Introduction to Constitutional Interpretation: Cases in Law and Religion / Edition 1

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Overview

This book is designed to help students understand and critically evaluate U.S. Supreme Court constitutional opinions.
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Editorial Reviews

Albert R. Matheny
Teaching constitutional law is at once the easiest thing and the hardest thing to do for a judicial process person in politi- cal science. It is easy simply to discuss the cases on their own terms. The students love it, particularly if one's teaching style resembles law school pedagogy. It's almost like telling stories to pre-schoolers. The students' thirst for narrative is so strong that they will sit with rapt attention and swallow everything along the way, fascinated by the "little dramas" that the cases represent. At the same time, trying to break out of this story-telling mode is a difficult challenge. Students inclined toward "pre-law" classes are often attracted by the certainty law seems to provide, as Judge Frank (1930) pointed out long ago. Sometimes it's the lucre of a legal career that draws them. In either case, probing the depths of law -- revealing its deep contradictions, political underpinnings, and technical inadequacies -- is threatening to these students. They just want "The Law"! The ease and difficulty of teaching constitutional law arise from the same source: students' aversion to critical thinking. The easy path avoids it, and the difficult path is difficult because it so often expects too much of students who are techni- cally unprepared for the task. The books reviewed here offer two ways out of this teaching dilemma. They are both specifically designed as supplements for constitutional law courses at the advanced undergraduate level and perhaps for beginning graduate students as well. Beyond that unifying feature, and the fact that both are very good books, they are as different as night and day in both content and perspective. As such, they offer judi- cial process people some fresh options for improving their constitutional law offerings. Put simply, the van Geel text gives the best nuts-and-bolts introduction to reading case law I have ever seen. If used as an introductory text in a constitutional law course, this short and accessible book makes up for the technical shortcomings most undergraduates (and graduates, too) bring to the study of court cases. My experience is that, without the technical keys to the kingdom, students are often too intimidated to think critically about cases, or misdirect their criticisms out of ignorance about legal reasoning. After all, accepting without understanding the law -- "because it's Page 86 follows: the law" -- is one of the central legitimating features of the rule of law. Van Geel's book demystifies the law on its own terms and in a systematic way that allows students to engage the cases with real technical sophistication. Thus, UNDERSTANDING SUPREME COURT OPINIONS provides a solution to one of the problems of transcending the easy path to teaching constitutional law. The strength of van Geel's book may threaten some teachers because it "steals their thunder," by so successfully introducing the basic technical concepts of law and legal discourse. In the "case" courses I have taught, I devote a significant amount of time to these matters, and the students sit spellbound, thinking that I am making them privy to the very mysteries of the law which unlock to doors to wealth and power (a la "L.A. Law"). Like most political scientists, whatever technical legal skills I possess were accumulated ad hoc, and my students get an idiosyn- cratic interpretation of legal discourse. Not so with van Geel. He has a comprehensive grasp of the mechanics of case law, and he delivers it in a very organized and informed fashion. The book is laid out simply in six chapters. The first two establish the institutional context of the Supreme Court and the individual justices, respectively. The body of the text, Chapters 3 through 5, addresses in turn legal reasoning, the interpretation of constitutional and historical material in Supreme Court opinion-writing, and the "art" of using precedent. Van Geel concludes with a chapter in which he applies the above discussion to one unimportant Supreme Court decision. His analysis goes paragraph by paragraph through the majority opinion, integrating the material from the first five chapters into his commentary. Then, he covers in less detail the dissent. The chapter con- cludes with hints on how this case might be "briefed" properly and with some comments on the political significance of the case. UNDERSTANDING SUPREME COURT OPINIONS is written from the perspective of a "true believer" in the notion that law can objectively organize human affairs. This is not to say that van Geel is a true believer, but that the text, in explaining HOW the law works, implies that the law WORKS. This rather uncritical introduction to law at the highest level of the American legal system is ironically essential for student to develop later a critical understanding of law in society -- an increasingly important foundation as the materials of the law and economics, critical legal studies, and law and language schools begin to penetrate the teaching of constitutional law at the undergraduate level. It is now unthinkable to send undergraduates familiar with constitutional law on to graduate school or law school who are not at least passingly familiar with these competing schools of thought. By assigning van Geel early in the term, the consti- tutional law teacher frees up time for addressing these approach- es later in the course, once students have gotten a firm founda- tion in case law. Page 87 follows: Lief Carter's book, AN INTRODUCTION TO CONSTITUTIONAL INTERPRETATION, fits in nicely at this point. He has written several well-regarded books on a wide variety of law-related subjects. His topics (and how he chooses to present them) are often idiosyncratic. Such is the case with this book, which is written in a style at once conversational and meditative. His chapters have a spoken quality; they read like lectures, lively and free-wheeling. I find this style stimulating and provoca- tive, but sometimes undergraduates find it disorienting, espe- cially if they are not on the same frequency as Carter when he engages an issue. But for a student well-grounded in constitu- tional law,there is not a writer I know of with a wider range of reference than Carter. And he attacks the subject with wit and insight, too. This book critically examines the Supreme Court's tortured interpretations of the religion clauses in the First Amendment, ostensibly as a case study in constitutional interpretation. Carter urges an entirely new approach to the dialectic of anti-establishment and free exercise. At one level, his tone is didactic, aiming to teach students about the nature of constitu- tional jurisprudence. At another level, Carter introduces a highly sophisticated dialogical critique of the legitimate foundations of constitutional government. He summarizes conventional understandings and debates about the religion clauses through a conversation between imaginary students who are preparing for an exam and discussing GOLDMAN v. WEINBERGER (which upheld the Air Force's refusal, over his free exercise objections, to allow a Jewish officer to wear his Yarmulke under his service cap. Virtually the full text of the GOLDMAN opinion is presented along with the mock debate between the students. Carter repeats this format with the anti-esta- blishment issue, using EDWARDS v. AGUILLARD (which rejected Louisiana's legislative effort to include the teaching of" creationism" in the sciences curriculum of its schools as an unconstitutional establishment of religion). This is an engaging way to cover the law in the area, along with the various schools of thought on the subject, and students will not be thrown by the pointlessness of the debates, because of the informality of style. The debates' pointlessness, of course, plays precisely into Carter's hands (of course they should, since they are his contrivance). He suggests an alternative to the constitutional love-hate relationship with religion in America. Carter's alternative is grounded in a theory of morality based upon what can only be called communitarian dialogue. He pinpoints the problem of separating church and state in the universal claims of religion to some sort of objective truth, be it the laboratory or the Bible, and he notes the tragic consequences of placing political authority behind those truths. By analogy, he indicts constitutional fundamentalists, who attempt to use the "original meaning" of the constitution to disentangle the state and reli- gion in America. Page 88 follows: Carter then touches upon the work of Michael Perry (1988) and Richard Rorty (1979), among others, to support his argument, which is really a plea for a new communitarian basis for legiti- macy in a post-modern society. It is an impressive and sincere statement of one struggling with liberal relativism on the one hand and the misuses of religion and science on the other. The book ends abruptly with an unedited case, OREGON v. SMITH (in which the Court upheld Oregon's denial of unemployment compensa- tion for workers fired for consuming peyote as a religious observance over a free exercise claim to the contrary) which the students are asked to ponder in light of Carter's argument. The strength of Carter's book is that he gives students enough credit to expect them to be able to engage the sophisti- cated critique he presents here. Its weakness is that the book's critical vision overburdens the vehicle of an undergraduate textbook. Carter's is a major argument which should be much more thoroughly developed in a book-length manuscript and cannot be contained within a supplemental undergraduate text. Put simply, there is a mismatch between tone and substance in this book. Still, it is very provocative reading, and, depending upon the setting, could make fascinating classroom material. REFERENCES Frank, Jerome. LAW AND THE MODERN MIND. New York: Coward-McCann, 1930. Perry, Michael. MORALITY, POLITICS, AND LAW. New York: Oxford, 1988. Rorty, Richard. PHILOSOPHY AND THE MIRROR OF NATURE. Princeton: Princeton University Press, 1979. CASES CITED EDWARDS v. AGUILLARD, 482 U.S. 578 (1987) GOLDMAN v. WEINBERGER, 475 U.S. 503 (1986) OREGON v. SMITH, 108 L. Ed. 2d 876 (1990)
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Product Details

  • ISBN-13: 9780801303166
  • Publisher: Longman Publishing Group
  • Publication date: 1/28/1991
  • Edition number: 1
  • Pages: 176
  • Product dimensions: 5.98 (w) x 8.93 (h) x 0.35 (d)

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