From The Law and Politics Book Review

Vol. 8 No. 11 (November 1998) pp. 401-404.

THE AMERICAN CONSTITUTIONAL ORDER: HISTORY, CASES, AND PHILOSOPHY by Douglas W. Kmiec and Stephen B. Presser. Cincinnati: Anderson Publishing Co., 1998. 1620 pages. Cloth $57.95. ISBN 0-87084-003-7.

Two volume edition: Volume I, THE HISTORY, PHILOSOPHY AND STRUCTURE OF THE AMERICAN CONSTITUTION, 612 pages, Cloth $44.95, ISBN: 0-87084-261-7; Volume II, INDIVIDUAL RIGHTS AND THE AMERICAN CONSTITUTION, 952 pages, Cloth $44.95, ISBN: 0-87084-258-7.

Reviewed by Scott D. Gerber, Hampton, VA.

 

A recent essay in the HARVARD LAW REVIEW by Jack Balkin and Sanford Levinson criticized the current study of constitutional law for being preoccupied with the opinions of the U.S. Supreme Court. The consequences of this preoccupation, these leading constitutional theorists maintained, are inadequate attention to JUSTICE and too much SPECIALIZATION by academics.

THE AMERICAN CONSTITUTIONAL ORDER, a new constitutional law casebook by Douglas Kmiec and Stephen Presser, is a notable exception to Balkin and Levinson's thoughtful concerns. As Kmiec and Presser remark in the Introduction to their casebook: "Cases emerge from history, and history itself reflects centuries of philosophical understanding. Our aim, therefore, was for a constitutional text that, quite simply and openly, puts cases in context" (xxxiii).

Kmiec is the Straus Distinguished Professor at Pepperdine University School of Law and Professor of Constitutional Law at Notre Dame Law School. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law. Both have written widely on constitutional law, Kmiec most notably in THE ATTORNEY GENERAL'S LAWYER: INSIDE THE MEESE JUSTICE DEPARTMENT (1992) and Presser in RECAPTURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED (1994). Although both Kmiec and Presser are law professors, their casebook should work extremely well in political science courses too. This is true not simply because they include extensive excerpts from the rich historical materials of the American Founding (e.g. , THE FEDERALIST PAPERS, Madison's NOTES taken at the Constitutional Convention)--materials that Balkin and Levinson state have been conspicuously absent from most constitutional law courses--but also because they are judicious in their selection of cases. Put directly, most constitutional law casebooks are so crammed with Supreme Court cases that students miss the forest for the trees. ("Do we REALLY have to memorize all these case names?" political science students frequently ask.) The Kmiec/Presser casebook does not suffer from this fatal flaw.

THE AMERICAN CONSTITUTIONAL ORDER opens with a chapter on the philosophical basis of American constitutionalism. Political scientists with a penchant for political theory should find this chapter--the first of its kind that I have seen in a constitutional law casebook--particularly useful. Kmiec and Presser include a variety of readings from ancient, medieval, and modern political philosophy to suggest how the foundation of American constitutionalism owes much to political PRINCIPLES. The second chapter continues with this theme, this time by exploring the significance of the Declaration of Independence for the Constitution of the United States. As someone who has written a book on precisely this subject (see Gerber 1995), I am delighted to see that there is now a casebook that allows teachers to discuss it in depth with their students. The second chapter also makes plain how the early Supreme Court frequently invoked natural law in constitutional interpretation, a fact that positivistic-minded political scientists, lawyers, and judges typically fail to mention.

Chapters Three, Four, and Five address the Constitution's careful division of federal-state power and the separation of powers. Chapter Three opens with excerpts from Montesquieu's THE SPIRIT OF THE LAWS and Hamilton, Madison, and Jay's THE FEDERALIST PAPERS on the importance of dividing governmental power and checks and balances. The chapter then moves on to consider the judicial power, the legislative power, and the executive power, respectively. Particularly refreshing is Kmiec and Presser's discussion of pre-MARBURY evidence of judicial review. Most constitutional law casebooks still perpetuate the myth that Chief Justice John Marshall "invented" judicial review in MARBURY V. MADISON (1803), and Kmiec and Presser are to be commended for exposing students to the inaccuracy of the conventional wisdom. This, too, is a subject on which I personally have written, and I am pleased to see it finally addressed in a constitutional law casebook (see Gerber 1998).

Chapter Four, perhaps the finest chapter in the casebook, concerns federalism. As constitutional law teachers well know, we are in the midst of an important reconsideration of the theory of federalism. Kmiec and Presser include the leading Supreme Court cases--including the new landmarks, UNITED STATES V. LOPEZ (1995) and U.S. TERM LIMITS, INC. V. THORNTON (1995)--and some additional materials such as Justice Thomas's dissent in the "dormant" commerce clause case CAMPS NEWFOUND/OWATONNA V. TOWN OF HARRISON (1997) to force students to reconsider whether the American republic is supposed to be as nationalistic as the Supreme Court has maintained since 1937. It is worth mentioning here that, unlike most constitutional law scholars, Kmiec and Presser take Justice Thomas seriously. They are to be commended for this as well (see generally Gerber forthcoming).

Chapter Five continues the examination of federalism, specifically by exploring the current Supreme Court doctrine on what constitutes appropriate action for state and federal governments. Kmiec and Presser include the old chestnuts--for example, NATIONAL LEAGUE OF CITIES V. USERY (1976) and GARCIA V. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY (1985)--as well as some more of the new landmarks such as PRINTZ V. UNITED STATES (1997) and SEMINOLE TRIBE V. FLORIDA (1996). Their discussion of the incorporation of the Bill of Rights provides a convenient transition to the rights and liberties portion of their casebook.

Kmiec and Presser have adopted the increasingly common practice of omitting criminal justice materials from their casebook. Space constraints make this practice necessary, but I am always somewhat startled when I encounter it. After all, the Bill of Rights has more provisions that pertain to criminal justice matters than to any other rights area (see Gerber 1996). This said, Kmiec and Presser provide a signal service with their extensive coverage of contract and property rights in Chapter Six. Most casebooks give short shrift to these topics, but they are wrong to do so. Bluntly stated, one does not need to go as far as Charles Beard did to recognize that the Constitution is concerned with protecting private property. Kmiec and Presser include several illuminating historical and philosophical excerpts that demonstrate the importance of contract and property to the Founders, as well as the key Rehnquist Court precedents (e.g., LUCAS V. SOUTH CAROLINA COASTAL COUNCIL (1992)) in which the conservative Court is beginning to return this idea to constitutional law. Chapter Six also contains important materials and cases on procedural due process.

Chapter Seven embarks on a rich consideration of the First Amendment right of freedom of speech. Freedom of speech is a subject that always generates intense discussion in constitutional law classrooms, and Kmiec and Presser provide ample materials in their casebook that should furnish ammunition for both sides of any debate on the subject. Once again old chestnuts like NEW YORK TIMES V. SULLIVAN (1964) share the stage with new landmarks like WISCONSIN V. MITCHELL (1993). Chapter Seven also continues the property rights debate with a nice collection of materials on economic freedom.

Instructors and students will find no "down time" in the classroom debate, as Chapter Eight takes up the contentious area of equal protection law. Kmiec and Presser's introductory essays and notes are particularly thorough in this chapter, so instructors should have no trouble coming up with new ways to present the "greatest hits" of Supreme Court cases that necessarily dominate the chapter (e.g., BROWN V. BOARD OF EDUCATION (1954)). One case is worth singling out: DRED SCOTT V. SANDFORD (1856). DRED SCOTT is such a long and complex case that most casebook authors omit it altogether or confine it to a brief note or citation. Kmiec and Presser are right to present DRED SCOTT as a principal case, though. As they put it in their fine teacher's manual: "A case that so greatly injured the body politic, or at least, aggravated the self-inflicted injury of slavery's toleration in the original constitution deserves fuller notice" (132). I have taught DRED SCOTT in American legal history, and my experience suggests to me, at any rate, that constitutional law instructors will find the case a fertile ground for classroom discussion on race and American law. Kmiec and Presser do not get lost in legal history, however, as their race materials are brought right up to the present moment with districting cases such as MILLER V. JOHNSON (1995). Chapter Eight also includes recent gender discrimination cases (e.g., UNITED STATES V. VIRGINIA (1996)), and is particularly strong on sexual orientation (the cutting edge of equality jurisprudence).

Chapter Nine, the final chapter in the casebook, addresses unenumerated rights claims. Kmiec and Presser remind students at the outset that the original drafters of the Constitution saw no need to articulate "rights" since, it was assumed, federal power could not reach them. Although Chapter Nine purports to be about unenumerated rights generally, it is primarily about family-related rights such as parenting and marriage and, most notably, abortion. Abortion, of course, is among the most fruitful avenues of inquiry in a constitutional law course, and Kmiec and Presser provide a plethora of materials on the subject. The casebook closes with the recent Rehnquist Court decisions on assisted suicide.

There has been a welcome debate in recent years over how best to structure constitutional law courses in general and constitutional law casebooks in particular. The October 1992 issue of THE LAW AND POLITICS BOOK REVIEW included a symposium on the subject, and a forthcoming edition of the SEATTLE UNIVERSITY LAW REVIEW contains one as well (see also Gerber 1994). As Balkin and Levinson's provocative essay in the HARVARD LAW REVIEW makes clear, the key question in this debate seems to be what sorts of materials in addition to--or perhaps in place of--Supreme Court cases should be included? Kmiec and Presser answer the question by supplementing landmark Supreme Court cases with historical and philosophical materials that remind students that the American regime was founded on certain PRINCIPLES--PRINCIPLES that the Supreme Court has been struggling with since the beginning. And while Kmiec and Presser are both law professors, their approach makes their casebook ideally suited for political science courses. After all, although judicial behavioralists may loathe to admit it, the origins of political science are in history, philosophy, and law.

 

References

Balkin, Jack M. and Sanford Levinson. 1998. "The Canon of Constitutional Law." HARVARD LAW REVIEW 112 (February).

 

Gerber, Scott Douglas. Forthcoming in December 1998. FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS. New York University Press.

Gerber, Scott Douglas, ed. 1998. SERIATIM: THE SUPREME COURT BEFORE JOHN MARSHALL. New York University Press.

Gerber, Scott D. 1996. "Roger Sherman and the Bill of Rights." POLITY 28 (summer): 521-40.

Gerber, Scott Douglas. 1995. TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION. New York University Press.

Gerber, Scott D. 1994. "Reordering American Constitutional Law Teaching." PS: POLITICAL SCIENCE & POLITICS 47 (December): 703-05.

Kmiec, Douglas W. 1992. THE ATTORNEY GENERAL'S LAWYER: INSIDE THE MEESE JUSTICE DEPARTMENT. Praeger.

Presser, Stephen B. 1994. RECAPTURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED. Regnery.

Symposium. 1992. "Constitutional Law Casebooks." THE LAW AND POLITICS BOOK REVIEW. 2 (October): 121-33.


Copyright 1995