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

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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.

Copyright 1992