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Posted February 10, 2001
This article appeared in the Winter 2001 issue of the Claremont Review of Books.
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Constitutional theory is one of the great growth industries of our time and, like personal computers, it appears to have an almost infinite capacity for market expansion. Much of the new literature, alas, seems to be preoccupied with politically fashionable deconstructions of our founding documents. The acidic effect of this teaching has made its way into numerous high school and college texts, with the result that students who know little about the Declaration of Independence, the Federalist, or, for that matter, about the separation of powers or federalism, are nevertheless utterly confident that racism and sexism were alive and well in Philadelphia in 1787. Since the original Constitution appears to have been fatally flawed, students are left defenseless when told that a "living" Constitution is the only kind worth having and that it must fall to the Supreme Court to define its terms.
Correcting this bias is no easy matter, and we should be grateful when thoughtful scholars undertake to present judicial opinions in a larger and richer constitutional context, one in which the limits and dangers of undue reliance on judicial constitution-making can be intelligently discussed. The singular virtue of the books under review is that by revealing the philosophical and political assumptions on which Supreme Court opinions rest, they point students toward a wiser and deeper understanding of constitutional things. In both cases, the task is performed without the sound of ideological axes being honed in the background.
In an already crowded field of competing case anthologies on freedom of speech and press, Terry Eastland's Freedom of Expression in the Supreme Court can lay claim to being Best in Show. His historical survey of the subject is enticing and scrupulously fair; his introductions to 60 leading cases are concisely instructive; his abridgements sacrifice nothing of importance. Indeed, the book is so expertly edited that a student could, without assistance, come away with a sophisticated understanding of the subject.
Great Cases in Constitutional Law is a collection of 10 paired essays, two on each of five significant cases. The contributors represent a broad range of opinion and include some of the best and brightest constitutional commentators of the day: Mark Tushnet and Jeremy Waldron on Marbury v. Madison; Cass Sunstein and James McPherson on Dred Scott; Hadley Arkes and Donald Drakeman on Lochner v. New York; Earl Maltz and Walter Murphy on Brown v. Board of Education of Topeka; Jean Elshtain and George Will on Roe v. Wade. Professor George's introductory essay succinctly presents the student with an accessible road map of what lies ahead, while raising larger themes for classroom discussion.
A commendable virtue of both books is that, while primarily intended for classroom use, they address themselves as well to the intelligent general reader.
