Vol 12, No. 8 (August 2002)
CIVIL RIGHTS POLICYMAKING IN THE UNITED STATES: AN INSTITUTIONAL PERSPECTIVE by Francine Sanders Romero. Westport: Praeger, 2002. 168 pp. Cloth $58.95. ISBN 0-275-97494-4.
Reviewed by Paul Parker, Division of Social Science, Truman State University. Email: parker@truman.edu .
“The basic question this book addresses is the extent to which majority opinion has shaped Congressional and Supreme Court responses. It is equally an institutionally oriented history of Civil Rights policy outputs, and an examination of the validity of the blueprint for our national government” (p. xii). This is an ambitious goal for 119 pages of text and notes; at such a length, the choice to package this as a study of THE FEDERALIST (“the blueprint”) undermines the few elements that could make this book a more valuable contribution.
After a very brief consideration of behavioral or environmental approaches to understanding civil rights policymaking, Romero argues (again, briefly) that an institutional perspective is best suited to the study of civil rights policymaking. A quick review of The FEDERALIST produces the hypotheses that “Congress will display greater responsiveness to majority preferences than the Supreme Court and, secondarily, within Congress the House will be more responsive than the Senate” (p.14). The executive branch is left out, as the framers “did not (to any great extent) address the policymaking function of this branch,” and because no policy making model exists for the executive branch (p.18). Additionally, this model is informed by neither neoinstitutionalist nor the separation of powers game literature familiar to many readers of THE LAW AND POLITICS BOOK REVIEW; largely the two institutions are treated serially, with separate data sets.
“Civil Rights policy outputs” is limited to race, allowing for the use of nonsouthern white public opinion to count as majority sentiment. The data sets include House roll call votes on 44 bills and amendments, 48 Supreme Court decisions involving constitutional claims, and comparisons of Senate and House action on 27 bills and amendments. These outputs begin with the Civil Rights Act of 1957 and end with the cases of SHAW v. HUNT and BUSH v. VERA in 1996. Romero divides these outputs into three policy types, “Ending De Jure Discrimination,” “Insuring Equal Opportunity,” and “Insuring Equal Outcomes.” These categories are treated as ordinal levels of the independent variable “policy type,” with the costs to the nonsouthern white majority expected to increase as government ends discrimination (I), insures opportunity (II) and ultimately ensures outcomes (III). As costs increase, support diminished.
“Policy type” is the central variable in the study; using (admittedly imperfect) polling data, Romero asserts “evidence demonstrates that majority opinion varies more by type of policy than by year” (p.36). Given the goal of testing institutional responsiveness, this is important as it undercuts alternative hypotheses that any variation in policy output is due to a change over time of “public mood” or in the makeup of the institutions themselves (especially the Supreme Court) – although significantly, the type of case coming before the Court did change over time (e.g., pp. 89, 94).
Romero runs logistic regression models, with bill success or case outcome to be explained by policy type; controls include such things as national liberalism, conservative coalition, party of the president, the number of demonstrations the previous year, and court ideology. She concludes the FEDERALIST performs pretty well as Madison and Hamilton expected. The caveats include the troubling evidence that the attitudinal model is at work in the Supreme Court policy outputs – the liberal Warren Court protected minorities more than the conservative Rehnquist Court (p. 116) – and the puzzle that even without majority demands, the congress aggressively pursued some civil rights legislation (pp. 79-81).
On the surface, Romero is methodical in laying out her research design, being sure to specify what she is after and what is to be included. By the same token, she provides many “defensive” statements, telling th reader what the book is not doing (e.g., pp. 3), and noting the many controversies and theories that “I will leave to other scholars to explicate”(p. 110). Additionally, other portions are characterized as providing a “rough illustration” (p. 9). Further, “Certainly the categories are by necessity somewhat rough” (p. 26). Not surprisingly, we find that “Therefore to a certain point Hamilton’s predictions were valid” (p. 116).
In part Romero is being appropriately cautious, sensitive to the limitations of available data. But in part she has also chosen to write a very short book as opposed to a shorter article (which could be done quite satisfactorily without the window dressing of testing THE FEDERALIST). Three examples will suggest shortcomings; perhaps they are not insurmountable, but the reader should not have to do all the heavy lifting.
First, one might question whether the following quotation captures THE FEDERALIST accurately enough to provide the basis for a research design: “James Madison and Alexander Hamilton argue in several essays that, due to variation in institutional rules and structures, Congress and the federal courts would differ in regard to their relative susceptibility to the influence of popular sentiment. In short, they predict that congressional outcomes will tend to consistently reflect majority preferences, and that outcomes in the Supreme Court, in particular instances linked to limitations on minority rights, will not” (p. 10). Also, as a follow up: If the second sentence of the quotation really does distill THE FEDERALIST to testable hypotheses (distinctions of a democracy and a republic aside), does this “mythical dragon” really need a book treatment to slay it (p. 119, n. 3)?
Second, one might question whether African Americans (and again, Civil Rights in this book is about black and white) of the past half century and wealthy landowners of the founding generation are comparable “minorities” so that her data is a “test” of THE FEDERALIST. Romero acknowledges this problem by providing two sentences from Robert Cover (1982) pointing out the very problem; the problem is promptly resolved in the next sentence with the aid of a short quotation from Alexander Bickel (1955) on the elasticity of the Constitution (p. 11). Bickel aside, much of the Constitution and THE FEDERALIST seem to be about making it difficult to do things harmful to the wealthy landowners, while the policy outputs Romero is studying require mobilization of (at least legislative) majorities to remove harms, or to confer benefits.
Third, one might question whether the institutions of THE FEDERALIST are the same institutions whose output she is purporting to analyze. Does it matter that senators are now directly elected? Or, that political parties, which seem to explain some of the reason for policy adoption in the absence of majority support (pp. 79-81), were still undeveloped at the time THE FEDERALIST was written? Although Romero asserts the direct election of Senators matters in some ways but not in others, the assertion occurs in a footnote (p. 19, n. 13). Thus it appears as more of a qualification than as something integral to the argument. When the problems of institutional change in the Senate resurface as an explanation for lack of applicability of the Founders predictions in the conclusion (p. 114), a reader might feel vindication for having had this foresight. However, by this point it felt unsporting to feel vindicated; my feeling was one of frustration that elements of an interesting study were packaged as a test of THE FEDERALIST.
And there are interesting and worthy elements of this book. The compilation of policy outputs (Congressional Data in appendix I, Supreme Court Data in appendix 2) are valuable for those interested in the past half century of racial civil rights policy. The confirmation of attitudinalism in this policy area is an important, if unsurprising, contribution. And the puzzle over the Democratic congressional leadership pursuing civil rights more aggressively than electoral strategy would warrant merits attention. Also, there are brief attempts (pp. 8-9; 118-19) to discuss the institutions in conjunction with one another.
Bickel, Alexander. 1955. “The Original Understanding and the Segregation Decision.” HARVARD LAW REVIEW 69: 1-65.
Cover, Robert M. 1982. “The Origins of Judicial Activism in the Protection of Minorities.” THE YALE LAW JOURNAL 91: 1287-1316.
************************************************************************
Copyright 2002 by the author, Paul Parker.