Brest, Levinson, Balkin and Amar: Processes of Constitutional Decisionmaking, 4th Ed
From the first edition onwards, Processes of Constitutional Decisionmaking has attempted to reexamine and question the kinds of issues and materials that are taught in introductory courses on Constitutional Law. This, the fourth edition is no exception, and with the addition of new personnel the casebook has continued to change to reflect the changing sensibilities of its editors. We have designed the casebook so that professors can easily use it in advanced level courses like “Equality and the Constitution” “American Constitutional History,” or (as Levinson has taught for a number of years), “The Constitution and the Welfare State.” Nevertheless, its primary audience remains first year students in first year classes on Constitutional Law. This teacher’s manual is primarily directed to helping the law professors who teach those first year classes.
A brief perusal of the Table of Contents quickly reveals the characteristic features of this casebook and its differences from most other introductory texts on the subject. The basic philosophy of the book is described in some detail for the student in the Preface at pp. xxix-xxxiv, and we recommend that short essay to law professors who want to know more about the book’s distinctive character. To take only one obvious example, we continue to believe that the study of chattel slavery–and how the best constitutional minds of several generations thoroughly integrated slavery into the mainstream of constitutional analysis– is essential to understanding the constitutional world we live in today. This is best symbolized in our expanded coverage of Dred Scott, a case that concerns not only the legality of slavery but the nature of American citizenship itself. One will also find in this casebook, far more than in any other introductory text, a discussion of the interplay between constitutional interpretation and the history of American expansionism. (As we point out in Chapters 3 and 4, territorial expansion was one the central issues in Dred Scott, as the Court well understood in The Insular Cases, which make their appearance in this edition.). Too many students forget that the United States did not always consist of 50 states (and territories like Puerto Rico). Some quite amazing things happened, both politically and constitutionally, to get us from the original eleven states (students may not know that the government of the United States under the Constitution begin in April, 1789, when Rhode Island and North Carolina had not yet ratified the Constitution) all the way to mid-Pacific and the Caribbean. One of the first of these many constitutional adventures is the Louisiana Purchase in 1803, which Jefferson himself doubted was constitutional under a philosophy of strict construction. It is now discussed in Chapter Two.
We have also expanded coverage of the many fascinating issues involving the Civil War and its immediate aftermath. (We well think that one could teach a course solely on the constitutional problems raised in this period, and Levinson, for one, has already taught a course on Lincoln as constitutional interpreter). For example, we include not only a speech by Senator Judah Benjamin making the constitutional case for succession, but we also close Chapter Three with a discussion of the Legal Tender Cases. These cases, once central to the constitutional canon but now often forgotten, raise a number of fascinating problems concerning the tension between original intention and prudentialism, not to mention important political issues involving the problem of democratic control over the money supply, Congressional control over the Supreme Court, the use of presidential nominations to change the meaning of the Constitution and the legitimacy of the Justices’ overruling recent precedent. Chapter Four begins with expanded coverage of the history and provenance of the Fourteenth Amendment, including the important debate generated by Bruce Ackerman’s work on Reconstruction as an extra-legal “constitutional moment.” Precisely because the Fourteenth Amendment is so central to our understanding of ourselves as a nation that guarantees liberty and equality, we think it important for students to students confront the irregular history of the Amendment as a way of understanding the dynamics of constitutional law and constitutional politics.
Many law professors who use our casebook have asked us to add more materials on separation of powers issues. Professor Amar, of course, is especially interested in such structural issues, and we hope that his contributions will more than correct our previous deficiencies. Chapter Five in particular has greatly expanded coverage of the modern Presidency and extensive coverage of the separation of powers issues that grew out of the debate over the office of the Independent Counsel. We have also included material on the Clinton Impeachment on our casebook website, http://www.conlaw.net.
The Constitutional law of equality has undergone considerable change in the past decade, and Chapters Six and Seven attempt to take into account the many recent developments in race and sex equality law, both in the case law and in academic theorizing about the issues. Similarly Chapter Eight contains new coverage of issues concerning abortion and sexual orientation, with an emphasis on equality issues.
Finally, Chapter Nine features substantially expanded coverage of the interplay between religion and the contemporary welfare state. This is a subject of intense interest both theoretically and practically, as many political candidates call for the increased participation by (and subsidization of) “faith-based” institutions in the operation of basic political institutions.
Although we have added much new material from the past, much of the work of casebook editors still consists in bringing teaching materials up to date with the recent work of the Supreme Court. Thus, we have included full coverage of the important decisions of the Supreme Court in the area of federalism and states’ rights, as well as the unusually long Casey opinions, which contain, among other things, the most extensive discussion of the role of precedent ever offered by the members of the Court. No casebook could possibly ignore these new cases and doctrinal innovations, though they require many pages. Indeed, we have joked among ourselves that to produce a casebook with everything we would really like to include would take 3000 pages. For better and worse, that is impossible (much to the relief of our publishers at Aspen, we might add!). We faced many difficult decisions about what to add, what to leave in and what to take out.
Already in the Third Edition, we had decided to omit virtually all of the “jurisdictional” and “political question” materials. We have provided a very short discussion of those issues at the end of Chapter 5 as well as a new (and equally short) section about Congress’s power to strip the federal courts of jurisdiction. In addition, some of the material concerning the Supreme Court’s response to Congressional Reconstruction necessarily includes references to questions of jurisidiction and justiciability. Still, our coverage of these materials is deliberately minimal. That is not because we believe that such issues are not interesting or important. Rather it is because we believe that they are best treated in courses on federal jurisdiction or advanced courses in constitutional litigation. They do not need to be taught in an introductory course on the United States Constitution, where the central subject should be not so much the procedural constraints on the Supreme Court’s interpretation of the Constitution (though such questions will inevitably arise), but, rather, what is involved when any constitutional decisionmaker, including the ordinary citizen, attempts to interpret the Constitution. Indeed, our continued devotion to the importance of non-judicial interpretation accounts for many of the new materials that we have interspersed throughout the book.
Likewise, the materials on the dormant commerce clause are much reduced. We believe that the best way to introduce the subject is through the early cases of Miln, Groves v. Slaughter, and Cooley, with a little bit of professorial commentary being sufficient to establish the point that the issue continues to be important, but not so important that it is worth further study in an introductory course. Chapter 5 also contains a workable summary of current doctrine, and equally important, a theoretical discussion of the central issues that are raised in that doctrine. There is good reason to think that dormant commerce clause doctrines may be following the doctrines of interstate taxation into oblivion as a standard part of the first-year curriculum. Although we don’t wish to see the subject entirely ignored–and we have provided sufficient discussion in Chapter 5 and elsewhere so that students can become thoroughly acquainted with the basic doctrines– we doubt whether these doctrines deserve so central a place in the constitutional canon. We do think that at some point in the course professors should point out to their students that the dormant commerce clause doctrines are anomalous within American constitutional law. The Court does not necessarily enjoy the last word on the meaning of the Constitution, because Congress retains the ability to override decisions based on the dormant commerce clause. One might mention this fact, for example, after teaching City of Boerne v. Flores or some similar case in which the Court insists on its role as the definitive source of constitutional meaning. But we don’t think that mentioning this point also requires extensive coverage of the area.
We have also chosen to continue offering only limited coverage of the First Amendment, though not because we think the subject is going into oblivion. Instead, as with criminal procedure a generation ago, the practical reality is that the topic has become so broad (and the caselaw materials so copious) that it has generated extensive casebooks of its own and, more to the point, specific courses devoted to the Amendment. Readers of this casebook will find nothing here, for example, about such obviously important issues as libel, pornography, campaign finance, or regulation of the Internet. We do, however, offer significant treatment, in our historical approach, of the classic First Amendment subject of the rights of political dissenters. (And we have included coverage of the Second Amendment, which is certainly relevant to any discussion of the rights of dissenters, especially those who advocate the overthrow of the government.) Moreover, Chapter Nine’s examination of the welfare state necessarily includes a significant number of cases (and discussions) concerning the First Amendment implications of regulation of public employment and conditional grants of aid by the government.
We have eliminated the Third Edition’s chapter on the state action doctrine for two reasons. First, we tend to find the doctrines– as Charles Black noted some 35 years ago– a “conceptual disaster area.” Second, we have increasingly come to the conclusion that relatively few teachers take significant time to cover the twists and turns of the doctrines in the introductory course on Constitutional Law. We do not ignore the doctrines completely, however. The Civil Rights Cases play an important part in Chapter Four, and we have included a short “Note” on “State action in the age of the welfare state” in Chapter Nine, following the DeShaney case. But, for better and worse, cases and materials on company towns and other state action questions are relegated to our web site, http://www.conlaw.net. The website not only allows us to post updates concerning recent cases, but it has also become a home for materials that we had to excise from this edition, in the interests of preserving a manageable page length. In like fashion, we have placed on our website a collection of cases and materials on racial gerrymandering and the debate over minority-majority districts. These cases are now much more likely to appear in separate courses on voting rights than in the introductory course on Constitutional Law.
We pride ourselves on keeping the casebook innovative and intellectually challenging, and we welcome comments and suggestions. We invite anyone using the materials to get in touch with us by email, whether to ask questions about how to teach the materials or to offer advice for the next edition (which will probably be prepared in 2004). We would also welcome suggestions for additional materials to be added to the web site. Our addresses are email@example.com, firstname.lastname@example.org, and email@example.com.
We very much enjoyed working on this new edition, and we hope that you will enjoy using it too.