Is There a Canon of Constitutional History?

Article excerpt

My contribution to this discussion is purely empirical. I ask whether a canon exists, not among constitutional law casebooks, a question addressed elsewhere,(1) but rather in documentary collections in American constitutional history.(2)

I begin with this assumption, which I consider reasonable, and almost circular: if such a canon exists, it will be found in existing constitutional history casebooks. They reflect whatever there may be of a canon out there among constitutional historians concerning what materials a student of constitutional history ought to study.

I have therefore conducted a simple survey of six casebooks meant to be used in classes in constitutional history, whether they are taught in law schools or undergraduate environments. They are:

* Urofsky, Documents of American Constitutional & Legal History (1989)

* Benedict, Sources in American Constitutional History (1996)

* Presser & Zainaldin, Law and Jurisprudence in American History: Cases and Materials (3d ed. 1995)

* Hall, Wiecek, Finkelman, American Legal History: Cases and Materials (2d ed. 1996)

* Kutler, The Supreme Court and the Constitution (1984)(3)

* Smith and Murphy, Liberty and Justice (rev'd ed. 1965)

The last is, regrettably, out of print. Nevertheless, it was so influential in its day that it merits attention, if for no other reason than that it helped establish the canon. I have not included three older compilations:

* Radin, Handbook of Anglo-American Legal History (1936)

* Smith, Cases and Materials in the Development of Legal Institutions (1965)

* Kimball, Historical Introduction to the Legal System (1966)

Each devoted half (or less) of its space to American materials; each reflected a conception of American legal and constitutional history that passed away a generation ago. I have also not included what is, in my opinion, the finest documentary collection in the field, Commager, Documents of American History (9th ed. 1973). It was not limited to constitutional history (though extraordinarily rich in that area), was not suitable for classroom use as a "casebook," and has not been updated since 1988.

I have identified the canon in the following rudimentary way. Andrea Stubbs, Syracuse University College of Law class of 2001, noted the appearance of each case and other documents in each collection in a simple spreadsheet. From that I then compiled the lists below of cases and materials that found their way into all six volumes, into five, and into four.(4)

The following cases(5) appear in all six compilations:

Charles River Bridge v. Warren Bridge (1837)

Dartmouth College v. Woodward (1819)

Dred Scott v. Sandford (1857)

United States v. E.C. Knight Co. (1895)

Brown v. Board of Education I (1954)

The following cases and other materials appear in five compilations:

Selections from the Federalist papers (1787-1788)

Marbury v. Madison (1803)

McCulloch v. Maryland (1819)

Gibbons v. Ogden (1824)

Prigg v. Pennsylvania (1842)

Slaughter-House Cases (1873)

Munn v. Illinois (1877)

In re Debs (1895)

Plessy v. Ferguson (1896)

Lochner v. New York (1905)

Muller v. Oregon (1908)

Schenck v. United States (1919)

Abrams v. United States (1919)

Hammer v. Dagenhart (1918) and/or Bailey v. Drexel Furniture Co. (1922)

Whitney v. California (1927)

A.L.A. Schechter Poultry Corp. v. United States (1935)

United States v. Butler (1936)

West Coast Hotel Co. v. Parrish (1937)

NLRB v. Jones & Laughlin Steel Corp. (1937)

West Virginia State Board of Education v. Barnette (1943)

Korematsu v. United States (1944)

Dennis v. United States (1951)

Griswold v. …