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 The Murphy book is no longer current, and its complex marbling of interpretive approaches, modes, and techniques boggles undergraduate minds more thoroughly and frequently than Brest and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