Vol. 1 No. 6 (August, 1991) pp. 85-88
UNDERSTANDING SUPREME COURT OPINIONS by T.R. van Geel. New York:
Longman, 1991. 143 pp.
AN INTRODUCTION TO CONSTITUTIONAL INTERPRETATION: CASES IN LAW
AND RELIGION by Lief Carter. New York: Longman, 1991. 159 pp.
Reviewed by Albert R. Matheny, Department of Political Science,
University of Florida.
Teaching constitutional law is at once the easiest thing and
the hardest thing to do for a judicial process person in politi-
cal science. It is easy simply to discuss the cases on their own
terms. The students love it, particularly if one's teaching style
resembles law school pedagogy. It's almost like telling stories
to pre-schoolers. The students' thirst for narrative is so strong
that they will sit with rapt attention and swallow everything
along the way, fascinated by the "little dramas" that
the cases represent. At the same time, trying to break out of
this story-telling mode is a difficult challenge. Students
inclined toward "pre-law" classes are often attracted
by the certainty law seems to provide, as Judge Frank (1930)
pointed out long ago. Sometimes it's the lucre of a legal career
that draws them. In either case, probing the depths of law --
revealing its deep contradictions, political underpinnings, and
technical inadequacies -- is threatening to these students. They
just want "The Law"!
The ease and difficulty of teaching constitutional law arise from
the same source: students' aversion to critical thinking. The
easy path avoids it, and the difficult path is difficult because
it so often expects too much of students who are techni- cally
unprepared for the task. The books reviewed here offer two ways
out of this teaching dilemma. They are both specifically designed
as supplements for constitutional law courses at the advanced
undergraduate level and perhaps for beginning graduate students
as well. Beyond that unifying feature, and the fact that both are
very good books, they are as different as night and day in both
content and perspective. As such, they offer judi- cial process
people some fresh options for improving their constitutional law
offerings.
Put simply, the van Geel text gives the best nuts-and-bolts
introduction to reading case law I have ever seen. If used as an
introductory text in a constitutional law course, this short and
accessible book makes up for the technical shortcomings most
undergraduates (and graduates, too) bring to the study of court
cases. My experience is that, without the technical keys to the
kingdom, students are often too intimidated to think critically
about cases, or misdirect their criticisms out of ignorance about
legal reasoning. After all, accepting without understanding the
law -- "because it's
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the law" -- is one of the central legitimating features of
the rule of law. Van Geel's book demystifies the law on its own
terms and in a systematic way that allows students to engage the
cases with real technical sophistication. Thus, UNDERSTANDING
SUPREME COURT OPINIONS provides a solution to one of the problems
of transcending the easy path to teaching constitutional law.
The strength of van Geel's book may threaten some teachers
because it "steals their thunder," by so successfully
introducing the basic technical concepts of law and legal
discourse. In the "case" courses I have taught, I
devote a significant amount of time to these matters, and the
students sit spellbound, thinking that I am making them privy to
the very mysteries of the law which unlock to doors to wealth and
power (a la "L.A. Law"). Like most political
scientists, whatever technical legal skills I possess were
accumulated ad hoc, and my students get an idiosyn- cratic
interpretation of legal discourse. Not so with van Geel. He has a
comprehensive grasp of the mechanics of case law, and he delivers
it in a very organized and informed fashion. The book is laid out
simply in six chapters. The first two establish the institutional
context of the Supreme Court and the individual justices,
respectively. The body of the text, Chapters 3 through 5,
addresses in turn legal reasoning, the interpretation of
constitutional and historical material in Supreme Court
opinion-writing, and the "art" of using precedent. Van
Geel concludes with a chapter in which he applies the above
discussion to one unimportant Supreme Court decision. His
analysis goes paragraph by paragraph through the majority
opinion, integrating the material from the first five chapters
into his commentary. Then, he covers in less detail the dissent.
The chapter con- cludes with hints on how this case might be
"briefed" properly and with some comments on the
political significance of the case.
UNDERSTANDING SUPREME COURT OPINIONS is written from the
perspective of a "true believer" in the notion that law
can objectively organize human affairs. This is not to say that
van Geel is a true believer, but that the text, in explaining HOW
the law works, implies that the law WORKS. This rather uncritical
introduction to law at the highest level of the American legal
system is ironically essential for student to develop later a
critical understanding of law in society -- an increasingly
important foundation as the materials of the law and economics,
critical legal studies, and law and language schools begin to
penetrate the teaching of constitutional law at the undergraduate
level. It is now unthinkable to send undergraduates familiar with
constitutional law on to graduate school or law school who are
not at least passingly familiar with these competing schools of
thought. By assigning van Geel early in the term, the consti-
tutional law teacher frees up time for addressing these approach-
es later in the course, once students have gotten a firm founda-
tion in case law.
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Lief Carter's book, AN INTRODUCTION TO CONSTITUTIONAL
INTERPRETATION, fits in nicely at this point. He has written
several well-regarded books on a wide variety of law-related
subjects. His topics (and how he chooses to present them) are
often idiosyncratic. Such is the case with this book, which is
written in a style at once conversational and meditative. His
chapters have a spoken quality; they read like lectures, lively
and free-wheeling. I find this style stimulating and provoca-
tive, but sometimes undergraduates find it disorienting, espe-
cially if they are not on the same frequency as Carter when he
engages an issue. But for a student well-grounded in constitu-
tional law,there is not a writer I know of with a wider range of
reference than Carter. And he attacks the subject with wit and
insight, too.
This book critically examines the Supreme Court's tortured
interpretations of the religion clauses in the First Amendment,
ostensibly as a case study in constitutional interpretation.
Carter urges an entirely new approach to the dialectic of
anti-establishment and free exercise. At one level, his tone is
didactic, aiming to teach students about the nature of constitu-
tional jurisprudence. At another level, Carter introduces a
highly sophisticated dialogical critique of the legitimate
foundations of constitutional government.
He summarizes conventional understandings and debates about the
religion clauses through a conversation between imaginary
students who are preparing for an exam and discussing GOLDMAN v.
WEINBERGER (which upheld the Air Force's refusal, over his free
exercise objections, to allow a Jewish officer to wear his
Yarmulke under his service cap. Virtually the full text of the
GOLDMAN opinion is presented along with the mock debate between
the students. Carter repeats this format with the anti-esta-
blishment issue, using EDWARDS v. AGUILLARD (which rejected
Louisiana's legislative effort to include the teaching of"
creationism" in the sciences curriculum of its schools as an
unconstitutional establishment of religion). This is an engaging
way to cover the law in the area, along with the various schools
of thought on the subject, and students will not be thrown by the
pointlessness of the debates, because of the informality of
style.
The debates' pointlessness, of course, plays precisely into
Carter's hands (of course they should, since they are his
contrivance). He suggests an alternative to the constitutional
love-hate relationship with religion in America. Carter's
alternative is grounded in a theory of morality based upon what
can only be called communitarian dialogue. He pinpoints the
problem of separating church and state in the universal claims of
religion to some sort of objective truth, be it the laboratory or
the Bible, and he notes the tragic consequences of placing
political authority behind those truths. By analogy, he indicts
constitutional fundamentalists, who attempt to use the
"original meaning" of the constitution to disentangle
the state and reli- gion in America.
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Carter then touches upon the work of Michael Perry (1988) and
Richard Rorty (1979), among others, to support his argument,
which is really a plea for a new communitarian basis for legiti-
macy in a post-modern society. It is an impressive and sincere
statement of one struggling with liberal relativism on the one
hand and the misuses of religion and science on the other. The
book ends abruptly with an unedited case, OREGON v. SMITH (in
which the Court upheld Oregon's denial of unemployment compensa-
tion for workers fired for consuming peyote as a religious
observance over a free exercise claim to the contrary) which the
students are asked to ponder in light of Carter's argument.
The strength of Carter's book is that he gives students enough
credit to expect them to be able to engage the sophisti- cated
critique he presents here. Its weakness is that the book's
critical vision overburdens the vehicle of an undergraduate
textbook. Carter's is a major argument which should be much more
thoroughly developed in a book-length manuscript and cannot be
contained within a supplemental undergraduate text. Put simply,
there is a mismatch between tone and substance in this book.
Still, it is very provocative reading, and, depending upon the
setting, could make fascinating classroom material.
REFERENCES Frank, Jerome. LAW AND THE MODERN MIND. New York:
Coward-McCann, 1930.
Perry, Michael. MORALITY, POLITICS, AND LAW. New York: Oxford,
1988.
Rorty, Richard. PHILOSOPHY AND THE MIRROR OF NATURE. Princeton:
Princeton University Press, 1979.
CASES CITED
EDWARDS v. AGUILLARD, 482 U.S. 578 (1987)
GOLDMAN v. WEINBERGER, 475 U.S. 503 (1986)
OREGON v. SMITH, 108 L. Ed. 2d 876 (1990)