Constitutional Law and Politics

Vol. 15 No.8 (August 2005), pp.695-700

CONSTITUTIONAL LAW AND POLITICS (5th ed) (2 Vols), by David M. O’Brien. New York: W.W. Norton & Company, 2002. Volume I: Paper. 1048pp. $55.63. ISBN: 0-393-97748-X; Volume II: Paper. 1619pp. $58.13. ISBN: 0-393-97749-8.

Reviewed by J. Mitchell Pickerill, Department of Political Science, Washington State University. Email: mitchp@wsu.edu .

Since its debut in 1991, David O’Brien’s two-volume casebook, CONSTITUTIONAL LAW AND POLITICS (now in its 5th Edition), has become one of the most widely used texts in undergraduate courses on the United States Constitution—and for good reason. CONSTITUTIONAL LAW AND POLITICS provides exhaustive coverage of constitutional controversies and the Supreme Court’s constitutional decisions across all major issue areas. Too often, the trade-off between casebooks involves choosing between those with carefully edited court opinions that do not water down the arguments of the justices but offer little in the way of political or historical context for those decisions, and those that provide excellent context but over-edit the opinions so that they are of lesser value for analytical and critical thinking purposes. As O’Brien makes clear in the Preface, he seeks to provide well edited cases together with appropriate contextual matter, and he is largely successful in doing so.

When opening either volume of the O’Brien casebook, my first observation is that the U.S. Constitution is reprinted in the front, instead of being buried in an appendix at the end of the book. As one who assigns the Constitution as the first required reading assignment of the class, I appreciate the placement of the actual Constitution at the beginning. One of my law professors (who claimed he was paraphrasing a law professor of his) was fond of telling his classes that “the text of the Constitution may not be dispositive, but it isn’t irrelevant either.” Thus, it seems a good place to begin any constitutional inquiry, even when we know it alone will not resolve all (or most) constitutional conflicts.

Although it adds pages to the already weighty volumes (especially Volume 2), a very nice feature of the set is the inclusion of two introductory chapters on “The Supreme Court, Judicial Review and Constitutional Politics” and “Jurisdiction and Decision-Making Process.” The first chapter not only introduces students to MARBURY v. MADISON (1803), but also exposes them to theories and incidents of constitutional interpretation outside the Court, competing methods and theories of interpretation, and the notion of “comparative constitutional interpretation.” Although he is able to provide only brief overviews of the major debates in each of these areas, the chapter helps to give students some theoretical and historical foundations for studying the evolution of substantive case law and other constitutional developments that come later in the course.

The second chapter could be found in a textbook for a course on the judicial [*696] process. It addresses many institutional matters involving the judiciary generally and the Supreme Court specifically, such as jurisdiction, judiciability, the Court’s docket, agenda setting and the rule of four, the role of oral arguments, conference deliberations and votes, opinion writing and judicial impact. Many students find themselves lost early in their constitutional law course because they have inadequate backgrounds on the judicial system and are therefore unable contextualize the meaning of judicial decisions and opinions. The materials in Chapter 2 undoubtedly provide important institutional and process-oriented information to help students understand how judicial decisions and opinions come about. It does raise an important pedagogical question, however. Should a class on the judicial process be a prerequisite for an undergraduate class on constitutional law or civil liberties? O’Brien’s chapter is a little over 100 pages long, and covers material that could span several weeks in a judicial process class. Spending much time on these process-oriented matters in a constitutional law class risks redundancy (for students who have already had a course on the judiciary), and a reduction in substantive coverage of constitutional matters. One might choose to assign the chapter as optional for those who are not comfortable with their background, although I would personally prefer the prerequisite option. But I digress.

The substantive chapters in each volume cover a comprehensive range of constitutional topics, case law and related historical materials. Although Volume One is subtitled “Struggles for Power and Governmental Accountability,” it essentially covers the governmental structure topics of separation of powers and federalism, in addition to voting rights and economic rights. The selection of cases is inclusive and the volume exposes students to the major structural issues of a traditional course on constitutional law. I note one minor oddity, or at least an oddity to me given my own predilections. The broad issue of federalism spans two chapters, “Congress: Legislative, Taxing and Spending Powers” (Chapter 6) and “States and American Federalism” (Chapter 7). The former covers the commerce, taxing and spending powers cases, while the latter is an amalgam of dormant commerce clause, Tenth Amendment, Eleventh Amendment, judicial federalism and state constitutional law cases. It seems to me that the Tenth and Eleventh Amendment cases really belong at the end of the chapter on congressional powers because they suggest recent limitations on national powers that should be read alongside cases such as UNITED STATES v. LOPEZ (1995) and UNITED STATES v. MORRISON (2000). And they would serve nicely as a transition to the next chapter on the powers of states. Alas, this is hardly a fatal flaw, and it would be easy enough to assign the section on the Tenth and Eleventh Amendments out of the sequence presented in the book to satisfy my preferences. I was also a little disappointed that DEAN MILK CO. v. MADISON (1956) and PHILADELPHIA v. NEW JERSEY (1978) garnered only short summaries. Admittedly, this is simply personal preference, but I have always found these cases particularly useful tools in teaching the elusive dormant commerce clause to undergraduates. Nonetheless, [*697] O’Brien does a nice job covering some of the major dormant commerce clause cases, but keeping the number of those cases small enough to avoid a lengthy study of the subject, which students often find one of the most somniferous sections of the course.

Volume Two is appropriately subtitled, “Civil Liberties and Civil Rights.” The first substantive chapter is a repeat of the final chapter in Volume One, “Economic Rights and American Capitalism,” providing flexibility for those who differ on which class in the conlaw sequence should cover the topic. The remainder of the volume covers the incorporation of the Bill of Rights, freedoms of speech, expression and association, freedom of and from religion, search and seizure, freedom from self-incrimination, the right to counsel and related procedural safeguards, cruel and unusual punishment, right to privacy and equal protection. The volume is indeed comprehensive, weighing in at 1619 pages (in contrast, Volume One is all of 1048 pages long). Given the exhaustiveness, it would amount to pure nitpicking in my view to argue that O’Brien left out something he should have included. Indeed, the most challenging aspect of using this casebook for a course on civil liberties would be in selecting materials to exclude from the syllabus.

O’Brien carefully avoids one pitfall common to casebooks directed toward undergraduates – he does not over-edit the court opinions. This casebook trusts that undergraduates have the capacity to wrap their heads around the primary materials of constitutional law, and to sort out the major arguments and case-holdings on their own. And whereas many casebooks edit out or very briefly summarize the content of too many interesting concurrences and dissents, O’Brien includes nicely edited versions of most major concurrences and dissents, which can be extremely useful in teaching students to consider and develop alternative arguments for and against their positions.

In addition to well edited versions of the court opinions from major cases, this casebook includes a wealth of other materials in each chapter intended to place the Court’s constitutional decisions in political and historical context. Throughout the various chapters of both volumes, O’Brien has inserted sections entitled “Inside the Court,” “Constitutional History,” “The Development of Law,” and “In Comparative Perspective.” It is really in these sections that O’Brien distinguishes this casebook from the competition.

The “Inside the Court” sections usually reproduce letters, memoranda or other materials derived from former justices’ personal papers regarding particular cases or issues. For example, in the section on free expression, obscenity and pornography, O’Brien includes a reproduction of a letter dated December 10, 1969, from Justice Black to Justice Harlan, in which Black declines the invitation to one of the Court’s so-called “movie days,” during which justices viewed allegedly obscene sexually explicit movies. Black simply states that viewing the movie would not change his opinion that the “First Amendment would be violated by barring the showing of these pictures” (Vol. 2, p.432). The letter illustrates some of the inner workings of the Court as well as [*698] Black’s literalist, or “absolutist,” view of the First Amendment.

The “Constitutional History” sections attempt to place particular cases or issues into historical and political contexts. O’Brien does so in several different ways. For example, in the section on executive privileges and immunities and presidential impeachments, a concise summary and timeline of events surrounding the Watergate Affair help students to contextualize UNITED STATES v. NIXON (1974) and President Nixon’s assertion of executive privilege (Vol. 1, p.408). And in the section on Capital Punishment, simple time series data are presented to illustrate trends in the number of death row inmates and persons actually executed in the United States through the second half of the twentieth century (Vol. 2, p.1147). Finally, in the chapter on Economic Rights and American Capitalism, included in both volumes, excerpts from John Locke’s SECOND TREATISE OF GOVERNMENT are reprinted to illustrate Locke’s influence on the framers’ views on the proper “ends of political society and government” (Vol. 1, pp.925-926; Vol. 2, pp.225-226). While some of these sections are more informative than others, they do serve the overall purpose of teaching students that constitutional questions arise in the context of historical processes, and that many of the Court’s constitutional decisions can best be understood with some historical perspective.

The “Development of Law” sections are very useful, especially in issue areas that are prone to ad hoc decision-making or that have otherwise produced voluminous numbers of decisions. These sections list and summarize cases that are not included as principal cases in the chapter but are pertinent to the development of doctrine in the substantive issue area. Rather than burying these relevant cases in “notes” after the edited opinions from the principal cases, as is the convention in most casebooks, the “Development of Law” sections are comprised of easy-to-read tables with chronological lists of case names and citations in a left hand column and corresponding summaries of the Court’s rulings in a right hand column. For example, in the section on the dormant commerce clause, O’Brien judicially chose to include only a handful of opinions from the many decisions handed down on the issue. For teaching purposes, this choice makes a whole lot of sense; it assures that the course will not get bogged down by the dormant commerce clause, as I mentioned earlier. However, so that students are not left with the impression that the dormant commerce clause is a road less traveled than other doctrinal areas, the “Development of Law” section lists and summarizes 36 cases, from DEAN MILK CO. v. CITY OF MADISON (1956) through CAMPS NEWFOUND/OWATONNA, INC. v. TOWN OF HARRISON (1997) (Vol. 1, pp.653-659). Similarly, the section on the right to privacy and abortion includes a “Development of Law” table for all the major abortion cases between ROE v. WADE (1973), PLANNED PARENTHOOD v. CASEY (1992), and STENBERG v. CARHART (2000). Although most casebooks handle those interim abortion-rights cases in summary form in notes after the principal decisions, O’Brien’s table is more inclusive than most, and the presentation helps to illustrate that the issue of a [*699] constitutional right to abortion is one that has involved a dynamic interaction among the Court, other governmental institutions and interest groups (see e.g., Devins 1996).

And finally, the “In Comparative Perspective” sections, scattered throughout both volumes, give brief glimpses into how the constitutions, constitutional law and constitutional courts of other countries stack up against the U.S. Nearly all of these forays into comparative matters present interesting anecdotes and examples about constitutional controversies in different countries around the world. The primary difficulty with this material is that, for students without well-developed understandings of the governments of other countries and comparative politics, much of the comparative constitutional material lacks the context that O’Brien does such an excellent job of providing for constitutional issues in the United States. Nevertheless, the comparative examples provided in the book do serve to impress upon students that countries around the world face similar types of issues as we do in the U.S., and that they do not all resolve those issues in the same manner. For instance, in the chapter on the judicial process and the Court as an institution, the Comparative Perspective section describes the “European Model” of constitutional courts and constitutional review, and it provides a table that illustrates how the key features of constitutional courts vary among France, Germany, Italy, and Spain (Vols. 1 and 2, pp.169-170). In another example, O’Brien’s coverage of Equal Protection and sexual orientation includes a discussion of the Canadian Charter of Rights and Freedoms and excerpts from an opinion of the Supreme Court of Canada addressing discrimination against homosexuals. The contrast with the U.S. Supreme Court’s cases regarding the issue will not be lost on students.

Overall, O’Brien’s stated goals with this casebook are met: “By providing the historical context and explaining the political contests among the justices and between the Court and the country, this casebook aims to make constitutional law more accessible for students” (Vol. 1, pp.xvii-xviii; Vol. 2, pp.xxv-xxvi). In addition, he provides first-rate edited versions of Supreme Court opinions that challenge students to engage the issues of constitutional meaning and constitutional change. The most serious complaint that might be lodged against this casebook is that it tries to do too much; it includes too much and is simply too long. In fact, this “shortcoming” was identified by Judith Baer in her review of the first edition of this casebook in the LAW & POLITICS BOOK REVIEW (1992, at 162). Still, it seems to me that from an instructor’s point of view, it is easier to omit or ignore materials already included in a book than the converse. For me, the main concern with this casebook is that, like many other excellent casebooks written for undergraduates in recent years, it is divided into two volumes that more or less assume a two sequence course that will be divided into one course on structural issues and another on civil liberties. Baer also expressed this concern in 1992 (at 162) when the two-volume set was a noticeable trend but not necessarily a convention. For those who blend structural and rights issues, or who teach constitutional courses based on historical periods, casebooks that follow the two-volume, [*700] structural/rights approach will not meet their needs. For those who do teach their constitutional law courses according to the governmental structure and civil liberties division, the O’Brien casebook should be seriously considered for adoption.

REFERENCES:

Baer, Judith A. 1992. Review of David M. O’Brien, CONSTITUTIONAL LAW AND POLITICS (1991). In LAW AND POLITICS BOOK REVIEW, Vol. 2 No. 10 (October, 1992) pp. 161-162

Devins, Neal. 1996. SHAPING CONSTITUTIONAL VALUES: ELECTED GOVERNMENT, THE SUPREME COURT AND THE ABORTION DEBATE. Baltimore: The Johns Hopkins University Press.

Locke, John. 1960. “Second Treatise of Government.” In TWO TREATISES OF GOVERNMENT (Peter Laslett, Ed.). New York: Mentor Books.

CASE REFERENCES:

DEAN MILK CO. v. MADISON, 340 U.S. 349 (1956).

CAMPS NEWFOUND/OWATONNA, INC. v. TOWN OF HARRISON, 520 U.S. 564 (1997).

MARBURY v. MADISON, 5 U.S. 137 (1803).

PHILADELPHIA v. NEW JERSEY, 437 U.S. 617 (1978).

PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).

ROE v. WADE, 410 U.S. 113 (1973).

STENBERG v. CARHART, 530 U.S. 914 (2000).

UNITED STATES v. LOPEZ, 514 U.S. 549 (1995).

UNITED STATES v. MORRISON, 529 U.S. 598 (2000).

UNITED STATES v. NIXON, 418 U.S. 683 (1974).

*************************************************