American Constitutional Development

Vol. 15 No.8 (August 2005), pp.701-705

AMERICAN CONSTITUTIONAL DEVELOPMENT (2 vols), by Richard S. Randall (ed.). New York: Longman, 2002/2003. Vol.1: THE POWERS OF GOVERNMENT (2002). 656pp. Paper. $69.40. ISBN: 0-801-32019-4. Vol.2: THE RIGHTS OF PERSONS (2003). 656pp. Paper. $66.00. ISBN: 0-801-32021-6.

Reviewed by David G. Barnum, Department of Political Science, DePaul University. Email: dbarnum@depaul.edu .

AMERICAN CONSTITUTIONAL DEVELOPMENT is a constitutional law casebook intended for use by undergraduate students. It consists of text plus case excerpts and is divided into two volumes. Volume I—entitled THE POWERS OF GOVERNMENT—covers the great “non-civil liberties issues” of American constitutional law—i.e., the role of the Constitution in facilitating and controlling the geographical and economic expansion of the nation, in defining the relationship between the national government and the states, in specifying the prerogatives of government vis-a-vis private property and private enterprise, and in allocating decision-making power to Congress, the President, and the courts. Volume II—entitled THE RIGHTS OF PERSONS—covers the spectrum of civil liberties issues that began to appear on the Supreme Court’s docket in measurable numbers in the 1930s and today constitute about half of the work of the Court.

In the foregoing respects, AMERICAN CONSTITUTIONAL DEVELOPMENT has much in common with other constitutional law casebooks. In other respects, however, it is quite distinctive. An unavoidable obligation faced by the authors of undergraduate casebooks is to differentiate their product from casebooks meant for use by law students. In a day when undergraduate casebooks are plentiful, however, it is also essential to differentiate one’s casebook from its direct competitors—that is, from other casebooks aimed at undergraduates.

The choice that Richard S. Randall has made is to provide extensive narrative discussion of the historical circumstances in which constitutional cases have arisen and the political and cultural forces that have influenced not only what cases have reached the Supreme Court but how they were decided once they got there. Randall has also paid scrupulous attention to the “impact” of the Court’s decisions on American society. To the best of my knowledge, he avoids using the word “impact,” as such. Rather he conscientiously implements the “assumption” upon which (as he says in his Preface) the text of the casebook is based—to wit, “that conflict and its adjustment or resolution lie at the heart of politics and government action and that all authoritative results—policies, programs, executive and administrative decisions, statutes, judicial decisions, and constitutions themselves—have distributive effect. [The Supreme Court] distributes rights and obligations. [These] fungible legal values are transformed into the gains and losses by which we measure the ‘scarce’ resources [*702] of our world—wealth, power, status, security, expressive freedom, and the hegemony of moral preferences—at stake in the fundamental or underlying conflict. With the imprimatur of constitutional authority, the Court’s settlements, often provisional themselves, have shaped American political development” (p.xii).

The avowed aim of AMERICAN CONSTITUTIONAL DEVELOPMENT, therefore, is to present American constitutional law to undergraduates in a form from which they can derive genuine benefit. Randall describes himself as a political scientist “specializing in public law [who has had] professional legal training” (p.xi). The task of such people, as he sees it, “is surely not a premolding of the ‘legal mind’” (p.xi). It is rather to fulfill a “mission [which] is different” but has an “integrity of its own.” As part of “liberal arts education,” Randall concludes, “political science instruction [offers] an understanding of how the political system works and how it got to be the way it is” (p.xi).

Randall notes (also in his Preface) that the failure of many undergraduate casebooks to depart very far from the doctrinal and topical focus of law school casebooks “is especially true for the first or non-civil liberties half of constitutional law. [This] half begs for a developmental presentation, especially since we can no longer assume that all or even most students know very much about American history. [The] major teaching problem in the first half of constitutional law is to help students understand how we got from ‘there’ to ‘here’ in the real world of our national political life. Many casebooks do not do a very good job of that” (p.xi).

In Volume I, Randall does a splendid job of helping students understand “how we got from ‘there’ to ‘here’.” Each chapter consists of a lengthy and well-written narrative examination of the historical events, political developments, and socio-economic and cultural factors within which specific Supreme Court decisions must be situated in order to be properly understood. Following a brief (4-page) essay on “American Constitutionalism,” the first two chapters of Volume I pick up the story of American constitutional development well before the framing of the Constitution itself. A chapter on “The Groundwork for Revolution” examines the economics of the system of European colonial acquisition, the nature of colonial society in the New World, the uneven but unmistakable spread of religious tolerance, the “patterns of government” that emerged in the colonies, the transplantation from England to America of the “rule of law,” and the ideological precepts and political events that produced the American Revolution. A second chapter on “Independence and Confederation” looks at the developments that unfolded between the end of the Revolution and the Constitutional Convention of 1787. Both chapters exhibit the author’s thorough familiarity with the extensive secondary literature on American political and constitutional history and do an excellent job of transforming the findings of that literature into a focused and readable discussion of the ideas, events, and forces that culminated in the framing of the Constitution. [*703]

The remaining chapters of Volume I continue the story and sustain the commendable balance of substance and readability established in the opening chapters. Part II of the Volume looks at “Union and Nation”—that is, at the Constitutional Convention, at the “Formative Period” between 1787 and the Civil War, and at the inability of the Constitution and the American political system to resolve the problem of slavery short of civil war. Part III focuses on the subject of “Constitutional Political Economy” and examines the period between the end of the Civil War and the constitutional crisis precipitated by judicial resistance to the New Deal. Part IV takes up “The Modern Constitution.” Coverage of this part includes a chapter on “Presidential Power and Divided Government” in which Randall examines, among other things, the leading foreign affairs and war powers disputes arising under the Constitution. The last two chapters of Volume I treat “The New Federal System” and “Property Rights in the Age of Regulation.”

As Randall himself implicitly admits, the topics covered in the “first or non-civil liberties half of constitutional law” are easier to reconfigure into a coherent historical narrative than is the subject of his second volume—individual rights. Volume II—on THE RIGHTS OF PERSONS—is therefore essentially topical. It is of course possible to emphasize the phenomenon of “constitutional development” within individual topics—the evolution of the “clear and present danger test” from SCHENCK v. UNITED STATES (1919) to BRANDENBURG v. OHIO (1969) comes to mind—but the sub-areas of civil liberties are themselves pretty well delineated and sacrosanct. Randall begins with an informative introductory chapter on “Civil Liberties in the United States” in which, among other things, he alerts students to the tension between individual rights and other values—e.g., national security, public order, and crime control—and to the “more confounding” problem of conflict between one civil liberty and another—e.g., between freedom of the press and the right to privacy or the right to a fair trial. Subsequent chapters of Volume II take up religion, speech and assembly, the media, privacy and public morality, crime and punishment, racial integration and discrimination, alienage and citizenship, gender and other discrimination, and voting and representation.

The case excerpts included at the end of each chapter are ample in number and well edited. Randall indicates that he has chosen “almost all those [cases which are] generally agreed to be ‘landmark’ or chief secondary decisions in doctrinal development and political significance” (p.xiii). The pre-case textual material in each chapter discusses, often at some length, the excerpted cases. Each case is preceded by a summary of the facts (if necessary) and by six or eight single-sentence questions designed to alert students to issues or ambiguities in the excerpt that follows. Consistent with his intention to downplay doctrinal issues, the cases are not subjected to any post-case dissection.

The “authored” text that precedes the case excerpts in each chapter is the particular strength of AMERICAN CONSTITUTIONAL DEVELOPMENT. The ratio of text to case excerpts is about 40-60, which is [*704] very high by casebook standards. These arrangements admirably serve the author’s principal goal, which is to enhance the depth of students’ understanding of the historical and political context from which cases emerge rather than to nurture the ability of students to engage in sophisticated doctrinal analysis.

The authored portions of each chapter are brimming with interesting facts and insights. One learns, for instance, that the defendant in the DRED SCOTT case was John Sanford and the fact that the case is sometimes (but not always) cited as DRED SCOTT v. SANDFORD is because Sanford’s name was misspelled in the Supreme Court’s record of the decision (Volume I, p.137); that the Due Process Clause of the Fourteenth Amendment is “the most litigated clause in the Constitution in the twentieth century” (Volume I, p.155); that in the 1870s, “the entire federal government employed only 50,000 civilians, three-quarters of whom were postal workers” and that at that time the “ratio of federal workers was 1 to 2,900, compared to 1 to 100 a century later” (Volume I, p.224); that in the 1880s, the Supreme Court’s “gradual shift to a more activist role came less from grand design than from the vicissitudes of personnel changes on the Court and the interest of several justices in individual liberties” (Volume I, pp.229-230); that several of the justices appointed between 1880 and 1895 “had successful private law practices that included important railway work,” and that “[a]lmost all, Democrats included, were economic conservatives” (Volume I, p.230); and that during the extended conflict between the courts and the Roosevelt Administration “federal judges issued nearly 1,500 injunctions against New Deal programs” (Volume I, p.304). Figure 3.2 in the chapter on the framing of the Constitution (Volume I, p.53) is a map consisting of shaded areas showing the distribution of pro-ratification and anti-ratification sentiment within states, and Figure 5.1 in the chapter on slavery and the civil war (Volume I, pp.134-135) consists of four maps showing the legal status of slavery in particular geographic areas of the country under the Missouri Compromise of 1820, the Compromise of 1850, the Kansas-Nebraska Act of 1854, and the DRED SCOTT decision of 1857.

One jarring feature of the introductory essays is that sources of facts and insights such as those in the foregoing examples are never formally cited. As a scholar and a teacher, I was acutely conscious of this omission. On the other hand, given the prodigious quantity of factual information contained in these essays, it would clearly be impossible to rely on a traditional system of scholarly footnotes. The books and other sources upon which Randall has relied are listed in the section on “Further Reading,” located (in each chapter) between the author’s introductory essay and the case excerpts. These references are helpfully divided into categories. For instance, judicial biographies and monographs on “leading cases” are broken out from the remainder of the citations. An additional “General and Supplemental Bibliography” appears at the end of each volume. The rich substantive content of Randall’s introductory essays suggests that he has actually read all or most of the numerous books cited in both his chapter-specific and “general and supplemental” bibliographies! [*705]

I would highlight two additional commendable features of AMERICAN CONSTITUTIONAL DEVELOPMENT. First, the book contains numerous “sidebar” sections in which the author explores topics related to his main text, but in more detail than might otherwise be appropriate. Many of the sidebars are biographical sketches of justices, but other topics are also addressed. There are, for instance, profiles of politicians such as John C. Calhoun and Daniel Webster, on the Constitution of the Confederate States, on Lincoln’s Gettysburg Address, on the lives and writings of Horatio Alger and Herbert Spencer, and on passage and repeal of the Prohibition Amendment.

Second, in addition to the text of the Constitution—which appears in the front of the book—there are several very useful appendices. Appendix E lists the justices in order of appointment, with information about each justice, such as his or her previous position, age at appointment, and years on the Court. Appendix F on “Historic Supreme Courts” sets forth the membership of the Court at any given time. Appendix G is probably exceptional in constitutional law casebooks. It provides information about the outcome of every presidential election from 1788 to 2000 (e.g., names of the candidates, each candidate’s percent of the popular vote, each candidate’s electoral vote, and the number of states carried) and every congressional election during this same period (e.g., the majority party and allocation of seats in the Senate and the House). Finally, there are appendices on how to read a Supreme Court decision (Appendix A), on doing research on law and the courts (Appendix B), on the structure of the American judicial system (Appendix C), and on the decision-making procedures of the Supreme Court (Appendix D).

In sum, Richard Randall’s AMERICAN CONSTITUTIONAL DEVELOPMENT is a distinctive and well-crafted addition to the growing list of constitutional law casebooks designed for use by undergraduates. It more than fulfills the author’s stated goals of “help[ing] students understand how we got from ‘there’ to ‘here’” in our constitutional history, and of enhancing undergraduates’ appreciation Supreme Court decisions, by providing an abundance of well-written historical and contextual information and interpretation.

CASE REFERENCES:

BRANDENBURG v. OHIO, 395 US 444 (1969).

SCHENCK v. UNITED STATES, 249 US 47 (1919).

DRED SCOTT v. SANFORD, 60 US 393 (1857).

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