Vol. 2, No. 10 (October, 1992) pp. 165-166
AMERICAN CONSTITUTIONAL LAW by Robert J. Steamer and Richard J.
Maiman. New York: McGraw Hill 1992. 562 pp. Paper $38.50.
Reviewed by John Gilliom, Department of Political Science, Ohio
University
Arguing that there are a growing number of one semester
constitutional law classes that are ill served by the traditional
large and expensive text, Steamer and Maiman have attempted to
meet the resulting need with a "short case law book"
that is both "comprehensive and economical." Despite
the short format, the authors still cover a wide breadth of
material: historically important cases, the institutional
dynamics of the court, and competing theories and concepts of law
and judicial review. Their obvious danger is that the omission
and brevity required for such a limited amount of space will
leave students only briefly acquainted with, and potentially
confused about, key concepts and issues in the field.
The book is organized into seven chapters. The first provides an
introductory discussion of law, the Constitution, and the
structure and role of the judiciary in American politics. The
chapter concludes with four cases intended to illustrate the
court's policymaking role: GIDEON V. WAINWRIGHT, NEW YORK TIMES
V. U.S., FURMAN V. GEORGIA, AND ROE V. WADE. Here and throughout
the book, each case is set up with an able and interesting
introduction. The cases have gone through fairly extensive
editing to fit the abbreviated format, but still do a good job of
conveying the gist of the decision. Following each case is a
helpful "aftermath" section, which describes the fate
of the individuals and issues involved in the case. In the book
as a whole, chapters and cases within chapters are organized in a
largely ahistorical format which will frustrate teachers who
attempt to portray the development of the court over time.
Judicial review is covered in the second chapter. Here, the
authors provide an enlightening and more widely needed discussion
that clarifies the relationship between activist and restrained
jurists, on the one hand, and liberal and conservative ones, on
the other. While contemporary students tend to believe that
liberals are activists and conservatives are restrained, Steamer
and Maiman clearly show that there are both restrained liberals
and active conservatives. Unfortunately the discussion stops
short of the contemporary Supreme Court, which is probably what
students most need and want to talk about. The cases of this
chapter include MARBURY V. MADISON, FLETCHER V. PECK, DRED SCOTT,
HOME BUILDING & LOAN ASSOCIATION V. BLAISDELL, HEART OF
ATLANTA MOTEL V. U.S., and others which demonstrate the issues
involved in the politics of judicial review. BR>
Chapter 3 takes on the structural issues of federalism and the
separation of powers. After a brief seven page discussion, the
chapter turns to a long review of case law ranging from
MCCULLOUGH V. MARYLAND through U.S. V. NIXON. As will befit many
political scientists' approach to constitutional law, this is by
far the longest chapter in the book. Under "Due Process of
Law" (ch. 4), Steamer and Maiman provide a brief but
effective discussion of the concept of due process, competing
theories of incorporation, and the differences between procedural
and substantive due process. The discussion is illustrated with
THE SLAUGHTERHOUSE CASES, PALKO V. CONNECTICUT, MAPP V. OHIO,
LOCHNER V. NEW YORK, GRISWOLD V. CONNECTICUT, BOWERS V. HARDWICK,
AND CRUZAN V. MISSOURI DEPARTMENT OF HEALTH. Economic substantive
due process needs more detailed explanation and analysis; NEBBIA
V. NEW YORK and FERGUSON V. SKRUPA would be helpful additions.
The final three chapters cover freedom of expression, freedom of
religion, and equal protection. Chapter 5 has an excellent
selection of cases to demonstrate the issues and concepts
involved in the freedom of expression debate: SCHENCK V. U.S.,
DENNIS V. U.S., BRANDENBURG V. OHIO, NEAR V. MINNESOTA, EDWARDS
V. SOUTH CAROLINA, TEXAS V. JOHNSON, NEW YORK TIMES V. SULLIVAN,
HUSTLER MAGAZINE V. FALWELL, BRANZBURG V. HAYES, MILLER V.
CALIFORNIA, AND COHEN V. CALIFORNIA. Similarly, Chapter 6
provides what might be called the "greatest hits album"
of religion cases.
The final chapter attempts to cover equal protection of the law
and is a disappointment in the wake of the preceding First
Amendment chapters. With just six cases on race and two on
gender, the chapter gives only a hint of the many issues,
controversies, and critical disputes at work in this area. While
the cases selected are certainly crucial -- BROWN V. BOARD OF
EDUCATION, SWANN V. CHARLOTTE-MECKLENBERG, MILLIKEN V. BRADLEY,
SHELLEY V. KRAEMER, BOARD OF REGENTS V. BAKKE, METRO BROADCASTING
V. FCC, REED V. REED, FRONTIERO V. RICHARDSON, AND REYNOLDS V.
SIMS -- more is needed in both case law, explanation, and
critical analysis.
Throughout this review, the most frequently used words are
variations on the word "brief." To provide such a short
text, the authors are aware that they have had to leave a lot out
and abbreviate all that remains. Let me first touch upon what is
left out and then turn to what is abbreviated.
Steamer and Maiman state that their "most difficult task was
to decide...what to leave out" (p. xiv) and I think that it
must have been a daunting chore. Given the importance and
difficulty of the decisions about what to include and what to
omit, it is surprising that the book contains no discussion of
the logic of organization or topic choice. Naturally, individual
tastes and preferences are likely to differ widely as to what
material is "essential" to the field and should be
included in a book such as this. My students, for example, have
been especially fascinated with Fourth Amendment law and it was
surprising to see virtually no discussion in this area. The same
could be said about the topic of reproductive freedom as well as
the legal politics of race, class, and gender; instructors with
an interest in these issues will find them inadequately covered.
While there are isolated cases on each of these topics, there is
not enough material to build the sort of sustained analysis and
discussion that can help students to understand them.
The discussion entitled "What is Law" reveals the
dangers of attempting to be both brief and comprehensive. In this
introductory section the authors lead the students through a tour
of legal concepts beginning with Aristotle and then continuing on
to public and private law, constitutional and administrative law,
statutory and decisional law, common law and equity, civil law
and criminal law, and positive law and natural law. All of this
is dealt with in a dizzying eight pages (pp. 3-11) and would be
encountered by the students in their first night of reading. The
concepts and issues raised in this section require far more
explanation and discussion if students are to come away from the
course with a solid understanding of the law.
The danger, and I think it has been realized, is that the demand
to omit and abbreviate will leave students with a cursory and
potentially confusing introduction to constitutional law. This
may say less about this work in particular than about the
difficulties faced in attempting to responsibly teach
constitutional law in one semester or, worse, one quarter. A
full-scale course in this area must normally cover legal theory,
the court as an institution, and American history, while working
in crash courses in economic policy and the unique dynamics of
race and gender politics. Some instructors may also try to
introduce their students to debates over legal interpretation and
argument. Obviously, not all of this can fit into a short course
or a short case book in a way that will provide students with a
solid and thorough understanding of the issues involved.