Vol. 2 No. 10 (October, 1992) pp. 138-139
CIVIL LIBERTIES AND THE CONSTITUTION, 6th Ed. by Lucius J. Barker
and Twiley W. Barker, Jr. Englewood Cliffs, N.J.: Prentice Hall
1990. 689 pp. Paper $51.00.
Reviewed by Lawrence Baum, Department of Political Science, Ohio
State University
Teachers of constitutional law courses today are served well by
an array of good casebooks that take a variety of approaches.
Lucius Barker and Twiley Barker have written the successive
editions of CIVIL LIBERTIES AND THE CONSTITUTION with a clear and
consistent approach, one of emphasizing the broader political and
social context of civil liberties law. With this approach, their
book is not aimed primarily at courses that give a strong
emphasis to legal analysis of civil liberties decisions. Rather,
it fits best in a course whose instructor gives substantial
attention to constitutional politics as well as constitutional
law.
Like most other constitutional law books for political science
courses, CIVIL LIBERTIES AND THE CONSTITUTION is written at an
appropriate level for upper-division students. It could be used
in courses ranging in length from one quarter to two semesters.
Depending on their course formats and use of additional readings,
instructors in shorter courses may wish to exclude some text
material and cases.
The book begins with an introductory chapter, followed by a
series of chapters with text material and case excerpts in the
various areas of civil liberties. By chapter, civil liberties law
is divided into six areas: religious liberty; freedom of
expression, assembly and association; the rights of the accused;
racial discrimination; political participation (chiefly
legislative apportionment and racial discrimination in the
electoral process); and sex, privacy, and property.
The introductory chapter deals primarily with the political and
social context of civil liberties law, including the roles of
interest groups and of the other branches of government in
constitutional politics. The text material in later chapters
focuses chiefly on cases and legal issues, and the book assuredly
is a text on the LAW of civil liberties. But the authors
frequently refer to the politics that shape the Supreme Court's
decisions and to the impact of those decisions. For instance,
they give some emphasis to the effect of changes in the Court's
personnel on its doctrinal positions. Readers gain a clear sense
of the larger context of constitutional law that Barker and
Barker seek to emphasize.
Within chapters, the text and cases cover the great majority of
issue areas to which the Supreme Court has given substantial
attention. There are a few areas covered in some courses that the
book does not treat as separate topics. In equal protection, for
instance, the authors focus on race, gender, and economic status;
the text does not have sections on other distinctions such as
that between citizens and non-citizens. To take another example,
conflicts between national security and freedom of expression are
discussed chiefly in the context of First Amendment doctrines,
and there is no section devoted specifically to the national
security topic.
Discussions of individual issue areas address a wide range of
specific issues within them. But the text material does not offer
a comprehensive treatise on the areas that it covers; rather, it
provides a picture of how the law has developed on the most
important issues in each area, especially those that have been
prominent in the Supreme Court's decisions. For instance, the
section on the 4th Amendment focuses on the exclusionary rule and
on warrantless searches rather than describing all the general
principles for interpretation of the 4th Amendment. (Wiretapping
also is discussed, in the context of privacy.) In this respect
the book follows what is probably the majority practice in
constitutional law texts for political science courses. One
advantage of this approach is that it helps to protect students
from becoming overwhelmed with the array of legal issues and
decisions in each area.
The book goes beyond constitutional issues to examine some
statutory questions concerning discrimination. Among the cases
Page 139 follows:
included are some dealing with affirmative action programs under
federal statutes, WARDS COVE V. ATONIO (1989) on "disparate
impact" under Title VII, and GROVE CITY COLLEGE V. BELL
(1984) on the scope of coverage of Title IX. Instructors easily
could omit such cases and the associated text material if they
wish. But I think that the book's inclusion of statutory issues
is a good feature, because it helps students to understand the
importance of both constitutional and statutory provisions in
defining rights as well as the interrelationship between them.
The text material is very well written: it is both clear and
interesting, and as a result it communicates effectively with
students. This, of course, is a major virtue of the book. On the
whole, material also is organized well within chapters. The
number of excerpted cases in each area is within the standard
range for political science casebooks, though probably smaller
than average. To take some examples, there are fourteen cases in
the freedom of expression chapter, thirteen on the rights of the
accused, and thirteen on racial discrimination.
The authors provide a mix of major decisions from earlier eras
and decisions that present the Court's current and recent
positions on important issues. On capital punishment, the book
includes GREGG V. GEORGIA (1976) along with STANFORD V. KENTUCKY
(1989) on execution of juveniles and McCLESKEY V. KEMP (1987) on
racial discrimination; on search and seizure, it includes MAPP V.
OHIO (1961), U.S. V. LEON (1984) (the "good faith"
exception to the exclusionary rule), and CALIFORNIA V. GREENWOOD
(1988) (warrantless search of garbage). I like the selection of
cases. Inevitably, some decisions that individual instructors
would want students to read --including a few decisions that
might be considered landmarks -- are not included. But the
selected cases offer a good sample of major decisions, with a
balance among topics and types of decisions. And they serve well
in documenting shifts over time in the Court's collective
preferences and the resulting policies on a number of issues.
The editing of cases emphasizes their settings and the justices'
arguments and holdings on the most fundamental civil liberties
issues; the authors are less concerned with conveying the Court's
position on all the legal issues in each case. Thus, for
instance, material on the standing issue is excised from ROE V.
WADE. The editing is effective in achieving the authors' goals.
The opinions are very readable, and I think they communicate the
gist of cases quite well. The excerpts are particularly good in
making clear the essence of disagreements among members of the
Court in particular cases.
As my comments suggest, I think that CIVIL LIBERTIES AND THE
CONSTITUTION has some major strengths. First, the book's
consistent reflection of its authors' concern with a balance
between constitutional law and constitutional politics serves
well the needs of instructors who emphasize the political context
of constitutional law in their courses. Second, the readability
of both the text and the case excerpts enhances the book's value
for students and increases the freedom of instructors to go
beyond the material covered in the book during class sessions.
This is a fine book both in itself and as a text in civil
liberties courses.