REVIEWS

DOIhttp://doi.org/10.1111/j.1468-2230.1948.tb00097.x
Publication Date01 Jul 1948
R
E
V
I
E
‘W
S
FEDERAL PROTECTION
OF
CIVIL
RIOHTS-QUEST
FOR
A
SWORD. By
ROBERT
K.
CARR.
[Cornell University
Press,
Ithaca, New
York.
1947.
England
:
GEOFFREY CUMBERLEQE,
at
the
Oxford
University Press. xii
and
284
pp.
16s.
net.]
IN
1939
a
Civil Liberties Unit was set up in the United States Department
of Justice for the purpose of providing machinery for the positive enforcement
of dvil liberties, or, as the Federal Attorney-Qeneral put it, ‘the aggressive
protection of fundaniental rights by the pursuit of
a
programme of vigilant
actlon in the prosecution of infringement of these rights’. The purpose
of
this
book
is
to
give some account of the working of this section.
The idea of such
n
positive approach to the problem of preserving civII
liberties must seem
a
welcome innovation to all who regard this branch
of
the
law
BB
of fundamental importance, and they will take up Professor Carr’s book
with eager anticipation. Alas, after an encouraging introduction the narrative
tends
to
fade away into
a
mass
of
padding. The truth seems
to
be that
the
jurisprudence on this. branch of the activity of the Federal Department of
Justice has not yet been developed sufficiently to provide material for such
a
substantial volume
I
as Professor Carr himself admits,
the number of criminal
prosecutions the Civil Rights section has been responsible for since its creation
in
1989
Is
phenomenally low
’.
The conception of civil liberties among American lawyers is distinctly wider
than
that
which prevails in this country, extending particularly to justice
enforcementi the protection
of
citizens in the exercise of their political rights
over
a
wide field, as in connection with the control of primaries in Presidential
clectionsi the prevention of racial discrimination and like matters. Moreover,
as Professor Carr says, government was the enemy of freedom
’,
and since in
America there are numerous States each with its apparatus
of
government and
wlth numerous omcials, often recruited under the spoils system, it is obvious
that there
Is
a
wide fleld for possible Federal control for the enforcement of
clvll liberties. These problems have, in fact been very much more often before
Federal Courts in America
of
recent generations than they have in this country,
and
the prima facie need for an ‘aggressive’ policy of enforcement,
for
the
provision of
a
sword
I,
so
to speak, as opposed to
n
shield
’,
seems to be made
out. Since
so
many of the lines along which these difRculties occur in the
United States are not found in Ehgland, it seems very questionable whether
any useful purpose would be served by the setting up of similar machinery
here.
The Federal Courts, however, can only exercise jurisdiction by virtue
of
statutory enactment within the limits of the .constitution, and this has proved
exceedingly limiting from the point of view of the Civil Rights section
I
a
couple
of
sections in the Civil Rights Act relating to conspiracies, and to wrongful
deprivation
of
rights, and the Peonage Abolition Act, are all that is available
to
found Jurisdiction.
The
appeals which have been brought before the Supreme Court have found
the members of that august tribunal very much In two minds as to the correct
policy
to adopt, and the study of the reactions of the different justices who
have passed upon these cases
is
perhaps the most interesting aspect of this
book.
The court has, during the period under review, been, on the whole,
liberally constituted, but it has shown itself very reluctant
to
entertain pro-
ceedings for the purpose of enforcing the above enactments. Moreover, almost
all
the judges who have passed upon these cases seem to have changed their
minds
from one case to another.
852
JULY
1948
REVIEWS
858
Thls attitude,
If
unfortunate,
Is
not altogether to be wondered at. Almost
all these judges are men who would naturally have
a
civil 1IberUes biaa,
and most of the few cases have been of the type which arouse strong feellnga.
Nevertheless the enactments to be applied are vaguely worded and date from
the period after the
civil
war, when
a
good deal of Federnl legislation
was
passed which
Is
now suspect. It
la
not surprising that the justice8 should
be
reluctant to bulld up a jurlsprudence directed agalnst State rights
upon
such
a
slender foundatlon.
Professor Carr thinks that
If
the C.R.S.
Is
to prove
a
success it must have
a
much firmer platform for actlon. Thls could be provlded by constitutional
amendment, but such
Is
obvlously not llkely to be forthcoming, and he Invites
the Sipreme Court to supply
It
by judicial interpretatlon. New and compre-
hensive civil liberty legislation would obvlously be of asslstance to the
court,
and Professor Carr calls for It strongly.
Thls volume
Is
the second of
a
serles of
Cornell
Studier
in
Ciml
Liberty.
It
Is
good to see that this unlverslty, whlch has been
B
centre
of
the Civil
Llbertles Movement
In
recent years,
Is
continuing
Its
good work.
C.
TBE
CIVIL
SERVICE
IN
THE
CHANGINO
STATE.
By
H.
R.
G.
GREAVEB.
[London: Harrap
&
Co.,
Ltd.
240
pp.
(with index).
10s.
6d.I
MB. GBEAVES has wrltten an Important book, and one whlch should be pondered
by
a
much wlder public than the students of the machinery of government to
whom
It
Is
primarily addreseedt among these not least by lawyers. The
changing role of the civil servant In modern England has often been
commented upon both with prnlse and blame, and the importance of
the
development has been universally acknowledged, yet
no
one has,
until
Mr.
Greaves, sat down to make the full-dress study whlch the sltuatlon
so
obvlously
demanded. He has accomplished his task wlth knowledge and with judgment,
and his work
Is
likely to command attention for many years.
What
Mr.
Greaves
Is
concerned with
Is
the role
of
the
civil
service in
the planned economy of the modem State, uslng the word economy In a wide
sense. The State
Is
provldlng, and
Is
going
to
provide still more In the
future,
a wide range of services for the public. Equally
on
the more purely economlc
side
It
Is
going to superintend and control production and dlstribution
a
great deal more than has been the case since Tudor times.
It
Is
even, through
public service corporations, golng to assume re8ponslblllty lndlrectly for much
of
the actual production. Since the State functions through the civil servlce
this means that that smvlce hne expanded and
Is
expanding rapldly and
Is
confronted with
tasks
and problems of a quite novel character.
Those facts obviously raise another set of problems concerned with recruit-
ment, tralning, and especlally with the control of departmental pollcy and
functiodng, whlch are not only Intricate and Intractable In themsdvee, but the
successful solution of which
Is
vital to the life and well-being of the people.
Too much thought can hardly be given to such matters, and
It
Is
to
be hoped
that this book will stlmulate an Intense dlscusslon both lnslde and outslde the
civil service.
Mr.
Greaves' opening chnpters are concerned wlth the servlce
as
It
exists
today. In order to assess
Its
present abilities and potentinlltiea he Investigates
the social situation whlch
It
was
built up to handle, and how the building up
was successfully carried oht on the advlce of
Slr
Stafford Northcote and Sir
Charles Trevelyan. The fundamental of their reform was to substitute an
absolutely Impartial method of recruitment for the old system of patronage.
One
of
the inajar practical Issues ruised
In
this book
Is
that of recruitment
for
the
public service corporation which at present
goes
too
much
by favour,
VOL.
11
28

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