Vol. 2 No. 10 (October, 1992)

CONSTITUTIONAL LAW: CASES AND ESSAYS, 2d Ed. by Sheldon Goldman. New York: HarperCollins 1991. 916 pp. Cloth $45.00.

Reviewed by Mark A. Graber, Department of Government, University of Texas at Austin

CONSTITUTIONAL LAW: CASES AND ESSAYS is the text for professors who cannot decide how to teach constitutional law. For those who want to teach constitutional history, Goldman opens with four chapters detailing the historical background of major Supreme Court cases, the voting patterns on the Court at different historical periods, and the constant political efforts to pack and unpack the federal judiciary. Those who want to teach constitutional politics will find those chapters an excellent introduction to the external and internal forces that shape judicial decisionmaking. Those who want to teach constitutional doctrine will be pleased that the last 600 pages of the text are chock full of all the important decisions and opinions ever handed down or written by Supreme Court justices (with short summaries of how constitutional policymaking has evolved in different areas of law for those who want to teach constitutional history and nice tables commenting on the impact of the decisions for those who want to teach constitutional politics). Only professors who want to teach constitutional theory are not likely to consider CONSTITUTIONAL LAW. The text barely acknowledges the philosophical debates over constitutional law, American constitutionalism, or particular constitutional doctrines that have occurred throughout American history and are currently exciting both the academy and the general public.

Still, notwithstanding the absence of one important course, Goldman offers an excellent smorgasbord of the various approaches that empirically minded political scientists take to constitutional law. The text's failure to include material on constitutional theory is hardly a fatal omission given the numerous texts already on the market that cater to constitutional law professors with a more philosophical bent. Professors who simply want to spend some time on theoretical matters in their courses will likely find a cheap paperback that can supplement CONSTITUTIONAL LAW. Philip Bobbitt's CONSTITUTIONAL FATE comes to mind, though other scholars will no doubt have their favorites. Given the overwhelmingly doctrinal or theoretical bent of most casebooks on the market, Goldman's decision to incorporate more social science materials makes his text a welcome addition to the alternatives available for persons who teach undergraduate courses in American constitutional development or American Constitutional politics.

Nevertheless, in one crucial dimension, Goldman lacks the courage of his empirical political science convictions. The first four chapters of his work offer important material on some facets of the American constitutional experience that political science students should learn but are not available or easily accessible in other major casebooks. Few works other than CONSTITUTIONAL LAW discuss, for example, how the internal dynamics of the Court affect judicial output or present any information on the impact of judicial decisions. The 600 pages of cases in CONSTITUTIONAL LAW, however, seem to be there for no better reason than the decision made in 1870 by Christopher Columbus Langdell that law students should spend almost all of their time reading cases. Why this means that political science students in 1992 should spend at least three-quarters of their time reading cases is not explained. Undergraduates taking constitutional law should, of course, be exposed to such classic opinions as the Holmes' dissent in ABRAMS V. UNITED STATES, but do they really have to read BOOS V. BARRY, particularly if the dominant theme of the course is empirical approaches to the American constitution? As a result of the great weight given to cases in the text, CONSTITUTIONAL LAW still feels like a traditional doctrinal casebook with a little political science thrown in, rather than a distinctive work emphasizing those features of American constitutionalism of most interest to social

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scientists. Perhaps HarperCollins may have worried that less emphasis on doctrine would have reduced potential sales, but for reasons to be discussed below the Goldman text is not likely to be adopted by professors who are primarily interested in having students analyze judicial opinions.

Professor Goldman's praiseworthy efforts to ensure that constitutional law courses include a wide variety of perspectives create some organizational and substantive problems. Rather than integrating different approaches, CONSTITUTIONAL LAW devotes distinct sections to different aspects of American constitutionalism. The work first offers an historical review of the political settings of constitutional decisions, moves to a second historical review of the internal workings of the Supreme Court, and then offers a lengthy series of judicial opinions organized by topic rather than by history (although cases within each topic are for the most part organized historically). Even Professor Goldman admits that he does not teach his course as his text is laid out, and no other professor is likely to either. As a result, students may feel slightly disjointed as they continually get such reading assignments as pages 36-45, 113-18, and 357-68. Given the general historical bent of the text, CONSTITUTIONAL LAW would be simpler for both student and teacher if all the material were presented in one historical sweep.

The second problem with Goldman's effort to present many different perspectives on the American constitutional experience is not so easily curable. Students reading the early essays in CONSTITUTIONAL LAW, especially the material in chapters four and five on "The Justices -- Their Appointments, Backgrounds, Voting Patterns, and Patterns of Group Interaction," will learn constitutional politics from an expert, a scholar who is one of the foremost authorities in the country on these matters. No one, however, is an master of everything. Thus, although the selection and editing of cases in the doctrinal sections are adequate, the last six hundred pages of the text seem perfunctory at times with comments kept to a minimum. Not surprisingly, the doctrinal sections in casebooks written by scholars who spend most of their time studying judicial opinions are superior to the analogous sections in CONSTITUTIONAL LAW. Scholars who spend most of their times studying judicial opinions, however, usually write casebooks that lack the empirical virtues of the Goldman text. Unfortunately, any professor using a casebook will be forced to make some tragic choices because no scholar, even such a distinguished scholar as Sheldon Goldman, can write authoritatively on all aspects on the American constitutional experience.

The appropriate blurb for the Goldman work is "if you are going to use a text to teach constitutional law, you should seriously consider CONSTITUTIONAL LAW." The second half of that sentence, however, is "but you probably should not use a text." Undergraduates should be exposed to the wide variety of perspectives that Goldman offers (with more theory thrown in), but no public law scholar is capable of adequately presenting material on constitutional development, constitutional politics, constitutional doctrine, and constitutional theory. Indeed, this observation suggests the following alternative. Perhaps for the next edition of CONSTITUTIONAL LAW, HarperCollins and Professor Goldman should scrap the cases, retain the splendid essays, and put out an inexpensive paperback. The money students would save could be invested in other paperbacks devoted to more theoretical issues in American Constitutionalism (e.g., Smith's LIBERALISM AND AMERICAN CONSTITUTIONAL LAW) and perhaps a reader of primary sources that included major judicial decisions as well as other documents of theoretical and historical significance (e.g., Urofsky's DOCUMENTS OF AMERICAN CONSTITUTIONAL AND LEGAL HISTORY) This might make a great syllabus for an undergraduate political science course in constitutional law.

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References

Bobbitt, Philip. CONSTITUTIONAL FATE. New York: Oxford University Press, 1982.

Smith, Rogers. LIBERALISM AND AMERICAN CONSTITUTIONAL LAW. Cambridge: Harvard University Press, 1985.

Urofsky, Melvin. DOCUMENTS OF AMERICAN CONSTITUTIONAL AND LEGAL HISTORY. New York: Knopf, 1989.