Bradford P. Wilson, Ken Masugi, eds. The Supreme Court and American Constitutionalism. Lanham, Md.: Rowman & Littlefield Publishers, 1997. viii + 298 pp. $34.95 (paper), ISBN 978-0-8476-8659-9; $114.00 (cloth), ISBN 978-0-8476-8658-2.
Reviewed by Mark C. Miller (Clark University)
Published on H-Teachpol (May, 1998)
This reader presents a collection of complex and provocative essays from a variety of political scientists and legal scholars which critique the role the U.S. Supreme Court has played in developing constitutional law in the United States over the last several decades. The essays were originally presented at a 1996 conference sponsored by the John M. Ashbrook Center for Public Affairs at Ashland University. This volume is the third in Rowman and Littlefield's Ashbrook Series on Constitutional Politics.
The preface to the volume states that the contributors all "have established reputations for taking the Constitution seriously as the architectonic law of the United States." The preface continues by stating that the essays advocate returning to a constitutional analysis popular in the eighteenth and nineteenth centuries, in contrast to current trends in political science which prefer "to see the Constitution as only marginally relevant to the ideas and activities of political actors." The back cover of the book highlights the fact that one of the editors is the executive director and acting president of the National Association of Scholars.
Given this background information, it is not surprising that most of the essays in the volume are extremely critical of behavioralist political scientists as well as of scholars who advocate for an activist Supreme Court. The essays argue that behavioralists have missed the philosophical roots of our constitutional system of government, and they are quite critical of attempts to study the behavior of Supreme Court justices and other judicial actors from a non-jurisprudential point of view. The essays also criticize activist justices who changed the role of the Supreme Court in the policy-making process in this country. Most of the essays praise the jurisprudence of Robert Bork, Justice Antonin Scalia, and other judicial conservatives. Therefore, most of the authors are quite unhappy with recent Supreme Court justices who have taken a liberal activist approach, as well as with scholars who have advocated this type of activist jurisprudence. Although the authors come from a variety of political views, they all agree that the Supreme Court should return to a more originalist vision of constitutional jurisprudence.
The essays are broken down into two sections: "The Supreme Court as a Republican Schoolmaster," and "The Supreme Court and Constitutional Politics." In the first section are six essays all sharing the common theme that the Supreme Court must use its opinions to teach representative democratic values to the citizenry and to the political actors in government. These essays echo one of the current themes in American political thought, stating that our society has abandoned our republican roots. These authors feel that it is the responsibility of the U.S. Supreme Court to help us return to an era of civic republicanism. Although the Supreme Court should not be a primary public-policy maker, it should be the leader in helping our country return to an older republican consensus.
The seven essays in the second section of the volume are more diverse in their subject matter. They cover such divergent topics as constitutional criminal procedure, the role of the courts in overseeing administrative decisions, the Civil Rights Act of 1866, the Necessary and Proper Clause, the Commerce Clause, separation of powers issues, and the effects of international law on U.S. constitutional jurisprudence. These essays raise a host of interesting questions and advocate provocative solutions to these perceived problems with the current state of constitutional jurisprudence.
The essays would be appropriate for courses in constitutional theory or in American political thought. The essays might also be appropriate for courses in constitutional law, although the authors assume the readers are already familiar with the major constitutional cases in each area of discussion. Given the anti-behavioralist bias of the authors, I doubt the volume would be useful in a judicial behavior course. From a student's perspective, because all of these essays assume a great deal of prior exposure to the current debates in constitutional law and American political thought, the volume is probably most appropriate only for very advanced undergraduate students or for graduate students.
From a pedagogical point of view, this volume would have been greatly improved by the use of introductory essays for each section or even for each essay, tying the themes of these essays together. The lack of any introductory material for these dense essays may leave most undergraduate students puzzled about how the essays relate to each other or where they fit into the broader debates on these subjects. The essays generally present only one side of the issue, leaving the students to somehow discover that another point of view does exist. Students without sufficient background in American political thought and in U.S. constitutional theory will find most of these essays tough going. The arguments in this collection of essays are certainly stimulating for scholars well-versed in these debates, but they are not really presented in a student friendly manner. The essays provide thought-provoking material for professors, but not for students just beginning their study of U.S. constitutional law.
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Mark C. Miller. Review of Wilson, Bradford P.; Masugi, Ken, eds., The Supreme Court and American Constitutionalism.
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