Vol. 8 No. 4 (April 1998) pp. 203-205.

A CONSTITUTIONAL LAW ANTHOLOGY. By Michael J. Glennon, Donald E. Lively, Phoebe A. Hadden, Dorothy E. Roberts, and Russell L. Weaver (Editors). 2d Edition. Cincinnati, Ohio: Anderson Publishing Co., 1997. 660 pp. $27.95 Paper. ISBN 0-87084-198-X

Reviewed by Henry Flores, Department of Political Science, St. Mary's University, San Antonio.

This is a unique anthology as far as constitutional law texts are concerned in that it gives history its appropriate due. As the authors point out in the preface, more often than not constitutional law "casebooks and instruction tends to become increasingly detached from context." (xvii). The authors' intent, which they have achieved admirably, is to reverse this tendency by selecting commentary that grounds classical constitutional issues solidly within their historical foundations.

The volume itself contains five major divisions, each reflecting a traditional area of constitutional concern. Each division is further sectioned appropriately. For instance, Part One, by far the longest and most important division, entitled "The Power and Role of the Judiciary" begins with five essays that discuss the concept of judicial review as set forth in MARBURY V. MADISON. These essays, however, are not of the traditional variety that simply "rehash" MARBURY and the generally accepted notion of judicial review by retelling Marshall's rationale and conclusions. Rather, the essays assume a critical perspective that lays the methodological groundwork for the remainder of the volume. Although Marshall's rationale is set forth, the articles take the decision into another dimension by revealing to the reader the cascading manner in which judicial review expands once the court moves beyond basic constitutional tenets. The essay by Ackerman, "Beyond CAROLENE PRODUCTS," is particularly insightful in that the author deconstructs the court's traditional rationale for judicial review and then reconstructs an entirely new perspective from the deconstructed remnants. Essentially, Ackerman illustrates that when the court attempts to lend creativity to judicial interpretation, it expands unknowingly or unconsciously the parameters of its control. If one accepts Ackerman's notion then one must conclude that every time the court reviews a case it redefines both its authority and, by definition, its place in the national political system.

The remainder of the essays in Part One use this different methodological framework to present all of the traditional concepts unique to the Supreme Court's judicial review powers including, the various philosophies and methods of judicial interpretation, fundamental rights analysis particularly economic rights and incorporation, and modern due process. By far the most interesting aspect of this part of the anthology, aside from the opening subdivision, is the collection of essays entitled "Modern Substantive Due Process." Here the authors have chosen a series of essays that present a well-balanced discussion of the controversial "right to privacy." The essays, concluding Part One, range from one that almost completely rejects this right to one that advocates for an expansion of the right that highlights a guarantee of personal liberty by the government. This last essay penned by Dorothy Roberts, entitled "Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy," argues that the court's interpretation of the right of privacy actually works to the disadvantage of poor women of color. In the first place, Roberts argues, that the "abstract freedom to choose is of meager value without meaningful options from which to choose and the ability to effectuate one's choice." This is compounded by the unavailability of resources and an "emergent self . . . continually beaten down by social forces." Fundamentally, Roberts argues that one must move beyond the superficial, traditional, conception of privacy rights to a more substantial and expansive doctrine that forces the government and society into a more affirmative posture. Part One concludes with essays almost as provocative discussing homosexual and sexual privacy and the "right to die." These essays are not as daring as the Roberts piece, however; they do provide "food for thought" concerning different ways of conceiving of these particular areas of law.

Parts Two and Three are, combined, shorter than Part One and also more predictable. Part Two presents a series of essays concerning separation of powers that run the gamut from a presentation of some early versions of the concept to more modern, complex aspects such as difficulties concerning the independent counsel and legislative vetoes. Part Three is more creative in that several of the essays discuss unique conceptions of the commerce clause that have arisen in more contemporary times, particularly the relationship between the commerce clause and criminal law.

The fourth part of the anthology focuses on "Equality Concepts" with the majority of the discussion concentrating on issues principally relevant to the manner in which the courts have dealt with racial equality. This division of the book begins with two classical essays on slavery by A. Leon Higginbotham, Jr. and Thurgood Marshall that speak to the difficulty this country has had in facing the entire issue of slavery and reconciling it with its notion of individual freedom and liberty. The remainder of this book's division brings to bear the long and complex journey the courts have traveled in their attempt at confronting racial inequality while at the same time maintaining the integrity of constitutional interpretation. Subdivisions focusing on the evolution of the fourteenth amendment, including the movement from "separate but equal" to "affirmative action," and the eventual extension of equality to "women and other marginalized groups" complete Part Four. Still the underlying theme of this division is the painful and torturous manner in which the courts have chosen to face issues of equality for society's generally excluded groups. This section of the volume exemplifies the authors' theme in that the analysis is historically bound. The authors trace the development of equal protection beginning with Higginbotham's scathing essay, where he raises the contradiction that the colonists lived in their claim that they had been enslaved by the British in justifying their call for a revolution while ignoring the servitude that had been forced on African slaves, and ending with an essay by Martha Minow on the extension of equal protection to the mentally retarded. Not only does this part of the book present the reader with a logical development of this historical process, it is also an excellent presentation of the intellectual development of the court on these difficult issues.

The volume concludes with a succinct discussion of standing and political questions. The articles in this section present an overview of these issues from the narrow to the broad. Justice Scalia's essay presents an argument that would narrow standing extensively while at the opposite end of the spectrum Christopher Stone presents an argument that would broaden the concept to include nonliving "things." The final two essays present arguments for negating the position that the courts have taken not to consider political questions. Here not enough emphasis is given to the notion that, regardless of what the court claims, almost all of what it does is the adjudication of political conflict. Admittedly the courts have been consistent in several obvious areas defined as political, however, political questions underlie almost every case that goes before the court and almost every decision by the court results in political consequences. It is not clear that the court will change its position any time soon, however, given the recent decisions not to intervene in the Commonwealth of Virginia's executions of Mexican and Paraguayan nationals despite international and domestic political pleadings.

Essentially, the editors have achieved both of their stated goals, they have composed a unique textbook for law students. The uniqueness of this work is that the authors have utilized a different method, almost postmodern, to trace the intellectual history of the court in many traditional areas. This is an excellent volume to introduce law students to the general area of constitutional law for several reasons. The authors choice of essays exemplifies the diversity of thought underlying many legal issues that are often thought of superficially. Additionally, it covers both the requisite areas of the law while at the same time "teaching" them to think of the law differently and creatively.
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