Vol. 15 No.8 (August 2005), pp.660-663

CONSTITUTIONAL GOVERNMENT: THE AMERICAN EXPERIENCE (5^th ed), by James A. Curry, Richard B. Riley, and Richard M. Battistoni.  Dubuque, IA:  Kendall/Hunt Publishing Co., 2003.  653pp.  Paper $64.95.  ISBN:  0-7872-9870-0.

Reviewed by Wayne D. Moore, Department of Political Science, Virginia Polytechnic Institute and State University.  E-mail:  wmoore@vt.edu .

CONSTITUTIONAL GOVERNMENT: THE AMERICAN EXPERIENCE revolves around many of the same topics as conventional case books on the U.S. Constitution.  Part I has three chapters that introduce the concept of constitutionalism, trace its historical antecedents, and summarize constitutional developments from the American founding period.  Part II has three chapters that focus on structures and processes of constitutional government.  The third and longest part of the book has seven chapters on cases involving claims of constitutional rights and liberties, along with a concluding chapter on whether American constitutionalism has been a cause for celebration or concern.

But this text, authored by James A. Curry, Richard B. Riley, and Richard M. Battistoni, is not a typical constitutional law text.  Partly because it is atypical, this book warrants serious consideration by those interested in teaching about the U.S. Constitution – or constitutionalism more generally – from the perspective of its historical development.  This text may also provide an alternative or supplement to a more case-oriented approach to matters of constitutional history, politics, and law.

CONSTITUTIONAL GOVERNMENT is not a case book.  Nor is it a textbook designed as secondary reading to accompany a primary case book.  To complement their primary textbook, the same authors, joined by John C. Blakeman, have produced a separate case book, THE AMERICAN CONSTITUTIONAL EXPERIENCE: SELECTED READINGS & SUPREME COURT OPINIONS (2nd ed., 2005) (herein, “CONSTITUTIONAL EXPERIENCE”).  Instead of integrating primary sources and commentary into a single volume, or treating excerpted judicial opinions as primary and commentary on them as secondary, these two books together present commentary as primary, cases and other readings as secondary.

Part I provides a solid introduction to the concept of constitutionalism.  Its three chapters identify distinguishing characteristics of the U.S. Constitution, trace their historical antecedents, provide an overview of debates surrounding the Constitution’s proposal and ratification, and situate it in comparative perspective.  This part also introduces what the authors describe as “individualist” and “communitarian” models of constitutional politics.  The comparative analysis is especially well done and is likely to provoke serious thought among the undergraduate students for whom this text is designed.

Part II has chapters on judicial power, legislative and executive powers, and [*661] federalism.  In addition to providing an overview of judicial processes and structures in the United States, the chapter on the judiciary introduces competing models of judicial review.  The chapter on legislative and executive powers emphasizes conflicts between the two branches, especially with respect to foreign affairs.  The chapter on federalism likewise emphasizes points of contention, along with developmental patterns.  In addition to reviewing judicial opinions dealing with these topics, there is substantial commentary on extra-judicial developments and perspectives.

Part III includes chapters on racial equality, classifications based on sex or wealth, the bill of rights and due process, criminal procedure, freedoms of speech and the press, and freedom of religion.  The primary focus in these chapters is judicial doctrine, situated within broader political and interpretive contexts.  The concluding chapter emphasizes the experimental character of constitutional governance in America and suggests several areas where change may be desirable.

Each chapter begins with an outline of the topics covered in that chapter.  Along with the primary narrative, the text is interspersed with “briefs” (in-depth treatments of particular issues), tables, and various other figures.  Each chapter is also followed by “thought and opinion questions” and study questions.  At the beginning of the book, there is an index of cases; and at the end are a glossary of terms, list of suggested readings, and topical index.

Both separately and together, the chapters that form CONSTITUTIONAL GOVERNMENT are impressive in their depth, breadth, and theoretical sophistication.  A recurring thread throughout the volume is exploration of relationships between individualist and communitarian understandings of constitutional structures, popular rights, and issues of American politics more generally.  The book’s authors rely effectively on this construct to emphasize continuities in constitutional commitments across time, to trace their sometimes competing and sometimes complementary implications, and thereby to link materials from different sections.  Reinforcing this distinction is the authors’ emphasis on the Constitution’s treatment of tensions between the constitutional ideals of individual freedom on the one hand and order or stability on the other.  In addition to being theoretically defensible, these constructs are pedagogically useful.

The authors designed CONSTITUTIONAL GOVERNMENT and CONSTITUTIONAL EXPERIENCE for a required course at Baylor University on American constitutional development.  These texts have also been adopted for use in constitutional law classes at other colleges and universities.  I have not assigned either book in any of my own classes.

In my standard 3000-level constitutional law classes, I typically use one case book or another as the primary text.  I gravitate toward texts that emphasize constitutional dialogue, such as those by Fisher (2003) and Murphy, et al. (2003).  These texts are conventional in the sense that they are weighted heavily toward Supreme Court opinions.  But they, like [*662] CONSTITUTIONAL GOVERNMENT, situate judicial opinions within broader political contexts.  And they include prominent examples of constitutional interpretation by legislative and executive officials and other non-judicial actors.  Thus they provide openings for instructors like myself to combat widespread assumptions that constitutional interpretation is exclusively or primarily a judicial prerogative, both descriptively and normatively.

The available reader, CONSTITUTIONAL EXPERIENCE, parallels CONSTITUTIONAL GOVERNMENT in this respect.  The former has twelve chapters, the first of which is on the role of the Supreme Court in American constitutional development.  It provides a useful overview of legalistic/doctrinal and behavioral/attitudinal approaches to the study of the Supreme Court, reviews matters of jurisdiction and agenda-setting, and raises questions about the impact of judicial opinions.  The second chapter includes excerpts from the Declaration of Independence, Articles of Confederation, and the 10th Federalist.  The remaining chapters correspond topically to the primary substantive chapters of CONSTITUTIONAL GOVERNMENT.  While each includes edited versions of two to four Supreme Court opinions, each also includes excerpts from one or two other primary sources – such as a selected essay from The Federalist; Frederick Douglass’s 1852 speech, “The Meaning of the Fourth of July for the Negro,” President Abraham Lincoln’s 1858 “House Divided” speech, and John Stewart Mill’s On Liberty (1859).  I like the way these chapters juxtapose judicial opinions and other sources.

But CONSTITUTIONAL EXPERIENCE, for a case book, is relatively slight.  It totals less than two hundred pages, including contents and appendices.  By itself, it does not provide sufficient materials for a typical case-oriented course.  The reader is not designed to serve that purpose.  Instead, it appears to be designed to supplement one or more other texts, such as CONSTITUTIONAL GOVERNMENT.  That text, as indicated, is quite substantial.

Thus, one considering whether to use either or both of these texts must confront important and recurring questions of pedagogy.  What are the costs and benefits of assigning to students judicial opinions and other exemplars of constitutional interpretation?  Conversely, what are the advantages and disadvantages of assigning a textbook like CONSTITUTIONAL GOVERNMENT, either by itself or in conjunction with a thick or thin case book and/or secondary literature on the U.S. Constitution?

The answers to these sorts of questions doubtless depend on a number of variables including course level, class size, pedagogical aims, and teaching and learning styles.  Generally textbooks are more common for introductory courses, primary sources and scholarly literature more suitable for upper-level undergraduate and graduate courses.

It is my impression that CONSTITUTIONAL GOVERNMENT and CONSTITUTIONAL EXPERIENCE would work best in [*663] introductory courses on constitutional development such as the one for which it is designed.  While there is not currently such a course at my home institution, I have on occasion considered developing one to provide a different niche from the conventional upper-level constitutional law classes.  Among other things, reading and reviewing these two books had nudged me in the direction of giving more thought to the possible advantages of creating such a course.

But I remain reluctant to substitute CONSTITUTIONAL GOVERNMENT and CONSTITUTIONAL EXPERIENCE for the thick case books I have continued to use in my upper-level classes on constitutional interpretation (or for the other readings I assign in more advanced courses).  This reluctance is doubtless in part owing to habit and inertia.  Also, among the advantages of case books with a large selection of Supreme Court opinions and other readings is that they facilitate Socratic dialogue and provide excellent contexts for tracing patterns of constitutional development.  The students can sink their teeth into analysis of real-world cases that are more fascinating than anything most of us could readily imagine.

But despite the many advantages of classes conducted with some version of Socratic dialogue oriented primarily toward historical and contemporary exemplars of significant constitutional practices, I am often led to think that there is a better way to teach about topics of constitutional history, politics, law, and theory.  Experimenting with texts like those being reviewed here may be one means, among others, of pursuing such a better way.

REFERENCES:

Curry, James A., Richard B. Riley, Richard M. Battistoni, and John C. Blakeman.  2005.  THE AMERICAN CONSTITUTIONAL EXPERIENCE: SELECTED READINGS & SUPREME COURT OPINIONS, 2nd ed.  Dubuque, IA:  Kendall/Hunt Publishing Co.

Fisher, Louis.  2003.  AMERICAN CONSTITUTIONAL LAW, 5th ed. Durham, NC: Carolina Academic Press.

Murphy, Walter F., James E. Fleming, Sotirios A. Barber, and Stephen Macedo.  2003.  AMERICAN CONSTITUTIONAL INTERPRETATION, 3rd ed.  Westbury, CT: Foundation Press.

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© Copyright 2005 by the author, Wayne D. Moore.