Vol. 2 No. 10 (October, 1992) pp. 134-137
REVIEW ESSAY: Is There A Canon of Constitutional Law? by Jerry
Goldman, Department of Political Science, Northwestern University
The purpose of this brief essay is to explore some common and
uncommon features of constitutional law texts. I shall pose a
deceptively simple question: Does constitutional law have a
canon? By "canon" I mean a widely accepted body of
rules, principles, and norms exemplified in a common set of
Supreme Court opinions. I have constructed an answer by examining
the similarities and dif- ferences in casebooks widely used by
political scientists who teach constitutional law. I reviewed the
following works:
Lucius J. Barker and Twiley W. Barker, Jr. CIVIL LIBERTIES AND
THE CONSTITUTION, Sixth Edition (Englewood Cliffs NJ:
Prentice-Hall, 1990).
Paul Brest and Sanford Levinson, PROCESSES OF CONSTITUTIONAL
DECISIONMAKING: CASES AND MATERIALS, Third Edition (Boston:
Little Brown, 1992).
Craig R. Ducat and Harold W. Chase. CONSTITUTIONAL INTERPRETA-
TION, Fifth Edition (St.Paul MN: West Publishing Co., 1992).
Lee Epstein and Thomas G. Walker. CONSTITUTIONAL LAW FOR A
CHANGING AMERICA, 2 vols.(Washington DC: CQ Press, 1992).
Louis Fisher. AMERICAN CONSTITUTIONAL LAW (New York: McGraw-
Hill, 1990).
Sheldon Goldman. CONSTITUTIONAL LAW: CASES AND ESSAYS, Second
Edition (New York: Harper Collins, 1991).
Gerald Gunther. CONSTITUTIONAL LAW, Twelfth Edition (Westbury,
NY: Foundation Press, 1991).
Susan M. Leeson and James C. Foster. CONSTITUTIONAL LAW: CASES IN
CONTEXT (New York: St. Martin!s Press, 1992).
William B. Lockhart, Yale Kamisar, Jesse H. Choper, and Steven H.
Shiffrin. CONSTITUTIONAL LAW (St. Paul MN: West, 1991)
David M. O'Brien. CONSTITUTIONAL LAW AND POLITICS, 2 vols. (New
York: Norton, 1991).
Robert J. Steamer and Richard J. Maiman. AMERICAN CONSTITU-
TIONAL LAW: INTRODUCTION AND CASE STUDIES (New York: McGraw-
Hill, 1991).
Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, and Mark
V. Tushnet. CONSTITUTIONAL LAW, Second Edition (Boston: Little
Brown, 1991).
This list does not exhaust all the books used by political
scientists, but it probably represents a substantial segment of
the 100,000 or so students who likely enroll in constitutional
law classes for undergraduates each year.
METHOD: I created a massive index of all PRINCIPAL SUPREME COURT
cases used in these books. For the purpose of this study, a case
was labeled as a principal case if (1) its excerpt was treated as
an opinion of the Court and the author/editor did not paraphrase
a portion of the argument or (2) the author/editor signaled or
otherwise identified the case as a principal case (e.g., by
highlighting the case with large, bold, or italic type in the
table of contents, the body of the casebook, or the index).
Lawyers and casebooks geared for law school made the most use of
principal, intermediate, and secondary case differentiations.
Operationally, I searched for text entries that began:
"Justice X delivered the Opin-
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ion of the Court" or language to that effect. Since the
publica- tion dates of the books varied over a three-year period,
I settled on 1989 Term as the last year for the quest for such a
canon.
Let me offer three caveats. First, I did not tabulate any cases
from other courts (e.g., Eakin v. Raub) and I did not include
materials that impact on issues of constitutional interpretation
(e.g., Federalist 78). Some authors have structured their books
around these non-Court materials. Hence my findings are biased by
my decision to exclude them. Since my objective was to identify
the common core of constitutional law as expressed by the Supreme
Court, that core should reflect the opinions of the Justices, not
their exegeses. In short, all the glosses provided by commenta-
tors, theorists, and elected officials matter little if the Court
does not speak. It is the words of the Court that matter most.
My second caveat concerns the substantial contributions of text
authors. I did not examine the character of the prefatory essays
that are now a nearly universal feature of constitutional law
texts authored by political scientists and I did not examine the
voluminous commentaries and queries that stud casebooks by law
teachers. A study of the essays and commentaries belongs in the
domain of other reviewers. To repeat, my study focuses on the
common and uncommon Supreme Court cases that comprise the twelve
case books reviewed in this joint enterprise.
My third caveat concerns the search for "principal
cases." My survey tilts toward books that made no
distinction between principal and other case excerpts. I have
assumed that the author/editors who made no such distinction
regard all the cases excerpted in their books as principal cases.
It stands to reason that, other things being equal, the
self-identified set of princi- pal cases should come closer to
the canon of constitutional law than the set of undifferentiated
cases.
FINDINGS: The twelve casebooks employed a total of 552 different
principal Supreme Court cases, ranging from Abington Township v.
Schempp to Zurcher v. The Stanford Daily. I began with the naive
notion that these books contained a fairly extensive common core.
I took this assumption from the idea that one teaches the
monumental cases to understand the Court and its work and that
the monumental cases numbered at least half of the cases in the
two-quarter courses my department devotes to constitutional law
and politics for undergraduates. I suspect I am not alone in this
belief.
How many cases were common to all the books? Much to my surprise,
there were only three such principal cases, or less than one
percent of the total inventory:
Brown v. Board of Education Griswold v. Connecticut Roe v. Wade
These cases reflect the common core of civil rights and liberties
cases, since the list of texts includes one book devoted solely
to this domain (Barker & Barker). All other books are general
texts of varying lengths and with somewhat different audiences,
ranging from undergraduates to law students. Eliminating the
Barker & Barker text reduces the case inventory to 541 but
enlarges the set of common cases by only seven:
Garcia v. SAMTA Gibbons v. Ogden Lochner v. New York McCulloch v.
Maryland Marbury v. Madison New York Times v. United States
Youngstown Sheet and Tube v. Sawyer
Thus, the eleven remaining books share ten principal cases, or
less than two percent of the relevant inventory. These cases
represent, in addition to civil liberties, the standard
government power topics such as: federalism, commerce power,
separation of powers, judicial power, and substantive due
process. (New York Times v. Sullivan, which concerns prior press
restraint, joins
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the common set at this point because all the texts but Barker
include it.) The expanded list also illustrates one of the
problems created by dividing civil rights and liberties from
government powers. Privacy arguments stem from the substantive
due process cases. The roots of Griswold v. Connecticut and Roe
v. Wade lie in Lochner v. New York and arguments in support of
substantive economic due process, which reached its apogee in the
1930s. Griswold v. Connecticut lacks proper foundation in the
absence of Lochner v. New York, but Lochner is a government power
topic, not a civil liberties topic.
Perhaps it is unfair to combine consideration of massive
casebooks like Ducat & Chase and Gunther with those like
Steamer & Maiman, which is self-described as an introduction
with case studies. If we eliminate Steamer & Maiman because
it aims at a different audience, the list of books drops to ten.
(The inventory remains at 541.) What new common cases enter the
canon of principal constitutional cases? Baker v. Carr and Hammer
v. Dagenhart. So among the ten full-length, mainstream
constitutional law casebooks, I can identify at most 12 out of
541 cases that are part of the corpus of materials forming an
inventory of consti- tutional law as formulated by political
scientists and law teachers.
It struck me that one or more of the ten "mainstream"
texts missed several principal cases. An argument could be made
for their inclusion because these cases either (a) announced new
standards that resonate today, or (b) illustrated a dramatic
shift in constitutional interpretation, or (c) demonstrated
fundamental errors that would take years to undo. Such a list
might include:
Brandenburg v. Ohio Craig v. Boren Dennis v. United States
Everson v. Board of Education Gideon v. Wainwright Heart of
Atlanta Motel v. United States Home Building & Loan Assoc. v.
Blaisdell INS v. Chadha Korematsu v. United States Lemon v.
Kurtzman Mapp v. Ohio Miller v. California Miranda v. Arizona
Morrison v. Olson New York Times v. Sullivan NLRB v. Jones &
Laughlin Steel Corp. Plessy v. Ferguson Shelley v. Kraemer The
Slaughter House Cases Swann v. Charlotte-Mechlenberg Board of
Education United States v. Nixon Webster v. Reproductive Health
Services
These 22 cases can be found in many of the ten mainstream books,
but they will not be found as principal cases in all of them. One
book overlooked 16 cases on the list (Brest and Levinson).
(Eliminating Brest & Levinson from the list would add eight
principal cases to the common set: Dennis, Heart of Atlanta,
Miller, Sullivan, NLRB, and Swann.) Lockhart et al. overlooked
five of these 22 cases. To a lesser extent, the other eight
"mainstream" books overlooked one or more such cases.
There were a few cases that should have been included in the
inventory but were passed over entirely by all textbook authors.
With such a wide set of interests among these books and authors,
I would have guessed that one author had found a place for these
orphans: Meyer v. Nebraska, Moore v. City of East Cleveland,
Pierce v. Society of Sisters, Skinner v. Oklahoma, and Strauder
v. West Virginia. The first four are substantive due process
cases that bear on the current privacy debate; privacy concerns
(and substantive due process arguments) had wide appeal among all
ten books. In 1991, the Senate Judiciary Committee quizzed (then)
Judge Clarence Thomas at length about his views regarding Moore
v. City of East Cleveland. While Senators attempted to extract an
opinion from Thomas on
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this important case, our profession simply ignored it. The last
"orphan" case, Strauder v. West Virginia, seemed a
natural for civil rights issues inasmuch as it was an early
example of judicial protection of overt racial discrimination in
jury selection and service.
Finally, the data I collected may be useful in formulating a
strategy for adopting a text. Putting aside for the moment the
editorial skills of the authors, the books with the greatest
number of principal cases offer the most flexibility, provided
that the list of cases is not so eclectic as to suit only the
author/editor. The advantage of a large inventory must be weighed
against the heft and price of the biggest books. The following
list rank-orders the books by the number of principal Supreme
Court cases excerpted:
O'Brien..........211 principal cases S. Goldman.......204
Epstein/Walker...192 Ducat/Chase......183 Fisher...........159
Gunther..........129 Stone et al......122 Lockhart et al...112
Brest/Levinson... 98 Leeson/Foster.... 92 Barker/Barker.... 66
Maiman/Steamer... 64
Of the first five books on the list, four are published in two
volumes. The exception is Sheldon Goldman's text, which offers
more cases in fewer pages than all of the jumbo texts. By this
criterion, Goldman's book is a standout. The single-volume
approach avoids sundering critical topics, e.g., privacy and
substantive due process.
The books targeted primarily for law school audiences attempt to
draw the distinction between principal and secondary cases. These
books contain more case excerpts than other books, but fewer
principal cases. None of the books relying on the principal-
secondary distinction offers an explicit rationale its use.
CONCLUSION: At the beginning of this paper, I posed a simple
question. It is now time for an answer. Public law has a canon,
but it appears a trifling one. There is almost no agreement on
the principal cases that form our civil rights and civil
liberties tradition. The other cases in the very small common set
reflect only a few of the great constitutional disputes of our
history. Interestingly, there are three nineteenth century cases
among the ten common cases and they are all the work of one
justice, John Marshall. It is fair to say that the great chief
justice has left a legacy that towers over any of his
contemporaries or successors. Still, the size of the canon is
trivial, which is not what I expected.
It would be healthy for us as a profession to re-examine the
fundamentals of constitutional law. Perhaps we should contemplate
the content of the canon and consider whether we share a set of
common principles, rules, and norms embodied in Supreme Court
opinions. To this end, we should be formulating and articulating
justifications rooted in theory and practice for the inclusion or
exclusion of opinions in the next generation of textbooks.
Perhaps these findings will help spark such discussion and
debate.
Copyright 1992