Vol. 2 No. 10 (October, 1992) pp. 161-162
CONSTITUTIONAL LAW AND POLITICS by David M. O'Brien. New York:
W.W. Norton & Company 1991. Paper: Volume I (778 pp.); Volume
II (1538 pp.) $25.95 each.
Reviewed by Judith A. Baer, Department of Political Science,
Texas A&M University
To teach constitutional law, you need a casebook. The longer you
teach constitutional law, the more crotchety you tend to become;
you may develop a set of inflexible requirements and a collection
of pet peeves. Whatever casebook you select, it will be out of
date by the time it is published; sooner or later it will bore
you; it never has all the cases you want your students to read;
it leaves out things they need to know; it is too heavy; and it
costs too much. Compiling your own casebook is one way to remedy
these difficulties -- except the first, which is inevitable, and
the second, which authorship will exaggerate. The minimum
challenge for any casebook author is to produce a text which will
suit the author's purposes without being too idiosyncratic for
everyone else; the book must appeal to enough of the author's
fellow constitutional law teachers to command a respectable share
of the market. The maximum success to be hoped for is to dominate
the market, to become the equivalent of what Ogg and Ray once was
in American government. David O'Brien's new two-volume casebook
has met the first requirement. We can anticipate seeing future
editions. What disappoints the reader is that CONSTITUTIONAL LAW
AND POLITICS has the potential for becoming the dominant
undergraduate casebook and fails to fulfill it.
O'Brien's two-volume text is designed for the traditional two-
term sequence: Volume I for governmental powers, Volume II for
individual rights. Measured against the complaint list above, the
casebook does well. Its boredom quotient is low, since both
volumes permit, indeed demand, picking and choosing. Its length
is such that very little is left out. Two surprising omissions
are ALLEN V. WRIGHT and DESHANEY V. DEPARTMENT OF SOCIAL
SERVICES; but I wouldn't swap those for the fine glossary, which
includes the sort of terms ("remand,"
"respondent," etc.) over which students tend to trip.
Since both volumes are paperbacks, neither is an excessive strain
on a student backpack. I have my doubts, however, about how well
Volume II will survive a fifteen-week semester. This remark may
sound like blaming an author for a publisher's decision, but I
think the problem is the length of the volume, a feature within
the author's control. The publisher's likely alternative, a
hard-covered tome, would have priced the book out of possibility.
The current price is more than reasonable, considering that each
volume is designed for a semester; even requiring both volumes
would keep the student book bill well below what some courses
exact. The primary feature of this casebook, however, is what
O'Brien includes that other books omit.
"What distinguishes this casebook is its treatment and
incorporation of material on constitutional history and American
politics. Few casebooks pay adequate attention to the forces of
history and politics on the course of constitutional law. Yet
constitutional law, history, and politics are intimately
intertwined" (I, p. xvii). Well, of course, everybody knows
that; intertwining them in a casebook is one of those ideas which
makes so much sense that the reader wonders why it hasn't been
done before. The idea is not without risk, however. Students
already know that law and politics are related. A tendency to
read cases in a contextual vacuum is not the problem that the
instructor confronts, not with undergraduates, anyway. On the
contrary, students sometimes need reminding that constitutional
law is different from other political science courses; we expect
them to learn to analyze the development of doctrine through
cases independent of political explanations. A casebook which
sacrificed case space for constitutional history and politics
might be fun to read, but it would cheat the students. O'Brien
succeeds admirably in shaping his casebook to his purpose while
avoiding this pitfall. If anything, he over-compensates in this
regard.
Chapters 1 and 2, printed in both volumes, relieve the instructor
of the burden of the standard introductory lecture(s) on the
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workings of the Supreme Court and/or the history of interbranch
conflicts on judicial review. Subsequent chapters incorporate
historio-political information, often in unusual but appropriate
contexts; for example, the section on the executive appointment
and removal power (I, ch. 4, sec. B) lists unsuccessful Supreme
Court nominations. Most of the time, O'Brien manages to inform
without editorializing, but his occasional lapses will make
unnecessary enemies; they should be omitted in later editions.
For example, O'Brien describes Madison, in opposition to judicial
review, as "less strident than Jefferson" (I, p. 31) --
after quoting a passage which gives no impression of stridency --
and his occasional use of the "Mrs. John Smith"
convention in his references to women is insult without purpose.
While O'Brien's inclusion of material more often found in
judicial process texts may make the casebook less attractive to
instructors who like to lecture on politics and history, a book
which provides students with easy access to relevant information
makes it possible to devote more class time to case analysis.
CONSTITUTIONAL LAW AND POLITICS represents a good idea, ably
executed. Yet, on balance, I would not adopt it for a two-term
sequence even if it were irritant-free. The basic difficulty is
that Volume II, in particular, contains too much material. It is
chock-full of pertinent information about constitutional law
cases. The chapters are crammed with charts and sidebars,
inadequately differentiated from the text; I assume that the
graphics necessary to separate them, familiar in American
government texts, would be too expensive. O'Brien has attempted
two tasks in these volumes. Not only does he cover the subject
both in sufficient breadth to convey important doctrines and in
sufficient depth to teach the student to read cases, but he also
provides information about virtually every relevant case. The
chapters on criminal procedure, for instance, go on and on,
through almost one-fourth of Volume II: section after section,
case after case alluded to and never mentioned again. Yeoman
effort has gone into compiling these cases and writing
one-sentence summaries of their holdings. But there is far more
here than undergraduates need to know; I can imagine teachers
forced to reassure students that, no, they are not expected to
memorize all those cases. A casebook is not an encyclopedia.
Finally, I remain unconvinced that an undergraduate casebook
should be divided into two volumes. O'Brien's demarcation between
powers and rights forces the instructor using Volume II to pull
into Volume I for KOREMATSU and HEART OF ATLANTA MOTEL. The
effort to integrate politics into case law, necessary as it is,
comes at the cost of separating the case law of individual rights
from that of structure and power; these subjects are as
intricately intertwined as are law, history, and politics.
CONSTITUTIONAL LAW AND POLITICS is a good casebook. It contains
the material that an undergraduate constitutional law casebook
needs; in addition, it contains historical and political
information which makes it far more student-friendly than the
typical casebook. David O'Brien has produced a text which amply
justifies itself. Unfortunately, he has succeeded too well; his
effort collapses of its own weight.
Copyright 1992