ISSN 1062-7421
Vol. 12 No. 7 (July 2002) pp. 357-359
CONGRESS AND THE POLITICS OF EMERGING RIGHTS by Colton C. Campbell and John F. Stack, Jr. (Editors). Lanham,
MD: Rowman & Littlefield, 2002. 208 pages. Cloth $65.00. ISBN: 0-7425-1646-6. Paper $24.95. ISBN: 0-7425-1647-4.
Reviewed by Joseph Reisert, Department of Government, Colby College.
Most undergraduates taking constitutional law bring to their studies a familiar pair of prejudices. They profess
an almost unquestioning faith in the virtue of courts and display an equally intense contempt for legislatures.
Courts, they insist, do what justice requires and protect rights, which is why they so admire the federal courts
and the Supreme Court of the United States most of all. Legislatures, by contrast, represent interests, doing
what is popular or in the interests of the
powerful, and as a result, they constantly threaten the rights of individuals and minorities. That is why they
have so little respect for legislatures in general and the United States Congress in particular. In CONGRESS
AND THE POLITICS OF EMERGING RIGHTS Campbell and Stack call into question this simplistic view of government,
and seek to articulate some of the ways in which congressional action has contributed to the creation and protection
of rights. Their volume contains seven individual essays, plus an introduction and, in an appendix, the Constitution
of the United States. (In what was either an unfortunate oversight or a subtle critique of its unusual history,
the Twenty Seventh Amendment is omitted from the constitutional text).
Important as is the general theme of the collection, the essays assembled here contribute only modestly to our
understanding of the interaction between legislative action and the recognition of new rights. What would ultimately
be desirable in this area is a coherent model of the ways in which a legislature can and can not contribute to
the creation and protection of rights. To be of greatest importance, any such model would have to differentiate
among the different sorts of rights that may exist within a complex legal system. After all, at a formal level,
every legislative act alters the antecedently existing distribution of legal entitlements and so can be said to
create new rights. In their introduction to CONGRESS AND THE POLITICS OF EMERGING RIGHTS, however, Campbell and
Stack do not offer any profound analysis of rights or seek to specify with any great precision the focus of their
collection. Instead of making that sort of theoretical contribution, the essays in CONGRESS AND THE POLITICS
OF EMERGING RIGHTS aspire to the more modest but still worthy goal of presenting some of the data for which later
inquirers will need to account in their efforts to model the complex interactions between legislation and litigation,
as they relate to the protection of rights.
Gregg Ivers and David Kaib offer an assessment of the Supreme Court's holding in UNITED STATES v. MORRISON (2000)
in light of the politics leading up to the passage of the Violence Against Women Act (VAWA). Demonstrating that
the civil
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rights remedy invalidated in Morrison was by far the most controversial aspect of the VAWA in Congress, and noting
that the Court let the rest of the VAWA stand, Ivers and Kaib in effect suggest that the Court's holding was
really more moderate than has commonly been appreciated.
Whereas Ivers and Kaib tell a story in which the Supreme Court declined to protect a right Congress had sought
to create, David O'Brien's chapter documents an opposite development--the Supreme Court creating a whole body
of sexual harassment law when the intent of Congress to do so was, to put it delicately, unclear. O'Brien begins
with the story of how sex came to be included as a protected classification in the Civil Rights Act of 1964 as
the consequence of an effort to torpedo the bill in the House. Though opposed by many liberals who feared that
the inclusion of sex would doom the civil rights bill, the amendment carried and proved no bar to the ultimate
passage of the Act. Despite the lack of a clear mandate from Congress, the Equal Employment Opportunity Commission
(EEOC) sought to implement the bar on sex discrimination contained in the Civil Rights Act, first moving to prohibit
sex discrimination in help wanted advertisements
and later issuing guidelines regarding employer liability for sexual harassment in the workplace. In a long series
of decisions, the Supreme Court has substantially deferred to the EEOC's interpretations.
Chapters Three and Four examine the congressional politics of privacy protection and gay rights to assess the
extent to which the congressional deliberations over these controversial issues have been dominated by the "rights
talk" whose prevalence in our political discourse was documented by Mary Ann Glendon in RIGHTS TALK. Priscilla
Regan finds that debates in Congress over legislation designed to protect personal privacy reflect the influences
of two discourses, one of which views privacy as an individual, moral right, and the other, which views privacy
as an aspect of consumer protection. Regan concludes that the two strands of argument serve different rhetorical
purposes: the moral language, she speculates, will be more appealing to the public, while the language of consumer
protection
may facilitate the creation of legislative coalitions to support privacy protecting legislation. Nicol Rae's contribution
examines the congressional politics of the Defense of Marriage Act (DOMA) and the Employment Non-Discrimination
Act (ENDA). Rae looks at the debates in the House on DOMA and in the Senate on DOMA and ENDA (introduced by Senator
Kennedy as an amendment to DOMA) and finds appeals to what he calls "communitarian values" on both sides
of the debates.
In Chapter Five, Stack and Campbell recount the recent developments in the Supreme Court's federalism jurisprudence
and have produced a nice summary of the Tenth and Eleventh Amendment doctrines now being asserted by the five vote
conservative majority on the Rehnquist Court. Rebecca Mae Salokar's essay examines the efforts of the House and
Senate to defend their institutional rights and interests as a litigant in court. She begins by tracing the history
leading to the establishment in 1978 of the Office of Senate Legal Counsel and in 1993 of the Office of General
Counsel in the House. She finds, not surprisingly, that the need for lawyers to represent the interests of the
houses of Congress is most acute in cases where the interests of the legislative branch diverge from those of the
executive. In the work's closing chapter, Mary Volcansek
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offers a brief, comparative survey of the evolving idea of human rights. She finds that each of three basic conceptions
of rights has been dominant during each of the three waves of democratization identified by Samuel Huntington.
During the first wave (eighteenth and nineteenth century), rights were primarily conceived as limitations on state
power. In those states democratizing in the wake of the Second World War, two sorts of rights were asserted: the
negative rights characteristic of the first wave plus a new set of rights conceived as entitlements to state services
like housing, education, and health care. She finds greater ambivalence about
rights in the current wave of post-Cold War democratizations, but she detects a trend towards demands for three
sorts of rights--those characteristic of the first two waves and in addition the rights of groups to cultural
protections.
The various essays comprising CONGRESS AND THE POLITICS OF EMERGING RIGHTS are generally clear and informative,
but, as the preceding summary of their contents suggests, they do not stake out bold or novel theoretical claims.
As a consequence, the work might provide useful supplementary reading
for an undergraduate constitutional law course, but it will probably be less useful to graduate students and professional
readers.
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Copyright 2002 by the author, Joseph Reisert.