ICON: Editors’ Choice of Books 2020

As is now our custom, our Book Review Editor, Michaela Hailbronner, invited the I•CON Board members to reflect on the books that had a significant impact on them during the past year. Their contributions, posted on I•CONnect, were read with interest and curiosity. In the following pieces Marian Ahumada, Richard Albert, Tom Ginsburg, and Wojciech Sadurski write about the books they read or reread this past year and which they found inspiring, enjoyable, or even “must-reads” for their own work or public law scholarship in general.

Marian Ahumada’s choice

Reading Kelsen and Ely

An anniversary in round decades is the occasion, as good as any other, to return to two “modern classics” of constitutional literature: Hans Kelsen’s Vom Wesen und Wert der Demokratie (On the Essence and Value of Democracy) (1920) and John Hart Ely’s Democracy and Distrust (1980). So different in style, these books written in distant worlds—each at one extreme of the “short twentieth century”—stay in fascinating conversation. Both authors show significant coincidences in crucial aspects: the vision of democracy as a method, a procedure; the exploration of the superiority of the democratic principle based on representation; the insistence on distinguishing between majority principle and dominance of a majority—and, consequently, the need to preserve the majority-minority game and ease the change of majorities; the conviction that liberal democracy is the only system of government that manages disagreement on fundamentals in a workable acceptable manner without loss of freedom; the justification of a constitutional justice well adapted to democracy; the persuasion that judges do not have a natural gift for discovering fundamental values. Each of these books enriches the reading of the other allowing the reflection to continue with a radical change of perspective.

Of course, I do not intend to reduce or caricature the content of these books, conceived by their authors with a definite purpose, and which do not address the same subject. Both seek to persuade and convince and each has its own particular contradictor. Kelsen’s great little book is a vindication of representative, parliamentary democracy, which in 1920, in continental Europe, was at risk of succumbing under pressure from Soviet-inspired left parties and reactionary groups and social movements of a fascist nature in the convulsed period following the Great War. It is a defense of the state of parties against the dictatorship of a single party, left or right. Kelsen had been involved in the drafting of the first democratic Austrian Constitution and was a judge at the newly created Constitutional Court, but by the time he published the expanded and final edition of this book in 1929, the prospects could not have been less auspicious. In the last chapter of this essay, which contains the transcendental reflection on the value of democracy, the author links adherence to democracy with a philosophy of criticism and disbelief in absolute truths, as opposed to the metaphysical-absolutist conceptions that encourage autocratic attitude. Kelsen’s avowed contradictor is Carl Schmitt. Ely’s book offered a third theory for the foundation of judicial review—neither positivist nor ius-naturalist. In 1980, democracy was not questioned, although disenchantment was spread among those who had witnessed the rights movement decline far from having achieved the goals. If this is the challenge, Ely will explain, the solution comes not in the form of judicial activism. In a true democracy, it is the representatives, not an unelected judicial elite (not responsible, appointed for life), who are in charge for making decisions about substantive values. Not even the constitution is the place to set substantive values. The constitution entrenches the rules of the democratic process, without imposing the results of that process. The position of the courts as referees or arbiters guarding the fairness of the game was envisioned in the famous Carolene Products footnote 4,[1] and the Warren Court in the United States had conformed to that standard. In controversy with natural law scholars and positivists, realists and crits, Ely—who introduced himself as the “ultimate interpretivist”—chooses Bickel as his main dialectical opponent.

The fate and dissemination of these books has been uneven, but also at this point it seems to me that the communication between them is to have an effect in expanding their respective audiences. As with all true classics, surely both have been more cited than read. Essence and Value of Democracy may not be Kelsen’s most relevant book, but it occupies a unique place in his overall work and provides fundamental keys to understanding his writings on the design of constitutional jurisdiction. It has been the subject of multiple translations, many very early (for example, the first translation into Spanish is in the early 1930s) and yet its dissemination in the common law area has been limited (I have found only one complete translation of the book into English by Brian Graf in an edition prepared by Nadia Urbinati and Carlo Invernizzi Accetti, Rowman & Littlefield Publishers 2013). This situation contrasts with the case of Democracy and Distrust. The book was an instant success and launched a discussion that has not ceased to this day in the United States. The journey of the ideas in Ely’s book to other places is most curious and would deserve a more detailed examination. In Spain, an influential 1981 law review article on the mission of the just-born Spanish Constitutional Court refers in detail to Ely’s book with abundant citations. No doubt the book was recent, important and luminous, but what is striking is its reception as a canonical book—the theory which closes the debate on the interpretation of the Constitution, the role of judges, and the justification of judicial review in the United States. From today perspective, it seems to me that the rapid incorporation of Ely’s points of view to the standard justification for constitutional jurisdiction by many European scholars was not particularly reflexive but suited well. On the one hand, in Ely’s formulation the justification of the judicial review served perfectly well for the centralized system of constitutional review. On the other hand, Ely discarded any mystical or prophetic understandings of the work of constitutional judges interpreting the Constitution and, while criticizing judicial activism, presented as exemplary the jurisprudence of the Warren Court, precisely the idealized model for Constitutional Courts. Ely was insistent about the benefits of supervising the regularity of the legislative procedure and that was part of the job for Constitutional Courts. Ely’s argument that judicial review should contribute to the strengthening of democracy, was consistent with the very idea of establishing Constitutional Courts to safeguard new constitutional democracies. All in all, Ely appeared to be offering an updated more appealing version of old Kelsenian points about democracy and constitutional jurisdiction.  

Richard Albert’s choice

Among the many magnificent books published in the year 2020, I recommend three because of the fascinating perspectives they offer on written constitutions. I use the term “written constitutions” with some hesitation, since no constitution is ever fully written even if it is presented as a codified master text.[2] The term is useful, however, to highlight a question raised in each of the three books: does the writtenness of a constitution matter? Put another way, does writing down the rules of the constitution deepen democratic commitments, reinforce the rule of law, and give more bite to fundamental rights and freedoms?

In his excellent book on Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness (Edward Elgar 2020), Brian Christopher Jones asks whether written constitutions are essential for modern constitutional states. It is reasonable to believe the answer must be yes—that of course a constitutional state needs a written constitution—but Jones explains why the answer may well be no. He forces us to confront the dark side of written constitutions, which commonly feature lofty words that sometimes blind us to the harms of writtenness. For Jones, written constitutions raise the specter of constitutional idolatry, which he defines as “drastically or persistently over-selling the importance and effects of written constitutions” (at 5). Idolatry, he argues, devalues politics and the political process, privileges the founding generation over the people of the present moment, and risks obstructing needed constitutional reform. Jones centers his claims on a live question of current importance: should the United Kingdom codify its Constitution in a master text? His careful exposition reveals the dangers of constitutional codification. In the end, Jones succeeds in sewing doubt about whether the eighteenth-century innovation of a written constitution is an effective solution to our twenty-first-century problems.

But codification is precisely what Julie Suk suggests is needed today in the United States. In We the Women: The Unstoppable Mothers of the Equal Rights Amendment (Simon & Schuster 2020), Suk shines a light on an old constitutional amendment proposal that some believe has expired but that Suk suggests can be revived. Suk examines the origins of the Equal Rights Amendment (ERA)—which declares that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”[3] —and she chronicles the battle over its ratification. Suk moreover explains why the promise of gender equality in both law and society will remain unfilled without ratifying the ERA and codifying it right away in the Constitution as the Twenty-Eighth Amendment. This outstanding book was published fittingly on the centennial of the Nineteenth Amendment, which protects the right to vote without regard to sex. Its publication also coincided with the passing of Ruth Bader Ginsburg, a leading voice for the ERA.

Both Jones and Suk have strong intuitions about constitutional codification. Jones cautions against overestimating the returns from codification while Suk believes that passing the ERA—and writing it into the Constitution—would help advance the cause of gender equality. Both claims seem plausible, though it would be best to test each of them to somehow measure the effect of constitutional codification in the countries of the world. Here is where Adam Chilton and Mila Versteeg’s book on How Constitutional Rights Matter (2020) becomes quite helpful.

In How Constitutional Rights Matter, Chilton and Versteeg use multiple methods in empirical analysis to assess which kinds of rights matter when they are written into a constitution. Combining large-n statistical analysis, survey data, doctrinal analysis, comparative law, and historical inquiry with case studies on Colombia, Myanmar, Poland, Russia, Turkey, and Tunisia, Chilton and Versteeg explore whether certain constitutional rights have stronger bite when codified, and why. We learn, perhaps surprisingly, that group rights are more robust than individual rights. We might have predicted that speech rights would prevail, or even rights to individual equality. But, in the end, it is group rights that matter. Why? Because they create sites of collective action that make it possible to plan, coordinate, and exercise rights that are difficult to exercise alone—and difficult to deny when done in groups, namely rights for political parties, religious groups, and unions. Group rights, then, are the ones that matter, according to Chilton and Versteeg.

How Constitutional Rights Matter shows that writtenness does indeed matter, though not necessarily for all kinds of constitutional codification. For instance, Chilton and Versteeg do not venture answers to whether and why codification may lead to constitutional veneration. Nor do the authors tell us whether the United Kingdom should or should not codify a master-text constitution as a replacement for its traditionally “unwritten” Constitution. These questions are quite simply not the focus of the book. But the book does suggest that codifying a group rights amendment into a given constitution is more likely to be efficacious than inserting the individual rights ERA into the United States Constitution.

I recommend all three books with enthusiasm. They can be each read on their own, of course, as they focus on different subjects in constitutionalism and they stand on their own in the arguments each makes. But when read together these three books enhance our understanding of the promise and limits of constitutional codification.

Tom Ginsburg’s choice

Philip Cunliffe, The New Twenty Years Crisis, 1999–2019 (McGill Queens University Press, 2020) is a revisiting of E. H. Carr’s classic of international relations realism. Carr published his book, The Twenty Years Crisis (MacMillan, 1939), just as World War II was breaking out, and his book is fierce attack on what he described as naïve efforts to discipline power over the previous two decades. One of Carr’s central targets was the idea of a “harmony of interests,” that states could get along without conflict. He viewed the League of Nations as a utopian scheme to regulate international affairs, and also attacked the legalism of Sir Hersch Lauterpacht, whom he accused of suppressing the role of power in international society.

Cunliffe takes the framework several decades forward to the aftermath of the Cold War. As in the 1920s, there was a turn to another turn to international organization, with new institutions created and old ones deepened. Cunliffe argues that the makers of the post-Cold War world, like those after World War I, had too much faith in their own ideas, particularly the universality of liberalism. This led to overextension in both the economic and political spheres. The faith in an ever-expanding market drew attention away from fundamental issues of nation and demos. Cunliffe combines this analysis of the decline of liberalism with an entertaining polemic on critical international relations theory. He accuses the critics as having something of a codependent relationship with the European project, needing it as an enemy even while it crumbles.

Cunliffe’s analysis is helpful for thinking about the “post-liberal order” that is now widely acknowledged, though its shape not yet affirmatively defined. His framework helps us to understand how we got here, not simply as the result of rising authoritarianism, but also of liberal over-reach. While Cunliffe addresses law only in passing, some aspects of our own faith in legalism are well illuminated. The failure of the International Criminal Court seems foreordained from this perspective; the crisis of the European Union does as well. 

Yet for all its pessimism, there seems to me something missing from Cunliffe’s account. The failed efforts of the interwar period had an afterlife, as many of the institutions set up after World War II built on their predecessors. As Oona Hathaway and Scott Shapiro argued in their 2017 book The Internationalists, even the widely excoriated Kellogg–Briand Treaty had some influence in the realm of ideas. The taste for international organization expanded after World War II, and did so even more steeply in the 1990s. This means that today’s international relations take place on a field of institutions, from the Association of Southeast Asian Nations (ASEAN) to the Economic Community of West African States to the United Nations, to the dozens of international tribunals that populate the landscape. Many of these bodies are easy to criticize. But they do shape and channel state behavior, and provide the playing field on which states interact.

Liberalism is beset by enemies from all sides. But it is important on occasion to remember what is at stake. Varlam Shalamov’s Kolyma Stories (translated by Donald Rayfield, NYRB Press 2018 [1981]) is a set of tales from the Siberian Gulag. The author was a low level Trotskyite, sentenced in 1937 to manual labor in the Kolyma region, where he stayed until Stalin’s death in 1953. His stories of the Gulag were distributed informally within the Soviet Union, where they could not be legally published until 1987; but they were smuggled abroad and published in the West in 1966. Solzhenitsyn credits them in the Gulag Archipelago.

The writing alone makes these stories worth reading. While describing inhuman conditions, Shalamov conveys a deep observation of nature in sparse, clear language, with stunning final sentences like a haiku. One is amazed not only at the author’s ability to survive, but to retain acute powers of observation. But the Gulag also tells us something about law. Shalamov completed his first five-year sentence and was promptly sentenced again under the notorious Article 58, which criminalized “counter-revolutionary activities.” These included any activity aimed at “at the undermining or weakening of the external security of the USSR and main economic, political and national achievements of the proletarian revolution.” 

We are again witnessing the emergence of vague laws of similar character, in China and elsewhere. Forty men remain in detention in Guantanamo Bay detention center, which will celebrate its twentieth anniversary next year, with no prospect of closure. If the liberal order means fighting to end such things, then count me in.

Wojciech Sadurski’s choice

Karl Schlögel, Moscow, 1937 (Rodney Livingstone trans., Polity Press, 2012), orig. Terror und Traum. Moskau 1937 (Carl Hanser Verlag, 2008).

I read this book first soon after its appearance in English in 2012, but COVID prompted me to read it again. This time, with all the time in the world on my hands, I read the 600-page volume slowly and carefully. Not with pleasure of course, but with unadulterated horror. It is an extremely well-documented, beautifully told story of a town in one year. But the town is Moscow and the year is 1937. The apex of Stalin’s mad, all-encompassing, unforgiving terror.

The story begins with two artistic visions of the city. The first one is from Mikhail Bulgakov’s masterpiece Master and Margarita (completed in October 1937), and takes the form of Margarita’s flight (courtesy of the magician Woland), from which we can see Moscow’s domes, shops, squares and even the Writers’ Union headquarters. It is a picture of melancholy, sadness, and love for the world as it disappears.

The second vision conjured up by Karl Schlögel (Professor of History at the European University Viadrina in Frankfurt an der Oder) is that painted in the now all but forgotten film by Aleksandr Medvedkin: “New Moscow.” The film is clearly a propaganda-oriented work (not good enough for Stalin, though, and withdrawn from circulation immediately), but still has, cinematographically, moments of great beauty bearing traces of Sergei Eisenstein’s films. (As a matter of fact, one can view the entire film on YouTube, so it is not all that forgotten, after all.[4]) It is the story of a starry-eyed young engineer Alyosha who arrives in Moscow from the provinces to contribute to the modernization of the capital. The film applauds what Bulgakov mourned, and in its most striking scene we see the lovely old bourgeois buildings vanishing in a few seconds to be replaced by distinctly Stalinist, monumental skyscrapers. These two visions—Bulgakov’s and Medvedkin’s—map out the topography of terror.

The story in Moscow 1937 is punctuated by successive and unspeakable show trials and plenary meetings of the party. Party deliberations have a unique rule: whoever loses in the discussion, dies. (Of course, the identities of the casualties had been long determined by Stalin in advance.) And yet, it was a city which lived. There were construction sites, theatres, international conferences, and even a good jazz orchestra run by Leonid Utesov which appeared in the unlikely place of the Variety Theatre of the Central House of the Red Army. Still, terror is everywhere. When the senseless, cruel construction of Moscow-Volga canal ends (causing over 22,000 deaths of slave laborers along the way), we learn that when the canal was opened on July 15, 1937, several construction project bosses had been forced off the boat, arrested, and later executed. And when the results of the national census of January 1937 showed that the population of the USSR was 8 million fewer than the official population numbers (the missing millions as a result of famine, disease and killings, with particularly alarming child mortality statistics), all of the census leaders were executed. The census results were only made public half a century later. One would like to conclude that the book is a testimony to urban resilience, human courage and hope, but it is not. It is a story of madness and senseless cruelty.

Adam Przeworski, Crises of Democracy (Cambridge University Press 2019)

This book by Adam Przeworski, Professor of Political Science at New York University, is one of (at least) a dozen books with the word “crisis” (or “crises”), “twilight,” “end,” “decline,” “death,” etc. in conjunction with “democracy” in their titles that have appeared over the last few years. And it is, to me, certainly one of the best. Przeworski is no political philosopher, and resolutely so. He is an empirical social scientist with an eye for numbers, facts, and provable causal relationships, and distaste for speculation, prediction and opinionated judgments. His narrative is crisp and even dry, but this is what makes the book so compelling. Democracy, Przeworski tells us sternly “is but a speck of human history, recent and still rare” (at 16). And his numbers are striking. Did you know that between 1788 and 2008, political power changed hands in 544 cases as a result of elections, but in 577 cases as a result of coups (id.)? Or that only 20% of elections have resulted in the defeat of incumbents (id.)? And that, as of today, sixty-eight countries of the world have never seen a change in office between parties as the result of an election (id.)? A reader will recognize, of course, the signature Przeworski concept of democracy as a system in which incumbents may lose elections.

Przeworski describes what many of us in the industry of “How democracy dies” already know: that the threat to democracy these days comes mainly from democratically-elected leaders who seek “to protect their tenure in office and to remove obstacles to their discretion in choosing policies by undermining institutions and disabling all opposition” (at 172). But, in contrast to almost any other book in the genre, he is careful not to add an optimistic gloss to it. “I am moderately pessimistic about the future”—he says in the last paragraph of the book (at 206). And the main source of this “moderate pessimism” is spelled out earlier in the book: “either many people do not care at all about democracy or . . . they do not see the long-term consequences for democracy when they vote . . .” (at 188). No happy takeaway from the book, except that perhaps it is mainly the latter hypothesis rather than the former. In which case, not all is lost for democracy, and the banal truth is that we (liberal democrats) must educate more about the “long-term consequences” of votes for populists.

Olga Tokarczuk, Flights (Jennifer Croft trans., Riverhead Books 2018. Orig. Bieguni (Wydawnictwo Literackie, 2019).

A confession: when the 2018 Nobel Prize in Literature was conferred upon Polish writer Olga Tokarczuk in 2019, I could only boast knowledge of one of her many books and, at the time I had read it, I was non-enthusiastic. So I quickly read her most recent pre-Nobel novel Bieguni (translated into English as “Flights” which is as good, or as bad, as a title can be, because the Polish title is untranslatable for the simple reason that the word is Tokarczuk’s own invention to name a fictional wandering sect). The experience of reading it is exhilarating. It is a patchwork of pieces and fragments on different subjects, some belonging to different genres (a travelogue, a holiday thriller, a scientific essay on bodily parts, a mini-treatise on psychology, an author’s diary), some of which see their follow-ups further into the book, while others are gone forever, disappearing as an unfinished sentence.

In this sense, it is a truly post-modern novel (if this mosaic really is a novel), without any single linear plot or narrative, continuity, or unity of time and place. This disaggregation of form corresponds to Tokarczuk’s idea of the world without God, transcendence, redemption, or any satisfactory closure. There are only fragments, and we are fragments too. But consistency of sorts there is, conferred by the theme of death and departure (hence: travel). The French have a nice if gloomy saying (which does not figure in the book): “Partir, c’est mourir un peu.” And if one really needs a unifying theme for these fragments then it is this quote from poet Edmond Haraucourt. Tokarczuk takes us places: to Prague of the seventeenth century, to nineteenth-century Paris, and to other worlds that are gone forever. But in the end, the climax is a long, deliberately mannerist account of the death of a classical Greek scholar after suffering a fall onboard a tourist boat (no, no spoiler alert is needed here).

That tale might stay with you even longer than the story (the longest in the book, highlighted for its centrality by the book’s eponymous title) of a young woman in today’s Moscow who enters Moscow’s underground, both topographically speaking and socially. Now the woman’s name is Annushka. It happens to be the same name as the woman’s in Master and Margarita who is indirectly responsible for the death, right at the beginning of Bulgakov’s novel, of the literary bureaucrat Mikhail Berlioz. “Annushka has already bought the sunflower oil, and has not only bought it, but has already spilled it, and so the meeting will not take place”[5]—announces Woland. It is on that spilled oil that the hapless Berlioz slips and is then run over by a streetcar. In this way, through the figure of “Annushka,” the third book on my list connects with the first one, though neither Karl Schlögel mentions Annushka, nor does Olga Tokarczuk refer to Bulgakov’s novel. “Annushka has spilled the oil”—a saying meant to describe momentous consequences of completely contingent facts—was one of the slogans adopted by women protesting in mass demonstrations in Poland after the government moved to further restrict access to legal abortion through an unlawful “judgment” handed down by an improperly composed “Constitutional Tribunal” in October 2020. In the language of constitutional scholarship familiar to readers of this journal: politicians better be careful when they want to use courts to do their dirty work (playing the “blame game”). Democratic public opinion might call their bluff.

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[1] United States v. Carolene Products Co.,304 U.S. 144 (1938).

[2] See John Gardner, Can There Be a Written Constitution?, in 1 Oxford Studies in Philosophy of Law 162 (Leslie Green & Brian Leiter eds., 2011).

[3] H.J. Res. 208, Proposing an Amendment to the Constitution of the U.S., 92nd Cong. (1972).

[4] See The New Moscow (Aleksandr Medvedkin & Aleksandr Olenin dir., Mosfilm 1938), available at www.youtube.com/watch?v=pHQH0KQuyvA (last visited Dec. 22, 2020).

[5] Mikhail Bulgakov, The Master and Margarita 12 (Richard Pevear and Larissa Volokhonsky trans., Penguin 2016).