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Contents | Reviews | Talkback || Archive || Books-on-Law Home
  • Querying Censorship:
    • Essay. "Why the Mass Media Must Be Censored" by David Lowenthal.
    • Post, Robert C., editor. Censorship and Silencing: Practices of Cultural Regulation. Reviewed by Collins & Skover.

  • An Exchange on Impartiality:
    • O'Neill, Shane. Impartiality in Context: Grounding Justice in a Pluralist World. Reviewed by Stanley Fish.
    • A reply by Shane O'Neill to Stanley Fish.

  • Blakely, Edward J. & Mary Gail Snyder. Fortress America: Gated Communities in the United States. Reviewed by Gregory S. Alexander.
  • Conley, John M. & William O'Barr. Just Words: Law, Language, and Power. Reviewed by Douglas Litowitz.
  • Daly, Kathleen & Lisa Maher, editors. Criminology at the Crossroads: Feminist Readings in Crime and Justice. Reviewed by Nadine Taub.
  • Graetz, Michael J. The Decline (and Fall?) of the Income Tax. Reviewed by Ellen P. Aprill.
  • Jay, Stewart. Most Humble Servants: The Advisory Role of Early Judges. Reviewed by Russell R. Wheeler.
  • Talkback
Querying Censorship

Why the Mass Media Must Be Censored
by David Lowenthal

The argument rests on these premises: (1) that the mass media are the prime educational force in the country; (2) that their effect is, by and large, pernicious -- running counter to the education of the young in schools, churches and synagogues, and to the qualities required of mature citizens in a civilized republic; (3) that the brutes, lechers and slobs the media tend to produce will have no aptitude for or love of republican government; (4) that government, and government alone, has a chance of blocking this descent into decadence.  The argument to be overcome is that censorship is dangerous, ineffective, unconstitutional, and inconsistent with liberal democracy.

By "mass media," I mean television, the movies, and recordings primarily, but the term can be extended to cover cheap books and magazines, and now the Internet as well.   For present purposes, I shall concentrate on the first three media.  There are few people in the country insensitive enough to regard television and the movies as mere entertainment, but there are some.  Their view is that what we see and hear with such frequency is like water off a peach or a duck’s back: we are amused, moved, or entranced without being affected or changed.  Censorship is not for them.   Those, however, who consider the influence of the mass media to be malignant -- and some have likened it to a moral sewer -- will seek some recourse.  Censorship -- or, more broadly, regulation -- is that recourse.

Should We Worry?

As a nation, we are concerned about pollution, about pure air and water, about every aspect of the physical environment, about the prevention and cure of disease in all its forms.  Is there no such thing as moral pollution?  Has our increasing awareness of the goods and evils of the body been bought at the cost of an increasing stupefaction regarding the goods and evils of the soul?  Are we incapable of recognizing the debilitation of the soul that weakens or destroys those qualities that make us distinctively human?

That there is cause for concern about the media is recognized by thoughtful conservatives and liberals alike.  Conservatives are especially sensitive to the sexual immorality the media convey, liberals to the encouragement given to violence.   Both are right, but the picture is much more alarming than even the combination of the two.  Never before in the whole history of mankind have the moral restraints and aspirations necessary to the fullness of our nature, and to civilization itself, been subjected to so ubiquitous and persistent an assault.  If our scientific learning and partisan ideologies keep us from seeing this -- from seeing that we are on the road to decadence and decline -- of what use are they?

A Little History

Assuming that enough of the country can still recognize the base and the vicious for what they are, is there anything that can be done to rein in the corruption wrought by the mass media?  What can we do to pull back from the obvious caninization of the human species occurring before our eyes, and from the terrible barbarism that is being spawned along with it?

Let us recall some history.  When Sir William Blackstone, from whom our founding fathers learned most of their law, pioneered in proclaiming the freedom of the press, it was to free the press from the heavy hand of the censor.  The press, then, meant simply the printing press, and Blackstone could only justify this radical emancipation from the censor by insisting that any evils wrought by the press were to be punished subsequent to publication, rather than sought out by the censor's prior examination.

A self-evident principle was involved: that no one has the right to use words (or pictures) in such a way as to inflict serious harm on others or on the society itself.   Early this century, Justices Holmes and Brandeis sidetracked the law in the direction of John Stuart Mill's philosophy of extreme liberty.  The view before their "clear and present danger" principle was what it should be now -- that the encouragement, through the press, of violence and lawlessness, cannot be tolerated.   This is especially true when considering the power of the mass media.

But, is fanning the flames of selfish and irresponsible lust any less dangerous?   How can we expect the sexes to treat each other with decency and respect, the very young to forbear from sexual intercourse, and the family to remain stable in mutual devotion if the joys of sex, unrelated to any sense of responsibility and separated even from love, are touted daily in theaters and on television screens?  Is it unreasonable to believe that an important cause of the instability of the American family today, and of our enormous rate of illegitimacy, is the climate of sexual laxity produced by movie after movie, show after show?

William Blackstone called offenses involving the abuse of the press "libels," and among the types of libels he listed was "immoral libels" -- the forerunner of what later came to be known as obscene libels or obscenity.  These libels, as punishable offenses, were not considered abridgements of the freedom of the press.   They constituted "license" rather than liberty, and were, therefore, not part of the "freedom of the press" at all.

More Recently

From these beginnings came the long legal and constitutional tradition in this country, up to and including the present, by which obscenity has been considered a crime in every state and in the nation, and quite consistently with guarantees of the freedom of speech and press in both state and federal constitutions.  Thus, obscenity has never been protected by the First Amendment, though today we have sunk so low that some people, no doubt thinking of themselves as progressive revolutionaries, have begun to argue that pornography itself -- the most primitive form of obscenity -- should have the shroud of unconstitutionality lifted from it.

We need not review all the changes that the Supreme Court has made in the law of obscenity, starting in 1957.  Suffice it to say that the result has been to discourage the prosecution of obscenity by narrowing its legal definition to sheer pornography, so that all those appeals to lust short of the exhibition of sexual organs and acts can no longer be considered illegal.  Even the prosecution of pornography has been rendered dispirited, as if out of fashion in a more progressive age.

In recent years, the Court has gone so far as to insist that "indecency" be given its share of viewing hours on television, and that the Internet be left an unregulated realm of freedom (despite extremely worrisome elements such as pornography, instructions in bomb production and sexual luring that have already shown themselves there).  A single instance of how the Court's 1973 obscenity decision in Miller v. California works in action tells it all.  In the lower courts, the lyrics of the rap group 2 Live Crew were given First Amendment protection.  This occurred because of courtroom testimonials to their "serious value" by so-called experts, despite the fact that they manifestly contain obscenity, indecency, and the provocation of violence to women altogether.

You don't have to be George Will, or a member of the Christian Right, to realize that something is radically wrong.  If we want a capsule formulation, the Supreme Court, the law schools, and part of the country have replaced the thought of the founders and framers with ideas derived from John Stuart Mill's extreme philosophy of liberty, mixed incoherently with the morally corroding relativism of mid-twentieth century thought.   Pressed by secular intellectuals to liberate ourselves from Victorian and Puritan prudery, we have thrown off all restraints, thinking we can satisfy all natural appetites while remaining civilized and free.

The mass media -- movies, television and recordings -- need to be regulated, and not only because of appeals to irresponsible lust.  They have immersed us in violence as well, habituated us to it in its most extreme forms, held it up as a model where it shouldn't be, and surrounded us by images of hateful human types so memorable as to cause a psychological insecurity that is unhealthy and dangerous.  The only answer is governmental regulation, if necessary prior to publication -- that is, censorship.   As to the possibility of self-regulation by the industries involved, the case of the movies is proof enough that this cannot work.  The profit motive, left to itself, will not serve the common good.

Meeting Objections

I must now face these questions: 1) Is not prior restraint or censorship in the strict sense banned by the very idea of the "freedom of the press"?  Would censorship of the movies and the other mass media we are considering be constitutional?   2) Can censorship be made responsible and consistent with the needs of republican government?  Why should what we see and hear be determined by some faceless bureaucrats?  Will censorship not be misused and abused by politicians?  3) Is censorship enough to correct the moral corruption that has already shown itself in our midst?

It is true that "freedom of the press" originally meant the end of censorship, but it was "the press" -- the production of books, pamphlets, handbills -- that was freed because its abuses could be corrected by legal punishment subsequent to publication.  The movies, television, recordings, and the Internet are entirely different from the press in this respect.  They can be "published" at once all over the country, distributed to young and old alike.  That is why they are called the mass media.  Furthermore, their visual and sound appeals, embodied in drama and music, give them a power totally different from that of the "press" in the old and exact sense.  Likening or assimilating them to the press, thus understood, is like calling atomic missiles artillery.

We cannot be sure that the first stout defenders of the press, such as William Blackstone or John Milton -- both of whom favored subsequent punishment for abuses of the press -- would make an exception for the movies and television were they alive today.   But their principle would require it, for they presume that serious harm to the public by the use of words or pictures is to be prohibited, so that the choice of how to do so, while important, is still a secondary consideration.  Preventing harm coming from printed materials could be accomplished after publication, but with movies and television the harm from even a single showing can be widespread, deep, and not easily overcome.

As to our own constitutional tradition, the Supreme Court has never closed the door to prior restraint in the case of movies, realizing that they constitute a new and unique medium.  In fact, as far back as 1931 (in Near v. Minnesota), even before movies became a powerful force, Chief Justice Hughes stated, as a matter of course, that there were four specific abuses of the press in connection with which the First Amendment would allow even prior restraint (i.e., censorship).  One of the four was that "the primary requirements of decency may be enforced against obscene publications."

The case of television is different because, like radio, stations or bends of airwaves are a public property allocated with conditions attached.  In the Federal Communications Act of 1934, it was stipulated that programming had to be in the "public interest" -- a basic condition Congress failed to amplify upon then or since.  But the principle is there, ready to be made more specific in the future.   If the conditions for obtaining and renewing licenses are made plain and then applied consistently, there should be little need for the prior screening of individual programs.


Who will do the censoring?  In monarchical days of old, it was an individual appointed by the King from whose secret decisions there was no appeal.  In our own experience, only a few years ago there were boards of censors as well as individual censors in many of our states and cities, driven out of existence not by being considered unconstitutional as such but by the increasing restrictions placed on them by the Supreme Court.  In 1959, for example, a case came before the Court (Kingsley International Picture Corporation v. Regents) involving the refusal of the Board of Regents of that state to allow the showing of the movie, Lady Chatterley's Lover.  In those days, the individuals involved were often appointed and relatively unknown, but it would be possible to find ways of getting some of our most distinguished citizens to serve as censors, now that we realize (as before we did not) how central, rather than peripheral, this function really is.  In our almost fastidious legal system, their decisions -- unlike those of the censors of old -- would be guided by law, open to inspection, and subject to review by higher courts.  Can this power be abused?  Of course it can, but the much greater danger is that its power, rightly exercised, will be eluded by the horde of innovators now thrusting their products on an unwitting public.

A more important question is whether enough is left of our moral character and understanding as a nation to be able to frame and apply laws that will control the most baneful aspects of the mass media.  No one knows.  It is easy to be deceived by what we see on television, which is hardly capable of peering into the urban and rural heartlands of America.  And, while there are other sources of our moral corruption -- including excessive wealth -- the mass media, by creating the world of ideas and images with which we picture ourselves, are the most obvious and most important.  A sick man is often helped through his illness by his will to prevail, and by the measures taken to make him well.  Having recourse to a reasonable but rigorous system of censorship will signify that the country understands what has happened and is determined to survive as a civilized and free society.

As for the final complaint -- "I don't want anybody telling me what I can or can't see" -- the answer is simple.  That is exactly our situation now, where completely hidden figures in movie studios and television networks, often only a few, and motivated primarily by profit, decide what will be available for our viewing.  With few exceptions, the choice the viewer has is usually from a variety of bad alternatives, whatever their technical wizardry.  For inch-by-inch and yard-by-yard, the mass media have lowered the standards of their productions, increasingly appealing to animal appetites that, once released, care little for the nobler elements of freedom and civilization.

The choice is clear: either a rigorous censorship of the mass media, molded into responsible republican form, with censors known to all and operating under law, or an accelerating descent into barbarism and the destruction, sooner or later, of free society itself.

David Lowenthal teaches political science at Boston College.  He is the author of No Liberty for License: The Forgotten Logic of the First Amendment (Spence Publishing, 1998); Shakespeare and the Good Life: Ethics & Politics in Dramatic Form (Rowman & Littlefield, 1997); and has translated Montesquieu’s Considerations on the Greatness and Decline of the Romans.  Professor Lowenthal has also contributed to many works, including Joseph Cropsey, editor, Ancients and Moderns: Essays on the Tradition of Political Philosophy in Honor of Leo Strauss (Basic Books, 1964) and Leo Strauss & Joseph Cropsey, editors, History of Political Philosophy (University of Chicago Press, 3rd ed., 1987).

We're All Censors Now?
by Collins & Skover

Censorship and Silencing: Practices of Cultural Regulation
Robert C. Post, editor
Getty Trust Publications, 1998
Paper: $35.00
Pages: 344

"Censorship" is a power word.  To employ it is to level a charge.   Suppression, oppression, silencing -- whatever.  It's always pejorative, a word befitting tyrants.  As commonly used, "censorship" is a rhetorical conclusion, not a reasoned description.  But, therein lies its political strength... and its philosophical weakness, too.  Ironically, the word performs what it protests; it ends discourse in the name of defending it.

In today's cultural climate, the cause of censorship has no defenders.  Not even self-respecting conservatives dare champion it; they simply deny they are censors.   While everybody abridges some expression at some time, no one will admit to censorship at any time.

"Censorship," then, is not a word to be used with scientific precision, with some discernible object.  It is political vocabulary.  It is a power word used to contest power.

Living as we do in "enlightened" times (after all, Joe McCarthy is dead!), this is all fine, at least for liberals.  Well, almost.  What prompts this pause is the ongoing attempt by progressives to reconfigure the political and linguistic landscape.  Just as yesterday's liberals moved "censorship" beyond the mere notion of prior restraint, so today's liberals must face the possibility that "censorship" is moving beyond the definition of direct restraints by state actors.  The word has begun to take on new life.  For modern liberals to acknowledge and share in the new life, however, they must do at least two things.   First, the liberal use of the word must be stripped of some of the rhetorical power that it now enjoys, this in the name of a new analysis of power; and second, liberals must be prepared to see themselves as censors.

If this all seems a bit strained -- dare we say postmodern? -- it is because many do not think much about what "censorship" means and how it is used.  To our benefit, Censorship and Silencing invites us to think very seriously about these matters.  Edited by Professor Robert Post (UC-Berkeley), the book collects fourteen thoughtful essays on censorship authored by a diverse range of scholars from fields such as law, anthropology, philosophy, political theory, rhetoric, English, French and Italian studies.  True to its creative mission, the avant-garde cover and basic-to-bold typography were designed by Bruce Mau of Toronto, one of the most radically innovative book designers of our times.

Reconfiguring the Conceptual Landscape

Censorship and Silencing sets out to reconfigure our conception of censorship.   In this spirit, Professor Post organizes the essays along three divides, each exploring a distinct vision of the government's role in speech regulation and emphasizing a different dynamic of censorship.  Part I, "Censorship: The Repressive State," examines what has traditionally been understood as censorship -- the explicit legal control of speech through criminal and civil sanctions -- and then questions the sufficiency of this age-old understanding.  "Discourse: The Tutelary State," the subject of Part II, highlights the more indirect censorial controls that the state wields by subsidizing some speech practices more than others or by creating and allocating property rights. Finally, Part III, "Silencing: The Egalitarian State," plays with the more radical and postmodern insights that non-governmental forces are often the most prevalent and effective censors, and that state intervention may be necessary to ensure that minority voices are heard.

However useful this tri-part divide, it lacks staying power.  For the attentive reader soon enough realizes that the essays align themselves, to a greater or lesser degree, along a basic conceptual line.  Whatever their particular subject concerns, the articles either adhere more generally to the modern liberal view of censorship, or they lean more toward its progressive or postmodern variants.  Hence, two divides, not three.  It is not unfair to suggest, for example, that Professors Ruth Gavison, Lawrence Douglas, Leslie Green, or even Debora Shuger march more comfortably with the modern liberals.  By contrast, Professors Richard Burt, George E. Marcus, Rae Langton, and Wendy Brown more openly embrace the more radical postmodern view of censorship.  Consistent with this structural sense, Professor Frederick Schauer masterfully divides and then describes the turf into two conceptual estates.  In the end, therefore, it may be that Censorship and Silencing has a basic binary structure: it draws the line between modern and postmodern notions of censorship -- only later to blur those lines, of course.

From Modern to Postmodern

The transition from the modern to the postmodern is reflected in the conceptual move from Blackstone to MacKinnon, from licensing to silencing.  Modern liberals tie their notion of censorship to state permissions and punishments for speech acts; postmodernists untie that knot, and find censorship in society's very customs and linguistic practices.  

This transition is also borne out by the move from prior restraint to self-restraint, from direct coercion to indirect coercion.  Liberals point to explicit constraints on expression, whereas postmodernists focus on the repressive effects of concentrated social power.

So too, this transition reflects the move from government censorship to private censorship.  Whereas liberals identify censorship only in state action, postmodernists hold that expression may be abridged by private corporations or other power-wielding private agents.

The modern notion of censorship is liberty-focused (i.e., First Amendment), while the postmodern notion is equality-focused (i.e., 14th Amendment).   Equality, in turn, points to power (i.e., the distribution of power).   For postmodernists, then, censorship concerns the relation of power to communication.

All of this might be fine (for some, anyway) if only things could remain fixed there.   This, however, postmodern thinking will not countenance.  For, it deconstructs the elementary, but largely unchallenged, distinction between choice and censorship in such a way that communication itself is the consequence of censorial social workings.   Once this occurs, censorship ceases to be simply a pejorative declaration, if only because it is descriptive of how communication works.  Censorship and Silencing thus provides its readers with a highly nuanced -- and at times disarming -- account of censorship.  This account is richer and more complex than anything found in the vast majority of law treatises.

Viewing "Censorship" Through Postmodern Lenses

At the end of his introductory essay, Professor Post suggests that the free speech challenge of our times is to relocate the values of a more traditional concept of censorship within postmodern analysis:  "['Censorship'] comes to us now stripped of its prior innocence by the acid of Foucaultian sophistication.  That loss has momentous political consequences.... The challenge addressed by the essays in this volume is how these consequences may be mastered and subordinated to an informed political will." (p. 9).  With this dedication, Professor Post urges us to consider the likely outcomes -- for both legal theory and political practice -- of viewing censorship through postmodern lenses.  As a preliminary matter, at least four consequences come into bold relief.

First, a theoretical concern -- technical, perhaps, but nonetheless of critical consequence.  To venture upon a postmodern analysis of censorship is to abandon traditional liberal legal criteria for evaluating it.  In other words, once one appreciates the postmodern understanding of censorship, one cannot soundly critique it within the liberal legal framework that postmodernism fundamentally questions.  It is futile, if not furtive, to engage in such a sub rosa switch in theoretical bases.

Censorship and Silencing, for all its insights, suffers more than a few such theoretical switches.  For example, in her discussion of legal controls on hate-speech and incitement, Professor Ruth Gavison criticizes governmental officials for failing to balance the socio-political results of regulation against those of non-regulation.  In her cost-benefit analysis, Gavison takes as the implicit baseline for freedom of expression the liberal legal tolerance for hate-speech. (pp. 45-56)   Postmodern hate-speech regulators, of course, would challenge Gavison's a priori liberal legal paradigm.  It is insufficient, then, to privilege the premises that postmodernism denies in order to analyze the very theoretical stance that denies them.

Within postmodernism, of course, it is impossible to accept a priori the traditional liberal legal belief that the social costs to ordered democracy are typically fewer than those of regulating dangerous speech.  For instance, does post-Holocaust Germany's experiment in regulating neo-Nazi political associations challenge the notion that a liberal democracy cannot tolerate hate-speech suppression?  On a related point, in a recent review in Books-on-Law, Professor David Kretzmer (Hebrew University, Jerusalem) provocatively asked:  "Is freedom of expression in other liberal democracies that have enacted laws against incitement weaker than it is in the U.S.?  If so, how does one explain the fact that the range of political discourse in many of these countries seems far wider and more diverse than it is in the U.S.?"

By way of another example:  Professor Leslie Green dismisses the postmodern debate on censorship as "trivially true," by asserting that what interests us in the idea of censorship is not whether speech is influenced, or by whom speech is influenced, but how speech is influenced (i.e., by coercive public action). (p. 287)  Whether trivial or not in Green's opinion, the postmodern perspective on censorship invites precisely such fundamental questions as whether speech is influenced and by whom speech is influenced.  And no amount of nay-saying can disguise the emptiness of confining the terms of the debate with the postmodernists to the singular concerns of the traditionalists.  In the end, admitting the relevance of the postmodern framework for censorship means evaluating it on its own terms.

The Political Price of Postmodernism

A second theoretical concern -- less methodological, and more normative.  Flirting with the postmodern approach to censorship, have we vexed any "objective" reasons for reforming our system of communication?  Plainly stated, is there any other meaningful reason to oppose censorship except that one's own ox is being gored?

Professor Judith Butler's essay on the constitutive power of censorship does a superb job in presenting this problem.  As Butler puts it: "[O]ne normative implication of [the postmodern] view is that because all expression is always already censored to some degree, it makes no sense to try to oppose censorship." (p. 253)  Are we destined, then, to accept the consequences of the postmodern posture? -- that all forms of censorship (direct or indirect, regulative or constitutive) are inherently personal and political in nature?

Related to this is yet a third consequence of adopting the postmodern perspective.   Consider the postmodern cry: "the personal is political."  Does this validate censorship as the necessary condition for meaningful personal politics?  In her fascinating account of censorship in Tudor-Stewart England, Professor Debra Shuger explains that the suppression of scurrilous or seditious libel was justified as a function of "civility rules." (pp. 91-96, 103-104)  Extending Professor Shuger's argument beyond the point where she leaves it, might postmodernism invite the reassertion of "civility rules" against the more egregious forms of group libel today, including racial hate-speech, or pornographic sexism, and/or rabid homophobia?

Finally, a fourth concern, one dealing more openly with political pragmatism.  If censorship per se cannot be a categorical evil in a postmodern world, is it still possible to find that particular forms of censorship are?  What does it take, if anything, to circumvent the postmodern conclusion that censorship is always already present, and must thereby be tolerated?  In his introduction, Professor Post captures this issue succinctly: "The result seems to flatten distinctions among kinds of power... and variations among kinds of struggles.... Recognizing always the pervasive, inescapable, and productive silencing of expression, can we say anything distinctive about the particular province of what used to define the study of censorship: the 'direct control' of expression by the state?" (p. 4)

Are we to accept that censorship is to be authorized as inevitable, but power should be vested (like a guild privilege) in those "professionals" whom established society deems "institutionally competent" to make acceptable censorial judgments?  This is a conclusion that could be teased out of Professor Schauer's exploration of the ontology of censorship. (p. 162)  If so, how is postmodernism to avoid the inherent problems of power-allocation that may mock its equality objectives?   That is, when society vests the political powers of censorship in established guilds, do we not threaten the anti-majoritarian goals of equality?

Beyond Censoring Talk About Censorship

Broaching no more than these four consequences of postmodernism, does Censorship and Silencing succeed in the mission that Professor Post set out for it?   Does the book substantially further the agenda of relocating liberal values within postmodern analysis?  Frustrating though it may be, we leave these matters for others to decide.

However one may answer our questions, this much we gladly grant. Censorship and Silencing is for the reader with a probing sense of things; it is not a work for the self-righteous who feed day-in and day-out on hackneyed and "approved" discourses on censorship.  To that extent, Censorship and Silencing is a welcome call to stop censoring our talk about censorship.

Ronald K.L.Collins and David M. Skover are the Editors of Books-on-Law and the co-authors of The Death of Discourse (Westview Press, 1996).  In the spirit of full disclosure, we note that we know Professor Post, though he did not see this review or discuss it with us prior to its publication.

Editors' Note: For a sampling of other contemporary works on censorship, consider the following:

  • Gregory D. Black, Hollywood Censored: Morality Codes, Catholics, and the Movies (Cambridge University Press, 1996)
  • Richard Bolton, editor, Culture Wars: Documents from the Recent Controversies in the Arts (The New Press, 1992)
  • Louis M. Crosier & Jennifer A. Peter, editors, The Cultural Battlefield: Art, Censorship, and Public Funding (Avocus Publishing, 1997)
  • Edward De Grazia, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (Vintage Books, 1993)
  • Donna A. Demac, Larry McMurtry & Arthur Miller, editors, Liberty Denied: The Current Rise of Censorship in America (Rutgers University Press, 1990)
  • Patrick Garry, An American Paradox: Censorship in a Nation of Free Speech (Bergin & Garvey, 1993)
  • Marjorie Heins, Sex, Sin, and Blasphemy: A Guide to America's Censorship Wars (The New Press, 1993)
  • Sue Curry Jansen, Censorship: The Knot That Binds Power and Knowledge (Oxford University Press, 1991)
  • Dawn B. Sova, Banned Books: Literature Suppressed on Social Grounds (Facts on File, 1998)
  • Jonathan Wallace & Mark Mangan, Sex, Laws, and Cyberspace: Freedom and Censorship on the Frontiers of the Online Revolution (Henry Holt, 1997)

See also the web site for the National Coalition Against Censorship.

An Exchange on Impartiality

Are There Reasons for Self-Revision?
by Stanley Fish

Impartiality in Context: Grounding Justice in a Pluralist World
Shane O'Neill
Albany, NY: State University of New York Press, 1997
Cloth: $57.50 / Paper: $18.95
Pp. x, 288

In his critique of John Rawls's insistence on treating "matters of political morality in isolation from other aspects of citizens' comprehensive moral views" (p. 17), Shane O'Neill forcefully argues that the distinction between the political and non-political aspects of one's comprehensive views could only be accepted by someone already committed to the liberal virtues Rawls regularly affirms -- "tolerance, reasonableness and fairness." (p. 26)  Someone whose views foreground other (illiberal) virtues -- say loyalty to the teachings of the Church or obedience to the will of God -- could only assent to the segregation of the political from the moral, to the sequestering of the question "What should I do as a believer?" from the question "What should I do as a citizen?", if for some reason (and the reason would have to be a zinger) he had exchanged his Bible and his creed for a copy of Political Liberalism.

Political vs. Non-Political Boundaries under Negotiation

Professor O'Neill illustrates with two examples, the education of children and the ever vexed issue of abortion.  Political liberalism requires parents to accept the fact that liberal virtues will be promoted in the public schools on the reasoning that "while there may be other virtues, such as religious ones, that are encouraged at home, it is the political virtues that prepare the young for citizenship in a well-ordered society." (p. 26)  O'Neill objects that to ask strong religionists "to accept . . . the promotion of the liberal virtues as a central aspect of the education of their children is to ask them to risk . . . that the religious upbringing they give to their children will be undermined at school." (p. 27)  They could hardly do that, he adds, "as a matter of conviction" -- their convictions, after all, run the other way -- and if they do acquiesce in the liberal order of things it will be "merely as a modus vivendi" (p. 27), that is, as a political concession to the reality of power.

The same, says O'Neill, would be true of the pro-lifer who is told by Rawls that it is "reasonable" to allow a woman the "'right to decide whether or not to end her pregnancy during the first trimester'" and that any other conclusion "'would be unreasonable.'" (p. 27)  O'Neill can see no reason why this account of the reasonable -- merely, as he says, asserted by one party to the controversy -- should override the conviction of pro-life stalwarts "that a mother and her unborn fetus are of equal moral value from the moment of conception." (p. 28)

As O'Neill sees it, Rawls's project fails because it does not recognize how deep the pluralism of modern society goes.  The rationalist effort to minimize conflict by keeping off the public agenda issues "about which it is presumed we will not agree" (because they touch on exactly those matters that divide one comprehensive morality from another) assumes too easily that we can all agree as to what those issues are.  It is O'Neill's contention that "all of our moral claims," including those presented as merely procedural, are "open to question."  "There is no reasonable way to decide in advance which claims are matters of political morality and which are not" (p. 32), and therefore O'Neill concludes that the "boundaries between the political and the non-political are constantly under negotiation." (p. 32)

In Search of a Theory of Political Foreclosure

Now there are two ways to read this: first, as an acknowledgment that the political cannot be quarantined; or, second, as one more attempt to quarantine it even in the face of the recognition that it is everywhere.  It depends on what O'Neill means by "negotiation."  If by negotiation he understands the unpredictable give-and-take of political struggle -- a struggle whose outcomes will always include winners and losers, imposers and the imposed upon -- then he is conceding that impartiality, in the abstract or in context, is an unachievable goal, and his book is over on page thirty-two.  Needless to say, the book continues, which means that by "negotiation" he understands some process or program by which the rough-and-tumble of political struggle can be managed, and managed by a mechanism that is itself not political, that is, not inflected in any partisan direction.  In short, after having shown (certainly to my satisfaction ) that political conflict cannot be foreclosed, O'Neill sets off in search of a theory of it, that is, of a way of foreclosing it.

But first he must consider the argument that there could be no such theory.  In the second section of his book, he selects Michael Walzer as the representative of that position, because Walzer insists that it is only in particular traditions and not in philosophical reflection that norms of judgment arise.  O'Neill does shares Walzer's uneasiness with an impartiality mandated from a position outside or above any actual form of political life -- an impartiality that will either be empty or filled by a substantive agenda it does not acknowledge.  Yet, he is unhappy with Walzer's abandonment of impartiality as a theoretical goal; without some notion of the impartial, O'Neill says, we will lack "a sufficiently critical perspective on the operation of power in social groups." (p. 4)  What is needed, Professor O'Neill concludes, is "an approach to questions of justice that successfully combines a concern for impartiality with a sensitivity to the particular contexts in which disputes about justice might arise." (p. 130)  He claims to have found that approach in the "discourse ethics" of Jurgen Habermas.  Like Rawls, Habermas is committed to a perspective unattached to any particular conception of the good;  but rather than deciding in advance, and in philosophical isolation, what the character and the content of that perspective shall be, Habermas assigns the task of working it out to the entire citizenry, or at least to those willing to engage in a cooperative effort of rational deliberation.   That deliberation occurs in the context of a particular culture's lived life (and is thus responsive to Walzer's privileging of "thick cultural meanings") but the inhabitants of the culture are constrained by "rules of argumentation" (p. 135) which assure that what emerges from the conversation "expresses a common interest" rather than the interest of an isolated individual or a partisan group.

A Close Look at Habermas

This all seems perfectly coherent until one looks closely at Habermas's rules, which turn out to display the same defects O'Neill has already found in the work of Rawls.   The first rule is that the conversation must move forward only on the basis of an ongoing determination of what is "the better argument" relative to whatever issue is on the table.  "Better argument" is not a positive category; it has no known-in-advance content; rather, it pre-identifies as non-candidates arguments that are strategic or purposive arguments designed to bring about some partisan goal, to "'effect something in the world.'" (p. 118)  In contrast, the "better argument," whatever it might turn out to be, emerges from another design, or from the design to have no design at all; it issues from the cognitive efforts of persons who have given up "'success oriented action'" in favor of communicative action that seeks only to "'reach an understanding'" (p. 118) with other persons similarly detached from their favorite projects.

To this I would respond that the category of speech acts "solely oriented to reaching an understanding" is either empty or intelligible only within the kind of angled, strategic perspective it claims to outflank.  If you were to deny yourself the anchor of any purposive context and abstract away from all presently thinkable goals, it is hard to see how you could then take a rational first step.  A Habermasian like Professor O'Neill will respond that communicative action transpires not in the "disembodied" (p. 115) space of the original position, but is, rather, "historically situated in the communicative practice of everyday life." (p. 115)   "The actors share as a background a lifeworld that forms the context for communication." (p. 131)  Yes, but those same actors are required by "discourse ethics" to detach themselves from that background, at least to the extent of letting go of whatever investments, commitments and convictions they may have acquired as participants in that lifeworld.  It is necessary (the words are Habermas's) to begin by "'relativizing one's own form of existence to the legitimate claims of other forms of life.'" (p. 192)

There are two things to say about this requirement.  First, by demanding that you inhabit no particular point of view and especially not the points of view to which you have become attached, it asks of you exactly what the original position asks of you -- to assume nothing and be nowhere -- although you are to do it not in ignorance of everything you might become and desire, but in a willful disregard of everything you have already become and already desire.  And second, the requirement that you relativize your own form of existence cannot be met.  You just can't do it.  You can't get to the side of your situatedness and put yourself wholly in the other fellow's shoes, except as a gesture that buys you time at a moment when circumstances render the satisfaction of your interests unlikely.

I recently got into a dispute with a neighbor.  For a while I tried to win, but at a certain point I saw that he was intractable and enjoyed being adversarial so much that defeat, in argument or in the courts, would only energize him.  Accordingly, I modified my behavior and said that I saw where he was coming from and understood his position.  And so I did; I understood it to be wrong, but I also understood that persisting would do no good.  It was then that I switched into a mode of discourse oriented to reaching an agreement acceptable to everyone.  The moral is clear: comporting yourself so as to reach an agreement is not something you do in opposition to having a strategy; it is a strategy, a suspension of purposive action only in the sense that you have purposed to defer the realization of your purpose.  There is no purpose just to reach understanding; understanding is sought within, not to the side of, structures of power, mastery, lack and desire; and when understanding is found or made, it does not transcend interest, but registers the triumph, however softly proclaimed, of one interest over its rivals.

Why Habermasian Discourse?

This is certainly what happens when Professor O'Neill, in the late sections of his book, applies Habermasian discourse ethics to particular cases.  The first is our old friend abortion, and you will recall that O'Neill faults Rawls's analysis of abortion because "it merely asserts the reasonableness of one position in this controversy" (p. 27), and then expects others to surrender their positions to that liberal one.  But that is just what O'Neill does when he argues that because pro-lifers and pro-choicers remain "bitterly divided," both sides should seek a "norm of reasonable coexistence," a "framework . . . that facilitates a respect for ethical diversity" (p. 162) on the question.  But diversity and reasonable coexistence are the values of one side, the liberal side.  Only a liberal would find the fact of deep division a reason for backing away from his or her conviction as to how things should be, and only a liberal would welcome the impasse as an opportunity to engage in a process of "self-transformative dynamics" (p. 163) that begins by adopting a "critically flexible stance" (p. 192) toward dearly held views (and how dearly held could they really be?).  A "critically flexible stance" is not a stance one adopts within one's convictions, but a stance one adopts toward one's convictions.  The question -- a question O'Neill never poses because he does not see its relevance -- is what would motivate someone to enter or attempt to enter a space to the side of his or her convictions?  Why should any of us care that a norm we propose does not meet with the approval of those whose ideas and visions we deeply oppose?

Professor O'Neill's second application of Habermasian proceduralism to a real-world case focuses on Northern Ireland, and his analysis of that unhappy situation follows the model he has established in his discussion of abortion.  Once more the salient point, as he sees it, is that to date there has been "no agreement on any particular norm."  And his conclusion is the same: all participants should "revise their own interpretations of their needs, interests and identities until some form of agreement is made possible."  The question again is why?  Why should anyone embark on such a program of self-revision?  It cannot be because one's own interpretation continues to be resisted.  That is a (regrettable) political fact from which no moral obligation necessarily follows (although some prudential course of action like that I took with my neighbor might follow if one shrinks from conflict and desires peace no matter what the cost).  Nor can radical self-revision be an act of the will, something you resolve to do when you wake up in the morning and say, "Today I will begin the self-transformation of everything I believe."  If you could relativize your own forms of existence simply by striking a certain epistemological stance, political conflict would take care of itself as soon as everyone learned the trick; and then political life would come to resemble the philosophy seminar Habermas had in mind when he first thought up the "ideal speech situation."  But there is no such trick.  This does not mean that a radical change of views cannot occur (it occurs all the time); only change of that kind will always be contingent and unpredictable, and cannot be engineered by any method of communicative action.   O'Neill finally gives no reason why the Nationalists and the Unionists should start down the road in search of mutually agreed-upon "generalizable interests" (p. 193), because he gives no reason why either party should abandon the position it fiercely holds.  All he can say is that it would be nice if they did, if they could hold their deepest commitments at arm's length and move into a new, impartial space.

But, as it turns out, that's not what he really wants.  What he really wants is that the Unionists confess themselves to be in the wrong.  The Nationalists (his side) have, he says, already adopted the preferred "critical attitude" (p. 194) by virtue of their struggle against the current structures of power.  The mere fact that they are challenging the status quo makes them the good guys; the obdurateness belongs to the Unionists whose sense of their own interests may not lead them to "feel that it is necessary to engage in open discourse." (p. 195)  How about that as a way of persuading your adversary that he should rethink his position?   Tell him that he is too sure of it, while you hold your position with the requisite self-reflexive awareness.  What a great argument: "What we need here is openness; I'm already open; you're not; so get with it and do your part."  It might even work; someone or some party might even snap to it and say, "My God, you're right; I have to be more flexible and self-transformative."  But in the unlikely event that it did work, it would not mark the triumph of communicative rationality, but the triumph of a strategy, of a purposive and polemical action.  In the long history of the quarrel between philosophy and rhetoric (of which the Habermasian program and the objections to it is one more instance), philosophy -- the imperative to rational deliberation -- always gets the best press.  But rhetoric -- the efforts of success-oriented actions to get something particular done -- always wins, if only because it occupies every position in the field.

Stanley Fish is the Dean-Designate of Liberal Arts and Sciences at the University of Illinois in Chicago.  Currently, he is Arts and Sciences Professor of English, Professor of Law, and director of the University Press at Duke University.  His most recent book is Professional Correctness: Literary Studies and Political Change (Oxford, 1995).  He is now preparing a collection of his First Amendment pieces for a book-length publication under the title of Fish on the First.

Self-Revision and the Demands of Justice: A Reply to Fish
by Shane O’Neill

My project is to use Habermasian discourse theory as a means of clarifying the conditions for the possibility of resolving political conflicts impartially.  Justice requires that political institutions be framed by a set of agreed norms that all parties could justify to one another with reason in an open, uncoerced dialogue.  I emphasize the fact that in most conflicts the achievement of rational agreement depends on parties revising their aspirations to the extent that they can acknowledge the legitimate claims of others.  By theorizing how norms could be justified without anyone imposing their will on anyone else, we provide a set of normative standards according to which our political arrangements can be evaluated critically.  In doing so we provide some direction to the struggle for justice.

Fish's Scepticism

Professor Stanley Fish does not share this aspiration to ground theoretically an impartial basis for social criticism.  He is sceptical of the ideal of impartiality because, since political struggle will always have its winners and losers, it seems to him to represent an unachievable goal.  He is particularly sceptical about the prospects for the kind of self-transformative interaction that I consider to be essential to the pursuit of justice when conflict is entrenched.  Fish does not believe that participants have any motivating reasons to change their aspirations in the face of conflicting claims.  In fact, he insists that the requirement that we relativize our own form of existence to the legitimate claims of others simply cannot be met.

Fish misunderstands the nature of my project by saddling it with a set of unrealistic assumptions that it denies.  Furthermore, his outright rejection of the ideal of impartial justice leaves him bereft of any standards of analysis that direct us toward a political form of life that is equally good for all.  In response I will, first, clarify the role a theory of impartiality plays in political analysis.  I will then argue for the distinctiveness of communicative action before stressing the inter-subjective nature of the impartialist perspective I defend.  Finally, I will address Fish’s concern about prospects for self-revision by commenting on recent events in Northern Ireland.

The Role for a Theory of Impartiality

If we can work out what it would be to resolve a conflict in an impartial manner, then we will have a sound basis for questioning the moral fairness of any proposed arrangement that is exposed as being partial, or biased in favour of one social group.   If the proposal reflects only the interests of the stronger, or the will of the majority, while remaining closed to alternative perspectives, then it is oppressive.   Such oppression is a source of political alienation and it can often, as in the case of Northern Ireland, lead to violent conflict.  Neither Habermas nor I believe that it is possible to achieve a totally impartial and just political order, but we both believe that there are more and less impartial arrangements.  Some ways of dealing with conflict come closer to the demands of justice than others, and it is with reference to a justifiable conception of impartiality that we can tell the difference.  If there is no relevant difference here, as Fish seems to suggest, then our attitude to politics must be that one imposition is as good as any other.  There is not much scope there for a critique of violence, nor indeed for any critical interrogation of the multiple forms of contemporary political oppression.

The Inter-Subjective Nature of the Impartialist Perspective

How do we escape from the conservative consequences of such scepticism?  How is a conception of impartiality to be justified?  I can only supplement the answer I give in the book by responding to Fish’s deconstruction of the crucial Habermasian distinction between strategic and communicative uses of language.  What is distinctive about the aim of mutual understanding associated with communicative action is that it can be shared by all participants to an encounter.  Of course, reaching an understanding is a strategy of sorts, but it is a unique one for two reasons.  First, it is not partisan; and, second, it is a necessary condition for cultural reproduction, social integration and individual socialization.  In relation to the resolution of political conflict, we can only avoid an oppressive outcome if we find a norm that all parties can freely affirm.

Fish misreads the internal constraints of discourse as requiring us to "inhabit no particular point of view."  If he were right about this, then I would indeed be inconsistent in criticising the monological reasoning involved in Rawls’s original position.  But to detach oneself from one’s commitments in the way in which discourse, as I conceive of it, requires is not "to assume nothing and be nowhere."  It is rather to be flexible enough to recognize, and to move beyond, only those aspects of our commitments that deny others certain rights that we assume for ourselves.  The impartial perspective that emerges whenever a moral agreement is achieved is not to be thought of as the new perspective of any one participant.  It is an inter-subjective point of view that all can share to the extent that they now accept that an agreed norm must frame the political management of the issue at stake.  This leaves plenty of scope for each of the parties to pursue particular goals within the mutually agreed framework.

Recent Events in Northern Ireland

On May 22, 1998, 71% of the people of Northern Ireland, a vast majority of nationalists and about 50% of unionists, voted to affirm the Good Friday Agreement.  I take this result, as well as the differing levels of support in the two communities, as strong empirical support for the analysis I provide in the book of the possible resolution of this conflict.  For many people in Northern Ireland, the yearning for peace and stability and the weariness of war are enough to do the trick.  This new arrangement, which I take to be underpinned by a moral norm of nondomination, would have been unthinkable even five years ago.  While it is an empirical matter as to whether or not participants to a conflict manage to achieve the self-revision required to reach a fair agreement, there is overwhelming evidence in this context to suggest that such self-revision of aspirations and identities, and the way in which they are expressed, has been taking place.  Fortunately and pace Fish, even in a society that has been ravaged by violence, not all of us are so constrained by our commitments that we are incapable of revising our goals in an effort to accommodate others.  No conception of impartiality can actually motivate this self-transformative reflection, but this is not to say that people are not motivated to do justice to one another.  For most, it is the realization that peace and stability now depend on some institutional recognition of both British and Irish national identities.  This political progress has not been directed by discourse theory, but that approach certainly accounts constructively for the positive work being done.  Fish’s perspective offers nothing more than the defeatist and regressive politics of the hopeless.

Shane O’Neill is a Lecturer in Politics at Queen’s University, Belfast, Northern Ireland.  He has published articles in journals of political science, philosophy, and social theory.  Impartiality in Context (1997) is his first book.



The New Secession Movement?
by Gregory S. Alexander

Fortress America: Gated Communities in the United States
Edward J. Blakely & Mary Gail Snyder
Washington, D.C.: Brookings Institution Press
Cambridge, MA: Lincoln Institute of Land Policy, 1997
Cloth: $24.95
Pages: ix, 209

One of the more remarkable stories about American society in the past few decades is the rise of the gated community.  Gated communities constitute a subset of residential associations or "private residential governments," as they are sometimes called.  They are residential areas that are geographically separated from the larger political subdivisions of which they are a part by various physical barriers, including gates, fences, street blockades, and the like.  Originally the province of the rich and famous, gated communities are now largely populated by the middle class.   An estimated 3 million American families live in gated communities, and that number is rapidly growing.

Fortress America: Gated Communities in the United States is the first sustained effort to study empirically this remarkable trend in American residential life.  The authors, Edward J. Blakely (Dean of the School of Urban and Regional Planning at the University of Southern California) and Mary Gail Snyder (in the Department of City and Regional Planning at the University of California at Berkeley) have produced a fascinating and highly readable book that treats the gated community as indicative of both a growing "fortress mentality" among Americans and a "search for sociospatial community."  This brief review will describe the book's major strengths and then suggest an alternative analysis of gated communities.

Categorizing Gated Communities

Fortress America is rich in examples illustrating the various sorts of gated communities that now exist throughout America and the motives that lead people to join them.  Perhaps the book's greatest contribution is its typology of gated communities.   Blakely and Snyder divide gated communities into three categories: lifestyle communities, prestige communities, and security zones.  Different motives for gating are the basis for these categories.

The first two types are probably the one with which most readers are familiar.   Lifestyle communities include retirement developments, golf and other sports-oriented developments, and suburban "new towns."  Prestige communities are developments overtly based on economic class and status.  Intended to signal affluence and style, in truth they are not limited to the truly rich and beautiful, but now include what Blakely and Snyder call "top-fifth communities" and "executive communities."

The most striking type of gated communities is the third category, the security zone.   These "enclaves of fear," as Blakely and Snyder characterize them, are older urban neighborhoods where residents have collectively installed gates and street barricades as means of controlling access to their residential world.  Neighborhoods most likely to retrofit themselves in this way are poorer inner-city areas and areas on the geographic margins of high-crime neighborhoods.  The ability to overcome the familiar collective action problems to undertake such measures seems all the more remarkable because of the seriousness of budget constraints on the residents.  Fear, not the desire to experience community, is what drives such action.

Blakely and Snyder convincingly argue that lifestyle and prestige communities are motivated less by fear than by two closely-related goals -- social status and protecting investment in housing.  It turns out, however, that gates achieve these goals only imperfectly.  While gates may satisfy the owners' preference for privacy and exclusion, they do not guarantee a higher market value.  Indeed, Blakely and Snyder found that in a declining real estate market, gates did nothing to maintain property value.

Redefining the Public Sphere

The authors describe the emergence of gated communities as a withdrawal from the public sector, but it would be more accurate to describe the phenomenon as a redefinition of the public sphere.  Gated communities are not public spaces, or what Evans and Boyte call "free spaces," in the sense that their residents use them as loci for on-going conversations about public issues.  Residents are not drawn to them by the desire to substitute a more intimate, grass-roots form of collective life than formal government provides.  Blakely and Snyder provide strong empirical evidence that "gates do not increase participation or overcome apathy."  In both gated and non-gated form, residential associations are generally characterized by a low degree of participation in internal governance.  They tend to be managed by a small group of residents, some of whom are initially chosen by the developer, who operate more or less autonomously.  Blakely and Snyder seem right in observing that gated communities are part of a broader trend toward "ceding older forms of social responsibility to professionals," or in this case semi-professionals.

At the same time, it is misleading to view gated communities as a form of privatization, a substitute of the private for the public.  For one thing, gated communities do provide public goods.  Security is one example.  While the security-zone category is the most obvious type of gated community that provides security service financed through resident taxes, the same service is sometimes provided in other types of gated communities as well.  A less obvious but equally important public good is status.  Indeed, as Blakely and Snyder amply describe, status is virtually the entire reason for many gated communities' existence.

Gated communities are public in another sense as well.  Gated communities and local governments are interdependent in ways that make a categorical distinction between them very misleading.  Gated communities depend on public financing for certain goods and services, such as electricity, gas, and water.  Cities depend on gated communities in turn to provide more particularized goods and services that cities cannot efficiently provide themselves.  Higher levels of security are one example.  In this respect, gated communities have the same sort of interdependent relationship with cities that Jerry Frug has shown suburbs to have with cities.  Gated communities and cities, like suburbs and cities, are mutually constitutive.  This relationship makes it inappropriate for analysts to assume that gated communities, as strictly private entities, are immune from collective regulation or from responsibilities to those outside their gates.

Recognizing Public Responsibilities

Blakely and Snyder do not deny that gated communities owe responsibilities to others.   Far from it.  In the final chapter they describe and urge the adoption of non-gated methods of achieving the legitimate goals that have led to gating (such as security).  They base their case against gating, however, on an appeal to building "community."  But "community" means many things to many people and in recent public discourse has gained a certain nostalgic implication.  A stronger, more rigorous basis for recognizing public responsibilities is needed to respond to the widely-shared view of gated communities as strictly private entities that should be largely immune from collective regulation.

Fortress America is an excellent overview of a genuinely disturbing trend in American residential life.  This book is essential reading for anyone interested in the rise of this new form of secession.  For those whose concern is resisting this trend, however, more work remains to be done.

Gregory S. Alexander is Professor of Law at Cornell University.  He teaches and writes in the areas of Property Law and Wealth Succession.  His published work includes several articles on residential associations and more recently a book entitled Commodity & Propriety: Competing Visions of Property in American Legal Thought: 1776-1970 (University of Chicago Press, 1997).

Is Legal Discourse Oppressive?
by Douglas E. Litowitz

Just Words: Law, Language, and Power
John M. Conley & William O'Barr
Chicago, IL: The University of Chicago Press, 1998
Paper: $13.00
Pp. xvi, 168

A legal system can oppress and marginalize people in different ways, some of which are painfully obvious; others are difficult to detect.  The most blatant oppression consists in explicit discrimination, such as laws that denied women the right to vote or mandated segregated schools for African-Americans.  Slavery, of course, was the most extreme example of American institutionalized oppression.  A different kind of marginalization occurs when the legal system simply fails to empower its weaker constituents -- for example, by refusing to recognize rights to housing, day care, and employment security.

The authors of Just Words find oppression in a previously unexplored location, namely within the imminent logic of everyday legal discourse found in courtrooms and law offices across the country.  According to the authors, Professors John M. Conley (Law, University of North Carolina) and William O'Barr (Cultural Anthropology, Duke University), the letter of the law no longer discriminates, but legal discourse continues to perpetuate unequal power relations along the lines of race, class, and gender.

This clearly-written and well-organized book functions as something of a Restatement for sociolegal research on language and law.  The authors catalog the existing scholarship, point out some unifying themes, and suggest avenues for further exploration.   The book succeeds in proving that legal discourse among judges, attorneys, and clients insidiously reflects and legitimates inequalities in the legal system, despite the promise of equality found in legal doctrine.  Yet the authors are so focused on linguistic analysis that they overstate the power of language, thereby losing sight of nonlinguistic forces that produce inequality, such as private property, wage-labor, inheritance, and the public/private split.

The Emergence of Research on Legal Discourse

Sociolegal research on law and language emerged in the 1970s with the convergence of two disciplines: Sociolingistics and the Law and Society movement.  Sociolinguists had gathered a sizeable body of research showing that class, race, and gender differences were reflected in discourse (for example, differences in gender and social status were linked with unique modes of syntax, word choice, and manner of speaking).  Yet the sociolinguists were merely collecting data without exploring the legal and political implications of their findings.  Simultaneously, a growing Law and Society movement was documenting how the formal equality of the law was belied by substantive inequalities along the lines of race, class, and gender.  This movement paid scant attention, however, to the role of language.  The convergence of these fields created a synergy by drawing attention to the way that everyday legal discourse sustains and legitimates inequalities.  Recent work in this area is committed to the notion that the discourse of law is a silent code favoring white, propertied males.

To most legal scholars, legal discourse is "just words," a view that the authors chastise in the ironic title to this book, which recalls Catharine MacKinnon's Only Words (1993).  The authors present the obvious, but necessary, insight that the power of the law is linguistically mediated: "Most of the time, law is talk: the talk between disputants; the talk between lawyers and clients; the courtroom talk among lawyers, parties, judges and witnesses; the legal talk that gets reduced to writing as statutes and judicial opinions; and the commentary on all of this other talk that people like us engage in." (p. 129)  If this is correct, then the language of the law is not a transparent medium for the expression of legal doctrine, but is itself a locus of biases, distortions, and power relations.  To use an example suggested by the authors, a rape trial is more than the simple application of legal rules; it can also be understood as a series of speech performances.  And if the discourse of a rape trial is predominately male and confrontational, the rape victim may experience the trial as a second assault, even though the purpose of the trial is to vindicate her rights.  The promise of sociolegal research -- a promise explored in this book -- is to generate insights by shifting the focus of legal analysis toward the reality of discourse that confronts people in courtrooms and law offices.

In a wonderfully clear first chapter, Professors Conley and O'Barr point out that legal discourse can be analyzed at either a macro or micro level.  The macro level refers to discourse in the Foucaultian sense of a body of rules and practices shaped by power relations.  By contrast, the micro level refers to the actual, everyday structure of discourse in legal contexts.  One could study, say, rape law by looking at the macro level of criminal statutes and law review articles, or one could turn attention to the micro level of actual discourse within a rape trial (which the authors do in the second chapter).  Sociolegal research of the type favored by the authors consists in an analysis of trial transcripts, court pleadings, and client interviews to search for the hidden biases and inequalities glossed over at the macro level of legal doctrine: "If the objectives are to understand the nature of law's power, to see how that power is exercised over real people, to identify points at which it might be challenged, and to assess which challenges are likely to work, then microdiscourse is the place to look." (p. 129)  With the decline of overt discrimination, inequality moves underground as it were, to a microlevel where it can be detected by linguistic analysis.

The Microdiscourse of Sexism in the Law

The central focus of the book is the existence of gender bias in microdiscourse, as revealed in transcripts of cross-examinations, divorce mediations, and courtroom proceedings.  The focus on actual discourse is refreshing, and it certainly generates some interesting and novel observations, although the pervasive focus on gender means that fewer insights are provided on race and class.  In perhaps the strongest chapter, the authors try to account for why rape victims experience the rape trial as a second rape, despite recently enacted "rape shield" laws that prevent intrusive and irrelevant cross-examination into the victim's prior sexual history.  The authors claim that the very act of cross-examination is a sort of linguistic rape in which the victim is manipulated, thwarted, cut off, insulted, and cajoled by a defense lawyer, who is typically male.  If the authors are correct, women are traumatized at the microlevel of courtroom discourse, which explains why legal reform at the macro level has not made rape trials appreciably easier for women.

In chapter three, Professors Conley and O'Barr take on divorce mediation, which is supposed to favor women because it is less adversarial than courtroom interaction.   Yet it turns out that while women favor mediation, they actually come out worse.   Again, the explanation for this is linguistic: the mediation sessions work according to discourse rules that are male-based and marginalize women, who are more inclined to seek agreement than to insist on their rights.  This point is made on a larger scale in chapter four, where the authors claim that legal discourse harbors a secret patriarchy by favoring arguments and speech patterns that are characteristically male, such as acontextualization, rule-based arguments, and formality.

Unfortunately, the data supporting the charge of gender bias is somewhat mixed.   The authors provide several examples where men are marginalized, such as when a man comes off worse in a mediation hearing, or where a woman offers testimony that is rule-based and "male."  At one juncture, the authors retreat to the assertion that they possess merely "circumstantial evidence" and a "plausible suspicion" that legal discourse is a tool for oppression.   Conceding that speech styles are not perfectly aligned with gender, the authors nevertheless insist that the law favors a "male mode" over a "female mode."  But this suggests that the problem is not so much male bias but rather a general preference for a mode of speech found in the male-dominated public sphere (work, contracts, rules) at the expense of speech found in the private sphere (a world of context, affection, and relationships).  The real villain, then, is not language, but the public/private split, which is traceable to economics, religion, and politics.   By paying such close attention to language, the authors fail to link legal discourse with the larger forces that produce inequality.

The book loses direction in chapter five, when the authors put aside the analysis of gender to present a simplistic schema for understanding disputes, building on the idea that disputes involve "naming, blaming and claiming."  The following chapter on cross-cultural analysis recaptures the momentum by showing that non-Western legal discourses are much more subtle than previously supposed by Western anthropologists.   By looking at verb choice and usage, it becomes clear that such cultures can distinguish between accidents and intentional actions, thereby refuting the long-held belief that they have an irrational and mystical way of accounting for harms.  The following, penultimate chapter provides a historical analysis that succeeds only in proving that legal records from the Fourth and Sixteenth Centuries reflect a male-dominated perspective.  Just as the book is beginning to wane, the authors bring everything together nicely in a concluding chapter that restates their insistence on microanalysis and suggests avenues for further research.

Overstating the Power of Language

Professors Conley and O'Barr are surely correct that "the details of legal discourse matter," (p. 129) and that "discourse is a locus of power" (p. 7), but they seem to overstate the case for microanalysis.  Although they shy clear of full-blown linguistic determinism, they seem to imply that if we could just straighten out language, we could eliminate inequality itself.  This can be seen in the authors' discussion of the growing problem of incivility among lawyers, which they treat as a problem of language instead of a larger problem of economics and competition.  It is certainly true that incivility is reflected in language, but if the root cause of incivility is economic, then no amount of linguistic reform can solve the problem.   Now perhaps the authors are making the more plausible assertion that we can examine the language of incivility as a way of locating its deeper causes, but one wishes that this view was set forth more clearly.  To put the point differently, it is doubtless true that legal discourse reflects and sustains unequal power relations, but this does not mean that inequality is itself primarily linguistic.  For example, patriarchy runs through our language (it leaves traces in our speech), but it does not follow that the primary mover of patriarchy is language or that a reform of language can eliminate patriarchy; for that, we have to make changes in the economic, cultural, religious, and political spheres.

Further, one can share the authors' interest in microdiscourse and yet remain convinced (as I am) that inequality is better observed at the macrolevel of legal discourse.   After all, the most fundamental inequalities in our society are sustained by the failure of the law to provide basic rights to housing, employment, day care, and by the success of the law to protect scrupulously a system of inheritance, private property, wage labor, and freedom of contract.  Although the authors insist upon a connection between macro and micro-level analysis, they never clearly establish the link, and the book leans heavily on microanalysis without focusing on how to reform legal doctrine to eliminate inequality.

Finally, it is unclear what program of legal reform, if any, follows from the fundamental insight that discourse reflects unequal power relations.  Are the authors ready to throw away cross-examination in rape trials?  If so, they ought to acknowledge the loss of rights to the defendant.  Similarly, if they feel that courtroom discourse is too rule-based instead of contextual (and that juries discount witnesses who testify in a "female mode"), then they might want to propose an alternative courtroom procedure and acknowledge its risks.

A Positive Recommendation

Generally speaking, this is a refreshing, well-written, and thought-provoking book.   It will certainly generate discussion among legal scholars interested in language, legal writing, law and literature, or law and the social sciences.  Professors Conley and O'Barr provide a much-needed gateway into the veritable thicket of sociolegal research on law and language, and I have no doubt that this concise book will prove useful to legal scholars over the next decade, as the interest in law and language continues to grow.   My one reservation is that the authors have overstated the importance of language.   But perhaps this is a necessary countermeasure to the neglect of language that has characterized legal scholarship so far -- a shortcoming that this book will go some distance toward remedying.

Douglas E. Litowitz is a Visiting Assistant Professor at Chicago-Kent College of Law.   He is the author of Postmodern Philosophy and Law: Rorty, Nietzsche, Lyotard, Derrida, Foucault (University Press of Kansas, 1997). Dlitowit@kent.law.edu.


Thinking Hard About Gender, Crime and Justice
by Nadine Taub

Criminology at the Crossroads: Feminist Readings in Crime and Justice
Kathleen Daly & Lisa Maher, editors
New York, NY: Oxford University Press, 1998
Cloth: $49.95 / Paper: $19.95
Pp. 304

Criminology at the Crossroads is a wonderful book.  Offering fifteen thought-provoking and highly readable essays, this anthology goes well beyond the standard feminist critiques of the criminal justice field. Such critiques typically dwell on the absence of women and gender concerns.  By contrast, this volume reveals that women are present in the field of criminology.  To that end, this collection of essays edited by two Australian academics, Kathleen Daly (Griffith University) and Lisa Maher (University of New South Whales), is most helpful in informing us just where women and men, sex and gender, currently are in the study of criminology.

The book's rich introductory essay explains various shifts in feminist thinking from the 1970s to the 1990s, and introduces the construction of women in feminist, legal, and criminological discourses.  The chapters of Crossroads then explore these concepts in particular contexts; examine the blurred boundaries of victimization and criminalization; study masculinities and violence.  The book takes us to the crossroads and intersections of class-race-gender.

The editors have done a fine job in attaining their explicit goal of moving beyond the conventional concentration on United States writings.  Thus, the anthology presents important Australian, Canadian, and British works as well.  The pieces themselves concern a variety of geographic locations -- ranging from Victoria, Australia, Hawaii, New York City, to Wolverhampton, England, just to mention a few.

Victims & Agents, Women & Men

The ideas in Crossroads are numerous and fascinating.  Consider, for example, the very interesting point regarding the tension between victimology and agency in the criminal context, a point made both by Hilary Allen ("Rendering Them Harmless," regarding probation and psychiatric pre-sentence reports for female criminal offenders in London) and by Kathleen Daly ("Women's Pathways to Felony Court," concerning women felony defendants in the New Haven criminal courts).   They question the type of responsibility that should be imposed upon violent women, given their childhood abuse and neglect and their disturbed mental states, which are depicted as "natural" by official authorities.  Allen notes that pre-sentence reports "systematically neutralise[] the assertion of the woman's guilt, responsibility and dangerousness" by picturing her as "the puppet of others."  While Allen is clearly troubled by the reports' depiction of women as persons without agency, and by the family controls that leniency and rehabilitation entail, she is also unwilling to forego the leniency that convicted women gain by recognition of the harsh reality of their lives.  In the same vein, Daly leaves no doubt that, in her mind, feminists have some analytical work to do; but she is also reluctant to abandon the "black box" that connects victimization and criminalization.

Time and again, Professors Daly and Allen raise the question of gender.   For example, Daly urges us to "consider how our analyses of women lawbreakers can be applied to men."  Yet Allen points out the difficulties involved: Males may also be subject to "personal frailties, family pressures and external disadvantages," but given prevailing notions, they are not likely to be excused.   Allen reminds us that acknowledging these personal vulnerabilities in women often precludes recognizing that women can, at the same time, be "conscious, intentional, responsible and potentially dangerous" at the same time.

Questions & Comments

The authors and editors make it plain that the work is just beginning.  What is the analysis the writers call for?  Where do class and race, as well as gender, fit in?  Should we work for a world in which "personal vulnerabilities" are recognized for both men and women?  Should they then be part of a redefinition of responsibility?  Is this one of the ways that we can use women's experience to move from a world based on male models? It is clear we must all think about the answers.

The enticing specificity of Criminology at the Crossroads may make it difficult for the non-specialist (or the specialist in only one field) to see connections among places and perspectives. (The combination of legal and social science writing appears less problematic.)  Although section groupings do provide some clues, they are but general labels.  There are also theoretical pieces, such as Carol Smart's impressive "The Woman of Legal Discourse," that give readers valuable insights into the basic questions before them in unusually and beautifully comprehensible ways.  But, for many, the help they provide in seeing connections may be somewhat limited.

The section of essays on "Masculinities and Violence" is likewise hard to integrate, since feminists are not used to thinking about the man's world.   Questions of subject matter integration aside, we must, of course, think more about what is happening in this area. On that count, both the authors and the editors deserve our thanks for promoting the study of that area of inquiry.

A Final Note

The challenging essays in Criminology at the Crossroads ask us to ponder many important and difficult questions. Moreover, they give us useful resources to help us along.  The thoughtful comments (including cites) and the long lists of references that accompany each essay will definitely assist those who accept the invitation to learn and think.

Criminology at the Crossroads will definitely move us ahead in thinking about feminism and in thinking about criminology.  Read it, enjoy it and accept its challenges -- to work through its pieces, to make whole its many fascinating pieces, and to develop interesting pieces of your own.

Nadine Taub is professor of law and director of the Women’s Rights Litigation Clinic at Rutgers School of Law in Newark, New Jersey.  She is the co-author of The Law of Sex Discrimination (West/Wadsworth, 2nd edition 1993), as well as numerous articles concerning feminism and the law.  She co-edited Reproductive Laws for the 1990s (Humana Press, 1989).

Promising Tax Reform
by Ellen P. Aprill

The Decline (and Fall?) of the Income Tax
Michael J. Graetz
New York, NY: W.W. Norton & Company (1997)
Cloth: $27.50
Pp. x, 323

Our current federal tax system is the product of public attitudes, politics, and policies.  Academics generally treat each of these elements in isolation, with sociologists reporting on public attitudes toward tax, political scientists analyzing politics, and economists developing theories of tax policy.  We cannot, however, understand where we are and where we might be going with our tax system unless we consider all three of these elements together.

The Decline (and Fall?) of the Income Tax by Michael J. Graetz, currently Justus S. Hotchkiss Professor of Law at Yale Law School and formerly Deputy Assistant Secretary for Tax Policy in the Department of Treasury, makes a significant contribution to the current debate about the American tax system by taking this broad view.  In addition, the author does so in lively and accessible prose that clearly presents the many complex issues involved.  Moreover, he proposes a coherent and workable solution to our current tax dilemma, one that gives due consideration to the disparate and competing goals he describes so well.  In short, he has written a book that is useful, informative, and provocative both for the general public and for specialists in tax.

Bedeviled by the Tax Code

Each part of the book emphasizes one of the three elements that have produced tax law.   Part I, "The Decline," offers the public's perceptions on such diverse topics as the marriage penalty, tax shelters, inflation, and complexity.  Starting with taxpayers’ attitudes assures the general public readers that the book will not ignore their needs, and reminds tax specialists not to lose sight of the taxpayers in the quest for theoretical tax purity.

Part II, "The Sausage Factory," focuses on the political realities of the tax system.  It describes important aspects of the political process -- such as the impact of lobbyists, the growth of congressional staffs, the budget process, and the personalities of individual politicians.  The theme of the section is how these pressures combine to make for enormous complexity; it is developed through a series of examples both important and amusing.  I found particularly insightful the analysis of the 1986 Tax Reform Act as "an uneasy marriage of two contrary ideological and political camps," conventional Democratic tax reformers and Republican supply-siders.

Part III, "The Fall?," moves to policy concerns.  Building on his demonstration of the manifold problems with our income tax, Professor Graetz turns to its current leading competitor, a consumption tax.  As the title to one chapter explains, such an approach would tax "what you spend instead of what you make."  A retail sales tax is one familiar form of a consumption tax; another is the value added tax, a tax on the excess of a business’s sales over its purchases, which many of our trading partners impose at each level of production.

Graetz sets out both the contours of a consumption tax in general and the particular forms of consumption tax currently being proposed by members of Congress.  He shows how these proposals compare to the consumption taxes adopted by our trading partners and how the taxes would work in practice.  Most importantly, he describes where such taxes would increase simplicity and where they would not.  He makes clear that, over time, the political pressures that have produced our convoluted income tax would distort any consumption tax as well.

A Solomonic Solution

Professor Graetz, however, does more than clarify the current debate.  He proposes his own alternative: combining a 10-15% federal value added tax with a flat-rate 20% federal income tax on incomes above $75,000 to $100,000.  He argues that such a hybrid federal tax would offer most of the virtues claimed for a consumption tax, such as simplifying the income tax, making the federal tax system more economically efficient, and encouraging savings, without introducing the "inherent unfairness of completely substituting a consumption tax for income taxation."

Professor Graetz’s suggestion should not be seen as an attempt to cut the tax baby in half.  Instead, he urges that we consciously combine the strengths of both a consumption tax and an income tax into a fresh approach.  His proposal, of course, does not solve all problems.  For example, while the exemption he recommends for some level of Social Security payroll taxes would help low-wage income workers, his value added tax would burden those welfare recipients who remain after welfare reform, including family members of workers who now benefit from the earned income tax credit, as well as retired persons living off of savings.

Nonetheless, a combined income and consumption tax does offer many advantages, and merits careful consideration by the three key groups of players -- policymakers, politicians, and the public.  By allowing both those who favor a consumption tax and those who defend the income tax to claim victory, it should have considerable political appeal.  At the same time, it offers a break with the past sufficient to permit Congress to reform, rather than merely tinker with, our tax code.

Balancing Policy and Politics

The book, however, nowhere addresses how to persuade Congress to consider this proposal.  While Professor Graetz identifies the troubling realities of the political process throughout the book, he expresses no confidence about reforming them.  His discussion of political reform is limited to declining to describe and evaluate campaign finance reform.  It offers no solutions to this difficult problem.

That is, in the third part of the book, discussion of tax policy dominates discussion of politics and public perceptions, as might be expected from a distinguished tax professor.  The force of his tax policy argument is very strong, but he has argued throughout the book that the merits of proposed tax reforms do not guarantee consideration, much less adoption.  His own approach demands that he consider more fully how to achieve the hybrid tax policy he recommends.

The first two parts of the book, in contrast, would benefit from a somewhat expanded discussion of tax policy.  The book catalogues the many criticisms of our current income tax, but nowhere sets forth the definition of an income tax.  In Federal Income Taxation: Principles and Policies (1995), he and his coauthor, Deborah H. Schenk, did so succinctly: "In terms of sources, an income tax base includes both income from labor and income from capital; in terms of uses, an income tax base includes savings as well as consumption," while "a consumption tax base exempts income that people save from taxation and imposes a burden more like a wage tax than an income tax."

This book, which is premised on ambivalence toward the income tax, is itself ambivalent about the meaning of "income tax."  The book sometimes seems to be criticizing the concept of an income tax, and at other times to be criticizing our current system with all its imperfections and inconsistencies.  Only if we know which of these is the subject of the criticism can we evaluate the need for both fundamental tax reform and political reform.

While the broad view that is the great strength of this work has some disadvantages, the benefits of taking into account the various forces that have combined to create our federal tax system clearly outweigh any weaknesses.  All Americans who care about the future of our country will learn a great deal from this book.  It is both a good and an important read.

Ellen P. Aprill is a professor of law at Loyola Law School in Los Angeles.  She is Chair of the AALS Section of Taxation, and Supervising Editor of the ABA Section of Taxation Newsletter.

Editors' Note: For a Books-on-Law review of another recently published book on tax law and policy, see Professor Janet Spragens' review of Edward J. McCaffery, Taxing Women (University of Chicago Press, 1997).

Advisory Opinions, Judicial Politics, and Constitutional Principles
Russell R. Wheeler

Most Humble Servants: The Advisory Role of Early Judges
Stewart Jay
New Haven, CT: Yale University Press, 1997
Cloth: $35.00
Pp. x, 302

A well-established principle of U.S. constitutional law is that federal judges do not provide their assessments of legal rights and obligations, except when deciding legal disputes, to government officials, litigants, or the public generally.  The immediate authority for this principle is the Supreme Court’s 1793 refusal to advise President Washington and his cabinet on the nation's obligations to France under Franco-American treaties and international law.  As I explained twenty-five years ago, this refusal was not a matter of applying obvious constitutional requirements to a fact situation, or of nipping in the bud a novel effort to engage judges extra-judicially in political controversies.

Professor Stewart Jay has carried the analysis well beyond previous scholarship, both in detailing the English, colonial, and post-independence precedents for advisory judicial roles and in analyzing how the particular facts of the 1793 incident shaped both the request to the justices and their response.  He illuminates the source of the principles and rules on which our political systems operate, and shows how political actors in the new republic struggled with each other within the context of necessarily vague constitutional norms.  Although I quibble with his effort to lay the justices’ response so heavily on the unique circumstances they faced in 1793, there is no doubt of this book’s well-deserved place as the new authoritative work on the matter.

Historical Backdrop

British judges exercised advisory roles in the councils of government; some held executive and legislative offices.  This system of "corruption" reached its high point in North American colonial governments, producing "a thorough blurring of offices and functions" (p. 52) and explaining partly why the Constitution prohibits members of Congress from holding other government offices.

Distaste for corruption, however, hardly created a strict constitutional or conventional wall between judges and executive officials.  The Philadelphia convention refused to establish a privy council, but President Washington essentially created one anyway when he made Chief Justice Jay a functional member of his early cabinet, along with Hamilton, Jefferson, Knox and Randolph.  Congress, moreover, directed federal judges to perform fact-finding duties in the hinterlands to aid the government in the capital, and assigned the chief justice to a commission to retire the Revolutionary War debt.  Both district judges and the Supreme Court justices serving with them on the circuit trial courts, however, declined Congress’s direction to examine -- at least as judges -- Revolutionary War veterans and thus help the War Department fix their pensions.

Against this backdrop came the neutrality crisis of 1793, the greatest international threat to the infant government.  As France and Britain engaged in open maritime hostility, the ambassador of the new French government -- the bold and volatile Edmund Gen黎 -- arrived in the U.S. and proceeded to commission American citizens to sail into the open seas and seize British ships as prizes.

Washington recognized his dearth of international-law knowledge, and realized that Hamilton’s and Jefferson’s conflicting legal advice reflected their respective affections for Britain and France.  In mid-July, he requested the Supreme Court to meet with the cabinet, and to advise how, under treaties and international law, the United States was obliged to treat Gen黎 and to behave in general.  There was little doubt that the justices would help, until Chief Justice Jay intimated that he and his colleagues would have to determine whether in fact they could do so.  Washington then had Jefferson send them a letter requesting their help and covering a detailed list of questions about U.S. obligations.  On August 8, even as things were cooling down, the justices sent their famous letter declining to provide the advice.  In declining, they cited the "Lines of Separation drawn by the Constitution between the three Departments of Government," and relied on the facts that the departments were "checks on each other," that they were judges of a court of last resort, and that the president’s constitutional authority to seek advice was limited to the executive departments.

A Function of the Facts?

Professor Jay argues convincingly that the justices’ unwillingness to advise the cabinet can only be understood within its rich and complex setting; so seen, their unwillingness was more complicated than it first appears.  For example, there was precedent aplenty for judges to provide advice, which perhaps explains why the justices’ refusal was conditional to a degree not appreciated in twentieth-century descriptions.  The justices said there were "strong arguments against the Propriety of our extra-judicially deciding the questions alluded to" -- words different from, e.g., "we are prohibited from giving extra-judicial advice."   In fact, as Professor Jay notes, Chief Justice Jay teamed with Senator Rufus King shortly after to challenge openly Gen黎’s public statements.  And, eight years later, New York Governor Jay himself, in a constitutional setting not greatly different from the federal, asked the New York Supreme Court for an advisory opinion about his appointing authority.

Professor Jay’s second argument is more problematic.  He rightfully criticizes the willingness of twentieth-century commentators to accept the August 8 letter’s rationale at face value -- discounting as explanations Jay’s opposition to diluting executive control of foreign policy and the justices’ collective desire to keep a low profile while they were trying to persuade Congress to relieve them of their statutory obligation to ride circuit.  He goes beyond this criticism, however, essentially to argue that the justices’ response was almost entirely a function of the specific facts obtaining in 1793.  Thus, he concludes, had "the country had been less divided over the [neutrality] conflict, if circuit riding had never been instituted, and if Gen黎 had acted with more judgment  .  .  .  it is conceivable that the Justices would have decided to play the historically acceptable role of formal advisers to the executive." (pp. 169-70)

Professor Jay is no doubt correct on this specific point, but it is hardly conclusive.   For one thing, it often takes crises to illuminate constitutional imperatives.   Even had the justices acceded to a perfunctory request in a placid environment, it is likely that later justices would have declined a mine-laden request during, for example, the slavery crisis, or acceded to it in an extra-judicial Dred Scott opinion never to be replicated.

Moreover, despite the formal tone of the justices’ letter, it is risky to regard it simply as "the superficial explanations that public officials often give to justify their actions." (p. 170)  It may be that the August 8 letter’s "model of the proper judge under the Constitution  .  .   .  has little to do with what actually occurred in" 1793 (p. 177), but that does not mean that the Constitution provides no explanation of what happened.  Beneath the formalistic language lay the Justice’s understanding of the judiciary’s position within the scheme of separated powers -- making it what Publius called "the least dangerous branch."  John Jay, as Professor Jay notes, "shared the ‘Publius’ pseudonym" and Publius’s understanding that the Constitution was not simply a set of formal legal rules but rather an effort to channel human nature so as to make government behave in certain ways. (p. 81)  Jay may not have written: "Were we to become your policy appendages today, we would, as Publius might have written, be squandering the very care we need take to defend ourselves from tomorrow’s attacks by the other branches." But that may well have been why he did what he did.

Quibbles & Commendations

Professor Jay’s account is not only insightful. It is engaging in its narrative descriptions, its assessments of the strengths and weaknesses of the principle actors, and its ability to milk engaging passages from what often seems dry eighteenth-century prose. For example, despite Jefferson’s fears of monarchical cabals, Washington doubted that "there were ten men in the United States whose opinions were worth attention, who entertained such thoughts." (p. 83)

Finally, two relatively minor observations. First, Professor Jay relies heavily on the first sources that have become available since this ground was last plowed; in that spirit, he reprints the Justices’ August 8, 1793 letter, apparently clarifying that Jay wrote that the President’s power to seek opinions from "Heads of Departments" was "limited" (p. 179) to executive officers (not "united" to them, as numerous commentators, including me, have cited), and even suspecting that the late-nineteenth century publication of Jay’s papers misread the eighteenth-century cursive.  I am somewhat puzzled, therefore, why Professor Jay apparently repeats the error at p. 65.

Also, given his exacting analysis of the record, I was disappointed that he perpetuated the conventional view that John Marshall "remained as Secretary of State for the first month after he became Chief Justice." (p. 153)  Indeed, Marshall took pains (for example, in a March 2, 1801 letter to Jefferson) to identify himself as "not being the Secretary of State and only performing the duties of that office at the request of the President."  I do not think this is a distinction without a difference.  Marshall didn’t.

These quibbles, however, reflect mainly a reviewer’s obligation, and in no way detract from the solid, benchmark scholarship that Most Humble Servants provides.

Russell R. Wheeler is deputy director of the Federal Judicial Center.  His analyses of federal judges’ extra-judicial behavior have appeared in the 1973 Supreme Court Review and the 1983 Michigan Law Review.

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