Vol. 2 No. 10 (October, 1992) pp. 140-142
PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS,
3d Ed. by Paul Brest and Sanford Levinson. Boston: Little, Brown
& Company 1992. lx, 1576 pp. Cloth $50.00.
Reviewed by Lief Carter, Department of Political Science,
University of Georgia
The first edition of this now classic law school casebook grew
out of the same frustration that produced the critical legal
studies movement: constitutional theory, that quintessentially
normative enterprise, had lost its normative way. Many strands of
twentieth century philosophy -- Wittgenstein, Weber, and Dewey to
name a few -- had by a convincing process of triangulation pulled
out the shaky props beneath technical legal rationality's claim
to provide a sufficient normative basis for evaluating
constitutional decisionmaking. As the authors point out in their
preface, academic constitutional law had collapsed into a
description of what the Supreme Court said.
Now, nearly twenty years later, a rich literature on interpretive
theory and hermeneutics has blossomed, and the authors have
worked their material into a rich weave of political history,
case law, and contemporary scholarly commentary. For graduate
students who wish to master constitutional law and theory
together, this casebook provides an ideal learning tool. The book
is designed for a nine-month law school course, and for
undergraduates I suspect the length and organization make it
difficult to use in a semester. But the authors write with
admirable clarity, and well-motivated and well-coached
undergraduates could gain much from using it.
Brest and Levinson's central theme takes the form of a question:
Do primarily apolitical decisionmaking procedures exist by which
judges can reach and defend legal conclusions that are both
substantively acceptable and politically legitimate? While
generously encouraging students to come to their own answers, the
authors answer that they are skeptical "about the
legitimating power of process and, indeed, about the meaning of
`legitimacy' itself" (p. xxxiv). Humpty Dumpty's pungent
statement: "The question is...which is to be master --
that's all" (p. 40) spices the entire work.
Murphy, Fleming and Harris' AMERICAN CONSTITUTIONAL
INTERPRETATION provides, I think, the closest alternative. The
relative merits about balance out. The Murphy book is no longer
current, and its complex marbling of interpretive approaches,
modes, and techniques boggles undergraduate minds more thoroughly
and frequently than Brest and Levinson's six-part model, borrowed
from Levinson's colleague Philip Bobbitt, presumably would. On
the other hand, while Brest and Levinson is incurably socratic,
Murphy et al. takes and defends clearer positions, particularly
regarding the fundamental concepts of democratic theory. In
short, for depth, currency, and thoroughness of legal coverage,
the edge goes to Brest and Levinson, but Murphy, Fleming, and
Harris still has a pedagogical edge for undergraduate
instruction. (Of course this difference only mirrors the
different primary audiences of the two books in the first place.)
What, more specifically, do political scientists gain and lose in
a text designed to perform primarily for law students? Some of
the gains are substantial, at least in these authors' skillful
hands:
1. Law texts may give more attention to the political
consequences of legal decisions that lie outside the conventional
federalism/ separation of powers/civil rights canon. Here the
sheer policy significance of SWIFT V. TYSON and ERIE comes
through clearly, and the authors don't skimp the administrative
constitutional issues, for example, DESHANEY V. WINNEBAGO.
2. For simple pedagogic clarity, the common pattern in political
science casebooks -- I think of it as the Mason and Beaney legacy
-- of an introductory overview essay followed by an unbroken
string of "significant cases" has always struck me as
inferior to the pattern followed here
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that constantly weaves cases, authorial reaction and comment, and
other scholarly comment, together. Cases are edited according to
their merits. MCCULLOCH, which illustrates interpretive practice
early on, is virtually unedited. Other cases are condensed to a
few paragraphs. This flexible format pays off particularly nicely
when it enables the authors to clarify the historical
significance of a case that was so different in its time than it
has become in ours. EX PARTE YOUNG, for example, has an important
place in modern civil rights litigation, but in its time, like
many early civil rights cases, YOUNG, which allowed a suit to
strike down rate regulations, moved toward LOCHNER.
3. The socratic I-thou voice can sharpen issues wonderfully.
Commenting on the near lynching of a judge who refused to suspend
foreclosure proceedings in Iowa shortly before the decision in
HOME BUILDING AND LOAN, the authors ask the readers: "To
what extent should the social impact of, or popular reaction to,
a law influence the determination of its constitutionality? Would
your views of, say, PLESSY V. FERGUSON change if you were
persuaded that racially integrated transportation or schools
would have been met with a violent response from racists"
(p. 352)? And note how the authors rhetorically resurrect Louis
Brandeis when they ask in the present tense the sixty-four dollar
question about Brandeis's still radical-seeming position in
WHITNEY, "What do you think that Justice Brandeis means by
his reference to `injury to the State'" (p. 336)? The book's
prose is often brilliantly economical and lucid. The discussion
of the various forms of rationality analysis in equal protection
cases (pp. 560ff) has no equal.
4. The authors model for law students a conscientious
thoroughness and balance that serves us as well. The materials
are unfailingly apt even when they are obscure -- an unpublished
essay by Duncan Kennedy, for example, or a letter from Gerald
Gunther to the Justice Department. The book passes my
idiosyncratic first test for any constitutional casebook, namely
that it report extensively Justice Harlan's dissent in LOCHNER.
The book excels at its law school virtues, but with these come
some usually acceptable costs:
1. Those who design and publish for law students assume that
these students bear the burden of following whatever is on the
page. These books do less with margins, headnotes, and typeface
differences to keep readers moving smoothly ahead. So here at
points one must try several times to get a gear to shift.
2. With the socratic voice, from Plato's reports onward, comes an
irksome tendency to seem above it all, to avoid moral or
analytical closure. When a politically suspect decision -- DEBS
or YOUNGSTOWN -- begs for criticism, the attitude that everyone
must make up his or her own mind rankles.
3. Occasionally legal terms unfamiliar to a wider audience creep
in unexplained, like references to "fee ownership" in
the Hawaiian land redistribution case (MIDKIFF). Yet what amazes
is how rarely this erudite book saddles us with jargon and
technical language.
Finally, this book's most important qualities have nothing to do
with its law student audience. This is, above all, an academic
book. Its index refers to Thomas Grey and Richard Epstein but
contains no entry for Stephen Field. It is chock full of
references to, and excerpts from, the recent cornucopia of
academic output in constitutional theory, including the authors'
own fine work. Personally I'd wish for less fence straddling on
these issues. The authors, for all their skepticism, seem to have
one foot in the old school. Because they often seem to say that
originalist positions are identifiably real and visibly distinct
from non-originalist positions, they seem not to embrace the
contemporary hermeneutic center. There is surprisingly little
Dworkin, and no Fish, in this constitutional world.
But a work that does so much so well barely deserves these
quibbles. These academic
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authors can't help but honor the life of the mind. They refuse to
follow the conventional and outmoded historical or textual
schemes for classifying the cases. They nest clusters of cases in
fresh ways that highlight our political heritage and confirm
their skepticism about separating law from politics. We move from
SLAUGHTERHOUSE to LOCHNER to the World War I free speech cases in
twinklings and see more vividly the political impulses behind
them all. Some issues -- criminal procedure and many liberties
issues, for example -- receive less than average coverage, but
equality, including Native American issues, gets exceptionally
thorough coverage. For graduate students seeking a comprehensive
overview of the constitutional law and theory, the book is ideal.
Were I able to teach undergraduates for nine months, I would use
it for them, too.
Copyright 1992