Vol. 2, No. 10 (October, 1992) pp. 167-168
CONSTITUTIONAL LAW, 2d Ed. by Geoffrey R. Stone, Louis M.
Seidman, Cass R. Sunstein, and Mark V. Tushnet. Boston: Little,
Brown & Company 1991. 1716 pp. Cloth $49.00.
Reviewed by David Barnum, Department of Political Science, DePaul
University
CONSTITUTIONAL LAW is a relatively new entry into the notoriously
crowded and competitive market of law school casebooks. It has
reportedly done very well, however, and its success is not
difficult to understand. The book is well organized,
comprehensive, superbly written, and clearly more au courant or
hip (in the context, that is, of the staid world of legal
scholarship) than competing casebooks with which I am familiar
(for example, Lockhart, 1991; Gunther, 1991).
The book is a full-fledged constitutional law casebook. The only
area which is not covered -- the rights of criminal defendants --
is one which is now routinely omitted from law school casebooks
(even those devoted exclusively to civil liberties).
The non-civil liberties material in CONSTITUTIONAL LAW is
presented in chapters on "The Powers of Congress,"
"Judicial Efforts to Protect the Expansion of the Market
against Assertions of Local Power," "The Distribution
of National Powers," and "Economic Liberties and the
Constitution: The Contracts and Takings Clauses." Three
chapters are devoted to the standard areas of civil liberties:
"Equality and the Constitution," "Freedom of
Expression," and "The Constitution and Religion."
Finally, there are three chapters which represent a departure
from the format of at least some other casebooks. A first chapter
focuses on "The Role of the Supreme Court in the
Constitutional Scheme," a final chapter focuses on "The
Constitution and the Problem of Private Power," and a
chapter in the middle of the book is devoted to "Implied
Fundamental Rights," that is, the debate over original
intent, the incorporation controversy, substantive due process
(old and new), and substantive equal protection.
Each of the chapters begins with an introductory and/or
historical section which is extremely useful and in fact
downright essential if the book is to be used to teach
constitutional law to undergraduates. The "Equality"
chapter, for instance, begins with a section entitled "Race
and the Constitution" in which the editors discuss and
reprint historical scholarship on slavery and the Constitution,
reprint an excerpt from DRED SCOTT (a fairly unusual choice, in
my experience), discuss (in essay form with generous excerpts
from cases and historical scholarship) the subject of
"Reconstruction and Retreat," reprint PLESSY V.
FERGUSON, and then move into the background of the school cases
and eventually to BROWN and SWANN and to cases and other
materials relevant to the problem of northern school segregation.
The material is dense and challenging for anyone encountering
issues of race and law for the first time. However, the choices
the editors have made about what to reprint and in what order
ensure that a conscientious student will learn as much as is
humanly possible within a few pages about the social origins of
the Court's decisions on race, about how and why the law has
developed in certain ways, and about what the law is today.
Obviously the Supreme Court's decisions and their content exert a
strong influence on the organization of CONSTITUTIONAL LAW. At
the same time, one of the strengths of the book is the fact that
cases play a much smaller role than in other casebooks in
dictating both the organization of the book and the topics which
are addressed. The book is not a collection of Supreme Court
decisions embellished with commentary. It is a book about
American constitutional law in which cases and other materials
are deftly woven into an ongoing narrative in order to illustrate
and substantiate various carefully chosen themes.
The case excerpts themselves are comparable to those which appear
in other casebooks. Major cases may occupy six to eight pages,
minor cases may be reprinted in half a page or so. The book also
includes more non-case excerpts than most casebooks. There are
lengthy passages from the "Federalist Papers" and from
leading works on constitutional history and constitutional
theory. These passages are very effectively integrated into a
narrative written by one or another of the editors. The result is
a set of purposeful, accessible, and well documented essays on
each of the key areas of constitutional law.
I would also highlight the editors' effective use of
"questions." The questions themselves are fairly
typical law school inquiries, but CONSTITUTIONAL LAW does a
better job than other casebooks of transforming questions into
constructive stepping stones to deeper understanding. Typically,
questions are posed as part of an ongoing discussion, rather than
appearing at the end of the chapter with little apparent purpose
other than to leave the average student perplexed and perhaps
alienated. Almost always, questions are followed by additional
discussion or additional reprinted material which allows the
reader to begin to formulate an answer or opinion. Of course,
questions beget answers which beget new questions. At the same
time, CONSTITUTIONAL LAW avoids conveying any sense that the
whole process is a meaningless game. It takes its own questions
seriously and in doing so succeeds in engaging the reader in the
challenging process of uncovering the implicit assumptions in
legal arguments, articulating attainable normative goals,
marshalling relevant factual data, and crafting defensible policy
solutions to constitutional problems.
Finally, I would commend the simple but important decision that
someone made to present the text of the book in type which is
large enough to read without a magnifying glass. One response to
the explosive growth of cases and other primary materials has
been to publish new editions of existing casebooks with thinner
pages, smaller type, more lines per inch, more reliance on
footnotes, or some combination of the above. Many casebooks have
become unpleasant to read in a purely physical sense.
CONSTITUTIONAL LAW is every bit as rigorous and substantive as
the best of the existing casebooks, but, unlike many of them, it
is also inviting to open and read. The print is relatively large,
the titles of cases and other headings stand out clearly, and
apart from necessary footnotes (that is, those reprinted from the
cases themselves), footnotes are avoided and the types of
material that may be relegated to footnotes in other casebooks
are integrated into the main text. Speaking as someone who is
rather fond of footnotes, I found it most relaxing to be able to
follow the main narrative without undue interruption. My guess is
that decisions about type size and format have contributed in no
small measure to the popularity of the book.
In sum, CONSTITUTIONAL LAW is an excellent casebook. From the
perspective of those who teach undergraduate constitutional law,
it does have two possible drawbacks. First, it is a LAW SCHOOL
casebook, that is, it is designed to educate and socialize those
who will enter the legal profession, and in this sense it may be
more narrowly focused on the development of analytical skills
than some instructors would prefer. Second, at 1700-plus pages,
it is a long book and certainly includes far more material than
could possibly be covered in a year-long course, let alone one
restricted to a single quarter or semester. Today, however, most
other law school casebooks -- and even many undergraduate
casebooks -- are of comparable length. CONSTITUTIONAL LAW is a
superb example of its genre and merits a look by anyone who
teaches a constitutional law course.
References
Gunther, Gerald. INDIVIDUAL RIGHTS IN CONSTITUTIONAL LAW, 5th Ed.
Westbury, NY: Foundation Press, 1991.
Lockhart, William B., Yale Kamisar, Jesse H. Choper, and Steven
H. Shiffrin. CONSTITUTIONAL RIGHTS AND LIBERTIES, 7th Ed. St.
Paul, MN: West Publishing, 1991.