Preface to the Casebook
Brest, Levinson, Balkin and Amar: Processes of Constitutional Decisionmaking, 4th Ed
The turn of the century brings not only a new edition of this casebook– the fourth since 1975– but also new personnel. Jack Balkin and Akhil Amar have come aboard as editors. Paul Brest, the Founding Father of this particular exercise in constitutionalism, has now retired from active participation in the casebook. Paul deserves full credit for the remarkable innovativeness of his original, 1975, edition and for maintaining an adventurous and innovative spirit over subsequent editions. All of us acknowledge the importance of his example and we have worked hard to preserve that spirit in what is now the casebook’s fourth–quite revised and different–edition.
Every casebook involves the construction of a canon– a set of materials and approaches that the editors believe that every student who wishes to master the subject should know. The present casebook is no exception. Indeed, the authors have been particularly conscious of the existing canons of constitutional thought and the kinds of choices that are involved both in the materials presented and in their editing, order and arrangement. The history of this casebook has been a series of continuing attempts to rethink the existing canon of constitutional law and present a better one. This edition represents our latest views on the subject.
The history of this casebook
The first edition of Processes of Constitutional Decisionmaking, published in 1975, was born out of personal frustration with the existing methods of teaching constitutional law. Invariably beginning with Marbury v. Madison and introductory sections on judicial review, most casebooks proceeded to examine bodies of substantive doctrine, subject by subject. The question of how the courts arrived at their decisions continually arose but was not systematically examined. Nor did casebooks explore the role that legislatures, the executive, and other political institutions (for example, political parties and social movements) played in constitutional decisionmaking. The unspoken and repeated message was that the Constitution was largely what the Supreme Court said it was, and if that court had not spoken on a particular subject, there was no constitutional law on the question at all.
The first edition, therefore, focused on the methodology of decisionmaking and constitutional interpretation that different actors in the system employed, and on the different processes through which constitutional doctrine was created. Although much has changed in the book’s coverage over the years, this basic focus on the methods of constitutional interpretation and on the multiple groups and institutions that participate in the creation of constitutional meaning has remained a constant.
The second edition, published in 1983, reflected the lessons learned from teaching the first edition as well as the interests of its new co-editor, Sanford Levinson. The opening half of the second edition was explicitly organized on historical-chronological lines, so that students would confront the legal consciousness of a particular period in the context of several different constitutional doctrines. As before, the casebook continued to focus on constitutional law and constitutional interpretations made by nonjudicial institutions. The third edition, published in 1992, preserved the historical approach. For the modern period, it added chapters and sections that were organized functionally (e.g., The Constitution in Time of War, Representation Within a Republican Polity, The Constitution in the Welfare State) as well as chapters that reflected traditional doctrinal organization (e.g., Classifications based on Sex.).
The organization of the casebook
In this, the fourth edition, we have continued to benefit from classroom experience. The book is now divided into two parts. Part One is organized historically according to periods– The Marshall Court, the Taney Court and the Civil War, and the age of industrialization running from Reconstruction to the New Deal. Part One examines recurring constitutional issues of federalism, property rights, racial and sexual equality, governmental (and, more particularly presidential) authority in time of war, treatment of “subversive” speech, and judicial review.
The materials within each of these periods cover different subjects and doctrines but together reflect the constitutional regimes and political realities that underlie virtually all important constitutional questions in a given era. Thus, for example, we think it is impossible to understand the Lochner era’s substantive due process decisions apart from its decisions about the commerce power or the taxing and spending powers. Nor can one understand the nineteenth century’s treatment of women’s rights apart from its understandings about race, or either apart from that era’s understanding of federalism and national power.
The book’s historical organization in Part One ends with the pivotal year of 1937, which marks the boundary that inaugurates the “modern” period in American constitutional law. In the chapters covering material after 1937– which constitute Part Two of the casebook– our organization is topical and doctrinal in a more conventional sense. Chapter 5 begins with an essay on the Bill of Rights and the controversies over its incorporation, including an extended discussion of the Second Amendment. Chapter 5 also features sections on modern economic regulation, the taxing and spending powers, Congressional power under the Civil War amendments, federalism, and a new expanded section on separation of powers. Chapter 6 covers racial equality, Chapter 7 sex equality, and Chapter 8 implied fundamental rights (including abortion, sexual autonomy, sexual orientation, and medical decisionmaking). The chapter on sex equality has been completely revised to take account of theoretical changes in this important area and to include issues (like domestic violence) that are often omitted from first year courses. We have also greatly expanded coverage of the constitutional issues concerning sexual orientation in the expectation that these will grow increasingly important over time.
The next chapter (Chapter 9) on The Constitution in the Welfare State retains the more functional approach of previous editions. It covers the problem of procedural due process, affirmative liberties (like education and the rights of the poor) and the problem of conditional subsidies, sometimes called the problem of “unconstitutional conditions.” Chapter 9 is organized in this way because we think that it is important for students to understand the Welfare State as a central constitutional structure of our own era that transcends traditional doctrinal categories.
Our organization in this edition marks a division between pre-1937 constitutional law, historically organized, and post-1937, or “modern” constitutional law, organized by doctrinal topic. Nevertheless, one of us has speculated that the period we now call “modern” constitutional law will, in time, be recognized as having a similar unity to previous periods, and that someday it too may deserve a historical treatment. In other words, it is possible that the legal consciousness that underlies much of the Supreme Court’s work following 1937 is slowly giving way to a new concept of federal power, race relations, and civil liberties. It is quite possible that the appointments of Chief Justice Rehnquist, Justice Scalia, Justice Kennedy, and Justice Thomas from 1987 through 1991 presage a new constitutional era, that begins in the late 1980s or early 1990s, and it may be confirmed if the next few presidential elections produce more appointments of a similar cast. Even so, confirmation of such a change in legal consciousness will not be clear until long after this edition is published. We only understand the end of an era in retrospect. For example, we note that many constitutional scholars did not fully recognize that the progressive innovations of the Warren Court were truly over until the late seventies or mid eighties (and some, we expect, still hope for their return any day now).
Our historical approach
Although we have worked to make the present edition compatible with many different ways of organizing a basic course in constitutional law, we nevertheless retain a strong commitment to a historical sensibility. Even in materials that are doctrinally organized, we have tried to highlight the social and political context in which constitutional decisionmaking occurs. A historical approach, we believe, has virtues that are lost in a purely clause-bound approach to constitutional law.
In particular, we think it is important for students to recognize that notions of what constitutes a good or persuasive constitutional argument have changed and will continue to change over time. Arguments that might have seemed perfectly reasonable for well-trained lawyers in one period can seem bizarre or “off-the-wall” in earlier or later periods. Arguments that seem to have been written off for good (like the compact theory of state sovereignty, for example) uncannily reemerge in new guises a century later. Visionary claims of social movements that would be rejected by all right-thinking lawyers of the period become the accepted orthodoxy of later eras. The ideological valance of arguments– as “liberal” or “conservative,” moderate or radical– also drifts as arguments are introduced or repeated in new social and legal contexts. Finally, the popularity and persuasiveness of different styles of constitutional argument– for example, textualism or originalism– wax and wane with historical and social change, and with concomitant changes in the legal profession.
There is, in short, no transhistorical criterion for “thinking like a constitutional lawyer,” other than an abiding faith in the basic constitutional enterprise. There is no better way to demonstrate this, we think, than to let students confront the actual texts produced in different periods, studying closely the “common sense” and authoritative legal arguments of the past, witnessing both their strangeness and their resemblance to the constitutional common sense of our own day.
One of the reasons why constitutional argument changes as it does is that the practice of constitutional reasoning is deeply connected to changes in political and social life. Although courts play a central role in the history of constitutional law, other parties play roles equally important in shaping constitutional meaning. Our understandings of the American Constitution would have been very different without Jacksonianism, abolitionism, the Civil War, the feminist movement, the New Deal and the Civil Rights Movement. For this reason, we have included constitutional arguments from the executive and legislative branches of government, as well as constitutional interpretations offered by representatives of social movements like abolitionism and the movement for woman suffrage. And we have repeatedly tried to stress the connections between what occurs in the language of Court opinions and the political and social events that surround those decisions.
Finally, we continue to emphasize a historical approach to understand our debt to the past, both in terms of our moral successes and our moral failures. From the second edition on, Processes of Constitutional Decisionmaking has contained far more sustained coverage of chattel slavery than any other casebook. We think that, as a doctrinal matter, the question of slavery haunts the whole of antebellum constitutional law and that the legacy of slavery affects the great issues of federalism and equality that came later. But we think it is equally important for law students to confront slavery precisely because everyone now recognizes it to have been a great evil. It was a great evil that was sustained and perpetuated through law, and in particular through constitutional law as interpreted by the finest legal minds America had to offer. Law students must come to understand how well-trained lawyers acting in good faith could have participated in such a system and rationalized it according to well accepted modes of legal argument, justifying their work in the name of America’s great charter of democracy, liberty and equality. We think that if they can recognize this use of law in America’s constitutional past they will be better equipped to ask themselves the much more difficult question whether well-trained lawyers in our own era could be similarly engaged in the rationalization of great injustices in the name of our Constitution, even though there may be great disagreement about what these are. The goal of a historically informed approach is not merely to see the achievements and injustices of the past through our own eyes, but to remind us to consider how our present interpretations of the Constitution might look to future generations.
Constructing the constitutional canon
Our commitment to an historical approach is joined to an equally strong commitment to rethinking the canons of constitutional law– the materials, issues, and problems that law students are exposed to and that law professors write and theorize about. To this end, we have added new materials on the Progressive Era amendments, the constitutional controversy surrounding the adoption of paper money, the procedural irregularities surrounding the adoption of the Fourteenth Amendment, America’s constitutional treatment of Native Americans, and America’s role as a colonial power. We have expanded coverage of the history of the women’s movement and the constitutional treatment of women from the antebellum era to the adoption of the Nineteenth Amendment and beyond. We think that these additions will give students a richer and fuller vision of constitutional history. They also pose genuine and interesting challenges for constitutional theorists who have neglected important aspects of constitutional interpretation and constitutional decisionmaking because traditional approaches offer much too narrow a view of the relevant materials that must be explained and justified.
If there is one theme that runs through this book, it is that the Supreme Court is not the only interpreter of the Constitution, even if it is surely the most obvious and important one for most lawyers. This view is clearly reflected in our construction of the canon. Throughout the book, we take seriously constitutional decisionmaking by nonjudicial institutions by including materials ranging from the Kentucky and Virginia legislatures in the late eighteenth century, to constitutional interpretations by the President and Congress of the United States, to constitutional assertions by social movements, such as the Seneca Falls Declaration of 1848, to constitutional arguments by particular individuals such as senatorial candidates Abraham Lincoln and Stephen Douglas and the noted abolitionist Frederick Douglass. Indeed, far from being the only source of constitutional law, the Supreme Court is not even the only judicial source. In this edition we have included more constitutional arguments by lower federal courts, by state supreme courts (often interpreting analogous provisions of state constitutions), and even a few references to the constitutions of other countries.
Just as any construction of a constitutional canon involves incorporation and inclusion of some materials, it must also include selection and exclusion of others. As Constitutional Law has grown in richness and complexity over the years, it has become increasingly difficult to do justice to the field within the pages of a single casebook. Fortunately, new technologies increasingly allow us to escape the limitations of traditional forms of publication. Thus, with this edition we have placed parts of our teaching materials on a special website, http://www.conlaw.net. On the web site readers will find special topics and materials that they can download and use to supplement the materials found in the casebook. Through this combination of website and traditional text, we hope to create a flexible set of teaching materials that can respond better to future changes in the field.
The organization of any casebook is inevitably ideological– especially in a subject as fraught with ideology as constitutional law. No approach to the study of constitutional law is independent of the instructors’ or casebook editors’ more general intellectual and political interests. For example, we have already noted the amount of space devoted to the question of slavery, which reflects our view that the question of slavery pervaded American law before the Civil War and that its aftermath set the stage for epic social and constitutional struggles that show no signs of abating to this day. We have also emphasized the role of textual and structural argument in constitutional interpretation, as well as the centrality of social movements and political parties as engines of constitutional change.
The first edition of Processes of Constitutional Decisionmaking explicitly adopted the ideology of the legal process tradition identified with Albert Sacks and Henry Hart, who were especially influential teachers at the Harvard Law School following World War II (and with whom Paul Brest studied during the early 1960s). Hart and Sacks argued that there existed apolitical decisionmaking procedures, adherence to which could provide substantively acceptable and politically legitimate decisions. Although the validity of this hypothesis remains a central concern of this book– for it is crucial matter about which every student must come to his or her own judgment– the second edition (and its successors) manifested considerable skepticism about the legitimating power of process divorced from larger substantive political values. Nothing that has happened since 1981, when the second edition was prepared, has lessened our skepticism.
The Constitution does not belong to the lawyers, to the politicians, or even to the judges. It belongs to everyone. And the Constitution matters and should matter to everyone, even if arguments about the Constitution are not always phrased in the proper constitutional grammar recognized by legal professionals. Our era, like those before it, is a time of vigorous debate about the central constitutional issues of American life. In this book we have tried to bring out the political and social assumptions of contemporary constitutional discourse and contemporary constitutional decisionmaking. We have tried to show where these assumptions originated and how they have been transformed through time. But, of course, for every assumption that is consciously illuminated, others remain hidden in the shadows. You will get the most out of a course taught from this casebook if you take its agendas seriously while keeping a sharp eye out for its unstated assumptions. For our part, the student we seek is not one who necessarily agrees with us, but one who is willing to engage critically with us, and, in the process, to learn and grow.