Vol. 15 No.8 (August 2005), pp.686-689
AMERICAN CONSTITUTIONAL LAW (2nd ed) (2 Vols), by Donald P. Kommers, John E. Finn, and Gary J. Jacobsohn. Lanham, MD: Rowman & Littlefield Publishers, Inc., 2004. Vol.I: GOVERNMENTAL POWERS AND DEMOCRACY. 496pp. Paper $59.95. ISBN: 0-7425-2688-7. Vol.II: LIBERTY, COMMUNITY, AND THE BILL OF RIGHTS. 792pp. Paper $59.95. ISBN: 0-7425-2693-3. Paper pre-pack $119.90. ISBN: 0-7425-3569-X.
Reviewed by Christine Ludowise, Department of Political Science, Georgia Southern University. Email: ludowise@georgiasouthern.edu .
There are many texts available to instructors of undergraduate Constitutional Law courses. Donald P. Kommers, John E. Finn, and Gary J. Jacobsohn add their own perspective to the mix, with AMERICAN CONSTITUTIONAL LAW. The authors ground their textbooks in the belief that the “study of constitutional law is a vital part of a student’s civic education” within a liberal arts curriculum. While Kommers, Finn, and Jacobsohn provide a nice pair of introductory textbooks for undergraduate students, they do not raise the bar substantially above other text offerings in the field.
AMERICAN CONSTITUTIONAL LAW is divided into two volumes: ‘Governmental Powers and Democracy’ and ‘Liberty, Community, and the Bill of Rights.’ In the introduction to both volumes, Kommers, Finn, and Jacobsohn articulate the three themes that constitute their focus. The case selection and the authors’ discussion attempt to incorporate: (1) an interpretive perspective; (2) a normative perspective; and (3) a comparative perspective. Not only do the authors want students to understand the nature and processes of constitutional interpretation, they also want students to consider American constitutional law within a broader context. First, they ask students to understand that constitutional jurisprudence is grounded in conflicts between competing values. Second, they want students to study American constitutional law within a modest comparative perspective. It is the authors’ attention to the various political, social, philosophical, and historical ideas and values that shape constitutional interpretation that recommend these books for further consideration by instructors and students alike.
The two volumes of AMERICAN CONSTITUTIONAL LAW correspond nicely to the general division of undergraduate constitutional law curriculum at many schools. The authors separate the topics and materials into institutional powers and individual liberties, which are often taught individually as Constitutional Law I and II courses. In both volumes, the first three chapters on the Supreme Court, judicial powers, and interpreting the Constitution are virtually identical. Furthermore, the appendices to both volumes, which include a section on legal research, should be very helpful to students who are unfamiliar with legal studies. As a result, each volume can [*687] stand alone as the textbook for a full semester (or quarter) course.
The first three chapters of each volume set the tone for both books. Both Chapter One [The Supreme Court] and Chapter Two [The Constitution and Its Interpretation] are fairly light on detail. In particular, a great deal of information about judicial decision-making, case selection, opinion writing, interpretation, and competing values has been omitted from these chapters. Obviously, choices must be made about what material to include and exclude, but the first two chapters will likely confuse students rather than provide them with a clear understanding of judicial decision-making and constitutional interpretation. As a result, students may not have a good grasp of fundamental concepts before they begin their consideration of cases and constitutional conflicts. Chapter Three [Judicial Power], on the other hand, is very well done. The authors provide a much more clear and workable template for the rest of Volumes I and II through this chapter. Furthermore, the manner in which cases are used to illustrate the authors’ discussion is particularly effective. Although rarely using the complete text of an opinion, Kommers, Finn, and Jacobsohn include an appropriate sampling of majority, concurring, and dissenting opinions in the cases they have chosen to illustrate their discussion of constitutional law. Opinions are grouped at the end of each chapter, allowing readers to focus their attention first on the authors’ narrative and then on the decisions of the Court.
In general, the choice of cases presented throughout both volumes is both representative and reasonable. Some obvious cases are missing—e.g., FURMAN v. GEORGIA (1972) in the discussion of capital punishment—but there are many individual choices to be made in these instances. The authors also include cases that are often overlooked in introductory texts, such as DUNCAN v. LOUISIANA (1968) and ROCHIN v. CALIFORNIA (1952). Overall, the case selection provides a good basis for the development of the themes and perspectives outlined by the authors.
In Volume I of AMERICAN CONSTITUTIONAL LAW, Kommers, Finn, and Jacobsohn focus on governmental powers and democracy. The cases are grouped together and discussed under fairly standard headings, including the separation of powers, congressional powers, foreign affairs, and federalism. Although the authors could have paid more attention to the development of checks and balances and the nature of the relationships between executive, legislative, and judicial branches, students should be able to develop a solid understanding of institutional constraints and powers from the narrative and cases provided. Furthermore, there is one addition that sets this text apart from the majority of other textbooks available today: a chapter entitled “Voting and Representation.” By placing voting and representation in government powers and democracy rather than in the volume on individual liberties, the authors acknowledge the role of “the people” as a check on the powers of government and as part of the decision-making process of American government. By focusing on the formal institutional processes of elections and voting, as well as the substantive issues of liberty [*688] and equality, the reader is encouraged to consider who governs and what influences inform that decision.
In Volume II of AMERICAN CONSTITUTIONAL LAW, Kommers, Finn, and Jacobsohn highlight the conflicts between individual rights and liberties and community interests inherent in judicial interpretation of the Bill of Rights. The topics covered include: incorporation of the Bill of Rights, freedom of speech, freedom of religion, privacy, and equality. The narrative and cases provided should give students adequate guidance through the maze of constitutional jurisprudence in these areas. Although it is puzzling that the authors did not include any discussion of cases relating to freedom of the press, Kommers, Finn, and Jacobsohn did add a couple of nice twists to this particular textbook. Unlike many texts on the Bill of Rights and individual liberty, this book includes a discussion of both economic and non-economic substantive due process. Using the Court’s decisions on substantive due process, the authors then address the contracts clause, the takings clause, property rights, liberty interests, and the right to privacy within their framework of competing concerns: the community’s rights vs. the “fundamental” rights of the individual (pp.181, 233). In addition, the authors include a clear discussion of the State Action Doctrine in their chapter on race and equality. Through this introduction to substantive due process and the concept of state action, students are encouraged to further explore the evolution and devolution of constitutional doctrine and interpretation.
AMERICAN CONSTITUTIONAL LAW is a nice addition to the textbooks available for undergraduate constitutional law classes. However, I have one major reservation about recommending adoption of these volumes. Given both the historical and current activism of the Supreme Court in the area of individual protections at the bar of justice, I am very disturbed that the authors did not include a single chapter on the 4th, 5th, or 6th Amendments to the U.S. Constitution. In light of growing questions surrounding advances in technology, the expansion of exceptions to the search warrant rule, limits on MIRANDA (1966), and the fact that an individual’s right to representation is the only protection that the Court continues to expand, not to mention events since the passage of the USA PATRIOT Act, I think that the authors have limited student access to vital information. Furthermore, the evolution of individual protections against unreasonable state intrusion is often used as an example of what makes the American experience unique. Our procedural due process is what we try to export as part of the essential value of democracy. The concept of “innocent until proven guilty” and the constitutional and judicial checks on the police power of the state are important individual protections – valuable because they protect political dissidents as well as criminal defendants. A textbook that purports to focus on the conflicts between competing values surrounding the interpretation of the Bill of Rights, liberty interests, and the concerns of the community within a comparative perspective should surely be able to address, even if in a limited fashion, the important place of the 4th, [*689] 5th, and 6th Amendments in constitutional jurisprudence.
CASE REFERENCES:
DUNCAN v. LOUISIANA, 391 US 145 (1968).
FURMAN v. GEORGIA, 408 US 238 (1972).
MIRANDA v. ARIZONA, 384 US 436 (1966).
ROCHIN v. CALIFORNIA, 342 US 165 (1952).
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© Copyright 2005 by the author, Christine Ludowise.