AMERICAN CONSTITUTIONAL LAW by Otis H. Stephens, Jr./John M. Scheb II. Wadsworth Publishing Co., 1999. 862 pp. Hardcover $59.95. ISBN 0-53454945-4.

Reviewed by Peter J. Galie, Department of Political Science, Canisius College. Email: galie@canisius.edu.

Constitutional law texts have come a long way in the last half century. Texts in the late forties reflected the pre-Warren Court character of constitutional law: heavily weighted towards structure and power and able to include nearly all the major civil liberties cases. Then came the Warren Court and the first revolution in casebooks was underway. The stream of cases involving civil rights and liberties shifted the balance dramatically, requiring some texts to issue separate volumes for the two areas. Even so, some civil liberties volumes approach or exceed 1000 pages (see Cohen and Danelski 1994; O'Brien 1998).

These undergraduate casebooks followed a standard format: topical chapters consisting of selected cases drastically reduced in size and bereft of citations, leaving only passages thought essential to understanding the decision. Dissents and/or concurrences were included to shed light on the arguments involved. Each opinion was preceded by an introductory essay placing the decision in its historical and doctrinal context. The locus classicus of this approach is Cushman (1925). Cushman’s text was a version of law school case books - less technical, containing fewer cases but with more elaborate introductory and explanatory material preceding each case.

As the discipline of political science adopted more systematic and scientific approaches to the study of politics, dissatisfaction arose concerning the teaching of public law in undergraduate political science departments. The first wave focused on the "political" in political science. The fact that the Court was part of a larger political system led to research on the court as a political institution influenced by, as well as influencing, Congress, the President, public opinion and interest groups. Texts began to include information on the judges and their decision-making process: social background, court case loads, internal court memos and other legal and historical documents which helped reveal the inner workings of the Court. Material on compliance and implementation and on rival theories of constitutional interpretation made their appearance. O’Brien’s text (1998) is a good example.

In spite of the success of O’Brien’s text, there remained a Red Sea between constitutional law texts and the kind of empirical research being done by political scientists on the judiciary and the Supreme Court. Research on judicial behavior, by and large, has not found its way into these texts. Instead, this research and the resulting texts provided the materials for new courses on the judicial process or judicial politics.

Some attempts to bridge this chasm have been made, e.g., Epstein and Walker (1998). Although it remains, perforce, a text of the decisions of the Supreme Court, the authors make a serious attempt to summarize and critique the empirical research on the Court. Inevitably this research will be studied in other courses; but by linking this research to the study of constitutional law Epstein and Walker have helped anchor the study of public law in the discipline of political science.

What should we expect from a constitutional law text today? That question of course depends on what objective(s) we wish to achieve. The question is complicated by the fact that such courses frequently serve diverse constituencies: budding lawyers, aspiring political scientists, and a miscellany of majors interested in the subject matter. My experience is that these courses are not packed with budding political scientists nor with students from other majors interested in the subject matter. Most have law school aspirations. Professor Heller’s (1952: xvii-xviii) observation that "To examine into [the Supreme Court’s] work is to study a – peculiarly American – technique of political decision making, to appraise and to assess a paramount method of social and political adjustment in our society" seems no less pertinent today than it was when he made it nearly fifty years ago, and provides an objective that meets the needs of our diverse constituencies.

What has changed is what we think a text must contain in order to fulfill that objective. We want a text that is reader friendly, interesting, thoughtfully organized, up-to-date, manageable, yet comprehensive. An appropriate text would include political and attitudinal based approaches to the Court as well as more traditional legally relevant ones. We want it to provide students with an understanding of the Supreme Court as a political institution; its structure, powers, constraints on those powers, and how it reaches its decisions. We want it to provide an introduction to the various theories of constitutional interpretation. We want introductory essays providing explanation and historical and doctrinal context for the cases, key terms highlighted in the text, a glossary, appendix, sources for court decisions and related material found in libraries and on the internet. Ideally, it should take note of the fact that there is a dual constitutional tradition in the United States and that state high courts, in interpreting their own constitutions, have made important contributions to constitutional law in general and the protection of civil liberties in particular (see Galie 1982; Tarr 1998).

How well does American Constitutional Law fare in the context of these demands? The text’s structure and context place it squarely in the tradition of undergraduate texts developed by Cushman and others. In 862 pages (943 counting appendices, table of cases and index) it claims to cover "the entire range of topics in constitutional law" – structure and power (331 pages) and civil rights and liberties (527 pages). Each chapter begins with an outline followed by a lengthy introductory essay. The authors provide summaries of each sub-section of the chapter rather than one summary at the end of the essay, a technique likely to increase comprehension. Key terms are highlighted in the text and listed at the end of each essay along with a guide for further reading and a boxed insert describing internet sites relevant to the topic. The cases have full legal citations and the vote, but no breakdown by justices, and are preceded by the facts of the case as summarized by the authors. Visuals as well as inserts containing excerpts of statutes, presidential orders and the like help make the text more user friendly. The text provides brief treatment of the different approaches to constitutional interpretations and addresses the issue of explaining the Court’s behavior, noting the interplay between legal, political and attitudinal models for explaining court outcomes. The treatment, however, is cursory compared with that provided in Epstein and Walker.

A full chapter is given to property rights, a topic still too frequently ignored or given short shrift by most constitutional law texts. Lochner and substantive due process are given standard interpretation, viz., that the Court was reflecting growing corporate influence (pp. 384-385) with the obligatory quote from Holmes’ dissent. Recent work by Howard Gilman and Paul Kens have suggested alternative ways of understanding what the Court was about in Lochner. Both works are cited in the bibliography, but no attempt is made to integrate an alternative reading in the essay. Given the severe space limitations the authors must work with, this may be asking the impossible. The authors missed an opportunity to note the interplay between court decisions and congressional legislation in connection with Goldman v. Weinberger (475 U.S. 503 [1985]). That decision (Orthodox Jews do not have a free exercise right to wear yarmulkes while in uniform) was reversed by congressional action. The decision to abjure footnotes in the introductory essays, likely made in pursuit of readability, was made at some cost. I was jarred by the assertion that "extensive evidence indicates that the actions or threatened actions of Congress and the President will have an impact on its decisions." (pp. 65-66) That statement is true, but vacuous, if impact is read in a weak sense; and problematic if taken in a strong sense. A cite to supporting research would have been helpful.

The authors make an attempt to inform readers of the importance of state constitutions (p. 355) and judicial federalism (p. 280), but barely mention, let alone discuss, the hundreds of state-based cases in which state high courts have provided greater protection for rights and liberties than have been forthcoming from the Supreme Court. In this respect it follows the pattern of nearly all civil liberties case books (except O'Brien -- see Galie 1993).

Stephens and Scheb have provided a solid and eminently usable case book for today’s undergraduates. They have made the subject matter approachable and interesting, without abandoning the central objective of a case book: to acquaint students with the Supreme Court’s view of our constitutionally governed society.

Cohen, William and David Danelski. 1994. Constitutional Law, Civil Liberties and Individual Rights, 3^rd edition (Foundation Press)

Cushman, Robert. 1925. CASES IN CONSTITUTIONAL LAW. (New York: F. S. Crofts and Co. Inc)

Epstein, Lee and Thomas G. Walker. 1998. CONSTITUTIONAL LAW FOR A CHANGING AMERICA: RIGHTS LIBERTIES AND JUSTICE (Washington D.C., Congressional Quarterly).

Galie, Peter. 1982. "The Other Supreme Courts: Judicial Activism among State Supreme Courts" 33 Syracuse Law Review 731-793.

Galie, Peter. 1993. "Teaching Civil Liberties: The Missing Dimension," 22 Perspectives on Political Science 116.

HELLER. 1952. Introduction to American Constitutional Law (N.Y.: Harpers and Brothers).

O’Brien, David. 1998. Constitutional Law and Politics: Civil Rights and Liberties, 3^rd edition (N.Y.: Norton).

Tarr, G. Alan. 1998. Understanding State Constitutions (Princeton University Press).

Copyright 1995