Leslie Friedman Goldstein

Popular Sovereignty, the Origins of Judicial Review, and the Revival of Unwritten Law

This essay draws together research from a variety of sources to argue that American constitutional theory in the 1776-1803 period underwent a profound transformation. Central to that transformation were changes concerning the meaning and importance of the concept of government by consent of the governed. As the significance of popular sovereignty within our constitutional theory increased, the place of unwritten law in judicial review commensurately shrank. Moreover, this judicial move away from reliance on unwritten law appears to have contributed to a rapid increase in the popularity of the institution of judicial review. These very dramatic changes point to the need for public law scholars to reconsider currently influential arguments about the unwritten law origins of judicial review.

Aristotle's Theory of Revolution: Looking at the Lockean Side:

This article provides a detailed account of the theory of revolution presented in Books IV-VI of Aristotles Politics and argues that despite important differences of emphasis, rhetoric, and tone, there is a surprising degree of similarity to the theory of revolution familiar to Americans from John Lockes Second Treatise of Government. Aristotle and Locke share the views that governments must avoid oppressing their subjects if they are to avoid being overthrown, that revolution against oppressive rulers is inevitable, that security for property would have a central place in the avoidance of oppression, and that the succumbing to the temptations of power on the part of ruling groups is the fundamental provocation of revolution. This aspect of Aristotles political thought has been little noticed, but is an important dimension of it. Moreover, it provides a certain depth of insight into that side of Lockes thought that most sharply contrasts with Hobbess thought, namely Lockes distrust of the corrupting force of political power.

A “Triumph of Freedom” After All? Prigg v. Pennsylvania Re-examined

Prigg v. Pennsylvania (1842), has puzzled scholars for generations. Law professor David Currie has called it “perplexing.” It is a case over which scholars have come to a wide array of conflicting conclusions.

The U.S. Supreme Court and Racial Minorities

The U.S. Supreme Court and Racial Minorities offers an in-depth, chronologically arranged look at the record of the U.S. Supreme Court on racial minorities over the course of its first two centuries. It does not pose the anachronistic standard, “Did the Supreme Court get it right?” but rather, “How did the Supreme Court compare to other branches of the federal government at the time?” Have these Justices, prevented against removal from office by discontented voters (in contrast to the President and the members of Congress), done any better than the elected branches of government at protecting racial minorities in America?

Constitutional Politics: Essays on Constitution Making, Maintenance, and Change

a course in real analysis (i.e., advanced calculus) and another in linear algebra are sufficient to follow his arguments, but I have my doubts. There are some concepts in the book (e.g., Lebesgue integrals or the Radon-Nikodym theorem) that in my student days (a long time ago, I admit) were taught in graduate-level math courses. A solid grounding in measure theory is also useful (another graduate math course in my day). In addition, a reader unfamiliar with microeconomic theory will have trouble following the argument, though I think this is a less serious barrier than the math level. John Roemer says that he used this book in a graduate political science course at NYU. I’d really like to know how that went. My guess is that he spent most of his time recasting his model in much simpler form because I cannot believe that political science graduate students anywhere (except maybe Caltech) can read this book. That is too bad because the book is important and deserves to be understood. Perhaps someone else will translate Roemer’s results into a form with simpler math and more words. I am thinking of something like Peter Ordeshook’s game theory book from the 1980s, which explained the logic of the proof of McKelvey’s global cycling theorem in a form that was accessible to students with a background in only high school math. Has formal political theory reached the point where that is no longer possible? I hope not.

How Sex Became a Civil Liberty by Wheeler, Leigh

When the United States entered World War I and the first major freedom of speech and freedom of press cases consequently began to wend their way toward the US Supreme Court, they dealt with the rights of antiwar and antidraft protesters. Involvement in such cases was, in fact, the originating purpose (in 1920) of the American Civil Liberties Union (ACLU), which first was named and formed as the Civil Liberties Bureau in 1917 and next, as the National Civil Liberties Bureau (also in 1917). Cofounders of the organization, Roger Baldwin and Crystal Eastman, were part of an eclectic circle of Greenwich Village dwellers that included writers and artists, proponents of socialism and anarchism and labor union rights, defenders of free love and birth control. The organizing theme of the ACLU was commitment to freedom for speech on “matters of public concern” (25). Even before his organizing the ACLU, however, in 1916 Roger Baldwin had become friends with birth control pioneer Margaret Sanger via the process of leading protests in St. Louis on behalf of her right to lecture on birth control. Thus, it was natural for the one-year-old ACLU in 1921 to take up the cause of the American Birth Control Conference to be hosted by Margaret Sanger at Manhattan’s new Town Hall, but blocked by the police who arrested Sanger and another woman on disorderly conduct charges, probably at the behest of the Catholic Church. How Sex Became a Civil Liberty is a closely documented and meticulously researched history of how the ACLU, founded as an organization devoted to antiwar and otherwise politically controversial speech, came to be a pioneer in putting sexual freedom into the US Constitution, leading the charge not only for birth control freedom but also abortion, sodomy, and pornography, even to the point of defending US Senator Larry Craig on charges of soliciting sex in a public restroom in 2007 (220, 295, n.4). Someone looking for a close doctrinal analysis of the twists and turns of US Supreme Court rulings on the right of sexual privacy and its various configurations will not find it in this book; it focuses instead on the evolution of ACLU legal strategy choices and whether they did or did not succeed in court. However, someone looking for a fascinating social history that blends personal life stories of political and sexual bohemians with an organizational

Constitutional Politics: Essays on Constitution Making, Maintenance, and Change. Edited by Sotirios Barber and Robert George. (Princeton, NJ: Princeton University Press, 2001. Pp. 384.

a course in real analysis (i.e., advanced calculus) and another in linear algebra are sufficient to follow his arguments, but I have my doubts. There are some concepts in the book (e.g., Lebesgue integrals or the Radon-Nikodym theorem) that in my student days (a long time ago, I admit) were taught in graduate-level math courses. A solid grounding in measure theory is also useful (another graduate math course in my day). In addition, a reader unfamiliar with microeconomic theory will have trouble following the argument, though I think this is a less serious barrier than the math level. John Roemer says that he used this book in a graduate political science course at NYU. I’d really like to know how that went. My guess is that he spent most of his time recasting his model in much simpler form because I cannot believe that political science graduate students anywhere (except maybe Caltech) can read this book. That is too bad because the book is important and deserves to be understood. Perhaps someone else will translate Roemer’s results into a form with simpler math and more words. I am thinking of something like Peter Ordeshook’s game theory book from the 1980s, which explained the logic of the proof of McKelvey’s global cycling theorem in a form that was accessible to students with a background in only high school math. Has formal political theory reached the point where that is no longer possible? I hope not.