Vol. 15 No.8 (August 2005), pp.664-667

CASES IN CONSTITUTIONAL LAW (9th edition), by Robert E. Cushman and Brian Stuart Koukoutchos (eds).  Upper Saddle River, N.J.: Prentice-Hall, 2000.  615pp.  Cloth.  $108.00. ISBN 0-13-083279-0. 

Reviewed by Lawrence Baum, Department of Political Science, Ohio State University.  Email: baum.4@osu.edu .

CASES IN CONSTITUTIONAL LAW is a venerable casebook, originally edited by Robert E. Cushman and Robert F. Cushman.  In this edition Robert E. Cushman is joined as editor by Brian Stuart Koukoutchos, a college teacher and lawyer who participates in Supreme Court litigation.

There is considerable diversity among casebooks designed for constitutional law courses, but most current casebooks share certain broad characteristics.  CASES IN CONSTITUTIONAL LAW diverges from those characteristics in three respects.  The first is simply that the book is a single hardcover volume that combines issues of government powers and civil liberties.

The second point of divergence is a relatively strong emphasis on law over politics.  The editors explain that “no effort has been made to duplicate the ground covered by the many excellent books on legal history, judicial behavior, the politics of the Supreme Court, or the structure of the judicial system” (p.vii).  This emphasis on law is symbolized by the book’s Appendix, which contains only the text of the Constitution.

The third and most important point of divergence is suggested by the title.  The book’s material is case-centered:  the editors provide introductions to each case, but the book does not have an introductory chapter or introductory essays within chapters, and the editors do not include text material that is not linked to specific cases.  These characteristics make the book more similar to law-school texts than are most casebooks for undergraduates, and the preface expresses the editors’ view that their book would be appropriate for a first-year law school course.

The characteristics that distinguish this book from most other casebooks will make it considerably more attractive to some instructors than to others, depending on their goals, the structure of their department’s courses, and other considerations.  However, the book may be appropriate even for instructors whose goals do not mirror the book’s emphases.  For instance, a teacher who gives considerable emphasis to the politics of constitutional law may find the book useful as a source on the substance of the law, with other readings and class material covering issues such as the forces that shape justices’ positions and the impact of the Supreme Court’s decisions.

The book is organized in terms of the standard division between what the editors call “United States governmental structure” and “protection against government authority.”  Part I on governmental structure includes chapters on the three branches and federalism, as [*665] well as a chapter on the electorate that covers the right to vote and the right to equal representation.  The chapter on the Supreme Court includes sections on amending the Constitution, the establishment of judicial review, and “cases and controversies.”

The set of chapters in Part II on protection against government is standard in most respects, unusual in others.  The standard chapters cover First Amendment rights (which include both free expression and the religion clauses) and equal protection.  Less standard is the first chapter in the section, which covers guarantees of rights in the original Constitution.  The next chapter is entitled “The Nationalization of the Bill of Rights,” but the chapter’s coverage is considerably broader than that.  In essence, it takes an historical approach to the development of rights under the Fourteenth Amendment.  Included are sections on substantive due process and the police power and what the editors call “substantive due process revisited,” essentially the right to privacy.  This chapter concludes with a section on “the bargaining away of constitutional rights,” which includes WYMAN v. JAMES (1971) on mandatory home visits for recipients of public welfare and BORDENKIRCHER v. HAYES (1978) on the use of threats to secure guilty pleas.  There is also a chapter on federal power to protect individual rights.

Part II’s most noteworthy departure from the standard coverage, new to this edition, is the absence of a chapter on the rights of criminal defendants.  The “Nationalization” chapter includes several criminal cases, but the editors do not attempt to cover that subject for its own sake.  As a result, the book does not include cases such as MAPP and LEON, MIRANDA and DICKERSON, or GREGG and MCCLESKEY.

The book has excerpts from about 140 cases, divided almost equally between the two Parts.  I think the editors have done a good job of trimming the full opinions.  The set of cases selected for the book is typical, in that it includes major cases that one would expect to find in most casebooks and other cases that the editors saw as useful for illustrative purposes. 

The mix of recent and older cases is probably close to the average: the median decision date for cases is in the 1930s in Part I and around 1970 in Part II.  However, the book’s relatively long publication cycle means that at certain times such as the present, it is less current than most other casebooks.  (Occasionally the book is less current than it could be.  For instance, the editors raise the constitutionality of a presidential line-item veto as a speculative matter (p.57) without referring to the Line Item Veto Act of 1996 or CLINTON v. CITY OF NEW YORK (1998), the decision that struck it down.)

Since the editors’ introductions to individual cases are the book’s only material other than the case excerpts, they are especially important.  The introductions vary a great deal in length. They are quite solid, reflecting the breadth and depth of the editors’ expertise in their subject matter.  They are also very well-written, and they should hold students’ interest. [*666]

The kinds of material provided in the introductions vary.  More than anything else, the editors seek to provide a context in which to place the case excerpts that follow.  Frequently this context extends to the general development of Supreme Court doctrine on the issue in the case.  Students will get the background information they need to read the opinion excerpt that follows, and in that important respect the book can stand alone.

Because they are linked to specific cases, the introductions as a whole provide less information about general doctrines and analytic structures in particular fields than broader essays would.  However, these subjects are hardly neglected.  Most notably, the editors structure the first part of the equal protection chapter in terms of the tests that the Court employs, and students should get a clear picture of the tests and their uses.

Consistent with their goals, the editors say relatively little in their introductions about the politics of cases and issues.  For instance, they do not discuss ideological divisions within the Court a great deal, and the editors treat the Court as a collectivity more than do some other casebooks. However, they do give considerable attention to divisions in specific cases, and students will get a clear sense that constitutional law is a product of the majorities in decisions rather than a corporate entity.

Taken as a whole, the introductions do not emphasize the role of the political environment in shaping the Court’s rulings.  To take one example, the introduction to BARENBLATT v. U.S. (1959) (pp.50-51) points out the seeming inconsistency between that decision and WATKINS v. U.S. (1957), but it does not mention the congressional displeasure with WATKINS that may have led some of the justices to shift their positions.  However, the introductions frequently discuss the Court’s environment.  For instance, some discuss the ways that decisions such as BROWN v. BOARD OF EDUCATION were implemented.  Here too, students will gain an understanding of the reality that the Court’s decisions and their impact depend in part on the world outside the Court.

Occasionally, an introduction includes a “query” to readers, designed to encourage students to think through the meaning and implications of the Court’s position.  These queries should be helpful to students who make use of them.

CASES IN CONSTITUTIONAL LAW occupies a distinctive niche within the range of casebooks for constitutional law courses.  The editors carry out their goals effectively, and the book can serve very well in courses in which the teacher’s own approach is compatible with the editors’ goals.  That the book has reached a ninth edition suggests the value of the project that Cushman and Cushman began and that the current editors continue.

CASE REFERENCES:

BARENBLATT v. U.S., 360 US 109 (1959).

BORDENKIRCHER v. HAYES, 434 US 357 (1978).

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954). [*667]

CLINTON v. CITY OF NEW YORK. 524 US 417 (1998).

DICKERSON v. U.S., 530 US 428 (2000).

GREGG v. GEORGIA, 428 US 153 (1976).

MAPP v. OHIO 367 US 643 (1961).

MCCLESKEY v. KEMP, 481 US 279 (1987).

MIRANDA v. ARIZONA, 384 US 436 (1966).

U.S. v. LEON, 468 US 897 (1984).

WATKINS v. U.S., 354 US 178 (1957).

WYMAN v. JAMES, 400 US 309 (1971).

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© Copyright 2005 by the author, Lawrence Baum.