American Constitutional Law

Vol. 15 No.8 (August 2005), pp.706-713

AMERICAN CONSTITUTIONAL LAW (6^th ed) (2 vols), by Ralph A. Rossum and G. Alan Tarr. Belmont, CA: Wadsworth/Thomson Learning 2003. Vol.1: THE STRUCTURE OF GOVERNMENT. 544pp. Paper. $70.95. ISBN: 0-534-60390-4. Vol.2: THE BILL OF RIGHTS AND SUBSEQUENT AMENDMENTS. 704pp. Paper. $70.95. ISBN: 0-534-60399-8.

Reviewed by Julie Novkov, Department of Political Science, University of Oregon. Email: novkov@oregon.uoregon.edu .

AMERICAN CONSTITUTIONAL LAW is a two-volume textbook appropriate for instructing liberal arts undergraduates and graduate students in the foundational principles of constitutional law in the United States. While the title of the second volume is a bit misleading – the first volume indeed addresses the structural changes wrought by the fourteenth and other amendments – the division is appropriate for the typical two-course constitutional law-civil rights/liberties sequence. The two volumes include most of the materials that one would expect for developing these courses for an audience of political science students, but some aspects distinguish them in a market crowded with good offerings. These books would probably work best for an experienced instructor who feels confident in framing the cases. They are also well designed for teachers who want their students to be able to integrate specific knowledge about individual cases within an overall analytical and developmental framework of particular areas of the law.

The books march through the substantive areas that one would expect, not omitting any major areas that would concern me as an instructor. The constitutional law text addresses judicial power, the legislative and executive branches, emergency powers, federalism, national power, state power, the contract clause, the constitution and Native American tribes (a chapter that ought to be in every constitutional law textbook but is in very few), and economic due process/takings. The second volume reprints the chapter on economic due process and includes chapters on the first amendment’s protection for speech and religious freedom, criminal procedure, equal protection and race, other categories of equal protection review, voting, and the right to privacy.

The major feature that sets these books apart from their competitors, however, is the organization of each chapter. Most textbooks introduce a chapter with a very brief summary of the historical development of the area of law in question. They then run through excerpts of cases interspersed with background essays and review questions for each case, or at least for each subset of cases. Rossum and Tarr, in contrast, put all of the analysis up front. Their introductory essays for each chapter are significantly more integrative and broad than most other undergraduate text offerings. The cases are left to speak for themselves after sparse introductory paragraphs setting up the most significant facts not immediately evident in the majority opinions. [*707]

In keeping with the philosophy of simply putting the texts out there for the students to tackle, Rossum and Tarr have edited most of the cases with a relatively light hand, leaving in more background details and what many law professors might dismiss as dicta. For instance, while DRED SCOTT is notoriously hard to excerpt, the authors have done well in providing nine pages, including parts of Taney’s opinion and two dissents. Students reading WEST COAST HOTEL will not have to be told that the case involves a minimum wage for women (though the backward-looking elements of the majority opinion citing MULLER v. OREGON have disappeared). The authors have also included some crucial statutory materials, again without directed comment, like the Judiciary Act of 1789, the Golf of Tonkin Resolution, The War Powers Resolution, and the Civil Rights Act of 1991. I hope that they will get enough positive reinforcement to do even more of this in the next edition.

This approach is ideal for the curmudgeonly instructor who wants students to read the cases and analyze them without being steered in the direction that the casebook editor wants them to go. Perhaps it is my own set of idiosyncrasies (one hopes not pathologies!), but I sometimes find myself bridling at editorial comments that help students to miss elements of cases that I find crucial and the editors find unimportant or invisible. Students can also sit down with their reading for the day and simply read through the assigned cases without editorial intervention, freeing them to develop their own connections between cases. This is particularly handy if at times an instructor wants to break out of standard groupings of cases and attempt daring experiments like having students read several New Deal cases together. For example, in Volume One, one could assign SCHECHTER (p.153), NLRB v. JONES & LAUGHLIN STEEL (p.341), WICKARD v. FILBURN (p.344), HOME BUILDING AND LOAN v. BLAISDELL (p.407), and WEST COAST HOTEL v. PARRISH (p.484), without the standard disclaimers that students should ignore the editorial comments that carefully place these cases in the context of legislative authority, federalism, the extent of commerce power, the contract clause, and economic due process respectively.

The introductory essays for each chapter provide the background stock stories about doctrinal development if an instructor does wish to hew to the organizational structure that most political scientists and law faculty recognize. In general these essays do well in setting up the doctrinal areas. For an audience of political science undergraduates and graduate students, I would have preferred essays that include more information about historical political developments affecting the development of doctrine and vice versa. (For example, the first volume presents counter-majoritarian concerns about Supreme Court rulings as an unquestioned and constant phenomenon, rather than as an objection that has waxed and waned in prominence at different historical moments. See Friedman 2000.) By and large, however, the essays appear to provide sufficient background for students to be able to understand what is at stake in the cases they read, both as individual texts and as a succession of interactive historical moments. [*708]

Both volumes begin with helpful primers on constitutional interpretation and adjudication. Some instructors may have quibbles with the taxonomy Rossum and Tarr use for modes of interpretation; I would have preferred that they distinguish between pragmatic “living constitution” theories that stem primarily from the realist tradition and more aspirationalist approaches. Also, I find that many undergraduates confuse textualism and originalism and usually try to provide contrasting examples for clarification. These objections notwithstanding, I found the materials on Supreme Court process and procedure to be clear and invaluable for the typical liberal arts student.

The first volume, covering the structure and functions of the national government, would be a good choice for a constitutional law class. The authors begin with judicial review and excerpt cases ranging from MARBURY to rulings from the late twentieth century expressing restraints on judicial power like PLAUT v. SPENDTHRIFT FARM, INC. and DESHANEY v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES. The chapter addressing Congress largely focuses on Congress’ structure and constitutionally granted authority, with the reservation of commerce clause cases and conflicts over federalism to later chapters. Likewise, the authors grant one chapter to executive authority generally and address war powers and foreign relations separately, which provides a good opportunity to focus on historic conflicts between the executive branch and Congress.

On executive authority, this textbook, like every textbook, will require some updating in light of new debates over the war on terror. The chapter summary gives a good sense of the constitutional allocation of power over foreign affairs (including a table that summarizes these powers and their location very clearly on page 204). The authors could, however, have done significantly more to explain how executive authority has fluctuated drastically over the years. Theories of historical cycles, whether concerning the presidency à la Skowronek or congressionally based realignment models, would be helpful information for students to integrate in their reading of these cases. Such background information would also equip them much better to understand the emerging conflicts over executive authority as expressed in cases like HAMDI, RASUL, PADILLA, and their progeny to come.

The chapters on federalism, state power, and commerce provide good overviews of the historic and contemporary tensions over dual sovereignty, with one significant caveat. The authors should have done significantly more in their essays to acknowledge the major role of race in shaping debates over federalism. From tensions in the early Republic over slavery and the problem of fugitive slaves to the Reconstruction Congress’ efforts to rework the balance of power between the national government and the states to the gradual judicial legitimation of Jim Crow, questions of federalism have both masked and reflected anxieties over race. In the twentieth century, the need to dismantle embedded social and state practices of racial discrimination drove the Supreme Court’s willingness to allow federal control over areas of law [*709] and life that had always been the sole province of the states to regulate. A less serious but still significant omission is the flowering of state constitutional law in light of MICHIGAN v. LONG. Particularly as politically salient issues like LGBT rights arise on the state level, students would benefit from seeing what rulings based on “adequate and independent state grounds” look like in practice.

Volume Two, as noted, is designed for courses on civil rights and civil liberties, and shares many of the positive virtues of the first volume. Like its companion, it covers most of the major areas that most instructors would want to address in a term, and provides a wide selection of cases organized in these areas. Overall the selection and organization works well, though at several points the volume could have been enhanced by acknowledgment of recent historical and institutional findings in the law and courts field.

Unlike some texts on civil rights/liberties, this one sees the importance of recent doctrine regarding economic due process and groups emergent precedents with their logical historical predecessors. As I usually teach a unit on substantive due process, I was pleased to see that Rossum and Tarr included MUNN v. ILLINOIS, although the introductory essay could have noted HOLDEN v. HARDY and the move toward public interest as a category justifying state intervention. More troubling was the failure to excerpt MULLER v. OREGON and ADKINS v. CHILDREN’S HOSPITAL, though Rossum and Tarr are not unusual in this regard. Case book editors generally should be advised to read their own excerpts of WEST COAST HOTEL v. PARRISH, which is almost always included as a major case, and notice that it formally overturns ADKINS, not LOCHNER. MULLER is important not only for its modification of LOCHNER’s broad embrace of substantive due process but also – and particularly for students of the social sciences – for its popularization of the Brandeis-Goldmark brief.

Criminal procedure is often taught as part of a civil rights/civil liberties course for undergraduates or graduate students. I think that this is difficult to do well – the textbook on federal criminal procedure that I studied for an entire semester in law school surpassed 2000 pages, and compressing this body of knowledge into a week or two at best is a formidable task. Rossum and Tarr make a noble effort to provide a broad overview and mostly succeed, but I found myself wondering if the typical undergraduate might not be better off with a more focused discussion of a particular issue. The death penalty comes to mind as something around which many criminal procedural questions could be discussed while giving students more concrete mastery over a coherent body of law. The general approach leaves many loose ends, among which is a lack of attention to the intense political fighting that accompanied reform in criminal procedure in the Warren Court. At least a mention of the Warren Court’s use of in forma pauperis petitions and the Burger and Rehnquist Courts’ blanket rejection of these petitions would be helpful.

The introductory discussion of race and equal protection was generally good, [*710] though critics might note that the one unamendable feature of the Constitution of 1787 was the maintenance of the slave trade until 1808. Further, the quotation from Lincoln criticizing DRED SCOTT ought to be followed by some mention of Lincoln’s preferred solution to the problem of race in America: the rounding up and expulsion of all blacks to Liberia. Recent scholarship also suggests that the state action doctrine as expressed in the late nineteenth century was not nearly as rigid a bar to ameliorative legislation as we have come to interpret it (see, e.g., Brandwein 1999). Finally, the NAACP’s initial efforts against lynching are probably worth a mention, as this public campaign set the stage for emergence of the formal legal assault on educational segregation initiated in the 1930s.

Rossum and Tarr do well in explaining how equal protection review has shifted in recent years away from rigid tiers of scrutiny and toward a more flexible form of balancing. They demonstrate this concretely with cases grouped around several different issues that have evoked heightened scrutiny from the Supreme Court. They cover gender and other classifications well with an appropriate mix of excerpted cases, although I would like to see NGUYEN v. INS in dialogue with Justice Ginsburg’s attempt to ratchet up review for gender in US v. VIRGINIA. Likewise, particularly in light of recent discussions about using economic class as a basis for affirmative action, I would have appreciated excerpts of cases addressing poverty as a suspect classification.

Rossum and Tarr include a separate chapter on voting, which is often lumped in with discussions of race in civil rights/liberties texts. The choice to pull out these materials and grant them their own chapter was wise, and recent controversies over a variety of electoral practices (partisan districting, electronic voting, and felon disenfranchisement, to name only a few) will likely provoke more than a few instructors to assign this chapter in its entirety. In future editions, perhaps they will expand this chapter to address earlier controversies like litigation over women’s suffrage in the late nineteenth century or the legislation in the early Republic that stripped propertied women and free blacks of the vote as the franchise was expanding for white men.

The final chapter centers on privacy. This chapter could fruitfully have been broadened to address substantive liberties under the due process clause. As many scholars read privacy as one of these liberties, a broader chapter could have put privacy in a longer historic context with cases from the early twentieth century like MEYER v. NEBRASKA and PIERCE v. SOCIETY OF SISTERS. Further, as the discussion of abortion has shifted from privacy largely to liberty, the liberty frame is probably a more accurate way to understand contemporary decisions. In light of the most recent cases on abortion, death with dignity, the right to refuse medical treatment, and homosexuality, a close analysis of substantive due process is crucial and must extend beyond the reemergence of economic liberty.

The renewed salience of substantive due process also creates an opportunity for political scientists teaching law to break away from law teachers’ analytical [*711] separation of equal protection analysis from consideration of liberty under the due process clause. Many current issues in civil rights raise both kinds of claims (death with dignity, same-sex relationships, abortion). If students are given longer excerpts of Supreme Court decisions on both issues or read cases like WASHINGTON v. GLUCKSBERG and QUILL v. VACCO together, they will have a better understanding of how due process and equal protection work to promote backward-looking consideration of liberty in historic context and forward-looking balancing of the principle of equality against the state’s interests. Rossum and Tarr make it a bit easier to do this by providing longer excerpts and not framing each case for the students rigidly within either equal protection or due process, but ideally they and other textbook editors will begin to recognize the benefits of covering these issues simultaneously.

It is the nature of constitutional law/civil rights textbooks to require frequent updating, and even since these books’ publication dates of 2003, events have overtaken them. Editors must often make difficult predictions about which new cases will have significant enough impacts to warrant their inclusion in textbooks, but some cases will clearly make it into any text worth its salt. I expect editors in their next editions to pull ADARAND in favor of excerpts from GRUTTER and GRATZ on affirmative action. The detainee cases, HAMDI and RASUL, as mentioned above, will shed important light on the evolving conflict over the extent of executive authority in times of crisis. MCCONNELL v. FEC is destined to be read alongside BUCKLEY v. VALEO. LAWRENCE v. TEXAS and some discussion of litigation over same-sex marriage on the state level is practically required in undergraduate courses on civil rights; this can be done well within a broader conversation of sexuality and marriage including LOVING v. VIRGINIA. And clearly Blakely and its progeny will have a huge effect upon criminal procedure.

I missed a few older cases as well. In light of the legal struggles over habeas corpus for detainees, EX PARTE ENDO has become crucial for constitutional law. I like to teach KATZENBACH v. MCCLUNG alongside or even in lieu of HEART OF ATLANTA to demonstrate the high-water mark of Congress’ commerce authority. For undergraduates, cases relevant to their own lives like SOUTHWORTH v. BOARD OF REGENTS on student fees or connected to broader philosophical questions about tolerance like CHURCH OF LUKUMI BABALU AYE v. CITY OF HIALEAH on the legitimacy of regulating the practice of Santería, are engaging. Finally, a few more cases highlighting the significance of race in the development of federalism would be great: PRIGG v. PENNSYLVANIA ought to be taught more frequently than it is, and STRAUDER v. WEST VIRGINIA helpfully illustrates the tendency in the late nineteenth century to distinguish between social and political equality for African Americans.

Despite these reservations, both texts are fine choices for law-related courses taught in political science or legal studies departments. In their editing, Rossum and Tarr go beyond narrow focus on doctrinal rules, providing the opportunity for students to engage in richer analysis. These texts would be a [*712] nice basis for graduate courses on US law as well, as the essays and selected cases get students quickly up to speed with the main doctrinal areas they would be expected to know as law and courts scholars. The authors wisely leave the cases to speak for themselves and include chapters on topics like Native American law and substantive due process that too frequently are not taught as coherent bodies of law. Constitutional law and civil rights/liberties courses to satisfy a wide range of scholars and their students can readily be assembled from these texts.

REFERENCES:

Brandwein, Pamela. 1999. RECONSTRUCTING RECONSTRUCTION: THE SUPREME COURT AND THE PRODUCTION OF HISTORICAL TRUTH. Durham, NC: Duke University Press.

Friedman, Barry. 2000. “The History of the Countermajoritarian Difficulty, Part Four: Law’s Politics.” 148 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 971-1064.

CASE REFERENCES:

ADARAND CONSTRUCTORS v. PEÑA, 515 U.S. 200 (1995).

ADKINS v. CHILDREN’S HOSPITAL, 261 U.S. 525 (1923).

BUCKLEY v. VALEO, 424 U.S. 1 (1976).

CHURCH OF LUKUMI BABALU AYE v. CITY OF HIALEAH, 508 U.S. 520 (1993).

DESHANEY v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES, 489 U.S. 189 (1989).

DRED SCOTT v. SANFORD, 60 U.S. (19 How.) 393 (1857).

EX PARTE ENDO, 323 US 283 (1944).

GRATZ v. BOLLINGER, 539 U.S. 244 (2003).

GRUTTER v. BOLLINGER, 539 U.S. 306 (2003).

HAMDI v. RUMSFELD, 124 S. CT. 2633 (2004).

HEART OF ATLANTA MOTEL v. UNITED STATES, 379 U.S. 241 (1964).

HOLDEN v. HARDY, 169 U.S. 366 (1898).

HOME BUILDING & LOAN v. BLAISDELL, 290 U.S. 398 (1934).

KATZENBACH v. MCCLUNG, 379 U.S. 294 (1964).

LOCHNER v. NEW YORK, 198 U.S 45 (1905).

MARBURY v. MADISON, 5 U.S. (1 Cranch) 137 (1803).

MEYER v. NEBRASKA, 262 U.S. 390 (1923).

MICHIGAN v. LONG, 463 U.S. 1032 (1983).

MULLER v. OREGON, 208 U.S. 412 (1908).

MUNN v. ILLINOIS, 94 U.S. 113 (1876).

NGUYEN v. INS, 533 U.S. 53 (2001).

NLRB v. JONES & LAUGHLIN STEEL CORP., 301U.S. 1 (1937).

PIERCE v. SOCIETY OF SISTERS, 268 U.S. 510 (1925).

PLAUT v. SPENDTHRIFT FARM, INC., 514 U.S. 211 (1995).

PRIGG v. PENNSYLVANIA 41 U.S. (16 Pet.) 539 (1842).

RASUL v. BUSH, 124 S. CT. 2686 (2004).

RUMSFELD v. PADILLA, 124 S. CT. 2711 (2004).

SCHECHTER POULTRY CORP. v. UNITED STATES, 295 U.S. 495 (1935). [*713]

SOUTHWORTH v. BOARD OF REGENTS, 529 U.S. 217 (2000).

STRAUDER v. WEST VIRGINIA, 100 U.S. 303 (1879).

UNITED STATES v. VIRGINIA, 518 U.S. 515 (1996).

VACCO v. QUILL, 521 U.S. 793 (1997).

WASHINGTON v. GLUCKSBERG, 521 U.S. 702 (1997).

WEST COAST HOTEL v. PARRISH, 300 U.S. 379 (1937).

WICKARD v. FILBURN, 317 U.S. 111 (1942).

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