Processes of Constitutional Decisionmaking: Cases and Materials Fourth Edition


For a solid introduction to the practical realities of constitutional decisionmaking, as well as the origins and development of constitutional doctrine, this casebook is a proven success. In its Fourth Edition, Processes of Constitutional Decisionmaking: Cases and Materials deserves your careful consideration.

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For a solid introduction to the practical realities of constitutional decisionmaking, as well as the origins and development of constitutional doctrine, this casebook is a proven success. In its Fourth Edition, Processes of Constitutional Decisionmaking: Cases and Materials deserves your careful consideration.

The Fourth Edition includes:

  • coverage of the Supreme Court's recent rulings on federal-state relations
  • materials in the sex equality chapter on domestic violence, rape, single-sex education, women's sports, and abortion as an equality right
  • a section on sexual orientation that addresses same sex marriage, the military's 'don't as don't tell' policy, cases such as Romer v. Evans, and the latest academic theories about equality for homosexuals and bisexuals

With strong historical and political materials, Processes of Constitutional Decisionmaking: Cases and Materials, Fourth Edition, serves as a thorough exploration of the many facets of constitutional law.

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Editorial Reviews

Lief Carter
The first edition of this now classic law school casebook grew out of the same frustration that produced the critical legal studies movement: constitutional theory, that quintessentially normative enterprise, had lost its normative way. Many strands of twentieth century philosophy -- Wittgenstein, Weber, and Dewey to name a few -- had by a convincing process of triangulation pulled out the shaky props beneath technical legal rationality's claim to provide a sufficient normative basis for evaluating constitutional decisionmaking. As the authors point out in their preface, academic constitutional law had collapsed into a description of what the Supreme Court said. Now, nearly twenty years later, a rich literature on interpretive theory and hermeneutics has blossomed, and the authors have worked their material into a rich weave of political history, case law, and contemporary scholarly commentary. For graduate students who wish to master constitutional law and theory together, this casebook provides an ideal learning tool. The book is designed for a nine-month law school course, and for undergraduates I suspect the length and organization make it difficult to use in a semester. But the authors write with admirable clarity, and well-motivated and well-coached undergraduates could gain much from using it. Brest and Levinson's central theme takes the form of a question: Do primarily apolitical decisionmaking procedures exist by which judges can reach and defend legal conclusions that are both substantively acceptable and politically legitimate? While generously encouraging students to come to their own answers, the authors answer that they are skeptical "about the legitimating power of process and, indeed, about the meaning of `legitimacy' itself" (p. xxxiv). Humpty Dumpty's pungent statement: "The question is...which is to be master -- that's all" (p. 40) spices the entire work. Murphy, Fleming and Harris' AMERICAN CONSTITUTIONAL INTERPRETATION provides, I think, the closest alternative. The relative merits about balance out. The Murphy book is no longer current, and its complex marbling of interpretive approaches, modes, and techniques boggles undergraduate minds more thoroughly and frequently than Brest and Levinson's six-part model, borrowed from Levinson's colleague Philip Bobbitt, presumably would. On the other hand, while Brest and Levinson is incurably socratic, Murphy et al. takes and defends clearer positions, particularly regarding the fundamental concepts of democratic theory. In short, for depth, currency, and thoroughness of legal coverage, the edge goes to Brest and Levinson, but Murphy, Fleming, and Harris still has a pedagogical edge for undergraduate instruction. (Of course this difference only mirrors the different primary audiences of the two books in the first place.) What, more specifically, do political scientists gain and lose in a text designed to perform primarily for law students? Some of the gains are substantial, at least in these authors' skillful hands: 1. Law texts may give more attention to the political consequences of legal decisions that lie outside the conventional federalism/ separation of powers/civil rights canon. Here the sheer policy significance of SWIFT V. TYSON and ERIE comes through clearly, and the authors don't skimp the administrative constitutional issues, for example, DESHANEY V. WINNEBAGO. 2. For simple pedagogic clarity, the common pattern in political science casebooks -- I think of it as the Mason and Beaney legacy -- of an introductory overview essay followed by an unbroken string of "significant cases" has always struck me as inferior to the pattern followed here Page 141 follows: that constantly weaves cases, authorial reaction and comment, and other scholarly comment, together. Cases are edited according to their merits. MCCULLOCH, which illustrates interpretive practice early on, is virtually unedited. Other cases are condensed to a few paragraphs. This flexible format pays off particularly nicely when it enables the authors to clarify the historical significance of a case that was so different in its time than it has become in ours. EX PARTE YOUNG, for example, has an important place in modern civil rights litigation, but in its time, like many early civil rights cases, YOUNG, which allowed a suit to strike down rate regulations, moved toward LOCHNER. 3. The socratic I-thou voice can sharpen issues wonderfully. Commenting on the near lynching of a judge who refused to suspend foreclosure proceedings in Iowa shortly before the decision in HOME BUILDING AND LOAN, the authors ask the readers: "To what extent should the social impact of, or popular reaction to, a law influence the determination of its constitutionality? Would your views of, say, PLESSY V. FERGUSON change if you were persuaded that racially integrated transportation or schools would have been met with a violent response from racists" (p. 352)? And note how the authors rhetorically resurrect Louis Brandeis when they ask in the present tense the sixty-four dollar question about Brandeis's still radical-seeming position in WHITNEY, "What do you think that Justice Brandeis means by his reference to `injury to the State'" (p. 336)? The book's prose is often brilliantly economical and lucid. The discussion of the various forms of rationality analysis in equal protection cases (pp. 560ff) has no equal. 4. The authors model for law students a conscientious thoroughness and balance that serves us as well. The materials are unfailingly apt even when they are obscure -- an unpublished essay by Duncan Kennedy, for example, or a letter from Gerald Gunther to the Justice Department. The book passes my idiosyncratic first test for any constitutional casebook, namely that it report extensively Justice Harlan's dissent in LOCHNER. The book excels at its law school virtues, but with these come some usually acceptable costs: 1. Those who design and publish for law students assume that these students bear the burden of following whatever is on the page. These books do less with margins, headnotes, and typeface differences to keep readers moving smoothly ahead. So here at points one must try several times to get a gear to shift. 2. With the socratic voice, from Plato's reports onward, comes an irksome tendency to seem above it all, to avoid moral or analytical closure. When a politically suspect decision -- DEBS or YOUNGSTOWN -- begs for criticism, the attitude that everyone must make up his or her own mind rankles. 3. Occasionally legal terms unfamiliar to a wider audience creep in unexplained, like references to "fee ownership" in the Hawaiian land redistribution case (MIDKIFF). Yet what amazes is how rarely this erudite book saddles us with jargon and technical language. Finally, this book's most important qualities have nothing to do with its law student audience. This is, above all, an academic book. Its index refers to Thomas Grey and Richard Epstein but contains no entry for Stephen Field. It is chock full of references to, and excerpts from, the recent cornucopia of academic output in constitutional theory, including the authors' own fine work. Personally I'd wish for less fence straddling on these issues. The authors, for all their skepticism, seem to have one foot in the old school. Because they often seem to say that originalist positions are identifiably real and visibly distinct from non-originalist positions, they seem not to embrace the contemporary hermeneutic center. There is surprisingly little Dworkin, and no Fish, in this constitutional world. But a work that does so much so well barely deserves these quibbles. These academic Page 142 follows: authors can't help but honor the life of the mind. They refuse to follow the conventional and outmoded historical or textual schemes for classifying the cases. They nest clusters of cases in fresh ways that highlight our political heritage and confirm their skepticism about separating law from politics. We move from SLAUGHTERHOUSE to LOCHNER to the World War I free speech cases in twinklings and see more vividly the political impulses behind them all. Some issues -- criminal procedure and many liberties issues, for example -- receive less than average coverage, but equality, including Native American issues, gets exceptionally thorough coverage. For graduate students seeking a comprehensive overview of the constitutional law and theory, the book is ideal. Were I able to teach undergraduates for nine months, I would use it for them, too.
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Product Details

  • ISBN-13: 9780735512504
  • Publisher: Wolters Kluwer Law & Business
  • Publication date: 1/28/2000
  • Edition description: Older Edition
  • Edition number: 4
  • Pages: 1638
  • Product dimensions: 7.28 (w) x 10.20 (h) x 2.37 (d)

Table of Contents




I. Early Background

II. The First Bank of the United States

III. The Second Bank

IV. Judicial Examination of Congress' Authority to Create the Bank Note on Reading and Editing Cases

V. 'Inherent' versus 'implied' powers

VI. The States' Power to Tax the Bank of the United States

VII. The Demise of the Second Bank

VIII. Freedom of Expression and States' Rights in the Late Eighteenth Century; The Sedition Act of 1798


I. Before Marshall; 1789-1801

II. The Marshall Court

Note: An Excursion into Louisiana

III. Judicial Review of the Constitutionality of Legislation

IV. The Protection of Property Rights and the Natural Law Tradition

V. American Indians and the American Political Community

VI. Women's Citizenship in the Ante-Bellum Era

VII. Regulation of the Interstate Economy


I. Interstate and Foreign Commerce and Personal Mobility

II. Slavery

CHAPTER FOUR: 1864 TO 1934

I. Race Discrimination

II. Creating an 'American Nation:

III. The Protection of Economic Rights

IV. Congressional Regulation of Interstate Commerce and of the National

V. Constitutional Innovation during the Progressive Period


I. The Evolution of the Bill of Rights and its Incorporation Against the States

II. A Case Study in Modern Constitutional Interpretation: The Second Amendment


I. The Decline of Judicial Intervention Against Economic Regulation

II. Relaxation of Judicial Constraints on Congressional Power

III. Affirmative Limits on Congressional Regulations of State Governments

IV. Interstate Federalism and the National Economy

V. The Executive Power of the United States

VI. Some Limits on the Federal Judicial Power


I. The Original Understanding

II. The Antidiscrimination Principle and the 'Suspect Classification'' Standard

III. 'Preferential'' Treatment for Racial Minorities


I. Evolution of the 'Intermediate Standard'

II. What Justifies Special Constitutional Scrutiny for Gender Classifications or for Gender Discrimination (And Are They the Same Thing)?

III. The Rejection of 'Archaic and Overbroad Generalizations''

IV. Separate Facilities for Men and Women

V. What is Discrimination 'Because of' Sex?

VI. Women in the Military

VII. Affirmative Action

VIII. Other Suspect Bases of Classification


I. Antecedents of Fundamental Rights Adjudication

II. Methods of Fundamental Rights Adjudication

III. Theories of Fundamental Rights Adjudication: A Basic Outline

IV. The Family and Other Living Arrangements

V. The Abortion Dilemma

VI. Sexuality and Sexual Orientation

VII. Fundamental Rights in the Face of Death


I. Does the Constitution Prohibit a Welfare State?

II. Does the constitution Affirmative Guarantee Any Welfare Rights?

III. The Rise of the Modern Welfare State

IV. Constitutional Limitations in the Administration of a Welfare State: The Procedural Due Process Protection of Entitlements and Other Nontraditional Property and Liberty Interests

V. Conditioning Participation in the Welfare State

VI. The Protection of Welfare Rights under the Equal Protection Clause

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