Book Review

Canada and the United States

Texas Supreme Court Historical Society board meetings spark when veteran justices recall "unintended consequences" stemming from the unsystematic 390-plus amendments to the state's creaky Reconstruction-era constitution. Twice older but amended only twenty-seven times, the U. S. Constitution has inspired far more scholarship than states' analogs. Nevertheless, when introducing this important volume, editor-contributor David E. Kyvig notes correctly that it "offers the first focused and extended consideration of the unintended consequences of [national] constitutional amendment" (p. 5). An intended consequence of able scholarship and firm editing, essays in this coherent compendium complement others, an uncommon feature of such efforts. The commendable result offers teachers, students, and researchers ideas to use and analyses to exploit.	1
Of ideas, Richard Hamm worries if the "focus on unintended consequences of amendments is to begin to walk down the perilous path of originalism" (p. 165). Similarly concerned, Suzanne Marilley asks, challengingly, whose intentions should measure the unintended consequences of an amendment? She asserts also that "The concept of 'unintended consequences' is itself politically charged and . . . as developed . . . by neoconservatives, encourages negative judgments about liberal reforms, particularly the reforms that have aimed to make the American polity more inclusive" (pp. 204–205). Other contributors opted not to question the unintended consequences theme. All these richly detailed and engagingly emphatic essays build reasonably context-sensitive interpretations from diligently assembled ascertainable facts. For example, Kyvig states correctly that the Constitution's framers incorporated calendared elections and amendments, both risky for a shaky, state-centered infant nation, because since 1775 Americans had already "engaged in a great continuous experiment in constitution making" (p. 15). Continuing experiments, amendments since 1865 reflected sometimes temporary but always deep shifts in race, gender, and political moralities. Some amendments, Kyvig suggests, inspired both compliances and evasions, a theme stressed in several complementary essays, and the accreted compliances and evasions ultimately confounded Carter-Clinton efforts to preserve the New Deal's "third American constitutional revolution . . . [because it] was built on far less secure foundations than the first in 1787 or the second after the Civil War" (p. 39).	2
Enriching criminal law history, David Bodenhamer agrees that "The newness of their enterprise took the framers beyond history in specifying the protections required by liberty" (p. 48). But the states' seemingly insurmountable primacy in criminal law matters kept Bill of Rights protections virtually irrelevant, especially for minorities. Reconstruction's amendments and implementations diminished this irrelevance only temporarily, as emphasized also in companion essays. For far too long, in practice neither federal nor state bills of rights protected individuals against localities' unreasonable searches, double jeopardy prosecutions, or self-incriminating practices, much less against statutory and customary bigotries. Surveying case law, Bodenhamer finds the most troubling consequence, possibly unintended, of the present Supremes' skewed views on history and federalism to be "the suggestion that the goal of criminal justice, indeed its sole standard, is convicting the guilty. This attitude makes rights of the accused subject to experimentation, dependent on the will of a popular majority. But rights are fundamental" (p. 69).	. . .