Vol. 14 No. 6 (June 2004), pp.453-457
THE PRICE OF RIGHTS: THE COURTS, GOVERNMENT LARGESSE, AND FUNDAMENTAL LIBERTIES, by Daniel C. Kramer. Peter Lang, 2004. 216pp. Paper. €25.00 / £18.00 / US$29.95. ISBN: 0-8204-6153-9.
Reviewed by Dr. Christopher Malone, Assistant Professor of Political Science, Pace University, email@example.com
“The State giveth and the State taketh away” is the phrase (actually a paraphrase from the Book of Job) used on the book jacket of THE PRICE OF RIGHTS to describe both the actions of the American welfare state and the central problem addressed in this book. But stating the problem so succinctly raises immediate questions to which the author, Daniel C. Kramer, professor emeritus at the College of Staten Island, CUNY, seeks answers: When does the state giveth, and when does it taketh away? What fundamental liberties are at stake in the potential denial of government largesse? Whom does the state giveth to, and taketh from? On what grounds has the American court system decided these questions? How should the courts decide them?
In raising and answering such questions, Kramer’s work brings to mind the wonderfully parsimonious definition of politics laid down by Harold Lasswell in his famous book of decades ago, POLITICS: WHO GETS WHAT, WHEN, HOW. For Lasswell the study of politics was ultimately about the allocation of resources and the distribution of values in any society. If you can describe these, you have gone a long way in identifying the nature of politics. But in asking these largely descriptive questions, Lasswell also intimated the normative underpinnings of the political order: to ask who gets what, when, and how is also to inquire about the “why” of politics. Should those who have received resources gotten them? The descriptive is always tied to the normative. Sound political thinking cannot have one without the other.
Sound legal thinking cannot have one without the other as well. In this sense, Kramer’s project in THE PRICE OF RIGHTS is of a similar mind. Largely a work describing Supreme Court and lower court decisions addressing the allocation of public resources and the denial of fundamental liberties (speech, privacy, religion), Kramer also makes claims about how the courts should decide these cases. He seeks to describe in detail when and under what conditions the courts have withheld government largesse in the form of resource allocation to certain individuals and groups, and with it a denial of their “fundamental liberties.” The backdrop to this problem, according to Kramer, is the undeniable growth, size and scope of the modern American welfare state – what he calls “the wide-ranging welfare-regulatory-property-owning-tax-break-according activities of the American political system” (p.9). Kramer’s point is not to take aim at the American welfare state per se; he accepts it as is. Rather, he explains that, because the American welfare state
poses a genuine risk to civil liberties, it [*454] is important to know to what extent the American judiciary, which is supposed to play a major role in protecting fundamental rights, has defended these against the encroachments, intentional or unintentional, already generated by its spread. Thus, this book will concentrate on the extent to which they have frustrated them by declaring them unconstitutional or by using other techniques of the judicial trade (pp.11-12).
No doubt uncovering the role of the American judiciary in the denial of fundamental liberties is an important endeavor. But it is one that Kramer takes for granted, and does not explain fully. The problem goes to the very core of the concept of liberal government. We should recall that it was John Locke in the SECOND TREATISE OF GOVERNMENT who likened government to an “umpire” or “nightwatchman.” Government is impartial, objective, and ostensibly has no interest in the outcomes of the give and take of politics. All citizens are to be treated equally in their rights and liberties. The court, to paraphrase Alexander Hamilton, is thus “the least political branch;” its role is to ensure impartiality and objectivity. More importantly, the American judicial branch is the place of last resort in liberal government for citizens to regain rights they have been denied. For this reason alone, they had better get it right.
The main thrust of the project is then to describe what the courts have done with respect to government largess and fundamental liberties. In six of the book’s eight chapters, Kramer reviews Supreme Court and lower court cases in various fields of law as it pertains to fundamental liberties of individuals and groups: radical organizations (Chapter 1); the electronic media (Chapter 2); “offensive speech” by individuals (Chapter 4); privacy/abortion (Chapter 5); freedom of religion (Chapter 6); and miscellaneous free speech problems (Chapter 7). The chapters, and the cases discussed in them, are held together by the terminology Kramer posits to classify cases in the text. He identifies them as involving “rights limiting conditions” and “rights limiting classifications” (p.15). The former pertain to provisions in a law granting largesse that no one can obtain without relinquishing a basic right. The latter refer to restrictions that follow from past actions and/or identity—e.g., a member of the Ku Klux Klan or the Communist Party in the past may be denied future government largesse. Kramer’s point is that rights limiting conditions are future oriented, whereas rights limiting classifications are past oriented.
The author does an excellent job of summarizing cases in each chapter, explaining the majority and dissenting opinions, along with the rationale for each. In this sense, the book is a solid example to students in constitutional law courses at the undergraduate level who are acclimating themselves to the case brief system. Each chapter ends with a brief summary – a very helpful addition to the work, given the volume of cases addressed. Furthermore, Kramer is successful in weaving cases together, not only within the chapters, but between them as well.
Thus, the brunt of the work is descriptive and succeeds in its objective to explain the case law surrounding government largesse and fundamental liberties. In the closing chapter, Kramer turns to [*455] normative questions surrounding the problem, and offers his ideas on how the courts should respond to future issues of largesse and fundamental rights. Before doing so, however, he summarizes what we have read in the previous 7 chapters. Kramer concludes that, while it appears that the courts have handled cases involving rights limiting conditions and classifications “haphazardly,” one should not overstate the incoherence in the law in this area (pp.169-171). The courts have been, on the whole according to Kramer, fairly consistent in the application of standards for cases in free speech, privacy, and freedom of religion. He explains:
The courts will be likely to, which does not mean that they always will, uphold rights-limiting conditions and classifications in government largesse where an administrative agency with expertise in an area has developed these; where the group whose rights are being constrained is perceived as a threat to national security; where young people will be protected by the condition or classification. On the other hand, they will be likely, though again, this is not guaranteed, to annul the conditions and classifications where they are detrimental to an individual or group that is not seen as threatening to the country; where they adversely affect sacrilegious or indecent material to which children are unlikely to be exposed; or where they harm religious groups (p.173).
Kramer then concludes by offering his views on what standards should be applied to determine whether a rights limiting condition or classification should be held constitutional. He states that the standard should turn on: 1) the intent of the legislature in crafting the law; 2) whether it constitutes a bill of attainder; 3) the impact of non-receipt on the party; 4) whether the law constitutes viewpoint or content discrimination; 5) whether the denial of the right leads to a net increase in rights; 6) whether the speech is that of a governmental worker during work hours; 7) whether the denial adversely affects the flow of information on the public airwaves; 8) whether the denial of the right pertains to hate speech; and 9) whether the right is “fundamental” to democracy (Chapter 8).
As noted above, THE PRICE OF RIGHTS succeeds in its objectives—as a descriptive enterprise. Yet, the last chapter of the book, which deals with the normative questions raised above, falls a bit flat. The standards Kramer proffers are too diffuse, incoherent and confusing for the courts to heed in the area of government largesse and fundamental liberties. Ironically, Kramer suggests a more coherent and discerning standard for future cases in the last chapter.
Time and again he discusses the concept of a “compelling government interest” in restricting governmental largesse to certain individuals and groups, thereby denying them fundamental rights. The language is familiar: it is one-half of the two-pronged test that the Supreme Court has created for cases involving racial classifications – what we know today as “strict scrutiny.” The second prong of the test is whether the government classification/policy is [*456] narrowly tailored. Strict scrutiny was first put forward as a test for affirmative action in the plurality decision in BAKKE (1978); it finally became the law of the land on all racial classifications in the 1990s. Today, no private or public institution can classify individuals by race unless the policy is narrowly tailored and serves a compelling government interest (such as diversity).
It would seem that, in the area of fundamental liberties which Kramer addresses throughout THE PRICE OF RIGHTS, adopting the two prongs of the strict scrutiny standard when determining whether to deny government largesse would make sense. Such a move would add coherence to the courts’ decisions in this area. In fact, Kramer adopts the “compelling government interest” standard for all of his hypothetical situations, with the exception of the right of a woman to have an abortion, simply because it is not a “fundamental’ right of a democratic society. His statement is accompanied by a disclaimer regarding the controversial nature of the proposal, and it would take us far afield to discuss this contentious proposition in detail. Suffice it to say that Kramer seems to miss the point of the Court’s opinion in ROE: the government has a compelling interest in protecting the mother’s privacy rights in the first trimester, while the state has a compelling interest to protect the life of the fetus in the third trimester. Kramer argues that cases involving abortion should be reviewed under the “intermediate scrutiny” standard (i.e., “important governmental interest”) because abortions are not a fundamental right. Kramer seems to have placed the act of abortion above the principles involved. One wonders how protecting the right of privacy between a woman and her doctor, or protecting the rights of a viable fetus, are not fundamental rights which should be held to the highest judicial scrutiny possible.
There is one more concern about THE PRICE OF RIGHTS which can be broached here – one regarding which most texts on the law are relatively weak, and one which Kramer does not address in the pages of his work. Nonetheless, it is worthy of mention. As hard as the courts try to distance themselves from politics, they can never be fully divorced from it. Federal court judges are nominated by presidents and confirmed by the Senate. Many state judges are elected, and all are selected via a thoroughly political process. Thus, in looking at the ebb and flow of cases over time, it is important to keep two things in the back of one’s mind: first, the political context (conservative, liberal, Democratic, Republican, and so on) in which the case is decided, and the natural milieu of political events within which the cases are decided.
As to the former, if we want to predict how the courts will decide a case, part of the response has to include the ideological direction of the court, who is on the court, who appointed the members to the court, among other related questions. As to the latter, Kramer touches upon the political context at points - for instance, when he discusses cases dealing with Communists during and after both World Wars. The mood of the times certainly conditioned the courts’ responses to those cases. Though he does not mention them, the cases involving Japanese internment (KOREMATSU and HIRABAYASHI) would most certainly have been decided differently if World War II had not been underway and had Japan not been the nation to bomb Pearl Harbor.
Thus, in trying to set the parameters around how and when and under what conditions the American judiciary make decisions about fundamental liberties and government largesse, we would do well not to leave politics completely out of the equation. Legislatures pass laws based on the political context; it would be naïve to suggest that courts make decisions independently of the political context.
Despite these relatively minor issues, THE PRICE OF RIGHTS will give professors and students alike a solid grounding in case law as it pertains to [*457] conditions under which the State “giveth” and the State “taketh” away governmental largesse and fundamental liberties.
Lasswell, Harold. 1958. POLITICS: WHO GETS WHAT, WHEN, HOW. New York: Meridian Books.
HIRABAYASHI v. U.S., 320 U.S. 81 (1943).
KOREMATSU v. U.S., 323 US 214 (1944).
REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).
ROE v. WADE, 410 US 113 (1973).
Copyright 2004 by the author, Christopher Malone.
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