FREEDOM & THE COURT: CIVIL RIGHTS & LIBERTIES IN THE UNITED STATES (8th Ed.)

Vol. 13 No. 11 (November 2003)

FREEDOM & THE COURT: CIVIL RIGHTS & LIBERTIES IN THE UNITED STATES (8th Ed.), by Abraham, Henry J. and Barbara A. Perry. Lawrence, KS: University Press of Kansas. 2003. 568 pp. Cloth $45.00 ISBN 0-7006-1261-0. Paper $29.95 ISBN 0-7006-1262-9.

Reviewed by J. Mitchell Pickerill, Department of Political Science, Washington State University. mitchp@wsu.edu .

First published in 1967, it seems doubtful that Henry Abraham predicted the future of his book FREEDOM & THE COURT. Nonetheless, eight editions, a coauthor (Barbara Perry has been on board since the Sixth Edition was published in 1994), and a new publisher later, FREEDOM & THE COURT is keeping pace with the Energizer Bunny: it just keeps going, and going, and going. . . . The newest version of this time-tested treatment of civil liberties is true to the original, and each iteration since, but updated through 2002. As such, the book does not forward a particularly controversial or novel thesis. Rather it simply posits, as Abraham also did in the first version, that lines “must be drawn by a democratic society as it attempts to reconcile individual freedom with the rights and obligations of the community” (p.ix), and it provides comprehensive historical accounts of how the Court has drawn those lines.

The first three chapters address matters of general concern for studying the Court and issues of freedom. Chapter One is a very short introduction to the rest of the book. The primary function of this seven-page chapter is to establish the potential theoretical dilemma raised by the sometimes-conflicting goals of maintaining social order and protecting individual liberties in a constitutional democracy. The authors make what is by now a fairly traditional theoretical argument for why the Supreme Court is called upon to interpret the Constitution using its power of judicial review generally, and to protect individual rights and civil liberties, more particularly. The chapter then provides some brief empirical evidence to show that most of the Court’s constitutional decisions since 1937 have involved civil liberties, or “basic human freedoms” (p.5). Although the authors seem to be setting the stage for the rest of the book by intimating their approval of the Court’s role in protecting these liberties and freedoms, they end the chapter by suggesting that due to a conflict between the constitutional values of liberty and equality, the Court continues to face a number of “troublesome current issues,” such as prayer in school and affirmative action.

In Chapter Two, Abraham and Perry trace the evolution of what they call the “double standard.” By “double standard,” they mean of course that the Court has developed one standard for analyzing economic cases and another for non-economic cases. Since 1937, the Court has been deferential to governmental regulation of economic affairs, thus affording minimal protection for economic rights, while exercising a higher level of judicial scrutiny over regulation of the “political process” or legislation that is directed at “discrete and insular minorities,” thus providing greater protections for civil liberties and rights. Naturally, the authors focus on Justice Stone’s famous Footnote Four in the CAROLENE PRODUCTS (1938) case and the impact it ultimately had on the Court’s standard of review over different types of government laws, regulations and actions. The ultimate question in this chapter is whether the double standard is justifiable. The authors outline three possible justifications—first, “the very purpose of the Bill of Rights was to withdraw those freedoms which can be considered basic from the ‘vicissitudes’ of political controversy” (p.25); second, “The economic-proprietarian safeguards of the Bill of Rights are couched in the most general of terms,” while “the language governing what we commonly regard as our basic human freedoms is not only explicit, it is categorical” (p.27); and third, “No other agency or institution of the United States government has proved itself either so capable of performing, or so willing to undertake, the necessary role of guardian of our basic rights as the judicial branch” (p.29). Although the authors seem to leave some room for critique, they conclude that this “trio of justifications, considered separately and together, suggests a prima facie case for the existence of the judicial double standard” (pp.31-32).

The third chapter then turns to the issue of applying the Bill of Rights to the States. The first part of the chapter discusses the historical background for why the Bill of Rights initially applied only to the national government and not the States. It was not until after the Fourteenth Amendment was ratified that serious consideration was given to making the safeguards of the Bill of Rights applicable to state governments. Even then, Abraham and Perry demonstrate a lack of consensus over whether the Fourteenth Amendment was originally intended to incorporate the Bill of Rights comprehensively. Nonetheless, they trace the gradual “incorporation” of individual provisions through the Due Process Clause (and they discuss why Privileges or Immunities was ultimately not used as a basis), beginning with GITLOW v. NEW YORK (1925), and formalized through Justice Cardozo’s opinion for the Court in PALKO v. CONNECTICUT (1937). The authors then meticulously detail the incremental incorporation of the different provisions of the first eight Amendments, decision by decision. The chapter concludes with a brief discussion of four basic theoretical approaches to incorporation and of the five specific provisions of the Bill of Rights that have never been found to apply to States. The chapter presents a useful table illustrating which of the clauses in the first eight Amendments had been incorporated as of PALKO in 1937, but unfortunately, and somewhat inexplicably, does not provide an updated table at the end to illustrate similarly the current status of incorporation.

Each of the remaining five chapters addresses a substantive issue and examines specific rights and liberties cases that have been decided by the Court within those broader areas—substantive and procedural due process (Chapter Four), freedom of expression (Chapter Five), religion (Chapter Six), race as an “American dilemma” (Chapter Seven) and gender and race under what the authors call the “new equal protection” (Chapter Eight). In the interest of space, I will forego a detailed description of each of these chapters and instead try to give a general sense of the scope of their coverage. The chapter on due process explains the difference between substantive and procedural due process, although the treatment on the substantive side is disappointingly brief – focusing on BUCK v. BELL (1927), SKINNER v. OKLAHOMA (1942) and GRISWOLD v. CONNECTICUT (1965), without seriously updating the Court’s substantive due process jurisprudence (pp.110-118). The rest of the chapter focuses on criminal procedures and provides an impressive summary of a wide range of issues from the criminal justice context, including the right to counsel, search and seizure, self incrimination, and MIRANDA warnings, among many others. The chapters on expression and religion run the gamut of controversies and opinions issued by the Court under the relevant provisions of the First Amendment, and Abraham and Perry do an excellent job of describing the historical evolution of the Court’s doctrines involving speech, expression, and the religion clauses. The issue of race is covered in two chapters. Although Chapter Seven (which was the final chapter of the first edition of the book) examines the issue of race in this country from slavery onward, the focus is really on the demise of the “Separate but Equal” doctrine, BROWN v. BOARD OF EDUCATION (1954), the various Civil Rights Acts of the 1950s and 1960s, and the Voting Rights Act of 1965. More recent developments involving race are considered in the final chapter with the Court’s gender discrimination jurisprudence. In a fairly brief final chapter (originally introduced in the Fifth edition), the authors chronicle the rise of the Court’s “heightened” scrutiny of laws that target gender, and the Court’s responses to the development of affirmative action programs. With the exception of the substantive due process material, each of these chapters should give students a solid grounding in the Court’s civil liberties jurisprudence.

In general, this is an excellent book for what it tries to do – which is basically to cover virtually everything the Court has ever done in the name of civil liberties and rights. Probably the most impressive aspect of the book is its scope – it is comprehensive, yet quite accessible. As such, this volume would serve as a solid primer for students who are new to the subject-matter or as a refresher for those who want to (re)consider civil liberties jurisprudence from a big picture perspective. The book could probably serve as a main text in an undergraduate course on civil liberties and rights, although it would be most useful as a supplemental text, in addition to a casebook. I would also recommend the book to graduate students who are entering the field of public law but are not satisfied with their background in civil liberties. It should be noted, however, that despite a very broad scope, it does not include important recent cases such as GRUTTER v. BOLLINGER (2003) on affirmative action and LAWRENCE v. TEXAS (2003) on criminalization of homosexual sodomy, which were handed down after the book went to press.

Although Abraham and Perry are clear that they are interested in how the Court has endeavored to protect civil rights and liberties (consistent with the earlier editions), one weakness of the book is its court-centeredness. Certainly they acknowledge, at times, the other branches of government—e.g., the Congress in passing the Civil Rights Act of 1964 (pp.413-416) and the Voting Rights Act of 1965 (pp.425-429). Nevertheless, the focus always comes back to the important role the Court has played in defining the legal parameters for rights and freedoms. However, a number of legal and political science scholars have argued (backed-up with some persuasive evidence) that the individual rights examined in this book are often adequately, and often better, protected by the other branches of government and in the political process (e.g., Fisher 2002; Rosenberg 1991; Tushnet 1999). Since this volume will be most useful as an introduction to the topic, many of its readers may conclude, after having read it, that the Court is the only hope for protecting individual rights—a proposition that is, at minimum, debatable. Already hefty, weighing in at over 500 pages, it is understandable that the authors and the publisher might not want to add length by including a detailed treatment of civil liberties outside the court. Yet, students and novice readers would be well advised to consider alternative perspectives offered by the scholarship I have referenced, in addition to the Abraham and Perry text.

Nonetheless, FREEDOM AND THE COURT keeps on going, and going, and going—not because of long-lasting AA batteries—because it provides an in depth and comprehensive historical account of the Court’s role in the ongoing saga Americans’ civil liberties and rights.

REFERENCES:

Fisher, Louis. 2002. RELIGIOUS LIBERTY IN AMERICA: POLITICAL SAFEGUARDS. Lawrence, KS: University Press of Kansas.

Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press

Tushnet, Mark. 1999. TAKING THE CONSTITUTION AWAY FROM THE COURTS. Princeton, NJ: Princeton University Press.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION 347 U.S 483 (1954)

BUCK v. BELL 274 U.S. 200 (1927)

GITLOW v. NEW YORK 268 U.S. 652 (1925)

GRISWOLD v. CONNECTICUT 381 U.S. 479 (1965)

GRUTTER v. BOLLINGER __ U.S. __ (2003)

LAWRENCE v. TEXAS __ U.S.__ (2003)

MIRANDA v. ARIZONA 384 U.S. 436 (1966)

PALKO v. CONNECTICUT 302 U.S. 319 (1937)

SKINNER v. OKLAHOMA 316 U.S. 535 (1942)

UNITED STATES v. CAROLENE PRODUCTS CO. 304 U.S. 104 (1938)

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