Claude Steele and Jennifer Richeson
There are multiple possible views of the Black American psyche. But in the science that focuses on the psyche, the science of psychology, there has really been only variants of one view: the Black psyche is “damaged” to use Daryl Scott's term, in deficit, dominated by self-hatred, infected with self-destructive values and habits of mind, a double consciousness divided against itself, replete with cognitive, linguistic, and emotional deficiencies, and so on. This narrowness of perspective, as reflected in this article, is not restricted to psychology. It is a long evolved cultural framework. Much of the research that has focused squarely on blacks' experiences has examined the potential psychological toll that membership in a socially devalued group may take on black Americans. Although this research is undoubtedly important and informative, it is a perspective that is overrepresented compared with work examining the resilience and strength of blacks and members of other socially devalued groups in the face of group-level devaluation.
Lawrence D. Bobo
The question of race lies at the heart of one of the great debates of American ideas and scholarly discourse. At one end of this debate we can find those who argue for the American Liberal Tradition. At its core this position maintains that American institutions, values, and culture are deeply liberal. As such, the nation is destined to adopt a broadly expansive and inclusive sense of who belongs and is worthy of respect. Under this perspective, the United States will eventually and inevitably transcend the divisions of race and black–white inequality that marred the nation's founding, arriving ultimately at a place of full comity between blacks and whites. Several variants and exemplars of the argument exist. For example, sociologist Nathan Glazer made the case for one prominent version of this argument that he termed “the American ethnic pattern.” This view has three core claims. First, that people from the world over would be allowed to enter the United States. And, furthermore, that “all citizens would have equal rights. No group would be considered subordinate to another.” Second, that the government would not extend formal and distinctive political recognition and rights to separate ethnic groups. Third, however, that no ethnic group would be compelled to give up its distinctive cultural traditions and practices.
Michael A. Bailey, Forrest Maltzman, and Charles R. Shipan
The relationship between Congress and the judiciary is a complex one that is poorly defined or understood. This ambiguity in the relationship is the result of the failure of the Constitution to define what legal doctrines must shape judicial decision-making or whether the judiciary has the authority to strike the acts of Congress. Whereas the relationship between Congress and the executive is well-defined in the Constitution, the relationship between Congress and the courts was left by the founders to be defined by history. In addition to the Constitution's ambiguity in defining the relationship of Congress and the judiciary, the ambiguity also stems from several factors: the relationship has changed over time; modern accounts of the relationship have produced theoretical claims that are difficult to validate; and the multiple dimensions of the interdependence of the two institutions makes it hard to determine whether Congress is constrained by law and whether the Court is constrained by Congress. This article discusses the evolution of constitutional interpretation. It discusses Congress's abandonment of its role as an interpreter of the Constitution and the emergence of the federal judiciary as a venue for policymaking. The article also discusses congressional response to the Court. It discusses legislative anticipation of judicial review, congressional assertiveness in the nomination process, and congressional reaction to hostile Court activity. The article also discusses judicial anticipation of congressional review.
Jerry L. Mashaw
This article describes how the limitations on managerial and political control of administration yield an almost necessary demand for legal control through judicial review. Judicial review of administrative action is the carrying out of a democratic political project: the reinforcement of democratic control of official behaviour. Attention then shifts to the operation of judicial review in three major domains of administrative action: adjudication, rulemaking, and execution. The article then reflects on the institutional design problems produced by these inherent tensions among accountability regimes. It also speculates about the types of research and analysis that might be most useful to the crafting of appropriate systems of judicial review of bureaucratic action. For judicial review, both support political accountability and impair it, demands administrative competence and undermine bureaucratic capacities. Moreover, the ways that judicial review will interact with other accountability mechanisms, the political and the managerial, are often unanticipated and unpredictable.
Amy E. Lerman and Vesla M. Weaver
Since mid-century, the capacity of the United States to punish and surveil its citizenry has undergone tremendous expansion. Yet this phenomenal transformation and its repercussions for citizens has engendered surprisingly little discussion among scholars of American political development (APD). Nor have criminal justice scholars been sufficiently attentive to the intersection between democratic development and the carceral state. In this essay, we highlight how several well-worn tools and concepts in APD have begun to pave new understandings in criminal justice. Many of the studies we describe here have profound consequences for how we see American democracy and citizenship today. They require us to attend to the fact that criminal justice is not just one more slice of the American institutional landscape, but is in fact central to the development of the modern American state, its political order, and how the state interacts with its citizens.
Steven K. Green
The nineteenth century is tagged as the “forgotten century” for traditional reviews of American church–state relations. Most of the case books and historical studies of the church and state in America focus on the Puritan theocratic experiment in New England; the struggles of religious freedom in Virginia; the drafting of the First Amendment; and the cases of the twentieth century. This article hence focuses on this “forgotten century,” as it illuminates the tremendous ideological, cultural, and demographic changes in America. This period is marked by many factors and events that influenced church–state relations. Some of the many changes that took place during it were: the inclusion of religious free exercise in the First Amendment, which paved the way for religious experimentation and pluralism; the introduction of secularization, which separated church and state; and the introduction of an amoral law, which abolished its religious functions and focused on the economic demands of the time. In this article, particular attention is devoted to the three controversies that defined church–state relations during the nineteenth century. These are: the controversy over Protestant religious exercises in the nation's public schools and the issue of public funding of Catholic parochial schools; the government-sponsored Christianization of American Indians; and the government's attempt to eradicate Mormon polygamy.
Nina M. Serafino and Eleni G. Ekmektsioglou
Congress may not be seen as a major player in U.S. national security, but it is congressional action that sets the foundation on which national security policy is constructed. Congressional legislation empowers the actions of federal departments and agencies, authorizes and appropriates funds, and defines the roles and missions of different offices (and who can occupy them). Yet Congress’s role in national security can vary based on the president’s ability to respond quickly to set the national security agenda; the president’s acumen, political skills, and popularity; and structural and political limitations on how the legislature can impose its preferences on the executive branch. Congress finds it harder to prevail when the president responds in a crisis using preexisting powers and authorities, but it can constrain the executive branch using constitutional prerogatives along with informal means such as influencing public opinion.
Bette Novit Evans
While the opening words of the U.S. Bill of Rights symbolize national commitment to religious liberty by stating that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” its parameters and interpretations remain a much-heated debate to many constitutional litigants, scholars, historians, groups, and individuals. Traditionally, the U.S. Bill of Rights was understood to encompass two separate guarantees. The Establishment Clause protects the citizens from state-sponsored or imposed religious obligations, while the Free Exercise Clause protects religious expression from state penalties. Regardless of the guarantees afforded by the constitution, countless debates on the meaning of religious establishment and the meaning of free exercise still surround the Bill. This article analyzes the contemporary free exercise jurisprudence by linking each major issue to the ambiguity of the constitutional language. For instance, the current debate on the status of neutral laws that incidentally burden religion is rooted in the interpretations of “prohibiting” a religious exercise, and the debate on the exemptions from such laws are rooted in the differing interpretations of the words “no law.” The analysis of the issues herein do not adhere to the order of the appearance of the words in the free exercise clause; rather, it follows an order that highlights the logic of constitutional arguments.
Mark A. Graber
Public law scholars whose scholarship focuses primarily on the public conflicts between constitutional authorities fail to appreciate how constitutional law influences politics and judicial decision making in the United States. Legal norms better explain how constitutional controversies are structured than how they are resolved. Basic principles of constitutional law help secure legal agreement in the face of political disagreement. When political disagreements are resolved into legal disagreements, basic principles of constitutional law alter the terrain on which those conflicts are fought. This article examines how and why constitutional law influences both judicial and public decision making. It discusses the tendency for political scientists to first claim that constitutional law is no different to other forms of policy-making, observes how those claims are almost always qualified in practice, and points to problems with the standard qualifications. The article then considers policy and law in constitutional decision making.
Three major economic events structured African Americans' economic status during the first half of the twentieth century: the economic boom of the 1914–1918 World War I era initiated the Great Migration of many African Americans into cities; the Great Depression of the 1930s pushed African Americans to the brink of destitution; and in 1940 World War II began a tremendous resurgence of the economy opening many opportunities for African Americans. Although, agriculture remained their largest sphere of employment and black farmers languished under decades of low farm prices and hard times, many blacks would take advantage of these macrosocial events. African Americans strove to gain a living against steep odds imposed by the discrimination of governments, white employers and unions, and white violence. Black agencies were mostly proactive as migration sparked the building of a new urban middle class and black institutions dedicated to raising African Americans' social position.
Barry Alan Shain
This article discusses the liberty accorded to religion. In the eighteenth century, religious liberty, like any other understanding of liberty, enjoyed multiple, contested, and evolving meanings. From Jefferson to Lincoln, the definitions for liberty were cloaked in confusion and puzzlement. Although the eighteenth century is marked by massive transformation in the declared goals served by the public in support of Christianity, the evolving sense of religious liberty for those in dissent remained closely linked with two Christian concepts, logically dependent on the first and interchangeable with the latter. The first is Christian liberty, which made freedom possible and different from license. The second is freedom of religious conscience, which rebutted blind obedience and the requirement of an implicit religion. On the political level, religious liberty was a debated issue as well. Within this context, the invocation of equal religious liberty was introduced. This equal religious liberty, forwarded by the dissenting Protestants, sought for equal legal standing amongst Protestants. In the context of Christian worship, it meant the separation of Church and State. Liberty, which forms the component part of religious liberty, forms the focal point of this article. The restrictions and objectives of liberty are examined, along with the concepts that undergirded the religious elements of religious liberty; the relatively constant understanding of spiritual or Christian liberty; and the changing and expanding senses of freedom of religious conscience that made equal religious liberty different from the narrow spiritual goals of the earlier eighteenth century.
Joy Ann Williamson-Lott, Linda Darling-Hammond, and Maria E. Hyler
Emancipation and the end of the Civil War forced the nation to grapple with the question of how to integrate and adjust these new black citizens into the fabric of America. Blacks pushed forward toward racial equality. The Fourteenth and Fifteenth Amendments provided them first-class citizen status, and with Reconstruction era elections, blacks gained significant political power in some states and worked to institutionalize their constitutional rights and privileges. One of their primary interests was the building of a system of public schools that would advance the political, social, and economic interests of the black community. Black legislators helped to create a strong common school system for both races, a new phenomenon in the southern United States where public schooling had been nonexistent. With Emancipation, African Americans initiated “an educational revolution in the American South.” Freed slaves mobilized to establish and operate schools. Sympathetic northern whites funded many of these schools, but many more were community schools established and run by blacks.
As it had during the Depression in the 1930s and boom of the 1940s, the economy's macroeconomic performance remained crucial to African American status during the half century following World War II. During the quarter century beginning in 1948 and ending with the sharp recession of 1974–75, average family income doubled in the United States. Backed by the teaching of eminent sociologists, the typical American believed government action such as legislation, judicial decisions, and executive decrees had little affect on the deeply held social mores and practices driving race relations. But civil rights activists understood that by sanctioning discrimination and segregation government was the most powerful supporter of prevailing mores and practices. In the mind of the average citizen wishing to abide by the law, what moral dilemma existed between American political ideals and racist practices when the highest courts in the land had declared segregation legal, when U.S. armed forces deemed blacks unfit to serve in the same units as whites, and governments at all levels discriminated against blacks in as blatant fashion as the most unrepentant racial bigot? Civil rights leaders gambled that people's beliefs and practices toward blacks would adjust to the ideas sanctioned by governments following principles of justice and fairness.
Though family is often seen as private and outside the sphere of politics, some scholars have demonstrated the important role family plays in American politics over time. Integrating family into the repertoire of American political development (APD) will offer new insights into how citizens are made, how states develop capacity, and how change happens over time.
From Color Caste to Color Blind, Part I: Racial Attitudes in the United States during World War II, 1939–1945
Relations between blacks and whites in the United States over the course of American history can be characterized at different points by oppression, conflict, neglect, ambivalence, contestation, improvement, disintegration, and transformation. Changes in the politics, legal circumstances, economic and material consequences, and the demographics of race can be tracked since the first Africans were forcibly brought to the shores of the United States and met the white Europeans who enslaved them. Both reflecting and shaping these transformations are the attitudes, beliefs, feelings, and opinions of each toward the other. Understanding what whites and blacks think of each other, and how they make sense of and understand race relations, racial groups, and racial dynamics—that is, what is in the hearts and minds of Americans about race—offers one vantage point from which to perceive what has changed, and what has remained the same, about relations between whites and blacks in the United States. This article discusses the history and trends in racial attitudes.
The ideology of color blindness does not reflect the reality of the experiences of blacks and whites in America today. Racial inequality persists on all manner of social indicators, from education to income; wealth to health; housing to occupation; school enrollment rates to prison rates; and the list goes on. Despite the fact that the “law of the land” is equal treatment and nondiscrimination, discrimination persists, though in many cases in a more subtle form. In addition, although fewer whites may outright refuse to rent or sell a home to a black person, this does not mean that discrimination has disappeared in the real estate market. Discrimination persists, but it has in many cases gone underground and become more subtle—and the subtlety makes it difficult for its victims to know if it has happened or not. Many audit studies show, for example, that blacks are treated differently and more negatively than whites, but often in ways that the victim may not even realize. Thus, the actions of individuals and institutions point to the persistent disadvantages and discrimination that has characterized the lives of African Americans throughout American history; but the prevailing ideology of the day, as this article reflects, is one that largely denies that this is the case.
Linda Darling-Hammond, Maria E. Hyler, and Joy Ann Williamson-Lott
Interpretations of the gaps in educational achievement between white and non-Asian minority students as measured by standardized test scores are at the center of many debates. The presumption that guides much of the conversation is that equal educational opportunity now exists; therefore, continued low levels of achievement on the part of minority students must be a function of genes, culture, or a lack of effort and will. The assumptions that undergird the debate miss an important reality: educational outcomes for students of color are much more a function of their unequal access to key educational resources, including skilled teachers and quality curriculum, than they are a function of race.
Recently, scholars studying American law and identity have adopted American Political Development (APD)’s focus on institutions in generating, shaping, and thwarting change. Their work has informed APD by emphasizing legal institutions as developmental factors and by highlighting how political struggles over identity influence the course of development. Studies of identity and law fill in missing parts of developmental stories. Developmental accounts recognize the importance of significant identity-based institutions like slavery or immigration regimes, but often they ignore impacts of these institutions on development. Further, some significant institutions like marriage and family that implicate identity are often omitted from debates over developmental questions. Overlooking these struggles impoverishes the account by distorting developmental narratives or disabling them from explaining the timing, process, and trajectory of changes. Focusing on identity and law also illustrates the significance of law and legal institutions in development. Moments in constitutional development turn on questions of identity, and struggles over equality and inclusion that influence the course of political development occur on legal terrain. Constitutional and legal development intersect with political development as legal struggles spill over onto political ground and vice versa. Law and legal discourse bridge between broader cultural concerns and the institutions and practices that comprise the state.
Keith E. Whittington
This article summarizes the judicial checks on the presidency from two perspectives. The first perspective describes the doctrinal framework within which the courts consider executive power. The second addresses the theoretical and empirical research on how these judicial checks operate in practice. The three legal doctrines that are relevant to the judicial checks are described: political question doctrine, doctrinal frameworks for evaluating assertions of presidential power, and Chevron doctrine for judicial review of administrative action. There is reason to be skeptical of the judicial check on the presidency as a heroic force in American politics. The judiciary is part of the broader political system, and the courts have particularly strong ties to the presidency. The judicial check will matter more if the executive branch anticipates it and adjusts its behaviour accordingly. Theoretical and empirical investigation is further needed to elaborate whether and under what conditions the executive anticipates judicial action.
Patricia E. Salkin and Amy Lavine
This article describes the judiciary and judicial reform in New York. Reform has been ongoing, and in recent years the courts in New York have evolved into a unified system to manage better, among other things, the volume of cases, physical infrastructure, and human resources. The administrative board plays a mostly advisory role; many of the chief judge's responsibilities have in practice been delegated to the chief administrator. The court of appeals is responsible for appointing the state board of law examiners and establishing regulations for the admission of attorneys to practice law in the State of New York. The court of appeals has also become embroiled in nonfiscal issues that have major political dimensions and are arguably better resolved through the legislative process.