CONSTITUTIONAL LAW is a relatively new entry into the notoriously crowded and competitive market of law school
casebooks. It has reportedly done very well, however, and its success is not difficult to understand. The book is well organized,
comprehensive, superbly written, and clearly more au courant or hip (in the context, that is, of the staid world of legal
scholarship) than competing casebooks with which I am familiar (for example, Lockhart, 1991; Gunther, 1991).
The book is a full-fledged constitutional law casebook. The only area which is not covered -- the rights of criminal defendants
-- is one which is now routinely omitted from law school casebooks (even those devoted exclusively to civil liberties).
The non-civil liberties material in CONSTITUTIONAL LAW is presented in chapters on "The Powers of Congress," "Judicial
Efforts to Protect the Expansion of the Market against Assertions of Local Power," "The Distribution of National Powers," and
"Economic Liberties and the Constitution: The Contracts and Takings Clauses." Three chapters are devoted to the standard
areas of civil liberties: "Equality and the Constitution," "Freedom of Expression," and "The Constitution and Religion." Finally,
there are three chapters which represent a departure from the format of at least some other casebooks. A first chapter focuses
on "The Role of the Supreme Court in the Constitutional Scheme," a final chapter focuses on "The Constitution and the Problem
of Private Power," and a chapter in the middle of the book is devoted to "Implied Fundamental Rights," that is, the debate over
original intent, the incorporation controversy, substantive due process (old and new), and substantive equal protection.
Each of the chapters begins with an introductory and/or historical section which is extremely useful and in fact downright
essential if the book is to be used to teach constitutional law to undergraduates. The "Equality" chapter, for instance, begins with
a section entitled "Race and the Constitution" in which the editors discuss and reprint historical scholarship on slavery and the
Constitution, reprint an excerpt from DRED SCOTT (a fairly unusual choice, in my experience), discuss (in essay form with
generous excerpts from cases and historical scholarship) the subject of "Reconstruction and Retreat," reprint PLESSY V.
FERGUSON, and then move into the background of the school cases and eventually to BROWN and SWANN and to cases
and other materials relevant to the problem of northern school segregation. The material is dense and challenging for anyone
encountering issues of race and law for the first time. However, the choices the editors have made about what to reprint and in
what order ensure that a conscientious student will learn as much as is humanly possible within a few pages about the social
origins of the Court's decisions on race, about how and why the law has developed in certain ways, and about what the law is
Obviously the Supreme Court's decisions and their content exert a strong influence on the organization of
CONSTITUTIONAL LAW. At the same time, one of the strengths of the book is the fact that cases play a much smaller role
than in other casebooks in dictating both the organization of the book and the topics which are addressed. The book is not a
collection of Supreme Court decisions embellished with commentary. It is a book about American constitutional law in which
cases and other materials are deftly woven into an ongoing narrative in order to illustrate and substantiate various carefully
The case excerpts themselves are comparable to those which appear in other casebooks. Major cases may occupy six to eight
pages, minor cases may be reprinted in half a page or so. The book also includes more non-case excerpts than most
casebooks. There are lengthy passages from the "Federalist Papers" and from leading works on constitutional history and
constitutional theory. These passages are very effectively integrated into a narrative written by one or another of the editors.
The result is a set of purposeful, accessible, and well documented essays on each of the key areas of constitutional law.
I would also highlight the editors' effective use of "questions." The questions themselves are fairly typical law school inquiries,
but CONSTITUTIONAL LAW does a better job than other casebooks of transforming questions into constructive stepping
stones to deeper understanding. Typically, questions are posed as part of an ongoing discussion, rather than appearing at the
end of the chapter with little apparent purpose other than to leave the average student perplexed and perhaps alienated. Almost
always, questions are followed by additional discussion or additional reprinted material which allows the reader to begin to
formulate an answer or opinion. Of course, questions beget answers which beget new questions. At the same time,
CONSTITUTIONAL LAW avoids conveying any sense that the whole process is a meaningless game. It takes its own
questions seriously and in doing so succeeds in engaging the reader in the challenging process of uncovering the implicit
assumptions in legal arguments, articulating attainable normative goals, marshalling relevant factual data, and crafting defensible
policy solutions to constitutional problems.
Finally, I would commend the simple but important decision that someone made to present the text of the book in type which is
large enough to read without a magnifying glass. One response to the explosive growth of cases and other primary materials has
been to publish new editions of existing casebooks with thinner pages, smaller type, more lines per inch, more reliance on
footnotes, or some combination of the above. Many casebooks have become unpleasant to read in a purely physical sense.
CONSTITUTIONAL LAW is every bit as rigorous and substantive as the best of the existing casebooks, but, unlike many of
them, it is also inviting to open and read. The print is relatively large, the titles of cases and other headings stand out clearly, and
apart from necessary footnotes (that is, those reprinted from the cases themselves), footnotes are avoided and the types of
material that may be relegated to footnotes in other casebooks are integrated into the main text. Speaking as someone who is
rather fond of footnotes, I found it most relaxing to be able to follow the main narrative without undue interruption. My guess is
that decisions about type size and format have contributed in no small measure to the popularity of the book.
In sum, CONSTITUTIONAL LAW is an excellent casebook. From the perspective of those who teach undergraduate
constitutional law, it does have two possible drawbacks. First, it is a LAW SCHOOL casebook, that is, it is designed to
educate and socialize those who will enter the legal profession, and in this sense it may be more narrowly focused on the
development of analytical skills than some instructors would prefer. Second, at 1700-plus pages, it is a long book and certainly
includes far more material than could possibly be covered in a year-long course, let alone one restricted to a single quarter or
semester. Today, however, most other law school casebooks -- and even many undergraduate casebooks -- are of
comparable length. CONSTITUTIONAL LAW is a superb example of its genre and merits a look by anyone who teaches a
constitutional law course.
Gunther, Gerald. INDIVIDUAL RIGHTS IN CONSTITUTIONAL LAW, 5th Ed. Westbury, NY: Foundation Press, 1991.
Lockhart, William B., Yale Kamisar, Jesse H. Choper, and Steven H. Shiffrin. CONSTITUTIONAL RIGHTS AND
LIBERTIES, 7th Ed. St. Paul, MN: West Publishing, 1991.