American Constitutional Law

Susan Burgess

Not too long ago, a prominent constitutional theorist was publicly lamenting the lack of a robust and wide ranging consti- tutional debate in the American political system. When I suggested that the kind of exchange he was looking for could be found by supplementing judicial constitutional interpretation with congressional, executive, state, and popular constitutional interpretation, he quickly replied that statutes, rules, and public opinion are flat and contribute little or nothing to creating a more engaging or dialectical constitutional debate. Consequently, he concluded, Supreme Court opinions are the only viable source of constitutional interpretation. Academics often write and teach that the American constitu- tional debate is deficient, or lacking breadth and depth. But that judgment is at least partially based on assumptions about 1 the alleged lack of ability of the "political" branches and the public to interpret the Constitution, and 2 the alleged lack of a dynamic relationship between law and politics. Louis Fisher reveals and challenges these assumptions in his text, AMERICAN CONSTITUTIONAL LAW. The result is a multi- dimensional representation of American constitutional interpretation that is much broader and more complex than the usual fare. According to Fisher, most constitutional law texts "concentrate on court decisions and overlook the political, historical, and social framework in which these decisions are handed down. Constitutional law is thus reduced to the judicial exercise of divining the meaning of textual provisions. The larger process, including judicial as well as nonjudicial actors, is ignored" p. xi. Fisher seeks to provide the previously overlooked material. Political scientists of various stripes assume a disjunction between law and politics. Some scholars assume that politics dominates constitutional interpretation, and that legal doctrine and rhetoric neither affect nor limit the shape of politics. Others overlook the politics of constitutional interpretation, analyzing legal principles and doctrine as if they are not articulated by political actors who are well aware of the political consequences of their interpretations. In either case, the intersection of law and politics is left largely unexamined. Fisher places constitutional interpretation squarely within the larger political environment in which it occurs. He argues that the "political process must be understood because it establishes the boundaries for judicial activity and influences the substance of specific decisions, if not immediately, then within a few years.... A purely legalistic approach to constitutional law misses the constant, creative interplay between the judiciary and the political branches" p. xi. He realizes, however, that in order to reveal the intersection between law and politics, he will have to convince readers, schooled to accept judicial supremacy as a permanent part of the American constitutional system, that "the Supreme Court is not the exclusive source of constitutional law [or] the sole or even dominant agency in deciding constitutional questions" p. xi. Fisher shows that congressional constitutional interpretation encompasses much more than reading statutes. He demonstrates that it includes congressional floor debate, hearings, and reports and that these sources of interpretation reveal at least as much breadth and depth as the standard judicial opinions which are also well represented in this text. AMERICAN CONSTITUTIONAL LAW makes it clear that characterizing statutes as the entirety of congressional constitutional interpretation would be as misleading as claiming that the headnote to a case contains the breadth and depth of the Supreme Court's reasoning. Of course, congressional hearings do not follow the same rigid format as judicial opinions do, nor do Page 149 follows: they contain nearly as much legalistic jargon. But that is only problematic if one assumes that the Constitution is primarily a legal document which is best interpreted by "experts" who can master legal forms and jargon. Those assumptions are, of course, challengeable, particularly from the standpoint of democratic authority. Fisher's text provides the grounds for such a challenge. Each chapter of AMERICAN CONSTITUTIONAL LAW employs not only familiar Supreme Court cases, but also congressional and executive constitutional interpretation. Chapters include useful introductory essays, and other secondary materials, which relate the materials to one another and reveal the key questions and points to be explored in the chapter. My students regularly comment that these essays are clearly written and thus help them better understand the difficult primary material that follows. The extensive citations to primary materials and suggestions for secondary reading appear in every chapter and serve to guide students in beginning more detailed research in selected areas. AMERICAN CONSTITUTIONAL LAW begins with five introductory chapters that review the political and legal context in which American constitutional interpretation takes place. These chapters introduce the approach of the book, and include material on jurisdiction, standing, judicial organization, judicial strategy, judicial review, nonjudicial constitutional review, and the role of interest groups in constitutional interpretation. For some students, this material may be new, and thus forms an essential basis for the rest of the semester's work. For others it may serve as a review. In either case, this approach ensures that students are in roughly the same starting place before study of the substantive areas of constitutional law begins. The middle chapters of the book contain judicial and non- judicial materials in the standard areas of constitutional interpretation. The selection of cases is standard and representative; what is novel is the inclusion of congressional and executive materials as an integral part of constitutional interpretation. The topics include separation of powers; domestic conflicts; emergencies and foreign affairs; federal-state relations; property rights; free speech in a democratic society; freedom of the press; religious freedom; rights of the accused; search and seizure; racial discrimination; group rights; rights of privacy; and political participation. In keeping with the overall theme of the book, the final chapter explores "efforts to curb the court." It contains materials on constitutional amendments, statutory reversals, court packing, curbing jurisdiction, noncompliance, and congressional objections to judicial finality in constitutional interpretation. Appendices include the text of the Constitution, a list of the members of the Court 1789-1989, a glossary of legal terms, and a very useful essay on how to do research in public law. AMERICAN CONSTITUTIONAL LAW is available in a single volume, hardcover edition, as well as in a two volume paperback split Volume I is entitled CONSTITUTIONAL STRUCTURES: SEPARATED POWERS AND FEDERALISM, Volume II is CONSTITUTIONAL RIGHTS: CIVIL RIGHTS AND CIVIL LIBERTIES. Consequently, Fisher's text can be used for a one- or two- semester sequence in constitutional law. In addition, McGraw Hill allows instructors to build a book precisely fitted to their course; they may omit or restructure the order of any of the materials available in the original edition of AMERICAN CONSTITUTIONAL LAW. I have used this book for two years now, in a two semester sequence, with great profit. I hope that in future editions Fisher will provide additional non-judicial materials to balance out the abundance of cases now included. Because students not to mention scholars are so wedded to judicial supremacy, they tend to be extremely skeptical about the importance and quality of congressional, executive, state, and public participation in constitutional debates -- particularly if the standard examples of judicial Page 150 follows: interpretation are not offset with several sustained examples of non-judicial interpretation. For the time being, Fisher's THE POLITICAL DYNAMICS OF CONSTITUTIONAL INTERPRETATION co-authored with Neil Devlin, St. Paul: West Publishing Co., 1992, contains extensive non-judicial primary material set in the context of a secondary discussion of relevant judicial cases. As such, it is a very useful supplement to the excellent base that Fisher provides for the study of politics and law in AMERICAN CONSTITUTIONAL LAW.