Vol. 2 No. 10 (October, 1992) pp. 161-162

CONSTITUTIONAL LAW AND POLITICS by David M. O'Brien. New York: W.W. Norton & Company 1991. Paper: Volume I (778 pp.); Volume II (1538 pp.) $25.95 each.

Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University

To teach constitutional law, you need a casebook. The longer you teach constitutional law, the more crotchety you tend to become; you may develop a set of inflexible requirements and a collection of pet peeves. Whatever casebook you select, it will be out of date by the time it is published; sooner or later it will bore you; it never has all the cases you want your students to read; it leaves out things they need to know; it is too heavy; and it costs too much. Compiling your own casebook is one way to remedy these difficulties -- except the first, which is inevitable, and the second, which authorship will exaggerate. The minimum challenge for any casebook author is to produce a text which will suit the author's purposes without being too idiosyncratic for everyone else; the book must appeal to enough of the author's fellow constitutional law teachers to command a respectable share of the market. The maximum success to be hoped for is to dominate the market, to become the equivalent of what Ogg and Ray once was in American government. David O'Brien's new two-volume casebook has met the first requirement. We can anticipate seeing future editions. What disappoints the reader is that CONSTITUTIONAL LAW AND POLITICS has the potential for becoming the dominant undergraduate casebook and fails to fulfill it.

O'Brien's two-volume text is designed for the traditional two- term sequence: Volume I for governmental powers, Volume II for individual rights. Measured against the complaint list above, the casebook does well. Its boredom quotient is low, since both volumes permit, indeed demand, picking and choosing. Its length is such that very little is left out. Two surprising omissions are ALLEN V. WRIGHT and DESHANEY V. DEPARTMENT OF SOCIAL SERVICES; but I wouldn't swap those for the fine glossary, which includes the sort of terms ("remand," "respondent," etc.) over which students tend to trip. Since both volumes are paperbacks, neither is an excessive strain on a student backpack. I have my doubts, however, about how well Volume II will survive a fifteen-week semester. This remark may sound like blaming an author for a publisher's decision, but I think the problem is the length of the volume, a feature within the author's control. The publisher's likely alternative, a hard-covered tome, would have priced the book out of possibility. The current price is more than reasonable, considering that each volume is designed for a semester; even requiring both volumes would keep the student book bill well below what some courses exact. The primary feature of this casebook, however, is what O'Brien includes that other books omit.

"What distinguishes this casebook is its treatment and incorporation of material on constitutional history and American politics. Few casebooks pay adequate attention to the forces of history and politics on the course of constitutional law. Yet constitutional law, history, and politics are intimately intertwined" (I, p. xvii). Well, of course, everybody knows that; intertwining them in a casebook is one of those ideas which makes so much sense that the reader wonders why it hasn't been done before. The idea is not without risk, however. Students already know that law and politics are related. A tendency to read cases in a contextual vacuum is not the problem that the instructor confronts, not with undergraduates, anyway. On the contrary, students sometimes need reminding that constitutional law is different from other political science courses; we expect them to learn to analyze the development of doctrine through cases independent of political explanations. A casebook which sacrificed case space for constitutional history and politics might be fun to read, but it would cheat the students. O'Brien succeeds admirably in shaping his casebook to his purpose while avoiding this pitfall. If anything, he over-compensates in this regard.

Chapters 1 and 2, printed in both volumes, relieve the instructor of the burden of the standard introductory lecture(s) on the

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workings of the Supreme Court and/or the history of interbranch conflicts on judicial review. Subsequent chapters incorporate historio-political information, often in unusual but appropriate contexts; for example, the section on the executive appointment and removal power (I, ch. 4, sec. B) lists unsuccessful Supreme Court nominations. Most of the time, O'Brien manages to inform without editorializing, but his occasional lapses will make unnecessary enemies; they should be omitted in later editions. For example, O'Brien describes Madison, in opposition to judicial review, as "less strident than Jefferson" (I, p. 31) -- after quoting a passage which gives no impression of stridency -- and his occasional use of the "Mrs. John Smith" convention in his references to women is insult without purpose. While O'Brien's inclusion of material more often found in judicial process texts may make the casebook less attractive to instructors who like to lecture on politics and history, a book which provides students with easy access to relevant information makes it possible to devote more class time to case analysis.

CONSTITUTIONAL LAW AND POLITICS represents a good idea, ably executed. Yet, on balance, I would not adopt it for a two-term sequence even if it were irritant-free. The basic difficulty is that Volume II, in particular, contains too much material. It is chock-full of pertinent information about constitutional law cases. The chapters are crammed with charts and sidebars, inadequately differentiated from the text; I assume that the graphics necessary to separate them, familiar in American government texts, would be too expensive. O'Brien has attempted two tasks in these volumes. Not only does he cover the subject both in sufficient breadth to convey important doctrines and in sufficient depth to teach the student to read cases, but he also provides information about virtually every relevant case. The chapters on criminal procedure, for instance, go on and on, through almost one-fourth of Volume II: section after section, case after case alluded to and never mentioned again. Yeoman effort has gone into compiling these cases and writing one-sentence summaries of their holdings. But there is far more here than undergraduates need to know; I can imagine teachers forced to reassure students that, no, they are not expected to memorize all those cases. A casebook is not an encyclopedia.

Finally, I remain unconvinced that an undergraduate casebook should be divided into two volumes. O'Brien's demarcation between powers and rights forces the instructor using Volume II to pull into Volume I for KOREMATSU and HEART OF ATLANTA MOTEL. The effort to integrate politics into case law, necessary as it is, comes at the cost of separating the case law of individual rights from that of structure and power; these subjects are as intricately intertwined as are law, history, and politics.

CONSTITUTIONAL LAW AND POLITICS is a good casebook. It contains the material that an undergraduate constitutional law casebook needs; in addition, it contains historical and political information which makes it far more student-friendly than the typical casebook. David O'Brien has produced a text which amply justifies itself. Unfortunately, he has succeeded too well; his effort collapses of its own weight.

Copyright 1992