Vol. 2 No. 10 (October, 1992) pp. 156-158

CONSTITUTIONAL LAW: CASES IN CONTEXT by Susan M. Leeson and James C. Foster. New York: St. Martin's Press 1992. 856 pp. Cloth $38.00.

Reviewed by Liane Kosaki, Department of Political Science, Washington University St. Louis

There is sometimes grumbling among those of us in the judicial subfield about our relegation to the margins of political science and to the wilderness of service teaching. As we look out at crowded constitutional law classes, we ask ourselves why we deserve this fate.

One answer to this question is the content of our courses, especially in the case of constitutional law. Most of the time, our courses in this area look pretty much like law school courses rather than political science courses. Indeed, when I took constitutional law as a graduate student, the text was Gunther's, a text which not only LOOKED like a law school text, it WAS a law school text. Moreover, an examination of constitutional texts leads the reader to conclude that courses which use these texts are structured very much like any law school course. The emphasis in many of the texts is on understanding constitutional law as the development of doctrine, rather than as a part of a political process. Thus, the organization of the texts is likely to be topical, with little, if any, attention to the historical and political contexts which might have generated these cases or have influenced the outcomes. To be sure, some casebooks give some lip-service to Supreme Court decisions as policy, or as outcomes of a political process. But that perspective is quickly abandoned for a focus on the doctrines reflected in the Court's decisions.

This is precisely the point recognized in the introduction to the new text by Susan Leeson and James Foster, and the criticism is well-taken. Rather than taking a strictly doctrinal approach, the authors have chosen to emphasize the historical contexts of these cases. Thus, the organization of the book is chronological, rather than topical. This approach allows instructors to discuss cases within a political context -- for example, discussing the decision in MARBURY as an outcome of the political battles between the Federalists and the Jeffersonian Republicans, GAULT as part of the debate about the rights of juveniles. Such an approach allows both teacher and student to consider how the kinds of legal questions generated by cases, and the decisions in those cases, can be affected by the political and social forces of the times. Moreover, the authors manage to explain the cases in a clear, readable style.

This more historical approach has definite advantages, especially with respect to the earliest period of the Court. In my experience, constitutional law texts are apt to give short shrift to the earliest cases dealing with slaves or Native Americans, for example. This is despite the fact that cases like PRIGG and CHEROKEE NATION can tell students a lot about the nature of the Court's early understanding of federalism (affected as it was by the institution of slavery), and the boundaries of the Court's power as an institution. Comparing CHEROKEE NATION with COOPER could be an instructive exercise for a generation of students who believe that when the Court speaks, people listen and obey. The early understanding of federalism is not irrelevant, given the attempts of Republican administrations, especially Reagan's, to institute a "new federalism." Moreover, understanding of the Court's history can help students to understand its evolution as a political institution.

The text also includes a great deal of information about each featured case (that is, cases for which excerpts from opinions are provided). This information includes the obligatory statement of facts (it should be noted that the statement of facts is pretty extensive, since the authors provide not only the facts of the case itself, but the legislative, social, and political background of the case), the actions of the lower court, and the vote of the justices. Not only are case excerpts fairly extensive, but summaries of the arguments provided by opposing counsel are provided. Something that is unusual is that the authors have also identified groups which filed

Page 157 follows:

amicus curiae briefs in featured cases, including summaries of the briefs as well. This allows students to evaluate the role of interest groups in the judicial process. Each chapter of the text also contains an introductory essay which identifies and delineates the issues that define each historical period, a useful feature for the student not well-versed in American history.

Another useful feature is a chapter devoted to general information about the Supreme Court. The chapter includes short discussions of the meaning and significance of judicial review, the nature of the Court's power, how a case gets to the Supreme Court, a brief description of the Court's caseload, and a guide to reading and briefing Court opinions. This is a good, although somewhat simple, introduction. Some might prefer to supplement this section with a general text on the Court. One curious omission in this section is any discussion about the selection and impact of Supreme Court justices. Given the importance of the study of judicial behavior to the subfield, I hope that the authors will add a section on this topic in future editions.

Thus, the strength of this text lies in its attempt to ground the study of constitutional law squarely in the relevant social and political environment. Every effort is made in the introductory comments and in the questions and commentary following each case to emphasize these concerns. The selection of cases, at least for the period of the Court's history prior to the emergence of the modern Court after the New Deal, is also pretty extensive.

Despite my enthusiasm for the approach taken in this text, however, the text itself is not perfect. In my view, there are two flaws. The first flaw has to do with the level of conceptual analysis presented by the authors. The authors try to make the study of constitutional law more comprehensible to the student by dividing the Court's history into three major eras: 1803-1876; 1877-1936; 1937-1991. They also identify four major principles (although I think they might be more accurately be called "issues") that are presented in cases: limited government; promotion of commerce; protection of private property; and individual liberties. While I appreciate the authors' attempts to make constitutional law less intimidating by providing these two frameworks, I fear that what is gained in accessibility might levy a cost in terms of grasping the complexity of the cases. We can start by considering the definition of the three periods of Court history and its interaction with one of the four principles, limited government. The authors describe the first period (1803-1976) as one where "a strong national government is consistent with the principal of limited government" (p. 2). The authors have defined "limited government" as involving two kinds of debate: "The first is the extent to which government has the constitutional power to interfere with or regulate a particular activity or, conversely, the extent to which individuals can engage in that activity free from governmental impediments. The second constitutional debate has been whether the national government or state governments have authority to act" (p. 29). It seems to me that this is a somewhat simplistic way to define the debate over state versus federal power. Even without that, it left me wondering what category was appropriate for the cases in constitutional law which deal with separation of powers and the relationship between the three branches of the federal government. The issue becomes even more of a problem when we consider some of the cases that were decided during the first period of Court history. Is COOLEY or DRED SCOTT consistent with the evaluation that a "strong national government is consistent with a principal of limited government?" The confusion for the student is likely to be heightened here, especially since the chapters in the text break each of the three Court eras into shorter time periods. Rather than define three major eras, why not simply go with the shorter time periods, which would allow for a more accurate description of the issues and their resolution?

Second, although the text does a good job with case selection prior to the modern era, I am less happy with the case selection after that.

Page 158 follows:

Prior to this period, the authors use summaries of important cases following a excerpts from opinions in a major case as part of what they refer to as "subsequent developments", but they seem to use these summaries pretty sparingly. After the modern period, however, excerpts from case opinions become scarce, and summaries are more and more common. As a result, a number of important cases are simply summarized. Some examples of cases being given this "summary" treatment are ABINGTON V. SCHEMPP, BRANDENBURG V. OHIO, BOWERS V. HARDWICK, REYNOLDS V. SIMS, GERTZ V. ROBERT WELCH, MISSISSIPPI UNIVERSITY V. HOGAN, and WEBSTER V. REPRODUCTIVE HEALTH.

To be fair to the authors, one reason for the use of summaries might be to keep the length of the text within bounds for a single volume. Another reason could be that this editing is in response to the criticism that too many constitutional law texts are like law school texts in including too many cases. Given my comments at the beginning of this review, some explanation of my criticism here is in order.

I don't think that constitutional law texts necessarily need to be exhaustive in the number of case opinions they provide. However, I do think that enough cases need to be provided so that students can evaluate the evolution of doctrine, and especially the evolution of doctrine in concert with political and social changes. In my view, providing extended treatment of the opinion in ROE without also providing the Court's opinion in other abortion cases makes it difficult if not impossible, even with summaries, to trace the Court's development in this area of law. Why do I think this focus on doctrine is important? Because the study of law by political scientists is not only a study of Court behavior, but of the political ideologies and theories which motivate that behavior. Providing only the text of the justices' opinions in ROE without providing coverage of any other opinions in subsequent abortion cases, for example, makes it difficult for the student to understand the impact of changing Court composition, changes in the justices' own positions, or responses of the Court as an institution to controversial issues over time. In the last instance, being able to compare opinions at different periods also allows students to critique the ability of stare decisis to accommodate change. Given the increase in the number of opinions that would have to be provided, one of the issues raised by this text is whether the increasingly common practice of publishers to produce two-volume texts, one in constitutional law and one in civil liberties, is a necessity.

Since many political science departments offer a two or even three course sequence in constitutional law (constitutional law/ civil liberties, with perhaps another course in discrimination and/or defendants' rights), this would make the text in its current state suitable for the first part of such a sequence. With its very interesting approach, however, I hope the second part of the text is expanded. It is refreshing to have a text which departs from the standard law school-like approach.