Vol. 2, No. 10 (October, 1992) pp. 159-160
CONSTITUTIONAL LAW: CASES-COMMENTS-QUESTIONS by William B.
Lockhart, Yale Kamisar, Jesse H. Choper, and Steven H. Shriffin.
St. Paul: West Publishing Company 1991. 1643 pp. Cloth $49.95.
Reviewed by David Schultz, Department of Political Science,
Trinity University
The Lockhart volume may be the definitive constitutional law text
with respect to the sheer number of cases and secondary
commentary included. The central theme and distinction of the
book is its "commitment to the proposition that a student's
understanding of constitutional law is greatly enriched by
exposure to a variety of competing perspectives drawn from the
best of legal scholarship" (p. xxiii). To that end the book
offers an exhaustive review of the major cases in constitutional
law and civil rights/liberties. This includes the death penalty
but excludes all other criminal due process cases. The text also
provides several short (1-3) page essays by prominent legal
scholars representing many political views discussing specific
cases or problem topics in the law.
The first and last chapters of the text provide good definition
of the scope of judicial power in America including the origins
of judicial review, the definition of case and controversy,
issues of standing, the political question doctrine, and
congressional control of jurisdiction. The usual cases of MARBURY
V. MADISON, EX PARTE MCCARDLE, BAKER V. CARR, among others are
included, yet DRED SCOTT is not. Particularly good in these
chapters are excerpts from works by Bickel, Wechsler, Bork,
Choper, and Ely, as well as comments by Thomas Jefferson and
other founders on the nature of judicial power. The CAROLENE
PRODUCTS footnote number 4 is also presented and there are
excellent excerpts explaining the implications of this footnote
for defining judicial power. Overall, in these chapters, as is
true throughout the book, the cases are well-edited and include
most of the important material that undergraduates and advanced
scholars would want.
Chapters 2 and 3 examine the structure of national legislative
and executive power addressing in solid coverage the separation
of powers and checks and balances issues. Chapter 2 is
exceptionally strong on the national side of taxing, spending,
and commerce power noting the latter's rise, fall, rise, and
transformation from GIBBONS V. ODGEN though the New Deal and to
contemporary cases that address civil rights and environmental
regulation. Other subtopics in Chapters 2 and 3 consist of
discussions of intergovernmental immunities, executive privilege,
and the allocation of foreign policy power. However, the
discussion of foreign policy and war powers is split between the
two chapters. It is also thin on case law, especially relating to
congressional war powers. More secondary commentary and
discussion of foreign policy and war powers is needed.
Chapters 4 and 5 cover the other side of federalism, that is,
state power to regulate, tax, and spend. As in most
constitutional treatment of this subject, COOLEY V. BOARD OF
WARDENS is the starting point and is juxtaposed to GIBBONS. After
COOLEY, cases addressing federal preemption, dual federalism,
state burdens on interstate commerce, and the "multiple
burdens" test concerning state taxation of interstate
commerce are examined. Yet ignored here as well as in Chapter 1
is the reemerging role of state courts in the political system,
especially when it comes to state courts defining rights
differently from the federal standard. The book seems to assume
that state courts are unimportant and ignores their increased
independence as of late.
Starting with Chapter 6, the civil rights/liberties discussion
takes over. Chapter 6 examines economic due process by way of an
analysis of the Contract, Due Process, and Eminent Domain clauses
of the Constitution. Again, all the usual cases including CALDER
V. BULL, THE SLAUGHTERHOUSE CASES, and BERMAN V. PARKER are
included. Relatively absent from this chapter are secondary
commentary on these cases or inclusion of commentary exploring
the recent revival of interest in property rights and the
"Takings" clause issue that scholars and the Supreme
Court appear to be engaged in.
Chapter 7 is the largest and best in the book. It explores the
incorporation controversy, the nature and definition of
individual rights, and the interpretivism/non-interpretivism
issue. This is more of a jurisprudential chapter with reference
to a few major cases such as GRISWOLD V. CONNECTICUT, ROE V.
WADE, REPRODUCTIVE HEALTH SERVICES V. WEBSTER, BOWERS v.
HARDWICK, CRUZAN V. MISSOURI DEPARTMENT OF HEALTH, SHAPIRO V.
THOMPSON, and the death penalty cases. The chapter also includes
some of the most important excerpted commentary written on these
cases, the nature of individual rights, and the problems of
interpretation these cases raise. The non-criminal due process
and the right to privacy areas are well covered and there are
several good edited pieces discussing BOWERS and the racial and
economic disparity involved in death penalty sentencing.
Chapter 8 is on speech and all the usual topics on the different
parts of speech, for example, pure speech and commercial speech
are examined. Included as well are cases and discussion regarding
hate speech, AMERICAN BOOKSELLERS ASSOCIATION V. HUDNUT, and the
controversy surrounding women's rights and pornography.
Similarly, Chapter 9 on religion includes the major cases yet
little analysis or extended discussion of the Court's current
rethinking of the LEMON test is found.
Chapter 10 on equal protection is at its best in case
presentation and discussion of race and ethnicity, weaker on
gender, and not very good at all on gender orientation. In fact,
there are no good textbooks that handle gender orientation
issues, including AIDS, very well and this is unfortunate. The
gender discussion does note the recent move from patriarchy to
equality in the law and it does a solid job in presenting the
recent role of men and women as litigants in raising equal
protection claims. Finally, discussion of other (semi-) suspect
classifications, including wealth, is provided but the book
ignores secondary commentary on how the current Supreme Court has
not simply created three levels of scrutiny but is even now
changing how scrutiny is applied to property versus civil rights.
Lastly, Chapters 11 and 12 provide analysis of the concept of
state action and legislative enforcement of civil and
constitutional rights. Especially in light of recent rights
retrenchment on the Court, the discussion of the role of the
legislative branch to enforce these rights is good; however,
exploration of the role of the presidency would also be nice.
Overall, the Lockhart volume, including the yearly supplements,
is a solid constitutional law text. Yet while this is a very
inclusive volume, it can not be fully appreciated or used by most
undergraduates as an introductory book to constitutional law.
This volume is part of West Publishing's law school series and it
is currently and more appropriately used in many two semester law
school courses in constitutional law and civil rights/liberties.
The book could be used for two-semester graduate political
science classes, or as a reference for professors or doctoral
students studying for their comprehensives or preliminary
examinations. It cannot be adequately appreciated in a
traditional undergraduate constitutional law class without
significant editing down of the number of cases and commentary
included. Moreover, for professors looking for a more policy or
political science focused text, this volume is not suitable. But
for those looking for a no-nonsense and traditional approach to
constitutional law, this would be a solid book in advanced
undergraduate or graduate classes.