BOOK REVIEW : Law in the U.S.: Promises to Keep

Belonging to America: Equal Citizenship and the Constitution by Kenneth L. Karst (Yale University Press: $29.95, 329 pages)

For one nightmarish semester in law school, due to a glitch in scheduling, my constitutional law class met on Tuesday evenings between 10 and 11 p.m. At that hour, the elegant intellectual constructs of constitutional law tend to come across as Alice-in-Wonderland gibberish. Even our stolid and unsmiling professor was inspired by one musty old case regarding a Virginia railroad to break the tedium by telling a dirty joke with the punch line: “Norfolk, Norfolk, Norfolk.”

The genius of Kenneth L. Karst, a constitutional law professor at UCLA, is his ability to bring the same elegant intellectual constructs down to earth, to make sense of the metaphysics of constitutional law, and to make the stick figures of Supreme Court cases come fully and passionately alive.

At the heart of his new book, “Belonging to America,” is the insistent idea that the lofty but abstract concept of equality can be understood as the visceral yearning of a human being to “belong.” And he uses the concept of “belonging” as a benchmark to measure the successes and failures of the courts and the Constitution in addressing the problems of race, poverty, and discrimination in American life.

“Belonging is a basic human need. . . . (T)he very conception of the self is bound up with the idea of a social group,” Karst writes. “Our courts have played a crucial role in expanding the circle of belonging, as they translate the Fourteenth Amendment’s guarantee of equal citizenship into substantive reality. . . .”

To help us understand the real impact of “the ideology of equality,” Karst surveys the history of constitutional law in America, from the Dred Scott decision (“explicit racism at the highest level of American law and government”) to Brown vs. Board of Education (“an exercise in imagination”), from the Alien and Sedition Acts of 1798 to the current controversies over abortion and affirmative action, and much else besides.

For example, Karst draws on anthropology, psychology and the other social sciences to demonstrate the sources and workings of constitutional law. He gracefully alludes to Walt Whitman and Erik Erikson, Amos ‘n’ Andy and Duke Ellington, to place his philosophical and theoretical writings in a recognizable context. Above all--and this is what makes “Belonging to America” such an exceptional book--Karst is able to make us understand what is truly at stake for the man or woman whose name appears in the caption of a case before the Supreme Court.

“Jim Crow was not just a collection of legal disabilities,” he writes by way of explanation of a century of segregation cases. “It was an officially organized degradation ceremony, repeated day after day in a hundred ways, in the life of every black person within the system’s reach.”

Karst confronts the moral and intellectual hypocrisy of jurists who failed to give any real meaning to the “explicit promise of equality” that is enshrined in the Constitution and especially the 14th Amendment. The law “looked in two directions,” Karst writes; the letter of the law embraced “the rhetoric of equality” while the application of the law failed to reach slavery, discrimination against racial and religious minorities, and “the virtual exclusion of women from public life.”

Karst is willing to criticize the more recent generations of Supreme Court jurists for similar failings. Typically--and significantly--Karst insists on characterizing many of these failings as flaws in imagination and intuition rather than legal reasoning, a refusal by jurists to confront the human repercussions of their law-making.

Karst bemoans a 1984 decision that permits Nativity scenes in city-sponsored Christmas displays, and he wonders out loud how the case would have turned out “if just one of the Justices had been Jewish.” And he characterizes another recent Supreme Court decision, which upheld the enforcement of a state law against sodomy, as “a failure in empathy.”

Like every true critic, Karst is not-so-secretly smitten by the very institution that he criticizes, and when he complains about what he regards as a particularly egregious defect in a Supreme Court holding, it is because he is genuinely disappointed that the jurists of the high court did not do better. He stubbornly insists that the ritualized warfare in our courts is a tool for social progress, and an opportunity for the individual to assert himself in the face of the worst evils of our society.

“The very act of filing a lawsuit implicitly affirms that the plaintiffs and defendants share membership in a community,” he writes. “What could be more American than bringing a lawsuit against a school board to vindicate your child’s right to equal educational opportunity?”

“Belonging to America” has all the trappings of a legal treatise, and nearly one-third of the book is devoted to annotations, appendixes, tables and indexes. Indeed, Karst’s book promises to be one of those seminal works that influence the judiciary and shape the making of law.

For all that, the book is remarkably accessible and even inspiring--Karst is a man with an open mind, a warm heart, and a lively, provocative style. He has something important to say about the role of law in American civilization, and he says it especially well.