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.