ISSN 1062-7421
Vol. 11 No. 11 (November 2001) pp. 509-513.

GREAT CASES IN CONSTITUTIONAL LAW by Robert P. George (Editor). Princeton: Princeton University Press, 2000. 216 pp. Cloth $37.50. ISBN: 0-691-04951-3. Paper $13.95. ISBN: 0-691-04952-1.

Reviewed by Ruth Ann Watry, Department of Political Science, Northern Michigan University.

GREAT CASES IN CONSTITUTIONAL LAW explores five landmark U. S. Supreme Court decisions, where critics have argued that the Justices should have
exercised judicial restraint. Robert P. George, in the introductory chapter, states, "In all of these cases, critics complained that the justices were, without constitutional warrant, substituting their own views about policy matters for the judgments of the people's legitimately elected representatives. In other words, critics claimed, in each case, that the decision was, in effect, an abuse of judicial power-that the Court was functioning, not as an interpreter or applier of law, but as a LAWMAKING institution, an unconstitutional 'superlegislature'" (p. 4). Cases included in the text are MARBURY v. MADISON, SCOTT v. SANFORD, LOCHNER v. NEW YORK, BROWN v. BOARD OF EDUCATION, and ROE v. WADE. For each case, George has included essays supporting both sides of the question of whether the Court was acting as "guardians of constitutional ideals against the depredations of legislative majorities" (p. 5).

Chapter one is Mark Tushnet's essay, "MARBURY v. MADISON and the Theory of Judicial Supremacy." Tushnet examines contemporary understandings of
MARBURY'S theory of judicial review, distinguishing between judicial AUTHORITY and judicial EXCLUSIVITY and SUPREMACY (p. 17). As a practical
example, he questions whether citizens and government officials are bound by the Court's decision in PLYER v. DOE (1982) which found a Texas statute denying a free public education to non-citizens to be unconstitutional). He concludes that public officials who have taken an oath to support the Constitution have not necessarily taken an oath to support the decisions of the U. S. Supreme Court. This leaves one with the question, though, of whose interpretation of the Constitution (in any) is binding on other branches of the government? Tushnet examines two possible readings of MARBURY, the first is that saying what the law means is simply what courts do, and the second saying that the interpretation of the courts is supreme to interpretations occurring in other branches. Tushnet points out that in recent years, the Court appears to have adopted the latter reading, contributing to a theory or doctrine of judicial supremacy.

Tushnet explore whether judicial supremacy is the right way to understand our Constitution. He examines cases where government officials made the argument that they should not be bound by some Supreme Court decision that they believed was wrong. A partial list includes Arkansas Governor Orval Faubus and BROWN, Abraham Lincoln in his First Inaugural Address

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and DRED SCOTT and Californians who supported Proposition 187, despite the fact that it may be in conflict with the holding of PLYER v. DOE. Tushnet seems to conclude (as did Lincoln in his First Inaugural Address), that judicial supremacy should be the norm, unless "vital interests of the people as a whole" are affected. He suggests that if a political leader, speaking for the people, is "able to make a case to the public that a vital interest of the people was affected when the courts directed executive officials to follow judicial interpretations of the Constitution and federal statutes" (p. 39). He seems to conclude that the best measure of whether this type of crisis has occurred may be to question whether a different reading of the Constitution would better advance the principles embodied in the
Declaration of Independence.

Overall, Tushnet offers an original and valuable insight as to how we may look at the concept of judicial supremacy, and how seemingly conflicting views about judicial supremacy, may not be as conflicting as they originally appear.

In chapter two, Jeremy Waldron responds to Tushnet. Waldron focuses on Tushnet's apparent rejection of the view that people never have the standing to interpret or challenge an interpretation of the Constitution. He arrives at a different interpretation of Lincoln's First Inaugural Address, than Tushnet. Waldron does not see "vital question" as being a necessary condition of crisis. Although Tushnet appears to argue that judicial interpretations of the Constitution should only be challenged if it impacts a vital interest of the people, Waldron does not see that to be a necessary condition. Waldron turns to Ronald Dworkin's "Civil Disobedience" to try to
get a sense of when civil disobedience might be justified. He sees Dworkin's position as focusing on issues touching fundamental or constitutional rights. What Dworkin does not answer for Waldron, is whether when fundamental rights are not at risk, individuals or government officials can challenge court interpretations of the Constitution. He concludes that, although we have the need to arrive at one interpretation of the Constitution, the court-centered solution on which we currently rely is not the only solution available. He closes with Lincoln's First Inaugural Address where Lincoln warns that if we decide to always let the Supreme Court have the final word, "the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal" (p. 62).

Chapter three presents Cass R. Sunstein's essay, "DRED SCOTT v. SANFORD and Its Legacy." Sunstein begins by listing reasons why SCOTT is still a relevant case to study. He then goes on to discuss three myths surrounding the SCOTT decision. These myths are that the original Constitution protected slavery, that Chief Justice Taney was morally obtuse and that the error in DRED SCOTT was the Court's abandonment of intent of the framers. Sunstein argues, instead, that the defect in SCOTT was that the Court was trying to settle for once and for all time, an issue that was dividing the nation, on political and moral grounds. When discussing what the court should do, Sunstein states, "First, it should generally decide cases rather than set down broad rules. Second, it should try to avoid issues of basic principle and instead attempt to reach INCOMPLETELY THEORIZED AGREEMENTS ON PARTICULAR CASES" (p. 67).

Sunstein provides an informative discussion of the story behind the case, and

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discusses the Supreme Courts treatment of the three legal questions raised in the case. He concludes that the Court made errors in deciding the case, both institutional and substantive. The substantive error had to do with the status of freed slaves. At the time the Constitution was written, freed slaves had the right to vote in several states. He finds no evidence to indicate that freed slaves could not qualify for citizenship for constitutional purposes. Sunstein also finds the Court's decision concerning the Missouri Compromise to be wrong. The institutional errors were continuing with the case, after determining that Dred Scott was not a
citizen, leaving the Court without jurisdiction to hear the case and trying to settle as divisive an issue as slavery. The Court, in deciding this case, got in the way of democratic deliberation.

Sunstein concludes by applying the lessons learned in DRED SCOTT to affirmative action, right to die and homosexuality. In the area of affirmative action, he suggests that the Court allow the issue to be decided democratically. Sunstein, on the other hand, suggests that the Courts use their position to get deliberation started in the area of right to die. Finally, he cautions the courts to realize that an unpopular judicial decision could galvanize those opposed to gay rights, so courts must act cautiously. Sunstein succeeds in showing the reader why DRED SCOTT is relevant today, and how lessons learned from DRED SCOTT can be applied to
contemporary issues.

James M McPherson's responds to Sunstein in chapter four. He begins by restating Sunstein's major contentions. He chooses to focus on the impact of SCOTT in its time, concluding that the decision did not polarize the country, any more than issues about slavery already polarized it. He also points out that without the DRED SCOTT Decision, "it is quite possible that the Fourteenth Amendment would be less expansive and that the provisions concerning privileges and immunities, due process, and equal protection . would not have existed in the form they do" (p. 93).

Chapter five, by Hadley Arkes, is titled "LOCHNER v. NEW YORK and the Cast of our Laws." Arkes begins with a discussion of substantive due process. He discusses arguments for and against it, and comments how without LOCHNER and its statement on substantive due process, we may not have had GRISWOLD v. CONNECTICUT and ROE v. WADE. He follows this discussion with background on LOCHNER. Beyond discussion of views of various justices on the issues involved in LOCHNER, the focus of this essay appears to be that LOCHNER (and the LOCHNER court) is not necessarily a "wrong" decision, and not necessarily evidence that the court was anti-regulation. He offers examples where the Court upheld regulation, including Justice Rufus Peckham's list, in the LOCHNER majority opinion, of areas where government can regulate the workplace. Arkes points out that, if the law overturned in LOCHNER was truly for the public health, it would affect owners as well as employees. In addition, the law affected voluntary, as well as coerced overtime. Arkes makes the observation, that for Peckham, the problem was not government regulation of the workplace, but rather, it was the government taking away from the individual, autonomy over his own labor. He recognized that most people had the competence to govern their own lives.

Donald Drakeman's essay responds to Arkes. Drakeman has one main problem with Arkes' essay. In the beginning of the essay, and in other writings, Arkes makes it

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clear that he does not agree with the outcome in ROE v. WADE. He comments early in his essay that Roe is similar to LOCHNER, in that both rely on substantive due process. Drakeman questions how Arkes can support LOCHNER as having been correctly decided, while still believing that Roe was decided wrongly.

Chapter seven presents Earl Maltz's essay, "BROWN v. BOARD OF EDUCATION and Originalism.'" Like the other scholars, Maltz begins with a background
on the case. He then notes that although some would say that BROWN has had little impact on the quality of education for Blacks, it is none the less and important case, both because it was the first time the Court fully threw its weight against a Jim Crow law and also because it influenced the moral and political climate in this country. It is quite possible, that without BROWN, we would not have seen the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Despite that fact that most Americans see BROWN as having been correctly decided, Maltz notes that the Court went beyond the Constitution in deciding BROWN. Maltz goes on to discuss the originalist approach to interpreting the Constitution. He examines the time period in which the 14th Amendment was written and ratified, and finds no support for the outcome in BROWN. Despite the socially desirable nature of BROWN, Maltz believes that the abandonment of originalism as a general rule is bad. He notes that in Shaw v. Reno, the abandonment of originalism resulted in race not being taken into account when drawing legislative districts. He concludes that, "judges who are not constrained by the original understanding will simply constitutionalize the views of the particular segment of the ruling elite from which they are drawn" (p. 150).

Walter F. Murphy's essay, "Originalism-The Deceptive Evil," responds to Maltz. Murphy lists five possible approaches to constitutional interpretation. One of these is "all of the text plus something else", and originalism involves using that approach, with the something else being the intent of the framers. Murphy asks why Maltz believes that this approach is the best approach to interpreting the Constitution. He notes that there is not historical requirement. It is the words of the Constitution or amendments, and not the speeches, which were ratified. He then goes on to discuss the weaknesses of originalism--specifically that it makes it difficult for the country to cope with constitutional problems and the problem of historical record. He provides historical examples of conflicting information (or no information) being available to try to determine the original intent of the constitution or amendments. In addition, even if we could find records, has the English language changed too much for us to have a true understanding of intent? He concludes "Discretion and creativity pose dangers, but we cannot keep either in check by pretending to read the minds of dead men" (p. 169).

Chapter nine is Jean Bethke Elshtain's essay, "ROE v. WADE: Speaking the Unspeakable." Elshtain begins by noting that abortion includes a moral sense and a political sense. Elshtain is making the argument that ROE v. WADE was incorrectly decided, in part because it interrupted the political discourse that had been occurring in the states. Her practical suggestion is that we regulate abortion in a way that circumscribes a better freedom for women. Women are now burdened with having to take all responsibility for the decision, and this is not really freedom. She suggests that the government ban all partial birth abortions and sex selection abortions.

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She is against abortion on demand and is troubled by the fact that the government seems to have taken sides in the abortion issue. She holds a dialogue with herself (posing questions that the reader may ask of her, and going on to answer that question), discussing the problems with abortion on demand. She also acknowledges that it is not a perfect world, and things like abortion will not go away. She observes that although abortion proponents argued that things like child abuse would be reduced if we allowed abortion, they are actually on the upswing. Much of what she writes focuses on the morality of abortion and how we define life in our society.

For purposes of studying Supreme Court decisions, her most important argument is that ROE v. WADE got in the way of dialogue that was occurring in the states. States were liberalizing their abortion laws, and many others would have probably followed. Just as Sunstein thought that the Court interrupted political dialogue in DRED SCOTT, and that the Court had to be cautious in other policy areas, Elshtain is concerned with the Court and its interruption of political dialogue concerning abortion.

The book closes with George Will's response to Elshtain, "Judicial Power and Abortion Politics: ROE v. WADE." He appears to be in agreement with Elshtain, in terms of the morality of abortion. He points out the language used by those who are pro-choice indicates that they are uncomfortable with procedures such as partial birth abortion. He also notes that the Court made a technical error in ROE v. WADE when they referred to the fetus as a potential life, since biologically it was a real life. Will points out how abortion law contradicts other areas in criminal law. It is a double homicide to kill a pregnant woman, but not murder for a pregnant woman
to abort her child.

He believes that even without ROE v. WADE, all states would probably allow first trimester abortions. He is in agreement with Elshtain in that ROE has gotten in the way of a natural progression of policies in the states. Finally, he questions whether the privacy right invoked in ROE actually exists, noting that privacy is not freedom from all government intervention, and noting that there are many "private" activities that the government chooses to regulate. He notes that ROE has had unintended consequences, such as a rise in births out of wedlock. He concludes that this is an issue that includes among other things, community values, and it is a philosophical
issue that cannot be settled by the courts.

All essays provide interesting insight into the concepts of judicial review and judicial activism. At the end of the introductory chapter, Robert P. George states "The essays and commentaries are offered.in the hope that readers will gain from them a richer understanding of the role played by the Supreme Court of the United States in major political conflicts at key moments in our national history" (p. 14). This excellent book clearly meets this goal, and I highly recommend it to all.

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Copyright 2001 by the author, Ruth Ann Watry.