American Constitutional Law

Vol. 15 No.8 (August 2005), pp.714-717

AMERICAN CONSTITUTIONAL LAW (3rd Edition), by Otis H. Stephens, Jr. and John M. Scheb, II (eds). Belmont, CA: Wadsworth / Thomson Learning, 2002. 960pp. Cloth. $115.95. ISBN: 0-534-54570-X.

Reviewed by Susan R. Burgess, Department of Political Science, Ohio University. Email: burgess@ohiou.edu .

AMERICAN CONSTITUTIONAL LAW is a one volume textbook designed for undergraduate students. It could be used as the sole text in a one-semester course in U.S. Constitutional Law, or as the main text in a two-semester sequence, supplemented with shorter paperbacks designed to explore specific issues of interest in greater depth. This edition was issued four years since the previous one, with the authors focusing specifically on the “Rehnquist Court’s continuing commitment to redraw the boundaries between national and state power through its reinterpretation of the Commerce Clause and the Tenth and Eleventh Amendments” (p.xi). It also includes BUSH v. GORE as well as cases that exemplify the new judicial federalism, such as BAKER v. STATE and POWELL v. STATE.

Otis Stephens and John Scheb divide AMERICAN CONSTITUTIONAL LAW into two parts, one of which is devoted to the institutional dimensions of constitutional law and the other to civil rights and liberties. Part I, which comprises about one-third of the book, is entitled “Sources of Power and Restraint.” It covers the structural, constitutional, and historical analyses of institutional power. Part II, the remaining two-thirds of the book, focuses on civil rights and liberties. Each part begins with an introduction, and is followed by thematically organized chapters.

Part I begins with an excellent introductory essay addressing the founding period, basic principles underlying the Constitution, and various aspects of judicial constitutional interpretation. It is followed by chapters on the Judiciary, Congress, the Presidency, the Bureaucracy, and Federalism. The chapter on the Judiciary is also largely introductory, as it presents a great overview of the structure of the federal court system, judicial process, the historical development of judicial review, modes of constitutional interpretation, and bloc analysis of voting. It includes helpful graphics of model state court systems, the federal court system, the federal judicial circuits, and a model of Supreme Court decision making. Tables delineating constitutional developments in specific areas such as decisions invalidating new deal programs, and boxes summarizing principles of judicial restraint offer useful summaries and nicely break up the text.

Each chapter begins with an essay that introduces the key topics to be covered. For example, Chapter Two on Congress discusses structural aspects of Congress, constitutional sources of congressional power, and various congressional powers such as the power to investigate, [*715] to regulate interstate commerce, to tax and spend, and to enforce civil rights and liberties.

Stephens’ and Scheb’s introductory essays do a fine job of providing the political context for the legal cases that follow. This is particularly important as the authors understand constitutional law as a manifestation of the intersection of law and politics that reaches beyond judicial constitutional interpretation. Recognizing that political discourse is more likely to be familiar to undergraduates than legal discourse, the authors seek to minimize legal terminology as much as possible without altering the meaning and shape of decisions. Recognizing that Chief Justice Charles Evans Hughes’ assertion that “the Constitution means what the Supreme Court says it means” tends to get a lot of play, the authors contend that non-judicial sources of constitutional law are equally important. They argue: “Constitutional law is constantly influenced by numerous actors’ understandings of the meaning of the U.S. Constitution. Lawyers, judges, politicians, academicians, and, of course, citizens all contribute to the dialogue that produces constitutional law” (p.xi). Since legal cases are the only primary materials included in the book, the introductory essays bear the entire burden of this part of the authors’ project.

Other features included in the introductory sections include a bulleted list of key points entitled “To Summarize” after each major topic. Key terms in each introductory essay are printed in bold font throughout and included in a list at the end of each section. These terms are compiled and defined in a glossary found in an appendix at the back of the book. Suggestions for further reading and internet resources also follow each introductory essay.

Illustrative cases in each topic area comprise the bulk of each chapter. Cases include landmarks, such as M’CULLOCH v. MARYLAND, BARENBLATT v. U.S., GIBBONS v. OGDEN, and HEART OF ATLANTA MOTEL v. U.S. More recent cases such as U.S. v. LOPEZ, U.S. v. MORRISON and CITY OF BOERNE v. FLORES are also included. The cases have been chosen to highlight landmark decisions that illustrate the importance of precedent as well as recent trends highlighting the more “transient nature” of constitutional interpretation. Cases are presented in a two-column format, and generally run two or three pages, with major cases extending to five or six pages. Cases are long enough to provide students the context, breadth and depth necessary to explore the shape of the intersection between law and politics in the specific areas under discussion.

Focusing on civil rights and liberties, Part II begins with an excellent essay that addresses the constitutional sources of civil rights and liberties, delineating the rights contained in the original Constitution, the Bill of Rights, and the Fourteenth Amendment. It also considers standards of review in civil rights and liberties cases and includes a section on the importance of state constitutions. It is followed by chapters on Property Rights, Freedom of Expression, Freedom of Religion, Criminal Justice, Right to Privacy, Equal Protection, and Voting Rights. [*716]

Each chapter in Part II is organized around several principles and issues and includes all the features mentioned in the discussion of Part I. For example, Chapter 11 focuses on personal autonomy and the constitutional right of privacy. It includes sections on the constitutional foundations of the right to privacy, procreation and birth control, abortion, living arrangements, gay rights, and the right to die. Cases include landmark decisions such as GRISWOLD v. CONNECTICUT, ROE v. WADE, and PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, with an introductory essay filling in the narrative before and after these important cases. In addition, more recently decided cases such as STENBERG v. CARHART and WASHINGTON v. GLUCKSBERG are also included. While BOWERS v. HARDWICK is included, LAWRENCE v. TEXAS is not, due to the 2002 publication date of this edition.

The remainder of the book includes several appendices that make the book very classroom friendly. Besides the aforementioned glossary, other appendices include: a full text of the Constitution, a table of cases with those excerpted in the book in bold font, a chronology of the justices appointed to the U.S. Supreme Court, and an additional appendix specifying the appointing president, as well as the home state and political party of each justice.

In sum, AMERICAN CONSTITUTIONAL LAW is a well-organized, well-written, student-friendly text which I would highly recommend for the undergraduate instructor of a one-term constitutional law course wishing to explore the intersection of law and politics primarily through case law.

CASE REFERENCES:

BAKER v. STATE, 170 Vt. 194, 744 A.2d 864 (1999) (Vermont Supreme Court).

BARENBLATT v. U.S., 360 US 109 (1959).

BOWERS v. HARDWICK, 478 US 186 (1986).

BUSH v. GORE, 531 US 98 (2000).

CITY OF BOERNE v. FLORES, 521 US 507 (1997).

GIBBONS v. OGDEN, 22 US 1 (1824).

GRISWOLD v. CONNECTICUT, 381 US 479 (1965).

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

LAWRENCE v. TEXAS, 539 US 558 (2003).

M’CULLOCH v. MARYLAND, 17 US 316 (1819).

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 US 833 (1992).

POWELL v. STATE, 270 Ga. 327, 510 SE2d 18 (1998) (Georgia Supreme Court).

ROE v. WADE, 410 US 113 (1973).

STENBERG v. CARHART, 530 US 914 (2000). [*717]

U.S. v. LOPEZ, 514 US 549 (1995).

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

WASHINGTON v. GLUCKSBERG, 521 US 702 (1997).

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