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