not only as traditional civil wars, but more often as wars of liberation from colonizers and from abusive states whose treatment of unacknowledged ethnic constituents might well make the continuation of current geopolitical divisions untenable. Consequently, Gray points out, interpretation of these articles has tended to vary in recent years.

This, in turn, has resulted in considerable ambiguity, particularly over the content of the concept of self-defense. Mercifully absent as a topic in both of these works, globalization and its constitutive elements nevertheless have expanded the notion of "self" in self-defense, moving it perilously close to the empires of old and this, too, is implied in the scope of her analysis. The growing presence of foreign nationals and interests abroad and the increasingly complex nature of geopolitical strategy of the U.S. and NATO have placed new emphasis on, and at times considerable exaggeration of, claims of anticipatory self-defense and the potential of terrorism in an ever-widening war of legal rhetoric.

As a concept, self-defense is important not only because of its ambiguous utility, but also because many events cited as examples of the newly emerging law of humanitarian intervention (e.g., India's 1971 actions in Bangladesh, Tanzania's 1979 actions in Uganda, and Vietnam's invasion of Cambodia in 1978) were, in fact, justified on the basis of self-defense although they are often cited as a legal basis upon which to build an argument for humanitarian intervention.

Debates continue as to whether the Charter itself constituted a departure from existing international customary law, or merely codified the shift from absolute sovereignty that had taken place in the previous half-century. Opponents of a customary international law of humanitarian intervention often point to the fact that it was never specifically relied upon as legal justification (and hence cannot constitute the requisite opinio juris). In condemning the Vietnamese incursion into Cambodia, widely acknowledged to be the most obvious case of humanitarian intervention, France and the U.K. claimed at the time that violations of human rights could not justify the use of force. This refusal to find the use of force justified in the Vietnam case was later rejected in the Kosovo debate, however. The Netherlands, for example, rebuked the UN for being more indignant at the Vietnamese intervention than at three years of Khmer Rouge genocide. (Gray 27) The U.K. itself subsequently espoused the doctrine of humanitarian intervention as the justification for actions in Iraq, and the shift in position on its legality is set out in some detail. (Gray 29)

Similarly, the evolution of the law regarding the use of force and self-determination receives in-depth treatment in terms of the support it provided for dismemberment of empires at the close of WWI and de-colonization following WWII. Predictably, colonial powers viewed the latter as illegal use of force, and divisions in the Security Council prevented adoption of a "decisive resolution." The first resolution on de-colonization made no mention of force. (45) So divisive was this issue that even the 1970 Friendly Relations Resolution could do no more than set out the "duty of states not to use force against a people with the right of self-determination," and still today there exists no support for the use of force outside de-colonization and illegal (undefined) occupation.

Another important topic, covered by Gray in Chapter 3, is the complex issue of state intervention by invitation into the civil wars of other states. While the facts surrounding, and means used for, such interventions are often buried under the rubric of national security, declassification in the wake of international pressure (and facilitating technology) for increased transparency is bound to have some effect on the theory of this area of international law. Paralleling the retrospective use of newly formulated legal principles (as in the attribution of humanitarian intervention motives to 1978 Vietnam in order to support the later intervention in Iraq), the concept of intervention by invitation might well emerge in relation to the U.S. in Chile in the 1970s, for example. New and complex arrangements such as U.S. military support for the Colombian government as an adjunct to U.S. domestic drug policy will no doubt also attract more attention to the doctrine of intervention by invitation in the future. How, where, and why civil wars actually begin will receive increasing international legal scrutiny as well.

The Cold War was a bad time for international law. In the 1986 Nicaragua case, however, the International Court of Justice was definitive in condemning intervention in the form of support for military and paramilitary activities of the opposition, rejecting the U.S.'s position of collective self-defense and security of countries in the region. Though not called upon to respond to this issue, the Court said that a state may invite outside help, but a third state may not forcibly help the opposition to overthrow a government. Most poignantly, the Court found that "'recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding and directing military and paramilitary actions' was a breach of the prohibition of the use of force." (Gray 56) The author also deals with the separate and decidedly more slippery right of a government to invite outside intervention based on a particular classification of a given conflict. Vietnam in 1961-75, the former Yugoslavia, and various African conflicts in the 1990s are but several of those addressed here.

Self-Defense in International Law

Chapters 4 and 5 provide an in-depth discussion of self-defense in international law. This has been the "subject of the most fundamental disagreement between states and between writers" in terms of the scope of the right (i.e., whether anticipatory or preventive actions qualify) and as a response to colonial occupation and terrorism. Collective self-defense, dealt with separately in Chapter 5, was a favorite topic of writers committed to protecting smaller countries immediately following WWII. Today, many see it as a threat to world peace. These are obviously highly political areas.

Under Article 51, states assume the duty to report measures taken. They retain the right to self-defense only until the Security Council itself "takes measures necessary to maintain international peace and security." Dr. Gray reviews not only the politics, but also the academic debate on the surrounding issues such as the duty to report, the role of the Security Council, and the temporary and proportional nature of the right of self-defense.

The highly topical issue of the use of force against terrorism is also addressed, especially as exercised by the U.S. and Israel in response to attacks on their nationals abroad. Obviously set to remain central for years to come, the debate over the legality of actions against terrorists real and perceived arguably has received wider public attention than any other international law question. This is not only because of the random and fear-inducing nature of the acts themselves, but also because response affords wide scope for extraterritorial action, where domestic political rewards are considerable and mistakes easily forgiven. The result, notes the author, is polarization, with a few states claiming wide rights, and with the rest continuing to interpret the right to self-defense narrowly in keeping with Charter provisions. Alleged counter-terrorist acts have been shown on several occasions in the recent past to sow the seeds of international distrust, particularly when they occur close in time, as mentioned above. In the long run, such acts tend to reduce the effectiveness of cries for international legal solutions in the wake of powerful countries continuing to act outside the law and ostensibly in their own interests. This theme is not taken up by Dr. Gray, but she provides strong background material for the debate.

UN Use of Force & Regional Peacekeeping

The two final chapters of Gray's work focus on the UN and the use of force, and on the UN and its role in regional peacekeeping and enforcement (the arena in which the bulk of UN activity has been focused). The original idea was that the UN would have its own standing army, but the Security Council's role in this regard shrank before the Cold War machine. This resulted not only from the veto power (exercised almost exclusively by the Soviet Union) but also because of the unilateral and often pre-emptive acts of the U.S. that, perforce, placed the UN far backstage. The use of the veto declined sharply with the end of the Cold War, while the use of Article 41 (authorizing the Security Council to decide on measures such as economic and communication sanctions and severance of diplomatic relations) gained considerable ground.

It is interesting to note that such sanctions may also be brought against non-state actors in what appears to be an understated but important hole in the notion of state sovereignty in the Charter system. This was done, for example, in the 1991 embargo against the Khmer Rouge for its failure to carry out obligations under the 1991 Paris Peace Agreements, against UNITA in Angola when it refused to comply with Security Council resolutions, and against the Bosnian Serbs in 1994. (155) Designed to be persuasive rather than punitive, the visibility of such measures in the future may heighten public awareness of a world where sovereign states already share some of the limelight with other global actors.

The evolution during the 1990s of the use of force in UN peacekeeping is also described in some detail. Traditionally limited to self-defense in its use of force, as recognized in the Rwanda and Angola resolutions, later resolutions expanded and affirmed the right of the UN MINURCA force (in the Central African Republic, where UN actions were successfully completed in February 2000) to "take action to ensure its security and freedom of movement." (179) "Robust rules of engagement" met with failure in Sierra Leone, however, and the "relation between peacekeeping and Chapter VII remains problematic." It would appear, however, that there is no turning back, and failures are blamed more on member states' failure to provide UN troops with the necessary mandate and resources than on the increasingly active role envisioned by the UN in its peacekeeping operations.

Finally, Dr. Gray addresses regional peacekeeping and enforcement action. Article 52 authorizes such actions if they are consistent with the purposes and principles of the UN. Potential for regional actions remained dormant, even suspect, during the Cold War, but since 1991, they have multiplied, and Resolutions have referred to regional organizations from Yugoslavia to Africa and the Caribbean. Considerable attention is focused here on various regional actions and organizations in Africa. It is here that the specter of traditional international law, and its failure to fulfill the role of "real law," re-emerges. Anyone who follows African affairs will have difficulty believing that what these organizations do or do not do, with or without the backing of the UN, makes any difference. The use of illegal force and fundamental abuse of human rights are so pervasive, and the law governing the use of force to contain it so irrelevant, that we are left, in a sense, back where we started.

Gray's is a theoretically sophisticated work that assumes at least some knowledge of the underlying debates, jurisprudence, diplomatics and real politik of the events discussed. It provides little detail for those unfamiliar with the events to get their bearings, however. Dr. Gray implicitly acknowledges that which sets international law apart from other areas of law namely that states do not generally feel bound by "the law" in their behavior, and that even the facts may not really be known until the event is history. She suffers from no delusions about the role of international law in an increasingly complex world, and this is in itself refreshing. On the gap between the prohibition of the use of force and state practice, she says "[t]his divergence should not necessarily be taken as proving the ineffectiveness or pointlessness of the law in this area. Conversely, international law should not be assumed to be effective in the sense of controlling or influencing state behaviour just because state behaviour is in fact in compliance with it." (19) International law, within its traditional limitations, will never trump politics, but this book goes a long way to providing an important perspective on its potential and its limitations. It is a survey of the international law on the use of force and its workings, and while it draws no definitive conclusions it is a lucid and thorough treatment of the area.

Just War or Just Peace?

Simon Chesterman's book focuses more specifically on the use of force for humanitarian purposes. It is a tightly argued and complex presentation, with numbered, easily referenced topics in the style of a doctoral thesis (which it is). A more textured work, it is arguably a more interesting read for an audience that does not already have at ready access the historical background or international law perspective to this difficult subject. It is also a more accessible work for students, and decidedly less dry and fragmented than many standard international law texts. With a narrower focus than that of Dr. Gray's work, it takes a broader perspective in terms of history, international law, and the scope of contemporary debate on humanitarian intervention.

The book consists of six chapters: (1) a historical introduction; (2) a discussion of humanitarian intervention and the prohibition of the use of force in the UN Charter; (3) a treatment of the theory of pro-democratic intervention; (4) a detailed analysis of Security Council Actions under Chapter VII of the UN charter in connection with threats to international peace and security; (5) delegation of Security Council enforcement powers from Kuwait to Kosovo; and (6) a critique of the dilemma faced by international actors who wish to act in a humanitarian fashion and in compliance with international law in what is basically a new chapter in human history.

Acknowledging that a great deal of confusion has surrounded the concept of humanitarian intervention, Chesterman locates the source of this confusion in the "tension between the belief in the justice of a war waged against an immoral enemy [i.e. originally one with whom a polity has religious differences] and the emerging principle of non-intervention as the corollary of sovereignty [reflecting the new legal restraints on a society of equal states]." (7) Although the term "intervention" came into use only in the 19th Century (with "humanitarian intervention" itself first being used by William Edward Hall in 1880), the origins of the concept arose in the doctrine of the "just war" in the Middle Ages, and gained acceptance in the writings of Hugo Grotius. In this context, Chesterman explores, in richly detailed footnotes and concise text, the concepts of "war as punishment" and "war on behalf of the oppressed."

He outlines the rise of the principle of non-intervention through the development of positivism in international law, and its rejection of Grotius's natural law. In a related discussion, he introduces the "Hegelian myth" argument of Fernando R. Teson, whose 1997 book, Humanitarian Intervention: An Inquiry into Law and Morality Chesterman uses as a foil throughout to present his own view. Basically, that view is that military intervention has not found, and should not find, firm footing in international law; that the ends of such intervention do not justify the means; and that to give full effect to such a legal principle would, at best, create more problems that it would solve.

Dr. Chesterman explores the claims of the existence of a right of humanitarian intervention in customary international law first by examining state practice from 1815 to 1945. For this period, he focuses on three events. The first is the joint intervention in aid of Greek insurgents in 1827. This is notably one of several nationalist events in the century-long demise of the Ottoman Empire that many writers view as the origin of modern intervention. The complexity of rising European colonization in the larger region, however, render the example less than ideal to serve as a basis for the principle of humanitarian intervention. He also discusses the French occupation of Syria in 1860-1 and the U.S. in Cuba in 1898; he concludes that, although some humanitarian interest may well have existed in each case (and especially the French case), other motives render these examples, like many in history, insufficient to establish a clear pattern as well.

With regard to interventions occurring at the close of this period, namely WWII itself, Chesterman's view is that these were "subsidiary to more traditional motives such as self-defense." He also mentions, but refrains from elaborating upon, an occasion of self-proclaimed humanitarian intervention, the very existence of which may well have colored the practice of defending the "nation" against the "state" ever since Hitler's 1939 Proclamation on the German occupation of Bohemia and Moravia against the "intolerable terroristic regime of Czecho-Slovakia." Like many authors, Chesterman is forced to describe this "embarrassing exception" as the "closest approximation to an intervention justified on humanitarian grounds between 1913 and 1945." (27) Unsurprisingly, according to Chesterman, the example has not been used as an by those in favor of a general right of humanitarian intervention. It would hardly be worth mentioning, but for the fact that it sheds some light on the danger of granting legal certainty to the principle, a position is cogently argued by Dr. Chesterman in his closing chapter.

In terms of 20th Century theory, he briefly discusses the early recognition of the distinction between intervention as a "quasi-judicial police measure against the crimes of a sovereign, and as a defense of the rights of the oppressed." This distinction, in international law litigation, if not in humanitarian intervention, became clearer as the 20th Century progressed, with the latter outpacing the former in terms of efficacy until well into the 1990s. While the defense of the rights of the oppressed is now entrenched, most successfully through the efforts of the European Court of Human Rights, the criminal liability of officials of sovereign states is well on the way to becoming a universal reality as well.

In his chapter on humanitarian intervention during the Cold War period (Chapter 2), Dr. Chesterman notes, however, that the only litigation on humanitarian intervention before an international tribunal was in relation to NATO's 1999 Kosovo air strikes. This arose out of the Former Republic of Yugoslavia (FRY)'s action before the International Court of Justice against the ten NATO members involved in the strikes. Of the ten, only Belgium sought to defend its actions on the grounds of the law of humanitarian intervention, citing in particular the Tanzanian overthrow of Idi Amin and Vietnam's ousting of Pol Pot. Dr. Chesterman reviews these events, as well as the relevant traditional sources of international law. He also discusses in detail various interventions in Africa, Central America and India, the analyses of which have contributed much to these debates, concluding that "the doctrinal and historical basis for such a right is shaky indeed."

"You, the People"

The emerging concept of a right to democratic governance or whether state sovereignty must be popular sovereignty is a slippery one, and Chesterman's chapter, "You, the People" (Chapter 3), is a good place to get a handle on it. Reviewing recent scholarly debates on this right that has virtually no legal support, he makes the important distinction between "a unilateral right of pro-democratic intervention, and situations where the Security Council makes a determination that disruption to democracy constitutes a threat to international peace and security within the meaning of Chapter VII." (89) He reviews the theories of the unilateral right, finding that it is neither legally "accurate" nor politically desirable, if only because it would render a large number of sovereign states ripe for intervention.

In "The New Interventionism" (Chapter 4), Dr. Chesterman brings the reader back to the central issue of the role of the Security Council in the Charter, and its record in the run-up to the end of the Cold War, as well as in the 1990-1999 period. Setting out Articles 2(4) and 24(1) of the Charter (conferring primary responsibility for the maintenance of international peace and security on the Council) as the manifestation of the central role of the Security Council, he notes that only two enforcement actions were authorized prior to the Iraqi action of 1990-1991.

After discussing these and other issues of that period, he describes the post-1990 role of the Security Council, which expanded on "every conceivable measure," including most visibly perhaps the establishment of the international criminal tribunals for the former Yugoslavia and Rwanda and the authorization of force to apprehend criminal suspects in this connection. He notes, however, that the terms of Chapter VII of the Charter "have not been used in a studied manner," and devotes considerable attention to this alleged oversight, focusing in some detail on the Iraqi treatment of the Kurds in Iraq, events in Yugoslavia, Albania, East Timor and in individual African countries (including Liberia, Angola, Somalia, Rwanda, Zaire, and Albania). He concludes that it is difficult to reconcile Council practice of the past decade with "any principled interpretation of its legal mandate." He is critical of the increasing tendency to consider "unique" each situation in which the Security Council has been called upon to act. Citing as an effect of this practice the devaluation "of the currency of international law," he concludes that Council practice "has become regarded as an important political aid in justifying the use of force".

Chapter 5, on the delegation of Security Council enforcement powers, opens with the observation that when the Security Council authorized military action against Iraq's occupation of Kuwait, there was "little serious discussion of establishing an independent UN force." Instead, member states were authorized "to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area." (164) Delegation was the rule, rather than the exception, for enforcement actions throughout the 1990s. This Chapter is devoted to an in-depth examination of the legality and normative consequences of such delegation.

Each "humanitarian intervention" over the past decade has affected the next. Always vowing "not to make the same mistake again," but yet driven by national interests that show little potential for evolution in any universally humanitarian direction, events appear to be progressing in an ever-tightening spiral around a gasping body of increasingly uncertain principles of international humanitarian law. Delegation which, for example, occurred when Australia came forward to act in East Timor has helped to stave off charges of hypocrisy. How international action in Macedonia will play out remains to be seen.

Global Regionalism

Perhaps it's true, as Dr. Chesterman quotes Richard Holbrooke to say, that the only body to command any respect is NATO and that NATO is in effect the U.S. The U.S. is not, however, the international community, whatever that might mean. If its courts and laws are increasingly being used in connection with international human rights (see, e.g., "US Courts Become Arbiters of Global Rights and Wrongs," New York Times, June 21, 2001), its politics are increasingly defined by isolationism and self-interest on a broad range of issues, from environment and health to trade. The U.S.'s highly public reluctance to put its own forces in harm's way will, no doubt, affect not only the degree of engagement of U.S. forces in humanitarian intervention, but also its form. Much criticism has been leveled at the amount of destruction wrought by aerial bombing in the former Yugoslavia by a force virtually assured of walking away without a scratch.

What the U.S. does or does not do, alone or with NATO, will have less and less to do with how the rest of the world perceives it to be acting within the principles of international law. The U.S. has never been particularly fond of international law. Contemporary expression of this disdain was formulated even before the end of the Cold War, with the Nicaragua case in 1986. While the U.S. has taken increasing jurisdiction over a wide range of "international" cases, its reluctance to participate in the international legal structure can be seen in its attitude towards issues ranging from the International Criminal Court to treaties on land mines and children's rights.

International Humanitarian War

These are not issues with which Dr. Chesterman deals directly, but they are being raised in the context of trying to define and justify international humanitarian war. His closing chapter begins with a 1999 quote from Charles Krauthammer: "And the central contradiction the Iron Law of Humanitarian War is this: Humanitarian war requires means that are inherently inadequate to its ends. This contradiction, on starkest display in Kosovo, establishes humanitarian war as an idea with a brief past and very little future."

Dr. Chesterman believes that although it is inevitable that "humanitarian war" will occur, it is in no one's interest to establish definitively that it is permissible under international law. While it is probable that sending international troops to Rwanda in 1994 would have saved hundreds of thousands of lives, there is good reason to believe that warnings that the humanitarian crisis would escalate if NATO went ahead with its bombing should have been heeded. He argues, very persuasively, that there is no "right" of humanitarian intervention, either in the UN Charter or in customary international law. He cites Ian Brownlie's analogy with euthanasia, for example, to the effect that certain acts should be against the law, due to their potential for abuse, but that the decision to condemn them should be outside the law. This and other municipal law analogies relevant to the difficult issue of the legality of armed humanitarian intervention are reviewed in his final chapter.

Conclusion

It is difficult to do justice in a review to these works, which together provide a thorough treatment of what is perhaps the most important area of international law today. Dr. Gray gives an in-depth view of the international law on the use of force that, although escalating as a modus operandi in international relations, has long since lost the moral backing that carried it through human history. Dr. Chesterman gives us a fairly riveting review of the history behind the modern rise of humanitarian intervention. Both take as their starting point the UN Charter, the goal of which was undeniably international peace and stability. All parties to the UN Charter, however, had good reason to limit its effectiveness. Signatories poised to take on positions of leadership in the "international community" represented by the UN were to remain embroiled in nasty colonial power struggles for decades, and did not look kindly on armed international police delivering moral sermons. Thus, the necessary instruments were never created, and this in itself laid the groundwork for the at-once Byzantine and ad hoc nature of subsequent international actions committed in the name of the UN.

Recognition of individual human rights, to the degree that we accept them as commonplace t today, barely existed in the 1940s. Having only recently abandoned conquest as a mode of operation, with decades remaining of colonialism, it is inconceivable that the drafters contemplated that individual human rights would universally trump the sovereign state. But trumped it, it has, as is amply illustrated in the revelations and prosecutions of aging generals who have marched across our TV and computer screens over the past five years. This parade, too, will have some effect on how adherents to law on a global scale view easy resort to war as a humanitarian tool.

As a species, we are not what we were in 1945. We are possibly, at once, more brutal and more humane. It is important that international law comes to reflect this. While one cannot be other than skeptical about the success of this endeavor, these two books make an important contribution to informing a framework for research on the prevention and amelioration of such crises in the future..

Virginia Brown Keyder teaches European Union law, international law and intellectual property law at Bilgi University in Istanbul, Turkey. She has been a visiting lecturer at University of Washington in the summers of 1998 and 2001. She has written two books on Intellectual Property law, and writes the "Turkey" portion of JURIST's World Law.

Editors' Note: For reviews of related interest on Books-on-Law, see Dorothy T. Beasley's review of Michael J. Perry's The Idea of Human Rights: Four Inquiries (Oxford University Press, 1998); Ronald C. Slye's review of Howard Ball's Prosecuting War Crimes and Genocide: The Twentieth Century Experience (University Press of Kansas, 1999); and Judge Mary Kay Becker's review of Ruti G. Teitel's Transitional Justice (Oxford University Press, 2000).

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Revisiting the "Switch in Time"
by Tinsley E. Yarbrough

The Constitution and the New Deal
G. Edward White
Cambridge, MA: Harvard University Press, 2000
Cloth: $45.00
Pp. x, 385
ISBN: 0674003411

In this provocative and stimulating work, University of Virginia scholar G. Edward White challenges the conventional interpretation of the influence the New Deal and FDR's Court-packing plan exerted on the subsequent directions of constitutional law. According to the conventional "tale," as White terms it, the pre-1937 Supreme Court's jurisprudence was either hopelessly obsolete or, more likely, a cloak concealing the justices' laissez-faire predilections. Although the Court-packing plan failed to win passage in the Congress, a majority ultimately capitulated to the political and social forces of the New Deal. Breaking with its laissez-faire past, the Court launched a constitutional revolution that abandoned all meaningful review of economic regulations, embraced a "living" Constitution that equated the document's meaning with the personal philosophies of judges, and subjected to heightened judicial scrutiny laws interfering with freedom of speech and other non-economic liberties considered critical to a democratic society.

White's Thesis

White does not question, of course, that the Court presided over such a constitutional revolution during the early and mid-twentieth century. Instead, he freely acknowledges fundamental changes in the direction of the Court's decisions with greater judicial solicitude for non-economic over property interests, growing deference to congressional over state power in regulatory cases, an expansive conception of executive authority in foreign/military affairs, and broad latitude for the judgments of administrative agencies. He also sees the Court as moving from a "guardian" approach to judicial review, in which its decisions were based on essentialist, universal principles, to a behaviorist jurisprudence in which judges increasingly were considered as policymakers and their interpretations of the Constitution based essentially on conceptions of the public good. He contends, however, that the Court-packing plan was merely a symptom rather than a cause of the revolution; that, in fact, it had begun in the 1920s, if not before, and was not resolved until the late 1940s. The New Deal and the Court-packing plan were merely brief moments in a protracted process.

In examining changes in 20th Century constitutional law that were part of this constitutional revolution, yet both preceded and followed the New Deal and the Court-packing plan, White focuses on five fields of litigation: cases involving changing judicial attitudes toward the nature and scope of national power in foreign affairs, the rise of administrative agencies and deference to their judgments, free speech issues, due process, and New Deal economic legislation. Although the pre-1937 Court, according to the conventional account, favored strict limitations on national power, White points out that Justice Sutherland's opinion for the Court in the Curtiss-Wright case, decided the year before the Court-packing plan, remains the major decision declaring the national government's power in foreign affairs to be an attribute of the nation's sovereignty, granting the executive the dominant share of that authority, and rejecting application of federal principles as a limitation on national power in foreign affairs. Through a review of the justice's speeches and writings as well as earlier precedent, however, he asserts that Sutherland and the Court had begun to embrace that broad conception of national authority over external matters long before the Curtiss-Wright decision. The roots of the Court's acceptance of broad judicial deference to administrative judgments had a similar lineage, according to White.

In his opinion for the Court in United States v. Carolene Products (1937), a key ruling in the conventional account of the constitutional revolution's ties to the New Deal and the Court-packing plan, Justice Stone observed that regulatory legislation was to be presumed constitutional, then added in Footnote Four that such a presumption might carry less weight in challenges to legislation claimed to violate a specific prohibition of the Bill of Rights, made applicable to the states through the Fourteenth Amendment, and to laws restricting access to the political process or based on prejudice against "discrete and insular minorities." White notes, however, that the Court had already begun to place special emphasis on First Amendment rights in Near v. Minnesota (1931) and other cases decided well before the Court-packing episode. At least with respect to those freedoms, Footnote Four simply reiterated a position the Court had long embraced.

With respect to substantive due process, White argues that use of that doctrine to rule on the reasonableness of legislation did not cease with West Coast Hotel v. Parrish (1937), which upheld the sort of minimum wage law for women a majority had struck down only the year before and thereby became the first case, according to the conventional account, reflecting the "switch in time" that saved the Court from the Congress, president, and an aroused nation. Instead, the Parrish majority merely concluded that the minimum wage law for women upheld there was reasonably related to a number of legitimate state interests. Nor did later cases entirely reject the substantive due process formula in any field.

Finally, White argues, the post-1936 Court did not immediately and completely abandon meaningful judicial scrutiny of congressional legislation claimed to interfere with state powers under the Tenth Amendment. Instead, NLRB v. Jones & Laughlin Corp. (1937) and other early examples of the switch in time in the commercial field required a substantial connection between a subject of regulation and interstate commerce. Only later, in Wickard v. Filburn (1942), did the Court forsake all pretense of judicial scrutiny of such legislation, leaving the resolution of disputes over the scope of congressional authority entirely to the political process.

Burning the House to Roast the Pig

Professor White's stunning exposition is a valuable warning to us all of the dangers inherent in unduly broad and simplistic generalizations about the nature and pace of developments in constitutional law. He beautifully integrates, moreover, an amazing variety of events, intellectual movements, and scholarly analyses relative to his theme. In his zeal to undermine the conventional account of the switch in time, however, he arguably commits the sins of commission and omission common to most revisionist scholars selectively choosing and exaggerating the evidence he uses to bolster his own position while dismissing, virtually out of hand, arguments contrary to his stance, thereby weakening the force of his thesis.

Consider first his criticism of the conventional account with respect to the demise of substantive due process during the Court-packing period. According to White, the Fourteenth Amendment incorporation cases that both preceded and followed the Court-packing plan bore marked similarities to the pre-1937 Court's use of due process to invalidate laws the justices considered unreasonable interferences with economic liberty. At least for those unwilling to accept Justice Black's thesis that the Fourteenth Amendment's framers intended its first section, taken as a whole (not its due process clause alone), to incorporate the terms of the Bill of Rights, White's point is well-taken. But the conventional account does not suggest that substantive due process generally was abandoned in the Court-packing period, only that the use of the doctrine as a meaningful restriction on economic legislation met its end then. And that it is surely true. The Supreme Court has not invalidated a single economic statute on substantive due process grounds since 1936. Moreover, while the Rehnquist Court's "regulatory takings" version of the Fifth Amendment's eminent domain clause smacks in many ways of economic due process, the current majority has invoked a due process formula comparable to substantive due process only once to date: in BMW v. Gore (1996), striking down an Alabama jury's exorbitant punitive damages award.

The modern Court has used substantive due process, of course, as a device for recognizing non-economic personal rights given no explicit mention in the Constitution most notably in the abortion field. But the Court arguably did not invoke that formula in behalf of unenumerated non-economic liberties until Aptheker v. United States (1964), recognizing a due process right of international travel, a case decided nearly three decades after the Court-packing episode. Prior to that point, the Court, primarily under pressure from Justice Black, declined to resurrect (in fact, if not in theory) what it termed the "discredited" due process doctrine invoked by the pre-1937 Court in behalf of laissez faire. The majority opinions in both Griswold v. Connecticut (1965) and Roe v. Wade (1973), moreover, attempted however unsuccessfully to separate the rulings and rationales there from the due process formula of the Lochner era.

As Professor White points out, the Court in Parrish, Carolene Products, and other cases of the Court-packing era did leave open the possibility that some economic regulations might not pass muster under due process. In fact, Justice Black an opponent of any use of due process as a basis for judicial rulings on the reasonableness of laws (or procedures, for that matter) refused to join the portion of Justice Stone's Carolene Products opinion containing Footnote Four because it suggested that courts had power to overturn statutes lacking a "rational basis." But at no point since 1936 has the Court actually invalidated an economic statute on substantive due process grounds. That record certainly lends credence to the conventional account of the Court-packing era's impact on constitutional law.

In an effort to show that the pre-1937 Court had begun to recognize limits to the use of federalism and state sovereignty principles as a meaningful restriction on national authority in foreign affairs before the Court-packing controversy, White, as noted earlier, cites Sutherland's Curtiss-Wright opinion as well as the justice's earlier pronouncements and a number of the Court's other pre-1937 cases. Arguably, however, the Court of the late 19th and early 20th Centuries was not a states' rights Court, but one dedicated to Social Darwinian notions and laissez faire, as the conventional account would have it. Since, as Professor White points out, the greatly expanded position of the presidency in foreign and military affairs during this era was invoked primarily (Curtiss-Wright to the contrary) in behalf of American business interests in an increasingly dangerous world, the pre-1937 Court's conferral of legitimacy on such authority, and refusal to invoke states' rights as a restriction on national power, would hardly be inconsistent with the conventional laissez-faire interpretation of the old Court's decision-making.

One of Professor White's basic themes is that the characterization of the pre-1937 Court as laissez-faire is misleading, given the relatively mixed record late 19th and early 20th Century majorities produced in economic cases. In his view, the Court of the so-called laissez-faire period, like justices of earlier eras, embraced a "guardian" conception of judicial review, basing their decisions on essentialist, universal principles rather than personal predilections. The justices of that period did produce a complicated record of economic decisions. But if one eliminates cases involving no impact on mainstream businesses or limited to employment carrying significant on-the-job hazards decisions involving the regulation, for example, of lottery tickets, prostitution, diseased plants and livestock, impure foods, and work hours in high-risk industries the Court's record seems substantially consistent with the laissez-faire thesis. Given that record, it also seems clear that the justices may have invoked federalism, separation of powers, and other "guardian principles," whether consciously or unconsciously, to produce results consistent with their economic philosophies rather than neutral constitutional standards. At the very least, White should have explored more probingly laissez-faire elements in the backgrounds of the "four horsemen" and their predecessors. Obviously, they were more complicated personalities than a purely laissez-faire tag would suggest. But the significant laissez-faire influence on their voting patterns and opinions seems impossible to ignore.

White's characterization of the weight the pre-1937 Court assigned First Amendment freedoms requires comment, as well. Prior to 1937, the Court indeed had begun the process of absorbing Bill of Rights safeguards, especially First Amendment guarantees, into the meaning of the Fourteenth Amendment, thereby making them applicable to the states. In most First Amendment and other such cases, however, the Court rejected the civil liberties claims raised and gave the right at issue a narrow reading. Near v. Minnesota (1931), one of the few rulings upholding such a claim, involved an extreme form of prior restraint on expression. Near thus can no more be considered evidence of the pre-1937 Court's high regard for First Amendment rights than the 1915 Court's invalidation of the blatantly discriminatory grandfather clause can be viewed as a demonstration of its strong general commitment to racial equality. It was in the post-1937 era, as the conventional account contends, that the Court really began to put teeth into First Amendment law and other non-economic rights as well.

Finally, we come to Professor White's conclusion that the Court did not really reject all meaningful federalism review of otherwise valid congressional exercises of the commerce power until Wickard v. Filburn (1942), several years after the Court-packing episode. In Wickard, of course, the Court upheld federal agricultural production quotas, as applied to a farmer who used wheat he produced in excess of his quota entirely to feed his livestock. Speaking for the Court, Justice Jackson concluded that Filburn's action, combined with that of many other farmers, would exert a significant impact on the demand for wheat. He also rejected "nomenclature" (particularly distinctions between "production" and "commerce" and between "direct" and "indirect" effects on interstate commerce) used by the pre-1937 Court to separate national and state authority, emphasizing instead that the political process was the principal remedy for perceived congressional abuses of its authority.

White maintains that rulings between 1937 and Wickard had not rejected all meaningful federalism review of otherwise valid exercises of the commerce power, although the 1941 Darby Lumber Co. decision had hinted at such a stance. Arguably, however, the Court did not change its stance toward congressional commercial authority from 1937 to 1942. Instead, it simply modified its rhetoric, employing language more and more deferential to Congress as the connection between interstate commerce and the subject regulated became increasingly attenuated. That is the approach courts often employ in their opinions in a particular line of cases adapting their rhetoric to a particular context without changing their fundamental substantive stance on the issues raised.

Whatever the merit of such concerns, Professor White has produced a wonderful complex, thought-provoking challenge to adherents of the conventional interpretation of the New Deal and the Court-packing plan. It should be must reading for students of constitutional law and politics.

Tinsley E. Yarbrough is Arts & Sciences Distinguished Professor of Political Science at East Carolina University. He is the author of several biographies of Supreme Court and federal district judges. His most recent books are The Rehnquist Court and the Constitution (2000) and The Burger Court: Justices, Rulings, and Legacy (2000).

Editors' Note: A Books-on-Law review of Professor Yarbrough's book, The Rehnquist Court and the Constitution, was featured in the special issue of Washington State Jurists on JURIST. For a Books-on-Law review of related interest, see Kermit L. Hall's review of A People's History of the Supreme Court (Penguin, 2000) by Peter H. Irons.

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The Need for Philosophy
by Dennis Patterson

Objectivity in Law and Morals
Brian Leiter, editor
New York, NY: Cambridge University Press
Cloth: $64.95
Pp. 366
ISBN: 0521554306

To what degree, if any, is legal theory connected with general philosophy? Put differently, can one do legal theory without paying attention to the work of philosophers in the fields of metaphysics, philosophy of mind, and philosophy of language? I do not think so. In fact, I have regarded with astonishment the works of some of my contemporaries who write as if they could close their eyes to what seem, at least to me, obvious and controversial issues of general philosophy.

Consider the theorist of contract law. Anxious to explain the principles that organize the field, the theorist identifies "consent" as the fundamental concept around which all, or virtually all, doctrinal rules can be explained. Thus, consent or its absence accounts for the role of consideration, mutual assent, mistake, and a host of other notions that anyone would agree are constitutive of contract law.

But where does the theorist derive her conception of "consent?" She can point to what the courts recognize as "consent." But that is to confuse explanation with the thing explained. Even if we accept the courts' understanding of "consent," how do we "know" that when it comes to the meaning of this central notion, the courts "got it right?" And finally, how do we account for differences in and disagreements among courts in their decisions about the meaning of "consent?" I see no way to avoid asking these questions. Hence, I see no way of avoiding the philosophical issues thereby implicated. Of course, this settles nothing, save recognition of the need to do philosophy.

Philosophy & Legal Theory

If one is inclined to do philosophy in the context of legal theory, what sort of philosophy is appropriate? For many, the answer to this question depends, in part, on one's preference for either Analytic or so-called "Continental" philosophy. Analytic philosophy of the modern variety is concerned with questions of meaning, mind, and metaphysics. From the point of view of matters of mind (epistemology), the tradition starts with the thought of René Descartes, who is generally credited with advancing the case for "foundationalism" (the view that some beliefs are more "basic" than others). Despite the importance of epistemology to the Analytic tradition, nothing can undermine the importance of questions of meaning, both for the Analytic tradition and legal theory.

Other important dimensions of general philosophy are taken up by matters of meaning and mind. If we look just at meaning, the "two Wittgensteins" (pre- and post-1929) are as good a focus as any for the main Analytic approaches to questions of meaning. The Ludwig Wittgenstein of the Tractatus followed (and altered) the path laid down by Gottlob Frege and Bertrand Russell (after Russell's Hegelian period). With an emphasis on the ways in which language reflected the world, philosophy of language was approached as an undertaking to define the limits of what could be said sensibly. After 1929, Wittgenstein returned from a hiatus from philosophy to pursue a new course. In his "later" period, Wittgenstein was concerned with the myriad ways in which language is used both to "do" things (à la J.L. Austin) and bewitches us. The later Wittgenstein railed against the notion of "genuine" philosophical problems. He came to regard traditional philosophy with suspicion, arguing that philosophical problems are just riddles or confusions. It might be said that, in this sense, the later Wittgenstein was "anti-philosophical."

Legal philosophers of the Analytic persuasion have paid attention to the work of their mainstream colleagues. When H.L.A. Hart published The Concept of Law in 1961, language philosophy of several varieties was a commonplace at Oxford and Cambridge. It was against this background that Ronald Dworkin, in 1973, began to hold seminars in Oxford on questions of truth. Together with Gareth Evans, Dworkin explored the role of truth in a variety of disciplines, bringing scholars from fields as diverse as mathematics and literary theory to probe the metaphysical question of truth and the epistemic limits of demonstrating the truth of propositions. There can be little doubt that these seminars laid the groundwork for Dworkin's articles collected in the volume Taking Rights Seriously, for in that work Dworkin asserts that there are "right answers" to virtually all questions of law notwithstanding the fact that right answers cannot always be shown to be such (the so-called "demonstrability thesis").

Dworkin is to be given credit for having drawn connections between problems in legal philosophy and serious work in the philosophy of language. How does Dworkin mine the value of these connections? In an introduction to a set of papers on the philosophy of law, Dworkin had this to say about positivism and anti-realism:

[M]any positivists rely, more or less consciously, on an anti-realist theory of meaning.
...
Lawyers are agreed, according to positivism about how the existence of a law or a legal rule can be proved or disproved, and they are therefore agreed about the truth conditions of ordinary propositions of law that assert rights and duties created by rules. But controversial propositions of law, which assert rights that do not purport to depend upon rules, are another matter. Since there is no agreement about the conditions which, if true, establish the truth of such propositions, they cannot be assigned any straightforward sense, and must therefore be understood in some special way, if at all.

Ronald Dworkin, Introduction, in Ronald Dworkin, editor, The Philosophy of Law 1, 7 (Oxford University Press, 1977)

While it is certainly true that Dworkin was not the first legal theorist to recognize the importance of philosophy of language for legal theory (think of H.L.A. Hart and the influence of Friedrich Waismann's Wittgenstein and J.L. Austin on The Concept of Law), his work represents the place of maximal convergence of philosophic forces. In addition to his work with Evans, Dworkin took the interpretivist turn in philosophy when, in Law's Empire, he enlarged his earlier work by his embrace of hermeneutics as the basis of his theory of law (declaring that law is an "interpretive practice"). In fact, it might be fair to say that while the Dworkin of Taking Rights Seriously exhibits a thoroughly Analytic philosophical bent, the later Dworkin of Law's Empire finds himself closer to the tradition of Martin Heidegger and Hans-Georg Gadamer than he does that of analytic philosophy of language.

"Objectivity" & "Right" Answers

Which brings us to the book under review. The work of all of the contributors to this volume is squarely within the analytic philosophical tradition. Professor Brian Leiter has framed the volume around the concept of "objectivity," but some will find the focus of the volume too narrow. Despite this narrow focus, the articles in this book are each in its own way interesting and informative.

In his Introduction, Professor Leiter distinguishes between two forms of objectivity: epistemic and metaphysical. Epistemic objectivity is concerned with the presence or absence of bias. Epistemology quickly gives way to the main focus of the volume, that of metaphysical objectivity. This form of objectivity concerns itself with the question whether our epistemic faculties can "deliver accurate representations of the way things truly or objectively are." (1) Metaphysical objectivity carries an "independence requirement" that the way things are is mind-independent in the sense that "facts" are not a matter of what anyone thinks or believes but is, as some would say, independent of what anyone thinks or believes. Traditional or pure metaphysical realists insist on complete independence from what anyone takes to be the case. A less strict form of the approach is found in the "internal realism" of philosophers such as Hilary Putnam, who unpack the requirement of "the way things are" as tied not to a metaphysical conception of "fact" but to "ideal epistemic conditions." (2)

What does any of this have to do with law? Even if one believes that law is not a matter of "facts" or "the way the world is," this does not preclude an account of objectivity in law. Of course, part of the philosophical argument is over the very meaning of "objectivity." Put differently, one has to explain what it means to say that the law is or is not "objective." One might join Professor Leiter in saying that "[t]he law is metaphysically objective insofar as there exist right answers as a matter of law." (3) To some, this way of putting the matter only begs the question, for it shifts the focus from the meaning of "metaphysics" to the meaning of "right answer."

The problem with putting matters in these terms is that almost anyone will agree that there are at least some right answers in law. The question really is not whether or not there are "right" answers; the question is what one means when one says an answer is "right." Is an answer "right" in virtue of some mind-independent metaphysical moral reality? Or is an answer right if everyone agrees it is right? This is the point at which the debate becomes philosophically interesting. And, alas, this is the point at which the focus of this interesting volume will leave some cold.

The central philosophical question of objectivity around which this volume is based is the question whether "objectivity" is domain-relative. Some of the contributors want to say that whatever objectivity means, it has to mean the same thing across different domains (e.g., law, science, politics). If some domains cannot stand up to the rigors of the demands of (scientific) objectivity, well then, they are simply not up to the task. Others take a more nuanced view, arguing that objectivity can mean different things in different domains. The matter of philosophic or jurisprudential interest is in what objectivity in law might amount to.

Of the seven essays in the volume, four concentrate their attention on the literature of metaethics (the study of first-order ethical discourse). While the Introduction asserts that "the volume presents a state-of-the-art survey of live issues in metaethics and examines their relevance to theorizing about law" (5), I would have to say that much of the focus is on metaethics and not nearly as much on law. This is regrettable, but should not cause one to ignore this volume. Time spent on these issues and this way of approaching them will be justly rewarded.

Dennis Patterson is Distinguished Professor of Law at Rutgers University School of Law in Camden, New Jersey. He is the author (with Richard Hyland) of An Introduction to Commercial Law (West, 2000); Law and Truth (Oxford University Press, 1996) and Editor of Companion to the Philosophy of Law and Legal Theory (Blackwell, 1996).

Editors' Note: Professor Patterson has been a frequent contributor to Books-on-Law on a variety of subjects. His first review featured Richard S. Markovits's Matters of Principle: Legitimate Legal Argument and Constitutional Interpretation (New York University Press, 1998). Subsequently, he wrote a review of E. Allan Farnsworth's Changing Your Mind: The Law of Regretted Decisions (Yale University Press, 1998), and a review of David Dyzenhaus's Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Clarendon Press, 1998).

For the many Books-on-Law reviews of related interest, see the index in the April 1999 issue and April 2000 issue for reviews on jurisprudential works.

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The Causes & Costs of Tax Cheating
by Janet Spragens

The Great American Tax Dodge: How Spiraling Fraud and Avoidance Are Killing Fairness, Destroying the Income Tax, and Costing You
James B. Steele & Donald L. Barlett
New York, NY: Little Brown & Co., 2000
Cloth: $22.95
Pp. 288
ISBN: 0316811351

The Great American Tax Dodge is an interesting, quick paced, and immensely readable book written by two Time Magazine business reporters.  Aimed at the non-professional tax audience, the book describes the growing problem of widespread noncompliance with the federal income tax system, and the causes, effects, and consequences of this dangerous national trend. The authors assert that this increasingly has become a way of life for one-third to one-half of all Americans.

The essential thesis of the book is stated early on:

For the first time in American history, there is massive tax fraud. The US income tax, once a model to other nations, is widely avoided and ignored. In a way, Leona Helmsley, the hotelier by marriage who earned the title "the Queen of Mean," was right when she said, "only the little people pay taxes." Now even they have found a way to beat the system.

How much do honest people pay because their neighbors don't? At a minimum $300 billion dollars, enough to provide health care for 44 million Americans who are uninsured. And prescription drugs for senior citizens. Or cut everyone's taxes.

The IRS, Congress, and the White House play down the scope of tax evasion and tax avoidance because it's in their interest to do so. After all, the entire tax structure depends on maintaining the public's confidence that it is fair and that everyone pays his share. For years, most everyone did. But gradually, as other taxes on the middle class increased, as evidence of favorable tax treatment by Congress for special interests became more apparent, and as Congress scaled back the IRS's already limited auditing capability, voluntary compliance plunged. (3-4)

How Are People Cheating the System?

Not everyone, according to the authors, is ripping off the tax system the same way. Some people pad their deductions. Others completely make up expenses that they never incurred, from charitable gifts to business dinners. Others underreport their income, shaving or eliminating, for example, their gains from stock market transactions, or cash income from their businesses. Others hide assets. Still others use more sophisticated methods: foreign tax havens, abusive trusts, and corporate tax shelters. And still others simply do not file tax returns at all.

Although the tax code carries serious criminal as well as civil penalties for cheating, the authors state that taxpayers are thumbing their noses more and more at it and, in many cases, even bragging about it. The book details case after case of fraud and evasion: the story of Stanley Schulman, for one, all of whose living expenses were paid for by his corporation. Or the narrative on Ronald Preston, who counsels people to avoid U.S. taxes by sending their assets offshore. Or the controversy over Marc Rich, the oil profiteer who, before being pardoned by former President Clinton, had fled the country to escape prosecution of the largest tax fraud case in tax history to date.

Taxpayers cheating the system often play what is referred to as the "audit lottery" that is, taking an aggressive or erroneous or fraudulent position on their tax returns and hoping that the returns will not be audited. In increasing numbers, they are winning the lottery. IRS budget cuts have resulted recently in the lowest audit rates in U.S. history, and its enforcement resources are woefully inadequate to deal with what the authors describe as the tidal wave of noncompliance that is becoming bigger every year.

What's Causing the Increase in Noncompliance?

The authors spend a lot of time speculating on what is causing people to cheat in ever growing numbers, and they propose a lot of theories. Among their reasons:

Growing economic pressures on families struggling to make ends meet under a crushing and unfair load of combined local, state, and federal taxes, especially Social Security and Medicare. A growing contempt for government. The influx of large numbers of immigrants where tax cheating is a way of life. A society whose people have become more obsessed with self than neighborhood, community, and country. Declining moral and ethical standards. Disgust with Washington's spending proprieties. And most of all, a series of Congresses and presidents, Democratic and Republican, who have emasculated the IRS and rewritten the tax laws to favor the privileged and the powerful.

They also decry a wider cultural trend in American society of plummeting ethical standards in non-tax areas: increasing insurance fraud; social security rip-offs; cheating on college exams; buying term papers on the Internet; nonpayment of child care; and defaults on student loans.

The Sorry State of IRS Enforcement

The problem is exacerbated, the authors state, by the fact that in this financial shootout, the IRS is massively outgunned and understaffed. In recent years, its enforcement budget has been slashed, and the agency has been the target of unprecedented attacks in Congress, which has required them to move many of their audit resources into "customer service" that is, answering phones or staffing walk-in offices. According to recent reports, a taxpayer's chance of being audited today is less than 1 in 200. In addition, the auditors have been cowed as well. In the IRS Restructuring and Reform Act of 1998, Congress enacted section 1203 (a provision referred to inside the agency as the "ten deadly sins.") Section 1203 provides that an IRS agent can be summarily dismissed for engaging in ten different types of harassing or threatening behavior or other violations of taxpayer rights. The effect of enacting this provision has been to make IRS agents more timid in going after abusive cases, fearing individual suit or dismissal.

The massive amount of fraud, the authors claim, is swamping the system, and totally outstripping the IRS's ability to enforce compliance. On the one hand, this encourages even more fraud (on the same theory that there are more speeders when fewer police officers are manning the highways); on the other, it undermines those honest taxpayers who are correctly reporting their income, by destroying their confidence in the fairness of the system and by making them feel stupid for being so honest. The ultimate effect, the authors believe, is the eventual destruction of the income tax system itself, which, they predict, will not live to see its 100th birthday (in 2013).

Is the Problem As Bad As They Say?

The authors do not cite any national statistics to support their view that aggressive noncompliance is on the increase. For example, it is totally unclear where they got the figure that one-third to one-half of all Americans are skirting the system; or that the amount of unreported income in the system adds up to $300 billion per year. Rather, they build their case essentially on anecdotal examples. Moreover, our tax system is now producing record surpluses, indicating that someone is paying taxes into the system.

Interestingly, however, in the last few months, others have picked up the same theme. For example, the front cover of the March 5, 2001 issue of Forbes magazine is entitled "How to Cheat on Your Taxes." And the inside article poses the question to taxpayers, "Are you a Chump?" Moreover, former Treasury Secretary Lawrence Summers, at the Washington D.C. Federal Bar Association Conference in March 2000, gave an hour's luncheon presentation about Treasury's initiatives to deal with the rising number of abusive tax shelters being marketed to Fortune 500 companies by the major national and international accounting firms.

What's the Solution?

On a general level, the book raises a central question that is key to the design of any tax system based on self-reporting. That is, how does a government efficiently make people pay the taxes they owe without either of two dilemmas: (1) giving them a "license to steal," by leaving it up to them to determine their own tax liability; or (2) making tax collection so intrusive that people live in fear and/or are forced to spend an unconscionable amount of time (that otherwise could be devoted to profit-making activities) in keeping records and proving to the IRS their claims for deductions and credits.

One possible solution to the enforcement dilemmas is for the country to adopt a different type of tax. For example, the VATs which are used by many European countries, and the sales, real property, and excise taxes used by many states are not collected through voluntary annual reporting on 1040 forms, and are not subject to the same kind of avoidance techniques. The authors do not recommend adopting any of these alternative forms of taxation, however. For one thing, those taxes have their own equally difficult (although different) enforcement issues. For another, they also are complicated, frequently regressive, and raise important distributional impact concerns, going to the fairness of the entire system.

The authors do recommend expanding both withholding and information reporting. Although they do not make this point clearly, in fact this has always been the principal enforcement mechanism of the federal income tax system.

It is interesting to note that, if the question were directly posed to the public at large, most Americans would probably say that the IRS enforces the tax code principally through individual audits, imposition of penalties, and threats of jail time for noncompliance. But the fact is that this has never been the case. Thus, even in its heyday, the IRS never audited more than 3% of returns filed. To audit more would require huge budgets and manpower, and would create a host of other issues. And you can't enforce a tax system by auditing only 3% of returns filed.

Rather, going as far back as World War II (when the income tax first became a universal tax in order to finance the war effort), by far the most important enforcement tools of the system have been wage withholding (introduced in 1943) and information returns, like 1099s, W-2s, and K-1s). Wage withholding insures that the government is paid before the taxpayer ever sees the money, and that it is paid on a pay-as-you-go basis, not at the end of the year. Wage withholding also leaves taxpayer/employees who earn wage and salary income very few options to cheat the system, particularly if they claim the standard deduction and do not itemize. Frequently, the best they can do is file for a refund at year's end.

Likewise, information returns have historically been a hugely important compliance tool, serving dual purposes: (1) reminding taxpayers of their income transactions for the year; and (2) providing a subtle reminder that the IRS and its computers have been notified of the transaction, so the taxpayer better report it. Historically, there have been very low levels of cheating on wage income, as well as on income from sources like interest or dividends that are subject to information reporting. Higher noncompliance occurs where these two tools do not apply, for example, on capital-gains reporting, on other non-withheld forms of income, or in connection with the cash income earned by many small businesses.

Although the authors recommend extension of these two enforcement mechanisms to additional transactions, it is unclear whether additional withholding and information reporting would be feasible. Individuals and small businesses are notoriously poor record keepers, and adding to their filing burdens for occasional (non-regular) transactions under threat of monetary penalty for noncompliance would likely not sell to the American people. In the mid-1980s, for example, Congress was subjected to a major public backlash when it tried to implement rules requiring taxpayers who used cars for both business and personal purposes (a serious area of erroneous reporting) to keep contemporaneous mileage logs.  The automobile record-keeping rules were quickly repealed. Significantly, the authors do not address the implementation issue of their proposal at any length.

Additionally, the authors recommend dividing the IRS into two parts an enforcement arm and a service arm and scrapping the entire tax code in favor of a streamlined income tax code devoid of any deductions or credits. These proposals are also not discussed in any meaningful way.

In summary, it appears that the authors' purpose in writing this book was less to construct a meaningful solution to the issues they raise than simply to issue a call-to-arms to increase public awareness of the issues themselves. In the current climate of public debate over the tax code, however one in which discussion is increasingly centered on whether a $1.6 trillion tax cut is big enough or whether the government deserves to keep more of "your money" it is not clear whether an appeal to the public good for a fairly administered tax system can, in fact, rise above the din and actually be heard.

Janet Spragens is Professor of Law and Director of the Federal Tax Clinic at the Washington College of Law, American University in Washington, D.C. She is also a member of the Joint Committee on Taxation's Academic Advisors Board.

Editors' Note: Professor Spragens has contributed previously to Books-on-Law; she reviewed Edward J. McCaffery's Taxing Women (University of Chicago Press, 1997).

For other Books-on-Law reviews of related interest, see Michael B. Lang's review of Joel Slemrod & Jon Bakija's Taxing Ourselves: A Citizen's Guide to the Great Debate over Tax Reform (MIT Press, 2nd edition, 2000) and Ellen P. Aprill's review of Michael J. Graetz's The Decline (and Fall?) of the Income Tax (W.W. Norton & Company, 1997). Consider, as well, the Law & Economics special issue of December 2000.

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A Quiet Life of Service
by Donald L. Doernberg

Justice James Iredell
Willis P. Whichard
Durham, NC: Carolina Academic Press, 2000
Cloth: $45.00
Pp. xviii, 381
ISBN: 0890899711

Dean Willis Whichard does a double service in chronicling the public and private life of Justice James Iredell of North Carolina. First, he memorializes the accomplishments of a figure too little appreciated by modern students of 18th Century America. Second, he casts additional light on two struggles of the post-revolutionary period, one well documented and the other almost overlooked: the constitutional ratification process and the life of a Supreme Court Justice in the nation's early years.

A Man Almost Unknown

Modern lawyers asked to name early Supreme Court Justices might mention Jay, Marshall, Story and perhaps Rutledge. Only constitutional law scholars (and perhaps only a small subset those interested in the Eleventh Amendment) would name James Iredell. That is not surprising. Only a handful of opinions bear Iredell's name, and it is no exaggeration to say that only his dissent in Chisholm v. Georgia (1793) represents judicial work of continuing importance, but more of that later.

Similarly, were one to ask modern historians of the ratification debates to name important figures in that process, the resultant list would have an aura of "the usual suspects:" Hamilton, Madison, Jay, Marshall, Franklin, Adams and the like. James Iredell would not likely appear on the list, and so it is that one is apt to overlook the very real contributions of this early Southern federalist to the effort to form a new nation by enlisting thirteen wary sovereignties in the uneasy creation of a fourteenth. Lest one think that the difficulties attending such a project ended with the ratification of the Constitution or the end of the Civil War or the creation of a truly national economy, one has only to read the modern Supreme Court's increasing efforts to insulate the states from congressional assertions of federal authority in cases like Seminole Tribe of Florida v. Florida (1996), Alden v. Maine (1999), and Board of Trustees of the University of Alabama v. Garrett (2001) to appreciate that the Hundred Years War was but a minor skirmish compared with the battle for power between the states and the federal government now entering its third century, a battle in which James Iredell played a significant early role.

Iredell came to the colonies as a teenager and almost immediately immersed himself in the study of law. At nineteen, he received his first law license and thereafter, though diligence, intelligence, and simple decency, became a leading figure of the North Carolina bar. As a

lawyer, he retains a special, though unappreciated, place in American legal history, having anticipated Marbury v. Madison as counsel in one of "the first American cases to apply the doctrine of judicial review of the constitutionality of legislative enactments." (xv) Dean Whichard notes that Iredell earlier had espoused the doctrine in a public letter, and later championed it in opposition to arguments for legislative supremacy.

Coming to Local Prominence

Iredell's good fortune in being able to study the law came about in part because he had been able, through family connections, to secure a respectably paying public job as comptroller in his town. He was, therefore, to some extent in the public eye from the beginning. North Carolina called upon him early and often, resulting in "his service as a member of a commission to prepare statutes for its new government, one of its first three superior-court judges, its second attorney general, an original trustee of its university, and the initial revisor of its statutes." (xv)

Aside from his formal duties, Iredell was a measured voice for separation during the revolutionary period, becoming "the leading essayist in his region in support of independence." (xv) Dean Whichard calls attention particularly to "Principles of An American Whig," which he notes seems organically related to the Declaration of Independence. Thus, by the time the new nation began taking shape, Iredell had established himself as a well-respected lawyer and an intellectual leader throughout the state.

It was in the post-revolutionary period, however, that Iredell played his most central and most enduringly significant role. He was not a delegate to the Constitutional Convention, though apparently only impecuniousness prevented his assuming that role. He nonetheless corresponded regularly and at length with his state's delegates. North Carolina was a battleground state for ratification. Iredell's was the first voice publicly raised in support of the new charter, and "[w]hen delegates convened . . . to consider ratification, Iredell was the floor leader for the Federalist forces." (xvi) Despite his efforts, North Carolina originally rejected the Constitution, but he and other leading Federalists prevailed in their attempt to convene a second convention and secured belated ratification. "When the Federalist cause finally triumphed in North Carolina, he was widely recognized as a principle [sic] architect of its victory." (xvi)

Beyond North Carolina's Borders

By the time the new national government took shape, Iredell was known throughout the country to the men who would be its more recognized leaders. George Washington particularly had a most favorable impression of Iredell as a result of the latter's extensive revolutionary and post-revolutionary publications and other efforts to help give the nascent country form. Washington named Iredell to the Supreme Court shortly after North Carolina joined the union.

In describing Iredell's Supreme Court years, Dean Whichard offers insightful treatment of what it was like to be a Supreme Court Justice in the late 18th Century. Iredell was a prolific correspondent, and the author's sifting through letters to and from the Justice gives the reader a first-person perspective that a mere 21st Century narration could not accomplish. One learns that most of a Supreme Court Justice's time on the job was spent on the rough-hewn roads of the new country, moving from one venue to another. If this was the pursuit of justice, it was slow, tedious, exhausting, and sometimes dangerous.

"Riding circuit," a Supreme Court Justice's responsibility for the federal judicial work of a region of the country in addition to Supreme Court cases, became the focus of Iredell's life, and his letters are stark testimony of the price that the practice exacted. Travel was extraordinarily difficult, even if everything went well. Bad weather, which today may leave one stranded at an airport for a day or two, then could cause a Justice to miss an entire term of a local court. Moreover, the conditions of travel presented a constant threat to the traveler's physical health, and the necessity of long weeks away from home took a heavy toll on family life. One comes away with a distinctly tarnished view of the supposed glories of a Justice's life. Particularly during the Court's first decade, when Justice Iredell served, the opportunities for intellectual immersion in the great issues of the day were few and far between. The dominant factor of Supreme Court service in those early days appears to have been the physical battle against the working conditions, which finally wore down Justice Iredell (and some of his colleagues). One could serve on the Supreme Court; the issue was whether one could survive the service.

The Case

Chisholm v. Georgia (1793) has become a great case. John Marshall noted that the possibility that pre-Revolutionary debts owed by states to British loyalists could be the subject of federal suits "'formed a very serious objection to'" the Constitution. (158) Chisholm was just such a case, and the Court, with only Justice Iredell dissenting, ordered Georgia to make good its debt. As then-Justice Rehnquist would point out almost two centuries later, the decision shocked the entire nation and led to rapid adoption of the Eleventh Amendment. Whether an individual may ever call a state to account in the federal courts remains a live question today, with hardly less emotion attending the discussion than in 1793. Here was and is a continuing battle for power and control between the states and the central government.

It is now common for the Court to take Justice Iredell's Chisholm dissent for far more than it was, and Dean Whichard does a (perhaps too) subtle job of pointing this out. In the North Carolina ratification conventions, Iredell had argued strongly for the Constitution, seeking to reassure delegates that the charter fully protected the states' integrity in their internal affairs and echoing arguments that Madison, Marshall, and Hamilton presented in seeking support for the Constitution. He had no difficulty in saying that Chisholm's suit should fail because that there was no federal concern with the matter at all; it was a straightforward assumpsit action.

Intellectual descendants of the anti-federalists readily take Justice Iredell's dissent to mean that no individual could make a state a defendant in a federal action. That is far from what he said. He was at pains to point out that the states remained entirely sovereign only in areas unaffected by the Constitution's delegation of powers to the central government. Responding during the ratification period to George Mason's objections, he argued that "[t]he federal courts were to have jurisdiction only where the Union was in some way concerned." (166) Nonetheless, Iredell was a staunch Federalist. His concerns in Chisholm rested upon his conviction that an action to collect a debt incurred before the United States even came into existence could not be a subject of federal concern and that therefore jurisdiction would not lie. This is a far cry from the common portrayal of Iredell maintaining that no federal judicial relief would ever be available against a state at the behest of an individual.

As Dean Whichard points out, Iredell's dissent relied heavily on the absence of federal legislation authorizing the action against the state. "The action was in assumpsit, which would lie against a state only by virtue of the Constitution and a congressional enactment conformable to it. Legislative authority, within constitutional bounds, was essential and was lacking, and the power was not one necessarily incidental to the federal courts as such." (167) This view, rather than supporting the exaggerated modern view of Iredell's position, actually undercuts it. Chisholm could not maintain the assumpsit action in the federal courts because there was no federal law authorizing the suit. The plain implication is that were there such law, a federal action would lie. Justice Iredell actually laid the foundation for the view, later espoused by Justices Brennan, Stevens and Souter, that the Eleventh Amendment's prohibition is limited to state-created causes of action brought as diversity actions. In terms of the jurisprudence of the Eleventh Amendment and its effect on federalism, this is a critically important contribution, and one wishes that Dean Whichard had made more of it.

The Man

One of the endearing things about this book is that it does not simply view Iredell as a figure of the law. Dean Whichard offers a look at the entire man, his family and social relationships generally, his aspirations for his children, his lifelong courtship and adoration of his wife Hannah, and the degree to which family and friends sustained him, largely through frequent correspondence, during his arduous circuit-riding years. A delightful chapter entitled "Friends, Finances, Faith, Fun, Foibles" takes one behind the persona of the life-long public servant and introduces the private figure.

The Justice becomes more of a person, and one discovers (or is reminded) that public accomplishments and the recognition that flows from them occur in a larger context. Nothing about being a public figure, even a national one as Iredell was, insulates one from the mundane problems of everyday existence. As Dean Whichard makes clear, Iredell's considerable achievements were intellectual and political, not financial. Cut off during the Revolution by an outraged British relative from an inheritance in which he otherwise would have shared, Iredell and his family never had much money. It is often said that being an attorney offers one the opportunity to do good and do well; Iredell is an excellent example of an attorney who did good but did not do well.

The portrait is not always flattering, especially by today's standards. Iredell was a slaveholder, though Dean Whichard presents him as quite a humane one. "He shared with Washington, Jefferson, and other leaders of his time participation in the haunting moral contradiction of abhorrence to slavery in principle, combined with personal ownership of slaves." (258) Humane he may have been, but despite his expressed abhorrence of the institution, he still owned slaves when he died (although he had freed some). "As a lawyer, he handled the sale of slaves for clients." (259) The juxtaposition is a remarkable one. "As a revolutionary-period political essayist, he eloquently attacked the concept of human slavery. Liberty, he said, was 'the right of every human creature,' and no rule 'totally destructive of this universal right' could be just." (258) This is, in some sense, merely an echo of the manifest incompatibility between the Declaration of Independence's declaration of universal (male) equality and the United States's persistent disparate treatment based on race, gender, and ethnicity. The dissonance between words and actions is striking, revealing much about the capacity of the man and the society for unapologetic self-deception.

There was some turmoil in Iredell's private life. His relationships with his family of origin could be sorely strained, particularly when his brother in England arranged for their mother to join Iredell and his wife in the United States but omitted to tell them that she suffered from advanced alcoholism. The untimely death of their son lent additional poignancy to Iredell's extended work-induced absences from his family. As the author sets out these aspects of Iredell's life, one acquires a deeper appreciation for Iredell's complete devotion to the law and to setting his new country on a sound path.

James Iredell may lack the cachet of other late 18th Century figures in our history; he is not (and probably never will be) widely recognized as a national leader during this time. What Dean Whichard makes clear, however, is that he was always there a quiet, insistent voice that brought North Carolina into the union and, by demanding the best of himself, provided a role model for the lawyer as public servant as compelling as any extant. He did not do it for power or wealth or even, as far as one can ascertain from this volume, for self-aggrandizement; he just did it. Dean Whichard deserves thanks for introducing us to this singular figure.

Don Doernberg is a Professor of Law at Pace University and is the author of Identity Crisis: Federal Courts in a Psychological Wilderness (2001) and co-author of Federal Courts, Federalism and Separation of Powers (2000).

Editors' Note: For other Books-on-Law reviews of related interest, see the special issue on Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (Times Books, 1988) by Edward Lazarus; Oregon Supreme Court Justice Susan M. Leeson's review of Melvin Urofsky's Division and Discord: The Supreme Court Under Stone and Vinson, 1941-1953 (University of South Carolina Press, 1997); Washington Supreme Court Justice Richard B. Sanders's review of Tinsley E. Yarbrough's book, The Rehnquist Court and the Constitution; Jeffrey D. Hockett's review of Lucas A. Powe's The Warren Court and American Politics (Harvard University Press/Belknap 2000); and Kermit L. Hall's review of A People's History of the Supreme Court (Penguin, 2000) by Peter H. Irons.

For reviews of works on individual U.S. Supreme Court Justices, see Scott D. Gerber's review of Howard Ball's A Defiant Life: Thurgood Marshall and the Persistence of Racism in America (Crown Books, 1998); 6th Circuit Appeals Judge Nathaniel R. Jones's review of Mark Tushnet's Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 (Oxford University Press, 1997); Washington Federal District Court Judge Barbara J. Rothstein's review of Edward A. Purcell's Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (Yale University Press, 2000); Robert S. Peck's review of Dennis J. Hutchinson's, The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White (Free Press, 1998); and Washington Supreme Court Justice Gerry L. Alexander's review of David N. Atkinson's Leaving the Bench: Supreme Court Justices at the End (University Press of Kansas, 1999).

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The Law of Black-White Marriage in U.S. History
by Peter Wallenstein

Interracialism: Black-White Intermarriage in American History, Literature, and Law
Werner Sollors, editor
New York, NY: Oxford University Press, 2000
Cloth: $55.00 / Paper: $24.95
Pp. xiii, 546
ISBN: cloth 0195128567 / paper 0195128575

The word "miscegenation," which originated in the United States during the Civil War, largely replaced an earlier term, "amalgamation." It refers to interracial marriage or interracial sex and having mixed-race children; and it refers, too, to laws passed in various states to restrict interracial sex or marriage. By the 1860s, such legislation had been enacted and enforced in some places for as long as two centuries. Many states were enforcing "miscegenation" (or "antimiscegenation") laws a hundred years later.

Black-white marriage is an extraordinarily evocative and illuminating theme in American history, law, and literature. As readers continue to grapple with it in the twenty-first century, Interracialism has potential as a very useful compilation. The literary materials will perhaps prove especially useful, but this review, written for an audience primarily interested in law and history, will focus on the first of the three parts into which the book is divided, "The History of 'Miscegenation' and the Legal Construction of Race."

Three Centuries of Legislation

Marriages between African Americans and European Americans were the subject of legislative regulations as early as a 1664 Maryland colonial law and as late as the 1967 U.S. Supreme Court decision in Loving v. Virginia. In almost every decade from the start of the American Revolution to the eve of the Great Society, a majority of American states had such laws on the books. At no time, however, did all colonies or all states have such laws; and, to achieve greater uniformity, it was proposed in 1912 that an amendment to the U.S. Constitution prohibit black-white marriages. Over the years, a wide range of matters relating to race, marriage, and the law captured headlines and imaginations, and law and policy in such areas as inheritance and immigration got caught up in concerns regarding miscegenation.

Changes in the law of race and marriage tended to come in clusters. Immediately after the end of slavery, for example, some states of the former Confederacy acted to impose new restrictions or greater penalties. During Congressional Reconstruction in the late 1860s and the 1870s, by contrast, seven former Confederate states (all but Virginia, North Carolina, Georgia, and Tennessee) acted in some fashion to do away with such laws, whether they dropped the laws from the state code or ruled them invalid in a state supreme court decision. In some cases, legislative action directly reflected black electoral and legislative power. In other cases, judicial interpretations of the Civil Rights Act of 1866 and the Fourteenth Amendment reflected that power.

Before long, that interpretation of the Fourteenth Amendment that it banned racial proscriptions regarding marriage was foreclosed. In addition, black political power largely vanished across the South. By 1894, all seven southern states that had relinquished their miscegenation laws reversed themselves, and when Oklahoma gained statehood in 1907 it enacted its own restriction. By then, for the first extended period in its history, the South was solid in its opposition to legal black-white marriages, and it remained so until 1967. Prosecutions continued in several states through the 1950s, and in other situations people were denied marriage licenses on racial grounds into the 1960s.

After the South became solid, miscegenation laws were more a regional phenomenon than they ever had previously been, yet nearly as many states outside the South maintained such laws. During the first quarter-century after the Civil War, five northern states (Illinois, Rhode Island, Maine, Michigan, and Ohio) repealed their miscegenation laws, as did some western territories (New Mexico and Washington). No new state inaugurated a miscegenation law after Wyoming did so in 1913, although as late as the 1930s four states (Arizona, California, Maryland, and Utah) expanded their existing laws to apply to men from the Philippines, who could no longer marry Caucasians.

When World War II ended in 1945, thirty states maintained miscegenation laws. Soon, however, beginning with a California Supreme Court decision in 1948, many of them abandoned their commitment to the old regime. After 1965, all seventeen southern states retained miscegenation laws, but no other state did. By the time the Supreme Court ruled in June 1967, Maryland's repeal measure had been in effect for a matter of days, so the states affected by Loving were Virginia and fifteen other states across the South. Reliable versions of portions of this long history from the Civil War to the Civil Rights Movement can be found at various points in Interracialism.

What Is a White Man?

In the best use of space in the entire book, a brief 1889 essay by the mixed-race novelist and short story writer Charles W. Chesnutt asks "What Is a White Man?" Surveying the heterogeneous legal definitions of white and black among the various states in the 1880s, Chesnutt noted wryly that, in a nation, state, or region that trumpeted notions of white supremacy, it was presumably important to know just who belonged to the superior race and who did not. Yet at the time of his writing, "reputation" seemed as important as "admixture" in South Carolina in determining the assignment of racial identity, and racial segregation was widely imposed under the law, as he said, only "in schools and in the marriage relation." (39, 40)

Soon after Chesnutt wrote, legally-mandated segregation spread more thoroughly to public transportation. In the years that followed, states continued to tinker with racial definitions and with their application, and many people found that they were being assigned new racial identities depending on when and where the question arose. The proportion "black" or "white" that defined blackness or whiteness changed. Virginia, for example, abandoned its traditional one-fourth fraction in 1910 (people were black if as much as one-fourth black) in favor of one-sixteenth and then, in 1924, went all the way to the one-drop approach. In various states, whiteness was a far more exclusive property by 1930 than it had been a half-century before.

The extraordinary arbitrariness of where to draw the line once it had been decided to draw a line at all itself rendered people vulnerable to prosecution for violations of miscegenation and other racial laws. People who had at one time been legally white, and therefore had to marry other whites, could find themselves whether by waiting a short while or crossing a state line newly black. Moreover, such states as Virginia, Maryland, and Tennessee made it emphatically clear in the late 19th Century that valid marriages in one state, if interracial, could not necessarily be imported into another state.

Legal History or Literary Criticism

Werner Sollors, the Henry B. and Anne M. Cabot Professor of English Literature and Professor of Afro-American Studies at Harvard University, has earned a fine reputation as a perceptive commentator on racial themes in American literature. In this edited book, he presents several dozen texts, reprinted in full, mostly authored across the 20th Century by historians, sociologists, literary critics, and law professors. The entire work has an Introduction, and each of the three parts into which the book is divided has a brief introduction as well.

The historical literature on miscegenation remains sparse, but it has been expanding at an impressive rate in recent years. Choosing just a few essays must have been a challenge, but the selections all belong here. Among the eight essays in Part One are "Representing Miscegenation Law" (1988), by Eva Saks; "Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia" (1989), by A. Leon Higginbotham Jr. and Barbara Kopytoff; Peggy Pascoe's "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America" (1996); and "Miscegenation Laws and the Problem of Enforcement," a previously unpublished article drawn from a forthcoming book by Randall Kennedy. Since only articles are included, Interracialism does not contain a portion, for example, of Ian F. Haney López's White by Law: The Legal Construction of Race (1996), a book that is not even mentioned.

The editor's Introduction helps set the stage for the many items that follow, but it could have done so with greater surefootedness. His grounding in literary history is far firmer than that in social or political or legal history. Sollors refers, for example, to a concubine of African ancestry kept by President Andrew Johnson (1865-69); he has in mind Richard M. Johnson, who served as vice-president some thirty years earlier (1837-41). Sollors says that a family inheritance might have "to be shared" (7) as a consequence of racial considerations, when in fact a number of court cases from Maine to Virginia to Oklahoma led to African Americans' being flatly denied the inheritance of property on account of marriages that were declared void for being interracial.

Other lapses intrude as a consequence of the editor's not being thoroughly acquainted with either the history or the historiography on race and the law. Sometimes the problem originates when statements in the collected essays are assumed to be true and are then repeated. Colonial Maryland enacted a law under which, for a time, any white woman who married a black slave became a servant to the slave's owner for as long as her husband lived, and during that time her children would all be born slaves. Maryland passed the law in 1664, but Sollors follows two of his authors in dating the act to 1661. (4, 45, 56, and back cover)

The editor twice says about Hugh Davis, who was whipped in Virginia in 1630 (as the record states) for "lying with a negro," that Higginbotham and Kopytoff exemplify the essays' "provocative new readings of frequently cited cases" in suggesting that the greater offense may have been that the relationship was homosexual. (4, 19) We cannot know one way or another whether the sexual identity as well as the racial identity of Hugh Davis's unnamed partner brought down the wrath of Virginia authorities. But we can know that Higginbotham and Kopytoff merely mentioned the possibility in a footnote. (102) And we can know that Winthrop D. Jordan had previously offered the hypothesis in White over Black: American Attitudes toward the Negro, 1550-1812 (1968).

Contexts & Headnotes

It becomes increasingly clear as one peruses Interracialism that opportunities have been lost as well as gained. The essays that are privileged here might also have been critiqued. The several introductions, I suggest, should offer greater guidance as to the identities of some authors and the contexts that occasioned the original publication as well as the reliability of the statements in the historical essays.

For example, William D. Zabel's 1965 essay "Interracial Marriage and the Law" is included. Readers might profit from being told that Zabel was one of the prime movers behind the sustained effort by the American Civil Liberties Union in the 1960s to obtain a ruling on the constitutionality of the miscegenation laws such as the Loving decision finally brought. His essay, published in Atlantic Monthly rather than in a law journal, was designed to nudge public opinion toward greater receptivity to a decision like that in Loving and, in fact, Zabel was a player as the ACLU worked up its strategy in the Loving case. Some other writers on race, marriage, and the Fourteenth Amendment R. Carter Pittman, Alfred Avins, neither of them mentioned here argued at the time against a change. While each side battled to get the Supreme Court decision it desired, neither side had its legal history entirely right.

It is virtually impossible to write anything of consequence on the sprawling (and underdeveloped) topic of race, marriage, and the law and not falter at one point or another. Saying that one writer or another has misstated a fact is by no means tantamount to dismissing that writer's work. Yet readers of Interracialism would be better served if errors in the reprinted essays were pointed out and gently corrected if the latest scholarship were made more consistently available. Such an approach might also serve to highlight the collaborative enterprise that scholarship almost always is.

Higginbotham and Kopytoff produced a marvel of historical reconstruction and legal analysis. Yet, once they reached beyond 1861 to supply an epilogue bringing the story down to the 1960s, they misstepped on occasion. For example, regarding the mixed-race couple in Jackson v. Alabama, a 1954 Supreme Court case, it is not true that the man was black and the woman white, nor had they married. (137) In a problem of a different kind, it is not helpful to observe, as Higginbotham and Kopytoff did, "The prohibitions against interracial marriage were part of a longstanding aversion to interracial sex, marital and nonmarital." (136) They themselves knew better.

Randall Kennedy comes closer to the mark when he writes about Alabama law in the 1920s and 1930s that it was "intolerant of an authentic, stable interracial romance." (143) Or, as the novelist James Baldwin scoffed many years ago, white men weren't so much concerned about whether their daughters married black men as whether their wives' daughters did.

In short, what would serve better, it seems to me, would be, first, to introduce each item with a brief headnote that placed it in context and, then, at the end of the item, to offer observations that might build on the context and, where appropriate, modify various details or assessments. Readers get too little editorial or historical guidance from the long Introduction at the start, followed by the brief introductions to the three parts of the book, even when what is said there is true.

Toward a Documentary History

Included among the three dozen items are several documents. Part One contains four such sources well chosen but too few. The "Act To Preserve Racial Integrity," passed by the Virginia legislature in 1924, was the 20th Century version of legislation that dated back to 1691, when Virginia first imposed penalties for whites who married blacks, even before the two groups were defined under the law. That legislation also dated to 1878, when the state imposed prison terms for as long as five years and applied the new sanctions to black-white marriages contracted outside the state (by couples who sought to evade the Virginia law by going to Washington, D.C., to get married, as the Lovings were charged with in 1958) as well as to any such marriages contracted inside Virginia. The core provisions of the 1691 and 1878 laws might better have been included here.

Among the three other documents, one is a statement from a 1913 Arizona law, according to which, applying more than a single one-drop rule, "All marriages of persons of Caucasian blood, or their descendants, with Negroes, Mongolians, or Indians, and their descendants, shall be null and void." In other words, if this language is taken literally, mixed-race people in Arizona who were part white and part black, Chinese, or Native American could not marry anyone!

The two other documents are Supreme Court decisions, Pace v. Alabama (1883), which applied the concept of separate-but-equal to laws governing sex (and, by implication, marriage), and Loving v. Virginia, the 1967 decision that made miscegenation laws no longer enforceable in any state. In Pace, the Court unanimously ruled that a state law imposing a penalty for living in "adultery or fornication" if one partner was white and the other black a greater penalty than if both had the same racial identity did not violate the Fourteenth Amendment, since Tony Pace (who was classified as black) and Mary Cox (who was white) had been sentenced to identical two-year prison terms. According to a unanimous Court in 1967, by contrast, "The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations."

At least a sprinkling of other such sources would be useful here. My nominations include the Mississippi provision in 1865 that violations of that state's miscegenation law be punishable by imprisonment for life in the penitentiary; the 1872 case of Burns v. State, in which the Alabama Supreme Court ruled the state miscegenation law unconstitutional; and the text of the amendment to the U.S. Constitution that Congressman Seaborn Roddenbery of Georgia proposed in 1912.

American Exceptionalism

Sollors knows that few countries have maintained laws like those in the United States that for so long restricted, on racial grounds, who could marry whom. Hitler's Germany did so with a vengeance from 1935 to 1945, and from 1949 to 1985 South Africa emulated the U.S. approach. So exceptional has been the American experience over the long haul, however, that Sollors asks his readers to consider: "Could the question of what is American about American culture be answered with 'prohibiting black-white . . . couples from forming [legal] families and [as one consequence] withholding legitimacy from their [children]?'" (5)

Sollors recognizes that black-white couples were not the only combinations whose private lives were subjected to public laws solely on the basis of their disparate racial identities. He points out, though, that "all such laws restricted marriage choices [between] blacks and whites, making the black-white divide the deepest and historically most pervasive of all American color lines." (3-4) He says of a theme "pervasive in U.S. history and literature" that it was manifested by "a 300-year-long tradition of legislation, [litigation], protest, and defiance." (3) The various materials in this compilation give readers access to many dimensions of that history and that literature.

Peter Wallenstein is an associate professor of history at Virginia Polytechnic Institute and State University. He has published books on public policy in 19th Century Georgia and higher education in modern America, and he is the author of a forthcoming book on race, marriage, and the law in U.S. history.

Editors' Note: For Books-on-Law reviews of related interest, see Richard T. Ford's review of David Delaney's Race, Place and the Law: 1836-1848 (University of Texas Press, 1998) and Tennessee Supreme Court Justice Adolpho A. Birch's review of David D. Cole's No Equal Justice: Race and Class in the American Criminal Justice System (The New Press, 1999).

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JURIST: Books-on-Law is edited by Ronald K.L. Collins and David M. Skover of the Seattle University School of Law.

Board of Editorial Consultants: Raj Bhala, George Washington University Law School; Miriam Galston, George Washington University Law School; Kermit Hall, Utah State University; Yale Kamisar, University of Michigan Law School; Lisa G. Lerman, Catholic University of America School of Law; Christine Littleton, University of California at Los Angeles Law School; David M. O’Brien, University of Virginia Department of Government and Foreign Affairs; Judith Resnik, Yale Law School; Edwin L. Rubin, University of Pennsylvania Law School; Steven H. Shriffrin, Cornell Law School; Nadine Strossen, New York Law School; David B. Wilkins, Harvard Law School.

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© Ronald K.L. Collins and David Skover, 2001.