Vol. 15 No.8 (August 2005), p.647
Editor’s Note
It has been 13 years since THE LAW AND POLITICS BOOK REVIEW undertook an assessment of constitutional law case books. Thanks to Sue Davis (University of Delaware) and Cornell Clayton (Washington State University), who commissioned reviews and edited this special issue, we are able to do this once again. This was a major undertaking, and Sue and Cornell did a superb job of it. In addition, as he did in 1992, Jerry Goldman (Northwestern University) has analyzed the content and coverage of a range of textbooks and placed them into a comparative perspective. Thanks to Jerry and his team of students for their effort. You will find the analysis to be quite interesting. Finally, special thanks go to our 15 reviewers, whose reviews represent a most valuable resource to our larger community.
Go to Constitutional Law Case Book Reviews (August, 2005 Special Edition)
INTRODUCTION
Cornell Clayton, Department of Political Science, Washington State University
Sue Davis, Department of Political Science, University of Delaware
With this special issue of the LAW AND POLITICS BOOK REVIEW we offer reviews of selected constitutional law casebooks. This is the second set of such reviews to be presented by the LPBR. In November 1992, Susan Gluck Mezey edited a special issue that included thirteen casebooks (http://www.bsos.umd.edu/gvpt/lpbr/). In that issue, Jerry Goldman also provided an analysis of those thirteen books in his essay, “Is There a Canon of Constitutional Law?”
The 1992 casebook review issue provided teachers of constitutional law with valuable information and insights for selecting textbooks and offered members of the Law and Courts Section the opportunity to reconsider the methods and approaches we use in teaching our courses. This issue provides reviews of the most recently published (and recently updated) casebooks as well as a new essay by Jerry Goldman in which he revisits the issue of whether a “canon” of cases exists. We hope that this special issue of LPBR will be as useful as its predecessor and that it will encourage all of us to revisit the issue of what it means to teach constitutional law within the framework of a political science undergraduate curriculum.
Because there are more constitutional law casebooks available in 2005 than there were in 1992 we needed to be selective in choosing which books to include. One criticism of the earlier special issue was that it included casebooks designed for law students rather than limit itself to those intended for undergraduate courses in political science. Four of the thirteen books included in the 1992 issue were written by law professors and intended for law school audiences. We realize that many political scientists use these books in their undergraduate courses. Nevertheless, it is important to recognize [*647ii] that such texts, written for a different audience, have different goals, and employ distinct pedagogical methods. Consequently, we did not include law school casebooks in our set of reviews. Aside from that omission, we have included all the casebooks that were reviewed in 1992 that remain in publication--some of which are in their 8th or 9th editions. We have also included several more recently published texts, such as Gregg Ivers’ AMERICAN CONSTITUTIONAL LAW and Richard Randall’s AMERICAN CONSTITUTIONAL DEVELOPMENT. To assist us further in the selection process, we solicited suggestions from the Law and Courts listserv and received a large number of suggestions. We have included some of the texts that were the most widely recommended.
The fifteen books reviewed here vary significantly in length, ranging from 389 pages (Ides and May, CONSTITUTIONAL LAW: EXAMPLES AND EXPLANATIONS) to 2667 pages (O’Brien, CONSTITUTIONAL LAW AND POLITICS, 2 volumes). As Jerry Goldman points out in his essay they also vary greatly in terms of the number of cases they include, ranging from 116 (Murphy, et. al.) to 266 (O’Brien). An important difference, which Goldman explores, lies in the authors’ selection of cases. Indeed, he reaches several intriguing conclusions in his comparison of the books. He found, for example, that both the total inventory of cases and the number of canonical cases, or cases included in at least 10 of the 13 books he examined, has grown. In 1992 only 12 cases out of a total 541 inventory cases were included in all 10 books. In his latest analysis Goldman identified 28 canonical cases out of a total of 578. Another interesting finding is that although a growing number of case books include non-SCOTUS materials, such as sections of the Judiciary Act of 1789, there were no commonly held non-SCOTUS materials among the casebooks. The casebooks reviewed here, by and large, continue to focus on decisions of the Supreme Court. A final, fascinating finding in Goldman’s study is that, while the number of canonical cases has more than doubled since 1992, editing decisions may be even more important than case selection. He finds that authors make very different choices about how much and which parts of a case to include. Thus, even though every undergraduate casebook reviewed here included MARBURY v. MADISON and ROE v. WADE, what the students learn from these cases varies substantially depending on which casebook they read.
Despite the variations in case selection and editing, the reviews reveal a number of similarities in the casebooks. For example, topics and overall structure are generally quite similar. Most of the casebooks continue to be divided into civil liberties and non-civil liberties material, with varying amounts of space devoted to individual topics or doctrinal areas such as freedom of expression, economic due process, and state sovereignty. Additionally, most continue to focus almost exclusively on SCOTUS materials, and most rely on the traditional case law-doctrinal approach, although there is a trend toward including supplemental material such as judicial memos or selections from important federal statutes. Another trend that was noted in 1992 was the decision [647iii] by the authors and publishers to divide the material into two separate volumes, one for civil liberties/civil rights and another for powers of government. This approach has become even more prominent. Ten of the fourteen full-length casebooks reviewed here are available in separate volumes.
The fact that the basic structure and content of undergraduate constitutional law texts remains relatively traditional in approach and focuses on decisions of the Supreme Court raises an important question about how we think about and teach the American Constitution in the undergraduate curriculum. While many of us supplement these casebooks with secondary texts and other materials, these texts continue to serve as the foundation for most undergraduate courses on the Constitution. By relying so heavily upon the case method and doctrinal analysis that is used in law schools, they may exclude, or at least neglect other ways of understanding how the Constitution operates in the American political system. Indeed, the incoming Chair of the Law and Courts Section recently bemoaned the fact that political scientists have failed to find more imaginative ways to integrate our kinds of scholarship – whether it is behavioral, rational choice, or historical-interpretive research – into our teaching:
Remarkably, at a time when more academic lawyers play “little political science professor” in their scholarship, many political scientists continue playing “little law professor” when teaching basic undergraduate courses on constitutionalism. The new constitutional scholarship in public law has not made substantial inroads into the undergraduate syllabus” (Graber 2005, 135).
Thus, we hope that this second special issue of the LPBR will serve as an impetus for all of us to contemplate the methods we use for teaching about the American Constitution and the powers of the judiciary within the political science undergraduate curriculum. Of course, decisions of the Supreme Court and the doctrine that has emerged from pronouncements of the justices over the years comprise a major part of what students should be learning. Nevertheless, political science has certainly taught us that there is much more about the American constitutional system that deserves extensive treatment in the undergraduate curriculum.
In conclusion, we wish to thank everyone who participated in the work that culminated in this special issue. Our contributors simplified the task of editing with their timely, conscientious, and thorough work. We hope that our combined efforts will be useful both in choosing textbooks and in encouraging those who teach constitutional law to think carefully about how we might most effectively teach this important subject.
REFERENCES:
Graber, Mark A. 2005. “Review Essay: Constitutionalism in Political Science: Imaginative Scholarship, Unimaginative Teaching.” 3 PERSPECTIVES ON POLITICS 135-48.
CASE REFERENCES:
MARBURY v. MADISON, 3 Cranch (5 U.S.) 137 (1803).
ROE v. WADE, 410 U.S. 113 (1973).