Vol. 4, No. 12 (December, 1994), pp. 162-164.
LAW'S PROMISE, LAW'S EXPRESSION: VISIONS OF POWER IN THE POLITICS
OF RACE, GENDER AND RELIGION by Kenneth L. Karst. New Haven: Yale
University Press, 1994. 321pp. Cloth $30.00.
Reviewed by Gayle Binion, Department of Political Science,
University of California at Santa Barbara.
In LAW'S EXPRESSION, LAW'S PROMISE, Professor Karst further
develops his commitment to an inclusive citizenry which he so
eloquently explored in BELONGING TO AMERICA (1989). In his more
recent effort, however, the focus is directly on the American
political system and institutions and the ways in which law
figures prominently in the social agenda of the
counterrevolutionary right. Karst addresses the major aspects of
this conservative movement and analyzes the ways in which law as
(legislative and administrative) public policy has been put to
the service of its goals, and law as the product of judicial
review has (at least on significant occasions) served as a brake
on its successes. It is not surprising that in the last sentence
of the book, Karst reminds us that in the early days of American
nation-building, John Marshall was as significant a player as was
James Madison. Taking encouragement from the Casey and Weisman
decisions in 1992, the book ends graphically on a note of
optimism about the ability of the judiciary to maintain our sense
of nationhood, transcending the regional and the sociologically
parochial, to be the "glue" that is antidotal to the
social "solvents" of racism, sexism, homophobia, and
religious exclusion. It is simultaneously apparent that the
developments of the past year (since, I would assume, Karst's
manuscript went to press) may well offer new challenges for his
faith. The electoral victory of the Republicans, espousing in
their "contract with America," inter alia, a revival of
school prayer, as well as their more recent plan to kill the
congressional caucuses for black, Hispanic and women's issues
have reopened issues that in Karst's view had been reasonably
resolved by the judiciary.
In developing his thesis, Karst draws conceptually on Clifford
Geertz's notion of the "theater state." He shows how
the easy manipulation of symbols has especially well served the
radical right in contemporary American politics. Beneath the
shallow negative symbols of Willie Horton, welfare mothers,
feminists, gays and lesbians, lies a very profound message about
recapturing the stewardship of society for straight, white,
conservative Christian males. But Karst takes this analysis of
"the agenda" in a very precise direction, to wit, that
underlying much, if not all, of the movement's goals is a
profound male sexual insecurity. The perceived lasciviousness of
black males, women and homosexuals provides the connecting thread
to rationalize what it calls "family values," to
condemn affirmative action, outlaw abortion, minimize the
significance and authority of women in the marketplace, and to
exclude gays and lesbians from the military. As Karst deftly
demonstrates, each of these agenda items not only reflects on
male sexual insecurity with its attendant fear of humiliation and
disempowerment, but as well
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fits within the themes of power hierarchy and exclusivity of
citizenship. Karst's commitment to equality and civic inclusion,
and his focus on understanding the sociopolitical processes that
label, exclude and silence, situate his work squarely within the
dialogues of contemporary feminist jurisprudence. Like Martha
Minow's MAKING ALL THE DIFFERENCE, Karst's study is very valuable
for those of us interested not only in women's experience, per
se, but also in its implications for the breadth of the social
circle.
Picking up on the title theme of the book, to wit, law's
"expressive" power, Karst borrows a phrase from
Prohibition: "the wets have their drink and the drys their
law." Social movements gain much strength from their
symbolic policy achievements, whether or not the policies are
actually successfully enforced. The counterrevolutionary right is
no exception and policies on access to military service provide
the prime example of this phenomenon. As per Karst's argument
from male sexual insecurity, no institution provides more
opportunity for the proving and reaffirming of manhood, and
nowhere is it, consequently, more critical for the agenda of the
right to restrict blacks, all women and gay men. Historically,
blacks were excluded, later segregated in the military. Women
have been minimized and marginalized and gay men and lesbians
formally barred from service. But this has been largely symbolic
and, as Karst argues, fundamentally hypocritical. Despite policy,
whenever the military's combat needs have so dictated, women have
been put in harm's way and the significant presence of gays and
lesbians in its ranks simply overlooked. The serious problem that
Karst identifies in this state of affairs is that the policies of
exclusion and marginalization within the military reinforce the
unequal citizenship of disempowered groups.
Karst's latest book is a powerful, exceptionally well-researched
and well-written analysis of the interplay between law and a
ubiquitous contemporary social movement. He easily interweaves
empirical data with jurisprudential concerns and succeeds in
proudly recapturing the spirit of the civil rights faith of the
1960s. But if there is an aspect of its prescriptions with which
other civil rights advocates may be inclined to take issue, it is
with respect to the religious dimension. While Karst has
effectively responded to the challenges posed by the
counterrevolutionary right with respect to race and sex (the
latter including both gender and sexuality), his application of
the inclusionary citizenry thesis to religion is somewhat more
problematic. He suggests, rightly, that the inclusion principle
must necessarily be extended to the religious right as a group
and then sets about finding some avenues for demonstrating a
public respect for their concerns. But status (gay, black, female
or lesbian) and faith are very different phenomena. In his
attempt to be inclusionary, empathetic and conciliatory on this
score, Karst suggests that within public education the Equal
Access Act, "moments of silence," and situating faith
vis-a-vis science could be understood as constitutionally
appropriate and sensitive to the religious right. But Karst's
analysis of these policy initiatives raises a question about the
utility of "inclusion" in this context. Will the
religious right be satisfied with middle ground resolutions (in
any greater numbers than feminists are satisfied with
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To lessen the sense of exclusion felt by the religious right
Karst suggests, very appropriately, that science teachers could
discuss the fact that many devoutly religious people do not
accept evolution because of their faith. But as Karst
acknowledges, the argument one regularly reads with respect to
school board debates on creationism versus evolution is that the
advocates of the former believe that empirical evidence of their
"theory" is as sound as that marshaled by the exponents
of evolution "theory." The thoughtful discussion of the
matter advocated by Karst, a discussion which probably already
takes place with great frequency in answer to students' questions
about this tension between religion and science, would be
unlikely to be seen as the discussion to which the religious
right believes its views are entitled. Similarly, his endorsement
of a "moment of silence" policy rests on a belief that
this should be sufficient to incorporate those who do wish to
pray while safeguarding against the stigmatization of
non-adherents. While Karst is very clear that a "moment of
silence" would pass constitutional muster only if not tied
to an expectation of prayer, one wonders if it is possible for it
to not be so tied? Why else would people be asked to be silent in
such a context? Is "reflection" other than a
secularized reference to prayer? Perhaps these questions,
however, might never need to be asked as the legislative record
supporting "silence" may always be rife with its
religious purposes. The example from Georgia during the past year
is instructive on this point. The bill to mandate a moment of
silence was amended in the legislature to make it clear that the
purpose was prayer, thereby increasing the likelihood of its
ultimate constitutional rejection. Perhaps, contrary to Karst's
attempt at inclusion, it is more respectful of the religious
right to acknowledge that people who want prayer, want prayer,
not silence.
These observations are more caution than criticism, reflecting
what was suggested at the outset. Karst's liberal faith in
reason, equality and inclusion has been and will continue to be
challenged by the agenda of the counterrevolutionary right, whose
essence he has so well captured in his book.
REFERENCES
Karst, Kenneth L., 1989. BELONGING TO AMERICA. New Haven: Yale
University Press.
Minow, Martha, 1990. MAKING ALL THE DIFFERENCE. Ithaca: Cornell
University Press.
LEE V. WEISMAN, 505 U.S. (1992)
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY 120 L.
Ed., 2d 674 (1992)
Copyright 1994