A comparative constitutional law canon?

• Author: Finn, John E.

1. INTRODUCTION

   Some ten years ago we began to put together a coursebook in American constitutional law for senior undergraduates. In the initial proposal we sent to West Publishing, we wrote, "It takes a measure of audacity to produce yet another book in American constitutional law. We have done so, however, in an effort to relate the cases presented here to important developments in American constitutional theory and comparative constitutional law." Recognizing the novelty of our approach, and especially the uniqueness of our effort systematically to incorporate comparative materials, we sought to reassure the publisher that our commitment to innovation would not yield a casebook that would intimidate or frighten our colleagues (which we preferred to the publishers' term--the "market"). Thus, we noted that undergraduate casebooks typically contain 90 to 150 cases. Our survey of six widely used books revealed around 90 cases common to all. Our plan was to include most of this "common core" of cases, organized "in a conventional way," so that our book, innovation notwithstanding, would "appeal to teachers unwilling to depart from the traditional format of the typical constitutional law course...."

   Although we did not then employ the terminology, concern about the canon, about what it included and what it left out, was never very far from the surface of our project. Moreover, we began with the sense that what the canon was, and what it should be, must depend heavily upon the audience. One audience was the market, or the academic (interpretive?) community. A second consisted of undergraduate students, most of whom we assumed would be enrolled in a traditional liberal arts curriculum. (We think, however, that the book would be equally useful in law schools.) These two audiences, one of which could be said to know the canon by virtue of their standing, the other not yet initiated into the fold, informed our approach to the canon no less than our commitment to the integration of comparative constitutional materials. From the outset, we hoped to replicate the canon and to remake it.

2. REPLICATING THE CANON: ADVENTURES IN CONSTITUTIONAL CRYPTOZOOGRAPHY

   Any effort to replicate the canon--assuming one exists, and we did--begins with a sense of what the cryptoid looks like. At its most accessible and least interesting level of abstraction, a constitutional law canon might be simply "canonical cases." This is where we began ten years ago. Without the benefit of Goldman's later study, we simply sent a graduate student out to peruse the table of contents for five or six of the leading casebooks. We concluded that 90 or so cases appeared in most of the casebooks, but we made no effort at greater precision. For our purposes, the canon could be conceived simply in terms of "expectations" -- what cases would most professors expect to be included in the ordinary casebook? The results did not much differ from what we would have expected, had we simply sat down and guessed a list of cases.

   Goldman's study systematized this approach to the canon.(1) Drawing from twelve casebooks and a total of 552 cases, Goldman found that only three cases, or less than one percent of the total inventory, were common to all twelve works. Even with certain allowances, Goldman could find only ten shared cases. His conclusion, then, was that "Public law has a canon, but it appears a trifling one."

   There are, of course, profound methodological and epistemological difficulties with Goldman's approach. Any one of us could find plenty of reason to criticize a concept of a canon that is case-centered, for example. Before entertaining some of those criticisms, though, it might be useful to start by seeing if Goldman's results still hold. We hired an undergraduate to conduct a similar study.(2) We constructed a database of fourteen casebooks, most of which are directed to undergraduates (Appendix A). These books yielded a total of 697 cases. Only eleven cases appeared in every casebook (Appendix B). If one relaxes the criteria for "canonicity" to replication in 90% of the casebooks, the list of cases expands to twenty-one cases (Appendix C). There are few surprises in the lists.(3)

   In what sense can a list of cases be said to be canonical? Is a canonical listing of cases a canonical curriculum? The question points to one of the most obvious and most significant of problems that inheres in a definition of the canon that reduces it to cases. One of us (Finn) teaches constitutional law in a department where the course is taught also by another member of the faculty. For much of the semester our students study the same cases, and in much the same order. Early in the term, therefore, two groups of students learn Marbury at pretty much the same time, and then McCulloch and then Roe and Casey and so on. We think it fair to say, however, that these two groups of students would find it difficult to speak to each other in any meaningful way about the cases. One group's approach to the cases tends to be policy oriented and attentive to issues of interest group politics. (The instructor uses David O'Brien's well-known casebook.) Our approach, on the other hand, is driven by concerns for constitutional theory and comparative inquiry, and the casebook we use reflects those interests.(4)

   The most concrete manifestation of difference within the canonical list of cases, of course, is in how cases are edited. For example, some casebooks (such as Foster & Leeson), do not include the passages from Justice Powell's concurring opinion in Chadha (1983) that address the two ways one branch may violate the doctrine of separation of powers, whereas many others do include the passage. The process of editing cases is tedious but critically important, especially when, as in our work, the cases are meant to illuminate recurring themes or principles. Beyond this, though, is the gelatinous character of the materials themselves. The same case--and the same passages in that case--may be put in forms that give them very different meanings. A canon of cases, or what Bloom has called the teaching canon,(5) does not necessarily yield a canonical curriculum. Different pedagogical approaches may use the same cases for very different purposes.

   The location of cases and subjects may also vary considerably. We suspect there is a loosely defined constitutional law canon that governs the organization of materials and cases. As Balkin and Levinson have observed, many of the older casebooks began with issues surrounding constitutional amendment.(6) In many of the earlier editions of Cushman, for example, the first topic was "Amendments to the Constitution," and the first case covered was Hawke v. Smith (1920).(7) In a polity that continually wrestles with questions about identity and the constitution of the body politic, as well as with issues about the limits of judicial power, there are good reasons to include Hawke in most casebooks, but it does not appear in any of the casebooks we surveyed.

   Our survey of casebooks revealed a fairly standard order of progression. Nearly every book began with a chapter on the rise of judicial power or with a chapter on constitutional interpretation, followed by chapters on the separation of powers (usually divided into chapters on the executive and the legislature), and followed by chapters on the commerce clause and federalism. There was more variation in the organization of chapters on the Bill of Rights, but the topics tended consistently to center around speech, religion, property, substantive due process, and equal protection.

   This loose canon of progression, what Bloom has called "a map of the territory,"(8) is much more significant than a canon of...