Vol. 2 No. 10 (October, 1992) pp. 145-147
CONSTITUTIONAL LAW FOR A CHANGING AMERICA by Lee Epstein and
Thomas G. Walker. Washington, D.C.: Congressional Quarterly Press
1992. Paper: Volume I (550 pp.); Volume II (691 pp.) $26.95 each.
Reviewed by Edward V. Heck, Department of Political Science, San
Diego State University
Nearly a decade ago Lawrence Baum (1983:194) observed that
constitutional law texts were beginning to reflect the efforts of
scholars to apply the perspectives and major findings of judicial
process research to the study of constitutional law. Lee Epstein
and Thomas Walker's two-volume CONSTITUTIONAL LAW FOR A CHANGING
AMERICA provides yet another option for the constitutional law
instructor seeking a text that will introduce students to
constitutional interpretation and the Supreme Court from the
perspective of political science.
In terms of organization and case selection, Epstein and Walker's
entry in this market is very much a textbook designed for a
traditional two-semester constitutional law/civil liberties
sequence. The volume subtitled INSTITUTIONAL POWERS AND
CONSTRAINTS covers the topics traditionally found in a semester
course emphasizing governmental powers (judicial review,
separation of powers, federalism, economic substantive due
process, etc.), while the RIGHTS, LIBERTIES, AND JUSTICE volume
provides excerpts from most of the cases generally covered in
courses that emphasize the protection of constitutional rights by
the modern Supreme Court. The books owe a great deal to
traditional one-volume textbooks, many of which are cited in the
brief essays that introduce the chapters and provide transitions
between cases. Yet, Epstein and Walker have gone beyond these
traditional texts in many ways, most notably by paying explicit
attention to the lawyers responsible for bringing cases to the
Court and the arguments they presented to the justices. Not
surprisingly, the authors highlight the many contributions of
interest group lawyers, while also discussing the key arguments
of governmental and private attorneys in essays and case
introductions. In addition, these volumes offer features rarely
found in traditional textbooks, including biographical sketches
of leading justices and numerous photographs and illustrations
that should help give students a good feel for the people
involved in litigating constitutional issues.
Although there is no explicit organizing theme that is carried
through the two volumes, many of the chapters are organized
around one or more themes with case introductions generally
making clear how specific cases illustrate the themes. Some of
the organizational decisions are somewhat unconventional and
appear at first glance to be problematic. In the INSTITUTIONAL
POWERS AND CONSTRAINTS volume, for example, the authors have
split commerce clause cases between separate chapters on
nation-state relations (HAMMER V. DAGENHART and U.S. V. DARBY)
and the commerce power (U.S. V. E.C. KNIGHT and WICKARD V.
FILBURN) with little regard for chronological development.
Similarly, a chapter on the right to privacy in the rights and
liberties volume mixes several Fourth Amendment cases with
abortion and other privacy cases based on the due process clause
of the Fourteenth Amendment. Amazingly, it works. The
introductory and transitional essays clearly bring out how the
cases illustrate the themes of the chapters. And, of course, an
instructor may simply choose to assign the commerce clause/Tenth
Amendment cases in chronological order or to cover all Fourth
Amendment cases under the heading of rights of the accused.
Like all the books I examine each year as part of the never-
ending search for the "perfect" constitutional law
casebook, these volumes underrepresent a few topics I consider
important and omit a few of my favorite cases (notably DUNCAN V.
LOUISIANA). The chapter on incorporation of the Bill of Rights is
thorough in covering the historical background of the debate, but
very weak on Warren Court decisions embracing selective
incorporation. Although the two death penalty cases excerpted in
the book are precisely those I would select if limited to two
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cases, instructors who would like their students to explore the
links between capital punishment decisions and the changing
membership of the Court must look elsewhere for the cases. In the
last analysis, though, I know of no competing text that provides
a better selection of the cases that are vital to an
understanding of the Court's role in interpreting a Constitution
of rights and powers.
Similarly, I found these volumes superior to most in striking the
right balance between including too much of the original text and
overediting. Almost without exception, the student who reads the
case excerpts in CONSTITUTIONAL LAW FOR A CHANGING AMERICA should
come away with a clear understanding of the major point of each
majority opinion and at least some feel for the flavor of
judicial discourse at the Supreme Court level. Naturally, one can
quibble about the editing of specific cases. On the whole I found
the decision to divide excerpts from complicated cases among
different chapters (MCCULLOCH V. MARYLAND in legislative powers
and nation-state relations chapters) or even different volumes
(SLAUGHTERHOUSE CASES) somewhat artificial and potentially
confusing. Looking beyond such relatively minor points, I was
left with two serious criticisms of the editing of cases. Surely
the five-plus pages devoted to excerpts from MARBURY V. MADISON
would be better utilized by including Marshall's arguments about
why the Constitution is "fundamental and paramount" law
rather than unusually lengthy excerpts from the introductory
sections of the opinion. Moreover, I was very disappointed to
find that many significant dissenting opinions (for example,
Holmes in LOCHNER, Stone in U.S. V. BUTLER, Rehnquist in ROE V.
WADE) are omitted entirely. I regard omission of important
dissents as a serious limitation, because it leads students to
underestimate the reality of internal conflict in the Court, but
I must hasten to note that the authors often address the key
themes of omitted dissents in essays or in other cases. For
example the right to privacy chapter concludes with precisely the
excerpts from plurality, concurring, and dissenting opinions in
WEBSTER V. REPRODUCTIVE HEALTH SERVICES needed to prepare
students to discuss the votes and opinions in PLANNED PARENTHOOD
V. CASEY.
An excellent appendix and clear, concise essays add materially to
the value of the book. Useful features in the appendix include an
impressive thumbnail sketch of the Court's history and a brief
outline of Supreme Court procedures that is much clearer than
most essays on the topic. Introductory essays in each chapter set
the stage without detracting from the cases themselves.
Transitional essays between cases generally provide concise and
accurate summaries of cases that cannot be included in full but
are essential to understanding what follows. Perhaps the single
best feature of the book is the inclusion in each case
introduction of a wealth of material on the political and social
context of the case. I know of no other text that offers as much
useful background material on major "quarrels that shaped
the Constitution" as found here, particularly in the
INSTITUTIONAL POWERS AND CONSTRAINTS volume where such material
is vital for students with limited knowledge of American history.
Either of the two volumes could stand alone for the appropriate
one-semester/quarter course. The two volumes can be used in
sequence wherever a two-semester course adheres to traditional
norms for organizing such courses. Although my own two-semester
course in constitutional law is a bit too unconventional to
correlate with the usual allocation of cases to the two separate
volumes (I cover the Supreme Court and race relations from DRED
SCOTT to Ollie's Barbecue during the first semester), I have no
hesitation in recommending these volumes to instructors who are
comfortable with the division of case materials along
conventional lines. For new instructors and those returning to
the constitutional law course after a lapse of a few semesters,
CONSTITUTIONAL LAW FOR A CHANGING AMERICA should provide just the
right mix of structure and flexibility.
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Reference
Baum, Lawrence (1983). "Judicial Politics: Still a
Distinctive Field" in Finifter, Ada W., ed., POLITICAL
SCIENCE: THE STATE OF THE DISCIPLINE. Washington: American
Political Science Association.
Copyright 1992