Mastering Modern Constitutional Law

• Publication year: 1998
• Citation: Vol. 21 No. 03

SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 4SPRING 1998

Mastering Modern Constitutional Law

Modern Constitutional Law, 5th Edition. By Ronald D. Rotunda.** St. Paul, Minnesota: West Publishing Company, 1997. Pp. xlv, 1184.

Reviewed by Thomas E. Baker(fn*)

Tough Law

What Maitland said about the common law also can be said about the queen subject in American law schools: constitutional law is "tough law."(fn1) It is tough to master-tough to teach and tough to learn.

There are several reasons for this thorough difficulty. First, it is not an exaggeration to say that the fate of the nation is often at stake in constitutional cases and controversies, and constitutional decisions have shaped our history as a people. Second, we Americans can lay claim to inventing the field, and we have been continuously preoccupied with reinventing it for more than two centuries of applied political philosophy. Third, the Supreme Court is one of the most fascinating institutions inside or outside government. Fourth, there is so much extant material-more than five hundred Talmudic volumes of the U.S. Reports full of majority, concurring, and dissenting opinions augmented by the interpretations and implementations of various other constitutional actors in the political branches.(fn2) Fifth, every October Term's docket presents novel issues for decision, and each new nomination and confirmation renders much of constitutional law indeterminate, so there is a constant sense of uncertainty, anticipation, and discovery in the field.(fn3) Sixth, constitutional analysis-if one thinks deeper and broader than mere doctrine and three-pronged tests-takes on metaphysical, quasi-religious qualities of immanence and transcendence that are far more profound than any other subject in law school. For these and other reasons, constitutional law is the toughest subject in the curriculum.

This review essay will explain why I use Ronald D. Rotunda's casebook, Modern Constitutional Law(fn4) and how I go about teaching Constitutional Law.

Becoming a Master of the Subject

You must master your subject before you can expect to master its teaching. This obliges ability, effort, humility, and an abiding sense of responsibility.(fn5) To aspire to become a constitutionalist-a true scholar of the Constitution-one must be prepared to think great thoughts or, at least, one must spend time studying the great thoughts of others, in the grand tradition of liberal education.(fn6) There is all that law to learn, to be sure, which poses a continuing challenge.(fn7) But you must also add equal parts of history, political science, and philosophy to your personal curriculum; you must become a citizen of the past yet remain a citizen of the present.(fn8) As a constitutional scholar, you are haunted by the fear that you will never have anything worthwhile to say. After perhaps a decade of eavesdropping, you may attempt tentatively to join the conversation.(fn9) But even then there is a considerable risk of embarrassment that what you think is brilliant is simply silly or merely eccentric.(fn10)

Professor Ronald D. Rotunda is a master of our subject. Indeed, Rotunda is a major brand name in constitutional law.(fn11) First, there is the casebook that is the subject of this review, one of the few casebooks edited solo voce.(fn12) Then he is a coauthor of the best hornbook on the subject.(fn13) He also is a coauthor of the only multi-volume treatise covering the whole field of constitutional law.(fn14) He has been cited by the Supreme Court.(fn15) And he is a professor's professor in that his writings are cited so often by other academics.(fn16) He is a regular quote-meister in the national press.(fn17) He even has his very own homepage on the World Wide Web.(fn18) The guy definitely is a player at the national level.(fn19)

Becoming a Master Teacher

What does it take to teach constitutional law to first-year law students? Probably only a good casebook and a teacher's manual.(fn20) I am a devout heresiarch against modernity,(fn21) especially when it comes to the modern educational theory that reigns on college campuses.(fn22) Technology and multimedia mostly get in the way of teaching and learning.(fn23) I am convinced beyond peradventure that the best education in constitutional law would be Ron Rotunda on one end of the log and a student on the other.(fn24) Sitting opposite his casebook is the next best thing for my students. I still believe in books.(fn25) That brings us to the consideration of what makes a good casebook and why I believe Professor Rotunda's case book is a such a good one.

Modern Constitutional Law

My story with Professor Rotunda's book begins in the spring of 1981, when I first taught Constitutional Law. My book choice came down to Gunther(fn26) versus Lockhart(fn27) and I chose Lockhart, mainly because it was the book my teacher and mentor, Fletcher N. Baldwin, Jr., used to teach my first-year course back when I was a law student at the University of Florida. What was good enough for Moses was good enough for me.(fn28) As a professor, I spent two years trying to overcome the size and scope of that book, which is to say more about me than about the book: in a four-hour, required, first-year, survey course, Gunther and Lockhart are just overwhelming. The third year, I reexamined the available books and switched to Rotunda(fn29) and I have been using it ever since. This spring semester 1998, I will use the Fifth Edition.(fn30)

The reasons I first chose the Rotunda casebook are the same reasons I have been so loyal to the Rotunda brand name over the years. I assign the Preface to my students to read for the first class session, and I explain to them that Professor Rotunda's purposes parallel my own goals for our course together. I want a book that is effective at "introducing and exposing students to the underlying principles of constitutional law."(fn31) I want them to develop "a sound understanding of the basic principles."(fn32) I want to impart to them "a sense of where the law is moving."(fn33) And I firmly believe that "it is better to know a few things well than to know many things superficially."(fn34) Finally, in my course, "[t]he emphasis is on modern constitutional law."(fn35) For the last sixteen years, over five editions and his timely and useful supplements,(fn36) Professor Rotunda has delivered on these promises.

The chief distinguishing attribute of the Rotunda casebook is its compactness. The Fifth Edition runs fewer than 1200 pages; the book has not grown much over the years.(fn37) This is an unusual level of discipline in our subject, considering the size of some of the leading competitors. For example, Gunther and Lockhart both run nearly one-third longer. Constitutional law casebooks seem to resemble the old Hungarian saying that "if some is good, more is better." Of course, less is not necessarily better. What is remarkable about Professor Rotunda's casebook is that he manages to include all the important cases yet preserves a fuller set of opinions to guarantee "thoughtful classroom discussion. . . . Socratic dialogue . . . a genuine feeling for the case."(fn38) He accomplishes this primarily by slighting tracts of the tenure track, that is, professorial writings. This is praiseworthy.(fn39) He also avoids those endless-and endlessly annoying-notes after the cases replete with tons of citations to obscure cases. As an aside, it has always been a small curiosity of mine that in the early parts of the casebook, Professor Rotunda commits some venial sins in these regards, but he avoids their near occasion in the later chapters. It is almost as if he started writing a typical casebook and then had an inspiration toward a more elegant rendition of the subject. Perhaps he wrote the first chapters here in the United States and when he got to Italy, where he finished the casebook, he did not have the materials to include the ordinary minutiae.(fn40) Whatever the explanation, I offer tribute to his muses.

This is the real strength of Professor Rotunda's book: "a novice teacher and a veteran teacher can use it profitably."(fn41) I began using it when I was an apprentice and I continue to use it now that I am a long-standing member of the constitutional guild.(fn42)

The Honors Section of Constitutional Law

Briefly, what follows is how I use Professor Rotunda's casebook to teach my course.(fn43) I teach a required, first-year course each spring semester. Given the severe limitation of four credit hours, I ignore the catalogue's comprehensive description.(fn44) I cover the chapters on Judicial Review, Due Process, State Action, Equal Protection, and Freedom of Speech. This is a little over 700 pages in the casebook. I omit the chapters on Implied Powers, State and Federal Powers under the Commerce Clause, President and Congress, Religion, and Constitutional Litigation. Some of these themes come up indirectly, however. For example, we discuss the Commerce Clause power in the context of the state police power under the Due Process Clause. For another example, we discuss separation of powers in the context of the political question doctrine under the power of judicial review. Throughout the course, I emphasize the leitmotif of constitutional interpretation, how judges and lawyers go about the task of giving meaning to the Constitution. Some of the omitted topics come into play in those...