ISSN 1062-7421
Vol. 11 No. 12 (December 2001) pp. 612-614.
ESSENTIALS OF THE AMERICAN CONSTITUTION: THE SUPREME COURT AND THE FUNDAMENTAL LAW by Charles H. Sheldon,
edited by Stephen L. Wasby. Boulder, CO: Westview Press, 2002. 196 pp. Paper $21.00. ISBN: 0-8133-6855-3.
Reviewed by Edward V. Heck, Department of Political Science, San Diego State University.
This volume, which is part of the Westview Press "Essentials of Political Science" series, highlights
key themes developed during the undergraduate teaching career of the late Charles H. Sheldon. Largely completed
at the time of Sheldon's death, the manuscript was edited for publication by Stephen L. Wasby, who finds in the
book the author's voice "speaking to his students and those who come after them about what he thought important
concerning the Constitution and how it might be interpreted" (p. xi). Developed over more than 25 years of
teaching a course on Introduction to the Constitution, Sheldon's book reminds those of us who teach similar courses
that we should remain grounded in the text and structure of the constitutional document.
Sheldon's approach to the Constitution is to identify five fundamental constitutional components: the compact,
separation of powers, federalism, representation, and the Bill of Rights. In an introductory chapter, he begins
with the proposition that the Constitution is both instrument and symbol and carefully notes that grants of powers
are always hedged with limits (p. 3). He then introduces the five fundamental components and identifies the compact
as a key component linking the other four. After an excellent chapter on judicial review, Sheldon provides five
chapters highlighting key issues of interpretation related to each of the fundamental
components. In his concluding chapter, he attempts to integrate the separate components as "the holistic constitution"
by focusing on key Supreme Court cases that shed light on two or more of the components or resolve conflicts between
competing values.
In each of the five chapters dealing with the fundamental components of the Constitution, Sheldon highlights at
least one long-standing debate about the meaning of a particular component and illustrates the competing positions
through discussion of Supreme Court cases. In the chapter on the compact, for example, he presents key points of
the debate over whether the parties to the constitutional compact are the people or the states. Acknowledging the
importance of the principle of popular sovereignty, Sheldon concludes that "the compact that endowed the Constitution
with legitimacy has been recognized as a product of the people, not the states" (p. 52), but he leaves open
the more controversial question of whether the popular consent that makes the Constitution fundamental law should
be attributed to the people acting as a unified whole or the people acting within each of the separate states.
Of these five substantive chapters, I found the discussions of separation of powers and federalism to be the most
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informative. In the federalism chapter, Sheldon offers a useful perspective on the long-standing clash between
national power and "dual sovereignty." Although the discussion of early cases is sketchy, he provides
an excellent overview of recent cases in which the Court has drawn on a variety of constitutional provisions as
the basis for striking down acts of Congress that arguably impinge on the "separate and independent existence"
of the states. In the separation of powers chapter, Sheldon outlines the ongoing debate between the "exclusive"
and "mixed" versions of the separation of powers principle with unusual clarity.
Yet, even in the chapters that are most effective in providing a clear overview of competing arguments, it is possible
to raise questions about the author's approach and the cases chosen for discussion. The federalism chapter, for
example, seems to understate the internal politics dimension of recent federalism cases, barely mentioning that
the success of Justice Rehnquist's 30-year campaign for an activist approach ebbs and flows with his ability to
find four other justices willing to interpret the Tenth Amendment (NATIONAL LEAGUE OF CITIES v. USERY 1976), the
commerce clause (UNITED STATES v. LOPEZ 1995), or the Eleventh Amendment (ALDEN v. MAINE 1999) in ways that limit
congressional power. In the separation of powers chapter, Sheldon draws on such relevant sources as Locke, Montesquieu,
and Madison in outlining the debate between the exclusive (separate and distinct functions assigned to each branch)
and mixed (emphasis on checks and balances) approaches, but he mentions Justice Scalia's outspoken defense of the
exclusive approach (MORRISON v. OLSON 1988, dissenting opinion) only in a footnote to a quotation summarizing Madison's
support for the mixed approach.
Chief among my other critical comments would be a lament that the author's focus on the first nine amendments as
the major textual source of individual rights leads to an unfortunate neglect of equal protection as an element
of constitutional liberty. Typographical errors and copy-editing oversights seem no worse than normal in today's
publishing environment, but the assertion that the Court has ruled that claims under the guarantee clause of Article
IV are "nonjustifiable" (p. 92) rather than "nonjusticiable" helps illustrate the point that
even a good spell-check program sometimes requires human assistance. Finally, I would question Sheldon's focus
on the importance of Bill of Rights issues in the Watergate tapes case. It seems to me that the invocation of the
Fifth and Sixth Amendments in Chief Justice Burger's majority opinion added little if any independent force to
the basic argument that it was the proper role of the judiciary to balance the President's assertion of executive
privilege under Article II with the responsibility of the courts under Article III to determine the need for evidence
in a pending criminal case (UNITED STATES v. NIXON 1974).
Among the best features of the book is Sheldon's discussion of the built-in tension between judicial independence
and public accountability in the chapter on judicial review. Here he draws effectively on his own research on state
judicial selection to highlight the contrast between the federal Constitution's emphasis on judicial independence
and the accountability norm that is relatively prominent in state judicial selection. Still, Sheldon notes that
even though Supreme Court justices and other federal judges are insulated from fear of electoral retribution for
their decisions,
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indirect mechanisms of democratic accountability-including the appointment process and principles of judicial restraint-affect
how the justices approach their work.
So, will this book prove useful as a means of carrying Professor Sheldon's message to a broader audience of students
and teachers in political science courses? For an introduction to American politics course with an emphasis on
the Constitution, the book could certainly provide a solid introduction to the Constitution and judicial review,
particularly for highly motivated undergraduates. For an advanced constitutional law course, reading this book
could remind students and professors alike not to get so caught up in the details of cases or a specific approach
to the study of the Court as to lose sight of the overall structure of the Constitution. Still,
I think that it will be difficult for experienced teachers of constitutional law to embrace Sheldon's approach
to the constitutional document at the expense of their own. As much as I agree with the argument that we should
help our students see how various constitutional principles can be integrated into a "comprehensible whole"
(p. viii), I do not see Sheldon's five basic components replacing Heck's "famous five fundamental principles"
in my American government or constitutional law classes any time soon. Indeed, I am quite certain that the "famous
five" principles of effective government, popular sovereignty and democracy, limited government, checks and
balances, and federalism focus our attention on the tensions and competing values at the heart of constitutional
interpretation at least as effectively as Sheldon's parallel list.
REFERENCES:
ALDEN v. MAINE, 119 S. Ct. 2240 (1999).
MORRISON v. OLSON, 487 U.S. 654 (1988).
NATIONAL LEAGUE OF CITIES v. USERY, 426 U.S. 833 (1976).
UNITED STATES v. LOPEZ, 594 U.S. 549 (1995).
UNITED STATES v. MORRISON, 120 S.Ct. 1740 (2000).
UNITED STATES v. NIXON, 418 U.S. 683 (1974).
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Copyright 2001 by the author, Edward V. Heck.