Vol. 15 No.8 (August 2005), pp.675-678

 

CONSTITUTIONAL LAW:  CASES IN CONTEXT (VOL. I. FEDERAL GOVERNMENTAL POWERS AND FEDERALISM, VOL. II. CIVIL RIGHTS AND CIVIL LIBERTIES), by James C. Foster and Susan M. Leeson.  Upper Saddle River, NJ:  Prentice-Hall, 1998.  Vol. I.  953pp.  Paper $94.40.  ISBN: 0-13-568775-6.  Vol. II.  1184pp.  Paper $49.00.  ISBN: 0-13-568759-4.

 

Reviewed by Kevin T. McGuire, Department of Political Science, University of North Carolina at Chapel Hill.  Email:  kmcguire@unc.edu .

 

Over the last ten years, we have seen considerable innovation in textbooks on American constitutional law.  Having broken almost completely from the traditions of the law school casebook, undergraduate texts have now adopted a variety of appealing characteristics, including historical photographs, data on voting alignments, discussion of systematic research in political science (imagine!), excursions into comparative law, extensive bibliographies, and references to websites containing opinions, briefs, and other original materials.

 

One of the innovators — and in my view one of the best — is James C. Foster’s and Susan M. Leeson’s CONSTITUTIONAL LAW:  CASES IN CONTEXT.  The subtitle says it all; these two volumes reflect a straightforward but brilliant approach to the study of constitutional law by providing a substantial degree of information about the historical circumstances in which cases arise and then connecting those circumstances to the various legal and political issues that confront the Court.  These books situate their cases in, well, context.

 

For many of us, our tendency is simply to teach a lineage of cases, emphasizing the relevant components of the Court’s opinions, and leaving it to students to sort out which cases represent controlling authority and why.  We may devote great efforts to highlighting the abstract principles of law that emanate from these cases, but such efforts can fall flat, if we fail to give undergraduates a clear sense of how the sometimes seemingly innocuous conflicts, both within government and between government and citizens, become transformed into controversies of constitutional proportions.  Foster and Leeson have clearly recognized that understanding the Court’s opinions requires an appreciation of what was happening, both on and off the Court, at the time cases were decided.  In place of the standard headnotes, which often seem to rely on little else than the Court’s opinion to produce a skeletal sketch of the facts, these authors, in case after case, go to great pains to set the scene for their readers.

 

The care that the authors have taken to provide such substantial background pays dividends throughout these two books.  In Volume 1, for example, the introductions to such cases as DRED SCOTT, SCHECHTER POULTRY, YOUNGSTOWN SHEET & TUBE, and THE SLAUGHTER-HOUSE CASES reflect the most conscientious effort to provide readers with the historical [*676] backdrop necessary to understand why these conflicts arose and their constitutional significance.  Likewise in Volume 2, one could not read Foster’s and Leeson’s treatment of such cases REYNOLDS v. U.S., SCHENCK, NEW YORK TIMES v. SULLIVAN, and PLESSY without gleaning an appreciation of the larger social and political forces that were smoldering long before the litigants went to Court.

 

The authors have done such a splendid job of providing these highly accessible lead-ins that it is easy to underestimate the substantial historical research that surely went into providing these fascinating descriptions.  I daresay that even the most seasoned instructors, confident that they have committed all the relevant chestnuts to memory, will still find a great deal of information that will better inform their own understanding and presentation of these cases.  I have no doubt that undergraduates respond equally well to the approach taken in these volumes.  In my experience, students want this kind real-world information to juxtapose against their reading of abstract principles of law.  (How many times has a student asked, “So, did Marbury ever get his job, or not?”)  Indeed, the popularity of the wonderful series in Landmark Law Cases at the University Press of Kansas provides ample testament in that regard.

 

Taking this approach a step further, Foster and Leeson also provide detailed excerpts from briefs on the merits of individual litigants.  Following the introduction of a case, the authors offer a point-by-point encapsulation of the parties’ principal arguments.  Typically, one gets a sense of these arguments from reading the justices’ opinions, but the Court’s treatment of these arguments is cursory and often selective.  By having access to the contents of the parties’ briefs, readers of the books gain a much clearer appreciation of the difficulties that the Court confronts when resolving the cases on its docket.

 

This approach contrasts sharply with traditional casebooks, which begin with a brief factual headnote and then turn to the Court’s majority opinion.  By this means, undergraduates may receive the tacit message that the Court’s resolution of a case is the “correct” one.  By abstracting the arguments of the litigants before turning to the Court’s opinions, Foster and Leeson force students to confront two rival — and usually quite plausible — interpretations of the law.  One could not read the competing arguments presented in, say, PENN CENTRAL TRANSPORTATION v. CITY OF NEW YORK (in Volume 1) or WISCONSIN v. MITCHELL (in Volume 2) without a clear sense that, if both parties can readily muster compelling interpretations of the law, there is no obvious answer.

 

For those inclined to think that the justices are unconcerned with the practical implications of their policies, Foster and Leeson also provide an array of litigant arguments that appeal to the likely real-world consequences of the Court’s pronouncements.  In their presentation of U.S. v. LEON, for instance, the authors illustrate how parties can use empirical evidence about the day-to-day workings of one its policies — in this case, the exclusionary rule — to persuade the justices.  For good measure, the authors often include a list of amici curiae and, in many [*677] instances, highlight some of their arguments, as well.

 

In short, even before students read the Court’s opinion, they must first come to terms with the setting in which the case arose and the arguments put forth by the litigants as well as affected interests.  By this means, undergraduates will surely formulate more meaningful hypotheses about the motivations of the Court and likewise come away with keener grasp of the various principles adopted by the justices.

 

Each volume is smartly organized around the standard set of themes.  The first volume covers the separation of powers at the national level and the division of national and state authority.  Like many textbooks, this one subsumes its treatment of the commerce clause under the heading of federalism — other texts place this topic under congressional authority or simply examine it free-standing — and the subject of property rights, which usually cannot be squeezed into its logical place among rights and liberties, remains the forgotten stepchild of constitutional law and is safely secluded at the back of book.

 

The second volume is oriented around the liberties protected by the First Amendment before making a transition to the Fourteenth Amendment and the several rights arising under it.  Interestingly, the topics of personal autonomy and the rights of the accused follow the discussion of equal protection to conclude the volume.  This, I suspect, will strike most as somewhat out of the logical order of things.  Regardless of their sequence of topics, however, the authors have shown remarkable restraint in their selection of cases.  Foster and Leeson have resisted the temptation, which is surely considerable, to present the bulk of the landmark cases across these areas of the law.  Instead, they have been much more judicious, selecting cases that provide a sense of the current state of the law.  To be sure, these books do include cases of historical import, but they do not consistently seek to provide a series of interconnected cases that trace the evolution of legal doctrine.  Of course, instructors who place a value on following the ebb and flow of specific principles over time may well see this as a liability.  Surveying the cases that are included, one may have the occasional quibble — for example, why any book still includes CANTWELL v. CONNECTICUT is beyond me, and, unlike these authors, I think that any responsible book should cover BRANZBURG v. HAYES — but these are highly subjective judgments.

 

Across both volumes, readers will also find a great many thoughtful questions to facilitate classroom discussion (or perhaps even written assignments).  These questions reveal the same care and reflection that the authors demonstrate elsewhere in the books.  Among other things, Foster and Leeson pose questions that test constitutional theory and interpretive approaches and frequently invite readers to ponder the implications of a decision rule, when applied in related cases.

 

In addition, each volume begins with a useful introductory chapter on the organization, functions, and decision making processes of the federal courts.  Those interested in further reading on substantive topics will discover very substantial bibliographies buttressing [*678] each section.  There are also very handy synopses of a good many cases that, although not given full dress treatment, still bear upon the development of the law in individual issues areas.

 

Perhaps because these volumes pack so much useful information together with the authors’ extended presentation of legal, political, and historical context, the actual opinions of the justices are, on average, substantially more abbreviated than one might find in other casebooks.  Many opinions are reduced to a page or two, and concurrences and dissents occasionally rank little more than a few paragraphs.  Whether an instructor will regard this as an asset or a liability will, I suppose, be largely a matter of taste.  Of course, the ready availability of opinions on the internet makes this less of a concern, regardless of how much of the opinions appear in a casebook.

 

Overall, these two books constitute a very fine addition to the available texts on American constitutional law.  Instructors who want their students to develop a clear sense of the interplay between the Supreme Court and the contending forces of American political life will be delighted with these volumes.

 

REFERENCES:

BRANZBURG v. HAYES, 408 U.S. 665 (1972).

 

CANTWELL v. CONNECTICUT, 310 US 296 (1940).

 

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).

 

NEW YORK TIMES CO. v. SULLIVAN, 376 U.S. 254 (1964).

 

PENN CENTRAL TRANSP. CO. v. CITY OF NEW YORK, 438 U.S. 104 (1978).

 

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

 

REYNOLDS v. U.S., 98 U.S. 145 (1878).

 

A. L. A. SCHECHTER POULTRY CORP. v. U.S., 295 U.S. 495 (1935).

 

SCHENCK v. U.S., 249 U.S. 47 (1919).

 

THE SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1873).

 

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

 

WISCONSIN v. MITCHELL, 508 U.S. 476 (1993).

 

YOUNGSTOWN SHEET & TUBE CO. v. SAWYER, 343 U.S. 579 (1952).

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© Copyright 2005 by the author, Kevin T. McGuire.