Vol. 15 No.8 (August 2005), pp.648-656

REVIEW ESSAY:  THE CANON OF CONSTITUTIONAL LAW REVISITED

Jerry Goldman, Department of Political Science, Northwestern University

In 1992, I compared several constitutional law casebooks with the aim to answer a simple question: Is there a canon of constitutional law? “By ‘canon’ I mean[t] a widely accepted body of rules, principles, and norms exemplified in a common set of Supreme Court opinions” (LPBR, Vol. 2, No. 10).  Of the ten full-length ‘mainstream’ casebooks, I identified 12 canonical cases out of an inventory of 541 principal cases.  They were:

BAKER v. CARR

BROWN v. BOARD OF EDUCATION

GARCIA v. SAMTA

GIBBONS v. OGDEN

GRISWOLD v. CONNECTICUT

HAMMER v. DAGENHART

LOCHNER v. NEW YORK

MARBURY v. MADISON

MCCULLOCH v. MARYLAND

NEW YORK TIMES v. UNITED STATES

ROE v. WADE

YOUNGSTOWN SHEET AND TUBE v. SAWYER

I found the results perplexing because I expected the common set of cases to be much larger, certainly in relation to the number of cases I found across these dozen casebooks. I faced two reasonable criticisms: (1) I had mixed casebooks authored by law teachers with casebooks authored by political scientists. These sets targeted different audiences (law students versus undergraduates) with different pedagogical purposes, though in my defense both kinds of casebooks were used in liberal arts undergraduate programs. And, (2) I had held to a rigid view of ‘canonicity’ by requiring that every casebook share a common thread of materials. My standard was simply too high and by slightly relaxing the unanimity rule, more cases would have fallen into the canon of constitutional law. Lee Epstein and Tom Walker were my critics. While I acknowledge the key points, I still hold to the view that there is a core text or set of texts that all students of the subject should be required to master. There are many paths through this swamp, but at some point all of us need to pass through MARBURY v. MADISON and other key documents.

Balkin and Levinson (1998) explored the normative aspect of the question, “[W]hat ought to be canonical in the study of law[?]” (Balkin and Levinson 1998, at 967).  This is an entirely legitimate issue, but I confine my review to the empirical side of the plate, asking “What is canonical in the study of constitutional law in casebooks authored and edited by political scientists?”

I elected to revisit the canon question in this current crop of constitutional law casebooks, this time with the aid of a capable group of students (This review was part of the undertaking in a recent seminar and I wish to thank: Folasade Adekunle, Melissa Derr, Josephine Djekovic, Rebecca Fitzpatrick, Nicholas Ghosh-Roy, Matthew Hall, Imran Khan, Susan MacDougall, Sarah Melick, Andrew Moldenhauer, Emily Mraz, and Benjamin Snyder.)  And I have harkened [*649] to my critics by examining the set of casebooks for the undergraduate curriculum with a more forgiving standard for inclusion in the canon of constitutional law.

In the remainder of this review, I shall (1) identify the cases and materials that are part of the canon, (2) estimate roughly how much attention authors pay to such cases, and (3) explore a more complicated issue: Given a canonical case (e.g., MARBURY v. MADISON), what parts of it are held in common by casebook authors?

1. We reviewed thirteen casebooks authored by political scientists and used primarily in undergraduate classes. The numbers in parentheses represent the principal cases used in the case.

Barker, Barker, Combs, Lyle, & Perry (140)

Cushman & Koukoutchos (142)

Epstein & Walker (202)

Fisher (204)

Foster & Leeson (213)

Ivers (213)

Kommers, Finn, & Jacobsohn (146)

Mason & Stephenson (128)     

Murphy, Fleming, Barber, & Macedo (116)

O’Brien (266)

Randall (202)

Rossum & Tarr (186)

Stephens & Scheb (146)

These books vary widely in length and format. We combined the two-volume works for purposes of comparison. The number of cases per casebook ranged from 116 to 266. (The number of principal cases counts duplications in multi-volume works.)  Several books used non-SCOTUS materials as unique features in a competitive marketplace. But there were no commonly held non-SCOTUS materials such as Section 13 of the Judiciary Act of 1789.

Supreme Court opinions form the corpus for undergraduate education in constitutional law. And there were plenty of them. Across all thirteen casebooks, we identified 578 unique cases ranging from 44 LIQUORMART v. RHODE ISLAND through ZORACH v. CLAUSON.  The total set of cases grew less than 10 percent from the last survey in 1992 when the set embraced 541 cases. Some cases have simply depreciated to the point that they hold little or no value, replaced by new threads and arguments. But we did not systematically assay the ones dropped from the set or the new ones added.

Before identifying the cases comprising the canon, we need to address two issues. The first is copyright date. These casebooks have variable copyright dates, complicating comparison. For example, two titles were published before 2000 (Foster & Leeson; Cushman & Koukouchis), thus foreclosing the inclusion of BUSH v. GORE and other cases from the unanimous canonical set. This issue has been addressed by relaxing the unanimity rule. For the purpose of this review, we shall report the data but account for the casebooks that did not include decisions that otherwise made it to the list.

The second issue concerns the treatment of the Barker, et al. casebook, which centers on civil rights and liberties. This is a substantial casebook and ought not to be slighted because it only addresses a portion of the constitutional law domain. When we report the result of our review for civil rights and liberties cases, we [*650] will include Barker, et al. in the set of thirteen titles (n=13). When we report the result of our review for “structure of government” cases, we will exclude Barker, et al. reducing the set of casebooks to twelve. 

THE CANON:

What cases did these casebooks consider in common? A “structure of government” case was designated as a canonical case when it was excerpted in as few as ten and at most twelve of the comprehensive casebooks (n=12). The list of cases and frequency across casebooks will be found in Table 1.

TABLE 1

Twenty-eight cases made the cut. Even by my original rule – inclusion in every book – fourteen structure-of-government cases would have qualified for the canon. (This compares with 7 structure-of-government cases in the 1992 survey.) To the original set of canonical cases, we can append:

DRED SCOTT v. SANFORD

EX PARTE MCCARDLE

INS v. CHADHA

SLAUGHTERHOUSE CASES

UNITED STATES v. CURTISS-WRIGHT

UNITED STATES v. LOPEZ

UNITED STATES v. NIXON

WEST COAST HOTEL v. PARRISH

HAMMER v. DAGENHART lost its universal appeal. But the list goes on, if you take a more relaxed view of canon eligibility.

A civil liberties or civil rights case was designated as a principal case when it was excerpted in eleven or more of the casebooks. The list of cases and frequency across casebooks will be found in Table 2.

TABLE 2

Twenty-one cases qualified for inclusion in the canon because they were found in at least eleven casebooks. And even by my original rule – inclusion in every book – eight cases would have made the canon list. This would represent a doubling of the number of civil rights and civil liberties cases identified in 1992. Added to the unanimous picks are:

EMPLOYMENT DIVISION v. SMITH

PALKO v. CONNECTICUT

PLANNED PARENTHOOD v. CASEY

PLESSY v. FERGUSON

NEW YORK TIMES v. UNITED STATES lost its unanimous appeal. But for the most part, the cases that I consider as central to any introduction to constitutional law are on the expanded list.

Of course, the fact remains that the set of canonical cases is very small in relation to the total corpus across all books. What purpose could explain such variability? Perhaps the prefatory explanations can justify the inclusion or exclusion of materials, though with few exceptions, I found the justifications strikingly similar and therefore unhelpful in understanding why one book would be so different from the next. Perhaps the paths through the brambles of constitutional law are so varied that any path will do, provided students connect with some of the canonical cases. However, it is difficult for me to fathom how one could teach civil liberties and civil rights without examining BRANDENBURG v. OHIO, [*651] or NEW YORK TIMES v. SULLIVAN, or KOREMATSU v. UNITED STATES.

It should come as no surprise that there is a certain boutique nature to the casebook enterprise. In a field so crowded with competitors, it would be tempting to create a unique collection of materials. And to some extent, each casebook does that. Among all 13 casebooks, there are 219 unique principal cases—i.e., they are found in only one book. Ninety cases will be found in two casebooks; 42 in three; and the numbers decline thereafter.

(2) How much attention do authors pay to cases? This is only a rough measure but it is one way to grapple with comparisons among casebooks. My calculations are reported in Table 3.  The average number of pages devoted to any case in any book is about 3.5. Let’s focus briefly on the canonical cases in the strictest sense.

                                                            TABLE 3

The longest average excerpt across all canonical cases is PLANNED PARENTHOOD v. CASEY, at nearly 10 pages (s.d.=6.44). The shortest average excerpt (1 page) across all canonical cases is EX PARTE MCCARDLE (s.d.=0.33). One might argue that if these are truly canonical cases, then the excerpts should be approachable in a fairly agreed-upon way with the result that each would be about the same length with little deviation. But the evidence does not support this view, at least for some cases on the list.

(3) What might explain the variation in excerpt length? Well, it is likely that each casebook author or author team has a particular point, or theory, or pedagogical direction that may require more (or less) content from any case. Some casebooks may be constrained by overall length considerations imposed by publishers, while others are not so constrained. The critical issue boils down to this: How do casebook authors approach the task of editing cases selected for inclusion?

As the final exercise in this review, we thought to compare how each author or author team approached a case that is unquestionably at the heart of the canon of constitutional law: MARBURY v. MADISON. As this is often the first – or among the first cases – that students would read and master, and since this is the touchstone example in public law, it would seem reasonable for casebook authors to approach or identify the salient elements of this case in a similar fashion. The bare facts that MARBURY has an average length of nearly 5 pages (s.d.=2.0) exposes some differences in how one approaches this seminal case. But even if the standard deviation approached zero, there would still be a question as to what each author included or excluded from MARBURY.

We thought to compare editorial decisions in MARBURY v. MADISON across all 12 casebooks that covered separation of powers issues. To accomplish this task, we took the original, full text-version and then stepped up the font size for the words excerpted in each casebook. At the end of the exercise, the document would have text of varying sizes. (1) The greater the uniformity in the font size for [*652] blocks of text, the greater the agreement among casebook authors on the importance of particular passages. And (2) the sections with the largest type would represent the greatest agreement (and perhaps unanimity) among casebook authors.

MARBURY v. MADISON

If translation is tragedy (traduzione e tragedia), then perhaps editing is emasculation. And MARBURY has been edited quite a bit by casebook authors. First, the good news: It appears that all the essential bits to MARBURY (at least enough to fathom the structure of Marshall’s argument) are there. Nothing essential has been eliminated among the canonical cases. But now for the less-than-good news: there is a striking amount of disagreement about what should be sufficient from the MARBURY decision, and I cannot explain why there would be such extensive variation. Why, for example, would two casebook authors eliminate the key questions posed by Marshall to frame his argument? I guess one could just as easily state the questions but that would substitute the casebook authors’ voice for Marshall’s.

Consider another example from MARBURY:

“It remains to be inquired whether,

3. He is entitled to the remedy for which he applies. This depends on:

1. The nature of the writ applied for, and

2. The power of this court.”

Ten of 12 books excerpt the first 19 words (through ‘on’) but then two casebooks drop the remaining sentence (‘This depends . . . .’).  I am trying to understand why one would include the first part but not the second.

It seems to me that the weakest element across all casebooks is editorial judgment. MARBURY is perhaps the best example for us to reach agreement. And on the whole, authors agree on the necessary bits. Is this the best we can do? A systematic examination of other canonical cases may prove more problematic. At least, that has been my experience when I have searched in vain for a key paragraph or concurrence gone missing.

One text that seems to be missing on a more or less grand scale, at least with respect to MARBURY, is the failure to provide the text of Section 13 of the Judiciary Act, which the court invalidated. My students are always amazed at the opportunities to read that section in a benign fashion, thus making Marshall’s exposition on judicial review a much more deliberative, political act. While we recognize that MARBURY holds many escape hatches that could have resulted in a less powerful institution, nothing makes the point better, in my experience, than having students realize for themselves that there is more than one way to interpret a statute.

CONCLUSION:

I have attempted an overview of a baker’s dozen constitutional law books. Each casebook aims to frame objectives in a unique and engaging way. In my view, many of these books succeed, but I leave that judgment to colleagues in the reviews that follow because they have been charged to assess a single title. My task [*653] has been to review these books in some comparative framework and to locate the common elements across many titles.

The list of canonical cases will vary, depending on the way one operationalizes “canonical.” Whether holding a weak or strong definition of the canon, the number of cases common to most or all books has grown. While MARBURY, ROE, and others will be in every Table of Contents, I still wonder why some key cases (e.g. BRANDENBURG v. OHIO, or KOREMATSU v. US) did not make the All-Star list. 

Declaring a case to be “canonical” may only beg the question because nearly every case is subject to significant editing. One version of ROE v. WADE will not be the same as another. They may have little or nothing in common, despite the fact that an excerpt will be found in all casebooks. More to the point then is the way in which cases have been edited. And even with a case that most of us would agree is deserving of inclusion in our canon, we have managed to agree and disagree about which parts of MARBURY deserve inclusion in any casebook. I do not have an explanation for the sufficiency of casebook editing. Perhaps I shall have a better grasp of the issue when it comes time for another review a decade hence.

REFERENCE:

Balkin, J.M., and Sanford Levinson. 1998. “The Canons of Constitutional Law.” 111 HARVARD LAW REVIEW 963-1022.

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© Copyright 2005 by the author, Jerry Goldman.

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       TABLE 1: CANONICAL CASES FOR STRUCTURE OF GOVERNMENT

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TABLE 2: CANONICAL CASES FOR CIVIL RIGHTS AND LIBERTIES

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TABLE 3: CANONICAL CASES, MEAN PAGE LENGTH, AND STANDARD DEVIATIONS

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