Capturing the canon.

• Author: Barron, Jerome A.

INTRODUCTION

In this paper I have reflected on the nearly twenty-five years I have been involved in editing a constitutional law casebook. In the process of examining the various editions of the casebook to the present, I realize, more than I otherwise would have, the fundamental way that developments quite apart from the intentions of the editors--in politics, in the Supreme Court, and in the academy--continuously redefine the canon and thereby trespass indelibly on the original goal of a short, concise teaching tool. This survey demonstrates that the essential constitutional law canon is ever flowing but not always in anticipated directions. In the prefaces to the book's five editions, forecasts were sometimes made about a bright new future for dormant constitutional clauses which appeared suddenly to have come to life. Yet by the next edition they were shown to have returned to the slumber from which they emerged. After a quarter of a century of experience, my conclusion is this: The canon can neither be defined, predicted nor confined; it resists capture. The following is an account of how the dominant events and issues of the times in which each new edition appeared continuously changed the canon and reshaped the book both in substance and form.

1. SIZING THE CANON

   The first edition of the constitutional law casebook of which I am one of the editors was published in 1975.(1) When I signed a contract in the early 1970s with Bobbs-Merrill (later Michie and now Lexis-Nexis), it was my intent to write a short casebook on constitutional law. At that time I was teaching constitutional law in the evening to part-time students. The book I used, Lockhart, Kamisar and Choper,(2) was excellent; but for my purposes it was a very big book. The book, as casebooks do, reflected the scholarly interests of its editors. Accordingly, there was a lot of material on state taxation of interstate commerce, on freedom of religion, and on constitutional criminal procedure. Constitutional criminal procedure by this time was becoming a subject of its own; it soon comprised a separate course in criminal procedure as it continues to do today. I no longer covered it. I did cover freedom of religion in those days but state taxation of interstate commerce not at all. So the result was that there were large chunks of the book that I was not using at all. The book was about 1400 pages long. In the four hour course that I taught then, it was not possible to cover the entire casebook or indeed the major part of it.

   Why not, I asked myself, edit a shorter casebook which reflected what I did cover? I discussed it with the publishers and, on the basis of their travels on the law school circuit, they were quite enthusiastic about my casebook idea. The plan was for a constitutional law casebook that would be a short, concise teaching tool, not a research source book, yet in which the important ideas and controversies in the scholarly literature would be highlighted. The unrealistic objective was to do all this in a casebook of about 700 or 800 pages.

   In the middle of all this, I accepted the deanship of the law school at Syracuse University. The deanship put the casebook on hold. When I returned to the law faculty at GW, the enormity of the casebook project hit me and I asked Tom Dienes if he would join me. In 1975 our first edition came out. It was not 750 pages. Instead, it was 1110 pages. The most recent edition of our casebook -- the fifth edition published in 1996, which has since acquired two new editors (Martin Redish and Wayne McCormack) -- is 1542 pages.(3) In 21 years it has increased by almost half. As evidence that constitutional law casebooks (like their editors) have a tendency to expand, the following page size figures for the successive editions of our casebook are instructive:

   First Edition 1975 1110 pages Second Edition 1982 1139 pages Third Edition 1987 1388 pages Fourth Edition 1992 1470 pages Fifth Edition 1996 1542 pages The remarkable thing about this inflation in size is that it has happened despite the fact that we tried very hard during these two decades to resist it. We now have four editors and we have the usual differences of opinion over how much of a reported case we should include. But, on the whole, we have tried to be faithful to the statement in the Preface to the first edition that our aim was to develop a concise teaching tool.

   If a concise teaching tool was our goal, what happened? There are a number of explanations. For one thing, the constitutional law course for which we prepared the first edition has largely vanished. The constitutional law course I taught at GW in the 1970s was a required one semester four credit course taught in fifty minute segments four days a week in the day program, and two evenings a week in the part-time division for 100 minutes each. That course covered judicial review, separation of powers, federal and state powers, plus individual rights and liberties. Embraced under the individual fights and liberties heading were such massive topics as state action, due process, equal protection and freedom of expression. These topics are covered today in most law schools by at least two courses. There is a required three credit course, usually taught in the first year, covering judicial review, separation of powers and problems of federalism relating to state and federal powers. But now there is also another three credit course, Constitutional Law II, an upper class elective taken by most students in the second year. This course, sometimes called Individual Rights and Liberties, typically covers the origins of substantive limits on government, substantive due process in both its economic and fundamental rights incarnations, the rise of the equal protection clause as a source of constitutional rights, and freedom of expression and its various rationales, categories...