Constitutional Interpretation

Vol. 15 No.8 (August 2005), pp.668-669

CONSTITUTIONAL INTERPRETATION (8th ed) (2 Vols), by Craig R. Ducat. Belmont, CA: Wadsworth/Thomson Learning, 2004. Volume I: POWER OF GOVERNMENT. 552pp. Paper. $74.95. ISBN: 0534613993. Volume II: RIGHTS OF THE INDIVIDUAL. 984pp. Paper. $78.95. ISBN: 0534614000. Combined Volume, 1416pp. Cloth. $128.95. ISBN: 0-534-61398-5.

Reviewed by William Haltom, Department of Politics and Government, University of Puget Sound. Email: haltom@ups.edu .

This venerable standard for instruction in constitutional law, civil liberties, and constitutional interpretation, by Craig R. Ducat, retains the virtues of earlier editions. Coverage of landmarks by means of excerpts and notes is copious but concise. Memoranda on issues of interest to lawyers and laypersons are useful and ubiquitous. Statistics, maps, tables, and diagrams represent some important features of the constitutional system vividly. Appendices on the dates of service and biographical details of justices since 1900, and an appendix with the Constitution, continue to provide readers ready reference. Ample notes at the bottom of pages make supplementary insights and resources easily accessible without turning to the back of tome. The glossary is pithy but revealing. All or almost all of these features have been honed through multiple editions of this classic until they are well-nigh flawless.

This edition nonetheless features considerable innovations. An abridged discussion of modes of constitutional interpretation, once an appended essay, now constitutes the second chapter, a renovation that highlights logical and stylistic forms and formats before readers encounter the bulk of opinion-excerpts. The new appendix on finding and citing legal research and the biographies of sitting justices make enlightening entries. The latest edition is shorter than some earlier editions but covers almost every topic that an instructor would expect in a casebook. In that way, this is an elegant revision.

This casebook is far more traditional or legal-scientific than behavioral, political, or social-scientific. That is, readers likely will be exposed to judges’ opinions far more than to advocates’ arguments, audiences’ reactions, or officials’ responses. Not necessarily more centered on the Supreme Court of the United States than most constitutional textbooks, this text will not direct tyros away from the Capitol venue, so constitutional-interpretation-in-society will likely remain underemphasized. Instructors even in law schools may find the book, therefore, more legal-formal than the substitution of “interpretation” for “law” in its title might portend. A less formalistic teacher might want to complement the first chapter (“Judicial Power”), for example, with materials on judicial recruitment and selection, strategies and tactics for granting certiorari, and responses to decisions deemed political (although BUSH v. GORE gets some discussion). Whether Chief Justice Marshall ought to have recused himself from MARBURY v. MADISON is a political as well as judicial question, but most naifs would [*669] learn far more about legal considerations than about the politics of the matter. A note discusses the issue largely in terms of evolved and evolving legal standards rather than in terms more contemporary to the Chief Justice. Instructors in political science will probably feel compelled to work Robert McCloskey’s or Christopher Wolfe’s John Marshall into coursework to get Jeffersonian and Federalist politics before their students. This casebook, in sum, skimps on contextualization beyond the case-specific.

In at least two respects, this casebook is less critical than some alternatives. Unlike many casebooks, this book features no questions for further consideration or discussion. Such questions range widely in their utility or comprehensibility, so their absence may matter more or less to instructors. Perhaps more important, the author does not, through footnotes or other devices, alert readers to seriously problematic features of opinions. Many political scientists insist that Marshall’s wordplay with the Judiciary Act in MARBURY, like the linguistic derring-do in BUSH v. GORE, must be deconstructed so that students appreciate that no legal conclusion was entailed. If an instructor considers it important to level with students about folderol and flim-flam (granted that definitions and derivations of folderol and flim-flam will vary with instructors), much of that leveling will have to come from outside the casebook.

The chapters on dual federalism seem designed well to expand and to expound on the enduring significance and current salience of commerce clause cases. That is, rather than trace commerce as a discrete domain of doctrine, Ducat uses commerce as one indicator of major trends defining and redefining federalism in practice. The contrast between national powers (Chapter 5) and states’ powers (Chapter 6) may make for more integrative and synthetic learning than treating of commerce powers, police powers, and preemption separately.

In like manner, Chapter 7 considers property rights and economic liberties rather than taking a more historical perspective on the Contract Clause per se.

The unified volume considers due process in its own chapter, combining selective incorporations, the right to counsel, the Fifth Amendment privilege against self-incrimination, and cruel and unusual punishments. The next chapter (Chapter 9) covers the exclusionary rule, search and seizure, and surveillance. The remaining chapters pertain to abortion and other privacy issues, freedom of expression (separate chapters on speech and press), religion, and equal protection.

In sum, Professor Ducat continues to perfect his casebook, making it better serve the choices that he (and the late Harold Chase) have made, tested, and reconsidered. Those choices will not match the wants or needs of every instructor, but the more legal-formal the instructor’s focus, the more accommodating this casebook likely will be.

CASE REFERENCES:

BUSH v. GORE, 531 US 98 (2000).

MARBURY v. MADISON, 5 US 137 (1803).

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