American Constitutional Law

Vol. 15 No.8 (August 2005), pp.673-674

AMERICAN CONSTITUTIONAL LAW (5th ed) (2 Vols), by Louis Fisher. Durham, NC: Carolina Academic Press, 2003. Paper. Volume 1: 560pp. $32.00. ISBN: 0-89089-460-4; Volume 2: 728pp. $37.00. ISBN: 0-89089-462-0.

Reviewed by James F. Spriggs, II, Department of Political Science, University of California, Davis. Email: jfspriggs@ucdavis.edu .

Constitutional law texts take a variety of forms, with some, for example, exclusively focusing on legal doctrine and others placing courts within their historical and political contexts. Louis Fisher’s AMERICAN CONSTITUTIONAL LAW squarely falls within the latter group, and one of its most prominent themes is that one can not understand constitutional law without addressing the judiciary’s connections to the broader political system. This theme of constitutional politics (rather than merely constitutional interpretation) runs throughout both volumes. The book is therefore well suited for courses in which instructors balance a focus on constitutional doctrine and exegetical analyses with the judiciary’s placement in historical and political settings.

The first volume, titled CONSTITUTIONAL STRUCTURES, examines the areas of separation of powers and federalism; and the second volume, CONSTITUTIONAL RIGHTS, focuses on civil liberties and civil rights. As such, it would be appropriate for use in a two (or perhaps even three) course constitutional law sequence. The first volume begins with a chapter discussing the politics of constitutional interpretation, with an emphasis on the relationship between courts and the broader political system. Several subsequent chapters then examine threshold requirements (e.g., standing, mootness), the organization of courts, and the Supreme Court’s decision-making process. These chapters serve to introduce students to the process and politics of Court decision making and thus are useful counterparts to the constitutional law chapters that follow.

The chapters of each text are well organized and contain useful background material, excerpted Court cases, and occasional readings from non-judicial sources. The latter are especially welcome because they help to situate the Court’s decisions into their historical and political context. For instance, the chapter on Economic Liberties has a brief excerpt from James Madison’s Essay on Property, while the chapter on Religious Freedom contains excerpts from congressional floor debates in 1789 regarding the Bill of Rights and in 1993 in response to EMPLOYMENT DIVISION v. SMITH.

Turning to the choice of cases, Fisher has done a splendid job of balancing the need to include landmarks with recent Court decisions. The excerpts are well done and allow students to read passages that lay out the core holdings and reasoning in the cases. The text also makes judicious use of separate opinions, which I welcome for their value in helping students critically evaluate the majority’s position. The [*674] choice of cases enables readers to trace easily how law changes over time as the Court confronts new factual circumstances and different political conditions.

Let me use one set of cases as an example of the basic format of each chapter. The section on Employment and Affirmative Action begins with a discussion of congressional and presidential decisions to prevent discrimination. Following this is an analysis of the development of Supreme Court doctrine in this area, including a focus on set-asides, Title VIII disputes, the effect of ADARAND CONSTRUCTORS INC. v. PENA, and recent state initiatives and federal legislation. This introductory material does a wonderful job of putting the issue in its political and historical context and indicating the main themes of the Court’s opinions. Following this section are excerpts from BAKKE, FULLILOVE, CROSON, and ADARAND CONSTRUCTORS.

My one criticism (as a political scientist) is that Fisher does not take the theme of constitutional politics far enough. Specifically, the book does not draw on research done by political scientists that bears directly on how the Court makes law. When discussing judges’ values and attitudes, for example, no use is made of past or present research. Nor does the book utilize work that examines the role of precedent, the Solicitor General, organized interests, congressional-judicial interdependencies, public opinion, judicial impact, and other topics for which political scientists have shed much light. In short, readers come away with an appreciation for constitutional politics, but they are not able to couple it with contemporary theoretical or empirical findings from political science.

In short, I think that AMERICAN CONSTITUTIONAL LAW has tremendous strengths. Most notably, it makes clear that constitutional interpretation does not occur in a vacuum but must be understood as part of the broader political process. It also couples this focus with appropriate readings from Court opinions and, interestingly, non-judicial sources. I thus highly recommend it for adoption in courses on constitutional law.

CASE REFERENCES:

ADARAND CONSTRUCTORS, INC. V. PEÑA, 515 U.S. 200 (1995).

EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH, 494 U.S. 872 (1990).

FULLILOVE v. KLUTZNICK, 448 U.S. 448 (1980).

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).

RICHMOND v. J.A. CROSON CO., 488 U.S. 469 (1989).

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