Monday, July 13, 2009

2d Edition of Constitutional Law Stories

The 2nd edition of Constitutional Law Stories, edited and with an Introduction by yours truly, is now available from Foundation Press. (Amazon doesn't yet have the 2d edition.) There are two brand new stories for this edition. I've dropped the chapters on Clinton v. Jones and the chapter on Brown v. City of Oneonta. I had included the Jones case as a window on constitutional interpretation outside the courts---in this example, focusing ultimately on the meaning of "high crimes and misdemeanors." Although I continue to regard the general topic as extremely important, given the function of the book and the series---providing vital background on canonical cases---it was hard to justify keeping the case. That was even more clearly true for the Oneonta case, which, while providing a fascinating window on equal protection doctrine---it pries open what we mean by racial classification---is unknown even to many constitutional scholars.

The first new chapter is by Mike Gerhardt (who had written the Jones chapter in the first edition), and addresses Bush v. Gore. As I expected would happen eventually, the distance in time has allowed even those of us who still think the Supreme Court's decision was seriously flawed, to look at it with some greater objectivity. (Of course, the mess that President Bush made of the country and the world tends to get one's blood boiling all over again, so this is arguably a double-edged sword.)

The other new chapter, by Ben Wittes and Hannah Neprash, looks at the Guantanamo Bay cases. With President Obama coming into office promising to close Gitmo and suggesting that he would do away with military commissions, I was at first worried that this chapter would soon come to seem a curiosity. Now that he has decided to retain military commissions and "prolonged detention" for at least some detainees, the new chapter appears both prescient and extremely salient: It concludes by noting that even after 3 major cases (Rasul; Hamdan; and Boumedienne), the political branches and the courts have only just begun to answer the really hard questions in this area.

The authors of the remaining 13 chapters, with varying degrees of help from me, have also revised their chapters to take account of new developments. Plessy looks different---though Cheryl Harris's lesson that its formalism lives on is even truer than before---in light of Parents Involved. Roe is once again transfigured, now by Gonzales v. Carhart. Wickard v. Filburn is vindicated in Raich. And so on. More than anything, the amount of revision that was required for many of the chapters confirmed the continuing relevance of these stories. Editing the second edition was almost as much work as the first edition, even with a great deal of overlap between the two books. That is either evidence of my own inefficiency or of the dynamism of constitutional law (or possibly both).

Posted by Mike Dorf