Vol. 15 No.8 (August 2005), pp.682-685
AMERICAN CONSTITUTIONAL LAW: POWER AND POLITICS (2 vols), by Gregg Ivers. Boston: Houghton Mifflin, 2001. Vol.1: CONSTITUTIONAL STRUCTURE AND POLITICAL POWER. 592pp. Paper. $76.36. ISBN: 0-618-23979-0. Vol.2: CIVIL RIGHTS AND LIBERTIES. 803pp. Paper. $76.36. ISBN: 0-618-23980-4.
Reviewed by Keith E. Whittington, Department of Politics, Princeton University. Email: kewhitt@princeton.edu .
Gregg Ivers’ AMERICAN CONSTITUTIONAL LAW is divided into the familiar two volumes, one focusing on structures and powers and the other on civil rights and civil liberties, consistent with the common two-semester sequence of undergraduate constitutional law. The structures and powers volume is divided into ten chapters, and covers separation of powers, federalism, and economic rights (which perhaps can be understood as government power over the economy). After a basic introduction and brief introduction to theories of jurisprudence (formalism, “alternatives to formalism,” and natural law), the volume includes a chapter each on the judicial, legislative, and executive powers, chapters on the commerce clause and federalism, and one chapter each on the contract clause, economic due process, and the takings clause. A total of 92 cases are excerpted in the text of the first volume. The civil rights and civil liberties volume is divided into twelve chapters and, with the exception of economic liberties, covers the basics. After the same two introductory chapters, there is one chapter focused on the “nationalization of the Bill of Rights,” a chapter on free speech and assembly and another on freedom of the press, one chapter on religious liberty (including religious establishment), a chapter each on search and seizure, fair trials, and cruel and unusual punishment, a chapter on the “right to privacy” (or modern substantive due process focusing on sexual liberty and the right to die), a chapter on equal protection, and a separate chapter on voting rights. This text of the second volume includes 123 excerpted cases, with some very modest overlap between the two volumes (though this leaves the usual difficulty that some cases that might be taught in civil liberties are included only in the structures and powers volume – e.g., KOREMATSU, HEART OF ATLANTA MOTEL, LOCHNER). In addition to excerpted opinions and introductory commentary, individual chapters include suggestions for further readings and “sidebars” that provide a closer look in 2-4 pages at the background of some individual cases or justices.
Ivers sets out a goal for these casebooks of providing the social and political context within which constitutional law is developed and of emphasizing social and political forces that are intertwined with the Court’s decisions. Toward that end, the introduction to each chapter begins with a brief story behind a relevant case. Thus, the chapter on federalism and states’ rights begins with a vignette of Alabama Governor George [*683] Wallace confronting Deputy Attorney General Nicholas Katzenbach outside the registrar’s office at the University of Alabama in 1963, before moving on to a history of ideas about states’ rights from the Founding through the New Deal. Individual sections within chapters provide short histories of the development of the relevant area of constitutional law from the Founding up to the excerpted cases. Transitional comments between the cases often highlight the role of interest groups in litigating the cases and sometimes the political reaction to cases, and they sometimes point out interesting or important elements in the preceding opinion. The headnotes for excerpted cases likewise often provide the factual story of the case and the litigation process that brought it before the Court. On the whole, the text tends to emphasize the ways in which constitutional cases reflect particular disputes that attract a variety of interests and are carried to the Supreme Court for some broader policy decision. Thus, Ivers does in short form in the casebook what is done in longer form for a smaller number of cases in CREATING CONSTITUTIONAL CHANGE (2004), which he recently edited with Kevin McGuire.
The number of cases included in these volumes is large enough that instructors will have some flexibility as to how they approach the topic. The case selection usually allows for (and probably encourages) a more historical and developmental approach within doctrinal areas. The chapter on the commerce power, for example, includes E.C. KNIGHT, AMES, STAFFORD and the child labor cases (with GIBBONS and COOLEY available in other chapters), and a large number of New Deal cases, as well as Rehnquist Court cases. The chapter on the right to privacy includes SKINNER (though oddly neither MEYER nor PIERCE), GRISWOLD, and LOVING, as well as four abortion cases, BOWERS, and GLUCKSBERG. With three chapters on property-related topics, there is a lot to choose from (including four late-twentieth century contract cases), but not LEE OPTICAL (a personal favorite of mine) or any of the “welfare rights” cases such as GOLDBERG or DESHANEY. The relatively brief takings chapter does not offer anything earlier than PENN CENTRAL TRANSPORTATION, and it is unfortunate that these casebooks never look beyond the United States Supreme Court, leaving out such nice cases as the Michigan Supreme Court’s notorious POLETOWN NEIGHBORHOOD COUNCIL and the Seventh Circuit’s interesting HUDNUT. Likewise, these volumes do not include arguments or briefs submitted by the litigants before the Court or primary material (such as texts of presidential vetoes or congressional speeches) other than Court opinions.
The case excerpts are substantial, if not overly generous. Peckham’s majority opinion in LOCHNER, for example, is given about three pages, with another two pages for Harlan’s dissent, and Holmes’s dissent is reprinted almost in full. In YOUNGSTOWN, the Black majority is given a little over a page, the Jackson concurrence is given a little over two pages, and the Vinson dissent is given a little over a page. The Frankfurter, Burton, Douglas, and Clark opinions are dropped. Somewhat more oddly (though less significantly now), BAKKE reports Powell’s opinion but [*684] nothing else. CASEY leaves out the first few paragraphs of section II of the plurality that discuss the various approaches to the due process clause, but the “mystery of life” passage and the main elements of the analysis of stare decisis are preserved.
The two volumes of Gregg Ivers’ AMERICAN CONSTITUTIONAL LAW each come packaged with a “Supreme Court CD and Student Passkey,” which is not reviewed here (the CD includes oral arguments and pronouncements of decisions). There is also a related website, which includes a variety of additional information. Perhaps most notably, the website includes updates of excerpted opinions from the Supreme Court’s recent terms. The website also includes chapter-specific practice tests, hypothetical cases, a list of the justices who have served on the Supreme Court, a list with brief descriptions of public interest law groups, and a set of links to law-related resources on the web (alas, not including the LAW AND POLITICS BOOK REVIEW). The same list of web links is provided in an appendix to the text, and, as might be expected, some of the links are now out-of-date and inoperative. The website also includes a small number of “alternate” case selections for the chapters and time periods covered in the published text. The website is indeed useful, and includes some research tools that instructors might want to incorporate into their assignments. Each volume of the text includes a glossary and appendices with the text of the U.S. Constitution and a guide on “how to brief a Supreme Court case.”
These two volumes are quite suitable for most undergraduate courses in constitutional law. The text is clear and pitched at the appropriate level. The commentary places the Court’s work within a political context, but the case excerpts provide enough material to sustain a discussion of the more jurisprudential features of constitutional law. The volumes provide enough cases that students can see important turning points in the law and understand the array of choices facing the Court, but without getting bogged down in doctrinal minutiae or lost in the twists and turns of the law. In case selection and topical coverage, these volumes give a fair amount of flexibility to instructors and cover most of the relevant bases. Especially for those who would like to highlight the stories behind individual cases and major turning points in constitutional law, these casebooks would be a good choice.
REFERENCES:
Ivers, Gregg, and Kevin T. McGuire, eds. 2004. CREATING CONSTITUTIONAL CHANGE: CLASHES OVER POWER AND LIBERTY IN THE SUPREME COURT. Charlottesville: University of Virginia Press.
CASE REFERENCES:
AMERICAN BOOKSELLERS ASSOCIATION v. HUDNUT, 771 F.2d 323 (7th Cir., 1985).
BOWERS v. HARDWICK, 478 US 186 (1986).
CHAMPION v. AMES, 188 U. S. 321 (1903). [*685]
COOLEY v. BOARD OF WARDENS, 53 US 299 (1852).
DESHANEY v. WINNEBAGO COUNTY, 489 US 189 (1989).
GIBBONS v. OGDEN, 22 US 1 (1824).
GOLDBERG v. KELLY, 397 US 254 (1970).
GRISWOLD v. CONNECTICUT, 381 US 479 (1965).
HEART OF ATLANTA MOTEL v. U.S., 379 US 241 (1964).
KOREMATSU v. U.S., 323 U.S. 214 (1944).
LOCHNER v. NEW YORK, 198 US 45 (1905).
LOVING v. VIRGINIA, 388 US 1 (1967).
MEYER v. NEBRASKA, 262 U.S 390 (1923).
PENN CENTRAL TRANSPORTATION CO. v. NEW YORK CITY, 438 US 104 (1978).
PIERCE v. SOCIETY OF SISTERS, 268 U.S. 510 (1925).
PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).
POLETOWN NEIGHBORHOOD COUNCIL v. CITY OF DETROIT, 304 N.W.2d 455, 410 Mich. 616 (1981).
REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).
SKINNER v. OKLAHOMA, 316 US 535 (1942).
STAFFORD v. WALLACE, 258 US 495 (1922).
US v E.C. KNIGHT CO., 156 US 1 (1895).
WASHINGTON v. GLUCKSBERG, 521 US 702 (1997).
WILLIAMSON v. LEE OPTICAL CO., 348 U.S. 483 (1955).
YOUNGSTOWN SHEET AND TUBE v. SAWYER, 343 U.S. 579 (1952).
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© Copyright 2005 by the author, Keith E. Whittington.