Vol. 2 No. 10 (October, 1992) pp. 148-150
AMERICAN CONSTITUTIONAL LAW by Louis Fisher. New York: McGraw
Hill 1990. 1440 pp. Cloth $54.86. Paper: Volume I (640 pp.);
Volume II (896 pp.) $27.96 each.
Reviewed by Susan Burgess, Department of Political Science,
University of Wisconsin-Milwaukee
Not too long ago, a prominent constitutional theorist was
publicly lamenting the lack of a robust and wide ranging consti-
tutional debate in the American political system. When I
suggested that the kind of exchange he was looking for could be
found by supplementing judicial constitutional interpretation
with congressional, executive, state, and popular constitutional
interpretation, he quickly replied that statutes, rules, and
public opinion are flat and contribute little or nothing to
creating a more engaging or dialectical constitutional debate.
Consequently, he concluded, Supreme Court opinions are the only
viable source of constitutional interpretation.
Academics often write and teach that the American constitu-
tional debate is deficient, or lacking breadth and depth. But
that judgment is at least partially based on assumptions about
(1) the (alleged lack of) ability of the "political"
branches and the public to interpret the Constitution, and (2)
the (alleged lack of) a dynamic relationship between law and
politics.
Louis Fisher reveals and challenges these assumptions in his
text, AMERICAN CONSTITUTIONAL LAW. The result is a multi-
dimensional representation of American constitutional
interpretation that is much broader and more complex than the
usual fare. According to Fisher, most constitutional law texts
"concentrate on court decisions and overlook the political,
historical, and social framework in which these decisions are
handed down. Constitutional law is thus reduced to the judicial
exercise of divining the meaning of textual provisions. The
larger process, including judicial as well as nonjudicial actors,
is ignored" (p. xi). Fisher seeks to provide the previously
overlooked material.
Political scientists of various stripes assume a disjunction
between law and politics. Some scholars assume that politics
dominates constitutional interpretation, and that legal doctrine
and rhetoric neither affect nor limit the shape of politics.
Others overlook the politics of constitutional interpretation,
analyzing legal principles and doctrine as if they are not
articulated by political actors who are well aware of the
political consequences of their interpretations. In either case,
the intersection of law and politics is left largely unexamined.
Fisher places constitutional interpretation squarely within the
larger political environment in which it occurs. He argues that
the "political process must be understood because it
establishes the boundaries for judicial activity and influences
the substance of specific decisions, if not immediately, then
within a few years.... A purely legalistic approach to
constitutional law misses the constant, creative interplay
between the judiciary and the political branches" (p. xi).
He realizes, however, that in order to reveal the intersection
between law and politics, he will have to convince readers,
schooled to accept judicial supremacy as a permanent part of the
American constitutional system, that "the Supreme Court is
not the exclusive source of constitutional law [or] the sole or
even dominant agency in deciding constitutional questions"
(p. xi). Fisher shows that congressional constitutional
interpretation encompasses much more than reading statutes. He
demonstrates that it includes congressional floor debate,
hearings, and reports and that these sources of interpretation
reveal at least as much breadth and depth as the standard
judicial opinions which are also well represented in this text.
AMERICAN CONSTITUTIONAL LAW makes it clear that characterizing
statutes as the entirety of congressional constitutional
interpretation would be as misleading as claiming that the
headnote to a case contains the breadth and depth of the Supreme
Court's reasoning. Of course, congressional hearings do not
follow the same rigid format as judicial opinions do, nor do
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they contain nearly as much legalistic jargon. But that is only
problematic if one assumes that the Constitution is primarily a
legal document which is best interpreted by "experts"
who can master legal forms and jargon. Those assumptions are, of
course, challengeable, particularly from the standpoint of
democratic authority. Fisher's text provides the grounds for such
a challenge.
Each chapter of AMERICAN CONSTITUTIONAL LAW employs not only
familiar Supreme Court cases, but also congressional and
executive constitutional interpretation. Chapters include useful
introductory essays, and other secondary materials, which relate
the materials to one another and reveal the key questions and
points to be explored in the chapter. My students regularly
comment that these essays are clearly written and thus help them
better understand the difficult primary material that follows.
The extensive citations to primary materials and suggestions for
secondary reading appear in every chapter and serve to guide
students in beginning more detailed research in selected areas.
AMERICAN CONSTITUTIONAL LAW begins with five introductory
chapters that review the political and legal context in which
American constitutional interpretation takes place. These
chapters introduce the approach of the book, and include material
on jurisdiction, standing, judicial organization, judicial
strategy, judicial review, nonjudicial constitutional review, and
the role of interest groups in constitutional interpretation. For
some students, this material may be new, and thus forms an
essential basis for the rest of the semester's work. For others
it may serve as a review. In either case, this approach ensures
that students are in roughly the same starting place before study
of the substantive areas of constitutional law begins. The middle
chapters of the book contain judicial and non- judicial materials
in the standard areas of constitutional interpretation. The
selection of cases is standard and representative; what is novel
is the inclusion of congressional and executive materials as an
integral part of constitutional interpretation. The topics
include separation of powers; domestic conflicts; emergencies and
foreign affairs; federal-state relations; property rights; free
speech in a democratic society; freedom of the press; religious
freedom; rights of the accused; search and seizure; racial
discrimination; group rights; rights of privacy; and political
participation.
In keeping with the overall theme of the book, the final chapter
explores "efforts to curb the court." It contains
materials on constitutional amendments, statutory reversals,
court packing, curbing jurisdiction, noncompliance, and
congressional objections to judicial finality in constitutional
interpretation. Appendices include the text of the Constitution,
a list of the members of the Court (1789-1989), a glossary of
legal terms, and a very useful essay on how to do research in
public law.
AMERICAN CONSTITUTIONAL LAW is available in a single volume,
hardcover edition, as well as in a two volume paperback split
(Volume I is entitled CONSTITUTIONAL STRUCTURES: SEPARATED POWERS
AND FEDERALISM, Volume II is CONSTITUTIONAL RIGHTS: CIVIL RIGHTS
AND CIVIL LIBERTIES). Consequently, Fisher's text can be used for
a one- or two- semester sequence in constitutional law. In
addition, McGraw Hill allows instructors to build a book
precisely fitted to their course; they may omit or restructure
the order of any of the materials available in the original
edition of AMERICAN CONSTITUTIONAL LAW.
I have used this book for two years now, in a two semester
sequence, with great profit. I hope that in future editions
Fisher will provide additional non-judicial materials to balance
out the abundance of cases now included. Because students (not to
mention scholars) are so wedded to judicial supremacy, they tend
to be extremely skeptical about the importance and quality of
congressional, executive, state, and public participation in
constitutional debates -- particularly if the standard examples
of judicial
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interpretation are not offset with several sustained examples of
non-judicial interpretation. For the time being, Fisher's THE
POLITICAL DYNAMICS OF CONSTITUTIONAL INTERPRETATION (co-authored
with Neil Devlin, St. Paul: West Publishing Co., 1992), contains
extensive non-judicial primary material set in the context of a
secondary discussion of relevant judicial cases. As such, it is a
very useful supplement to the excellent base that Fisher provides
for the study of politics and law in AMERICAN CONSTITUTIONAL LAW.
Copyright 1992