Constitutional Law.

• Author: Kelley, William K.

CONSTITUTIONAL LAW. By Gerald Gunther & Kathleen M. Sullivan. Westbury, New York: Foundation Press. 13th edition, 1997. Pp. xciii, 1553. Cloth, $55.95.

The two leading casebooks on Constitutional Law(1)--one an acknowledged classic and the other fast on its way to becoming one--were recently released in new editions at a time when the challenges facing casebook authors seem greater than ever. Despite the Supreme Court's diminishing docket, its continuing output of significant constitutional cases remains breathtaking in number and scope. The Court's work runs the gamut from refining the fine points of the latest compelled speech dispute in first amendment law,(2) to determining whether the dormant commerce clause bars a State from giving preferred treatment to in-state charitable institutions.(3) And while it continues its yearly work of adding layers of nuance to doctrine in established areas, the Court in recent years has decided a series of cases that break significant new ground, particularly in the areas of federalism, racial preferences, and voting rights.(4) It is no small task to produce a new edition of an established book that maintains the breadth and depth of coverage of prior editions, while simultaneously taking account of what might well turn out to be sea changes in particular areas, and to do so while also conveying a coherent and complete picture of constitutional jurisprudence.

Two books that continue to strike that balance are the third edition of Constitutional Law, by Geoffrey Stone, Louis Seidman, Cass Sunstein and Mark Tushnet, and the thirteenth edition of Gerald Gunther's Constitutional Law, which Kathleen Sullivan has joined as a co-author. Given the fame each of these authors has attained for his or her prior contributions to constitutional law scholarship, and the obvious prominence of prior editions of these casebooks, it is inevitable that the new editions will be widely used in law schools across the country. Thousands of law students will therefore have their conception of constitutional law shaped by the composition and editorial choices of these books. That imposes a significant responsibility on these authors, for constitutional law casebooks are unusually, perhaps uniquely, influential in the formation of students' values about the appropriate roles of governmental institutions in a constitutional democracy.

This transmission of values has a serious impact on the way our society governs itself. We have long since ceased living in an era in which Presidents appoint Justices who became lawyers through apprenticeship rather than through formalized law study. Rather, our judges, and the lawyers who make constitutional arguments to them, form their constitutional values in the legal culture that prevails in the law schools. Today, it is the course in constitutional law that begins to prepare future judges for what Justice Holmes called "the gravest and most delicate duty [they are] called upon to perform"(6)--deciding whether to invalidate the product of the democratic process on constitutional grounds.

So the materials to which one is exposed in constitutional law, and the habits of constitutional mind that are developed (in part) as a result, have an impact not only on the practice of constitutional law, but also on the legal profession and our public life generally. For many, the basic course in constitutional law will amount to the sum total of their training in the field. Although some law students will have studied American government and constitutional theory at sophisticated levels, most will have not. And although some will have studied constitutional law in some other forum (usually an undergraduate political science course), again most will have not. Moreover, although law schools commonly offer advanced courses in constitutional law (most often, I imagine, first amendment courses), by no mean all students partake of such offerings. Thus, the basic law school course in constitutional law will be the beginning and, for many, the end of our students' exposure to constitutional law and theory.

In this essay, I will examine some ways in which these casebooks (which I will refer to as Stone and Gunther & Sullivan, respectively, with apologies to the unmentioned co-authors(7)) will inculcate ways of thinking about constitutional law and particularly the role of the Supreme Court of the United States in our constitutional order. Both books are monumental works of scholarship that reflect lifetimes of thinking and reading by their distinguished authors. It would be surprising if their views did not affect the presentation of the materials to the students. That is, of course, inevitable and unobjectionable. Choices about what cases to include and how to edit them will have a huge impact on the values that students take with them into the legal profession. And the organizational choices--how the authors arrange the materials that they have chosen--will as well.

It would be impractical to attempt a full canvassing of the ways in which the casebooks perform their function of inculcating constitutional values. I will therefore focus on the choices made in Stone and Gunther & Sullivan in just a few areas. I will examine how Gunther & Sullivan's organization of the materials on justiciability and equal protection will affect how students will learn to think about constitutional law. With respect to Stone, my focus is on the general pedagogic structure of the book as a whole and the impact that it will have on how and what students learn. I also will examine in some depth--using the example of the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey(8)--how editing choices within the cases that Stone includes will affect what students know, in addition to how they think.

I

I will begin with Gunther & Sullivan. The strengths that have helped the book achieve such prominence in the past remain in the new edition. Above all, this casebook has always been an unsurpassed collection of legal materials. The thirteenth, as in past editions, chooses the correct main cases and edits them judiciously. That is no small feat. Due to the sheer volume of cases to be dealt with and the Supreme Court's loquaciousness, casebook editors must be ruthless in cutting the cases down to manageable size. Gunther & Sullivan performs that task admirably, and also manages to retain the flavor and character of the opinions. If one contrasts, for example, Gunther & Sullivan's edit of Justice Robert Jackson's famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer,(9) with the version in other major casebooks, it is apparent just how skillful Gunther & Sullivan is in providing a compact, yet nonetheless comprehensive, excerpt; the book retains just enough of the cases, but not too much.

In my judgment, though, what made prior editions of Gunther so extraordinary--a feature that is retained in Gunther & Sullivan--is the textual discussions of the doctrinal developments that led up to the main cases and of the developments that followed them. Constitutional decisions are not, and should not be, disconnected from what came before. They build upon political, legal, and judicial traditions. The further that constitutional decision-making is removed from its historical context, the greater the danger becomes that the law will be reduced to the preferences of judges. Gunther & Sullivan describes and synthesizes the materials in a way that enables students to understand them in their own right and, just as important, to place them in their historical context.

Consider Gunther & Sullivan's handling of the law of economic substantive due process. In just a few pages, (pp. 454460) Gunther & Sullivan explains the development of the law from the time of Calder v. Bull through Lochner; in a few more pages, (pp. 465-470) the book then explores the range of possible theoretical objections to (or defenses of) Lochner and its style of constitutional reasoning; it then succinctly notes (pp. 470-474) the development of doctrine during the Lochner era up to its New Deal repudiation; finally it details (pp. 476-486) the post-New Deal abdication of any judicial scrutiny of economic regulation, from Carolene Products through Williamson v. Lee Optical and beyond. And all of this is done in a way that describes the doctrinal developments clearly and at the same time raises the salient theoretical points. In about thirty elegant pages, then, Gunther & Sullivan provides the materials for the student to become literate in a major sequence of events in our constitutional history, to think critically about the underlying issues, and also to learn the modern state of the law.

This is Gunther & Sullivan at its best, and it is largely unchanged from the twelfth edition. Besides updating doctrine, though, the thirteenth edition makes some important changes. For instance, in the twelfth edition the materials on justiciability--those dealing with advisory opinions, ripeness, standing, mootness, and political questions--were literally an afterthought, coming in the final chapter of the book. In the new edition, those materials have been integrated into Chapter 1, which presents the materials on the establishment of the judicial power and then explores its limits. The change is a good one, and the reasons why involve the messages the book sends to students through its editing and organization. The placement of the justiciability materials at the end of the book, and by implication of the constitutional law course (if they are taught at all), spoke volumes, however subtly, about their importance,(10)

Under the twelfth edition's organization, by the time the student came to justiciability, he or she had spent weeks, and some 1000 pages, learning about the important role of the Supreme Court in protecting due process rights, ensuring the equal protection of the laws, and policing the freedom of speech. At that...