Notes on Notes

Notes on Notes CONSTITUTIONAL LAW, 3d Edition. By Geoffrey R. Stonet Louis M. Seidmantt Cass R. Sunstein,* and Mark V. Tushnet.** Boston, Massachusetts: Little, Brown and Company, 1996. Pp. lxi, 1766. Reviewed by Margaret G. Stewart* A number of years ago, our college collapsed two constitutional law courses into one. Constitutional Law, a required four-hour course taught in the third semester,1 replaced a required three-hour course, Constitutional Law: Powers of Government, and an elective two-hour course, Constitutional Law: Due Process and Equal Protection.2 While no one argued that there was insufficient material to justify five hours of coverage, the faculty was concerned that students could and did graduate without any exposure to the constitutional issues which are at the heart of popular political discourse and which frequently dominate the U.S. Supreme Court's3 calendar. Furthermore, many of us who teach in the area of constitutional law believed that the division made it more difficult for students to appreciate the underlying and continual concerns that the roles of judicial review and federalism present whenever the Court is asked to justify or reject majoritarian decisions. My search for a text which emphasized those themes led me to adopt the Stone, Seidman, Sunstein t Harvey Kalven, Jr., Distinguished Service Professor of Law and Provost, University of Chicago Law School. tt Professor of Law, Georgetown University Law Center. f Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, University of Chicago Law School and Department of Political Science. # Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. * Professor of Law, lIT Chicago-Kent College of Law; B.A. 1968, Kalamazoo College; J.D. 1971, Northwestern University School of Law. 1. In the evening division, it is taught in the fourth semester. 2. A third elective course on the First Amendment remained unchanged. Since it is not a course I teach, I have made no comments on the text's treatment of those issues. My focus here is on Chapters I-VI, which form the core of the four-hour course. 3. Hereinafter referred to as "the Court." 980 Seattle University Law Review [Vol. 21:979 and Tushnet casebook.4 Having used it for at least five years, I remain convinced that it does an excellent job in a difficult field. But, of course, I have a few quibbles. It is simply impossible to understand constitutional law without at least a basic knowledge of the history of the United States. The longer I teach, the more I realize that assuming student familiarity with that history is unwise. For every student who can argue the antifederalist position fluently, there is invariably one who has never heard of the Articles of Confederation. At the same time, as a practical matter, the amount of current doctrine calling out to be mastered severely limits the number of classroom hours that can be devoted to the past political and judicial landscape. The Stone, Seidman, Sunstein and Tushnet casebook seems to have found a workable mix. For the most part, it utilizes a chronological approach in its separate treatment of key subject matter areas. Upon occasion, I have toyed with the idea of trying to teach a History of Constitutional Law course, focusing, for example, on the Court's pre-1937 approaches to the scope of congressional power to regulate under the Commerce Clause and to the simultaneous limits imposed under the Due Process Clause on the states' authority to regulate economic activity. However, I always ultimately decide, as did the authors, that tracing each doctrinal strand results in a more coherent class. The text itself draws the necessary connections, pointing out the parallels created by the early 20th century Court's commitment to a laissez-faire economy in Lochner' and by its restrictive interpretation of the Commerce Clause. The authors' general fidelity to this chronological doctrinal analysis makes their decision to begin a discussion of congressional power with United States v. Lopez 6 puzzling. Yes, the case presents a decent (if biased) review of the Court's Commerce Clause jurisprudence. Yes, the opinions frame the issue of federalism dramatically. But students' ability to analyze and criticize the arguments made there, I think, depends on their understanding of what came before. In just over forty pages,7 the authors neatly trace the Court's checkered approach to the Commerce Clause and the Court's apparent abandonment of any attempt to second-guess Congress' determination of what activity in the aggregate substantially affects interstate commerce. Into 4. GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW (3d ed. 1996). 5. Lochner v. New York, 198 U.S. 45 (1905). 6. 514 U.S. 549 (1995). 7. STONE ET AL., supra note 4, at 189-233. 1998] Notes on Notes that world Lopez comes as a thunderclap. If for no reason other than dramatic impact, it belongs at the end of the sequence, not at the beginning.8 The placement of Lopez is an exception to the authors' usual chronological approach. The placement of their treatment of fundamental interests in the context of equal protection is an exception to their doctrinal approach, albeit an exception I think more easily justified. Chapter V deals with "Equality and the Constitution," leading students (again more or less chronologically, though slavery, school segregation and desegregation are treated separately from other racial classifications) through the traditional analysis of when and why legislation that treats persons differently violates the Fourteenth Amendment. Chapter VI then addresses "Implied Fundamental Rights," covering, inter alia, economic substantive due process, then equal protection fundamental interests doctrine, and finally a return to "modern" (i.e. noneconomic) substantive due process. While it is true that the Court's attempts to define and justify "fundamental" interests ordinarily protected from legislative control is similar in both situations, I find it more logical to complete equal protection before moving to due process, and more interesting to compare the Court's economic and noneconomic due process decisions without a side-trip into equal protection. In the first place, much of the equal protection fundamental interest material focuses on the right to vote and increasingly on the appropriate (or inappropriate) use of race as a gerrymandering tool. The Court's concern here mirrors its concerns in the more obvious "classification" contexts, particularly in the realm of affirmative action, and the cases fit well together. In the second place, the interpretation of economic and modern substantive due process cases, like the out-of-step treatment of Lopez, lessens the 9 impact of the rejection of Lochner in cases like Roe v. Wade. Obviously it is possible to remind students of the demise (and of the rejoicing at the demise) of Lochner, and in notes the text does so. But the reminder c (...truncated)