Constitutional Law in the Political Process

Constitutional Law in the Political Process

Constitutional Law in the Political Process

Constitutional Law in the Political Process


Constitutional Law and the Political Process is designed to combine the best features of the traditional casebook with the desirable features of the behavioral approach. Consequently, this textbook consists of selections from appropriate articles and essays, as well as from judicial decisions, legislative debates, and election campaign documents. The unifying theme is the exploration of the role of the federal Supreme Court in the American political process. In part such exploration necessarily consists of the utilization of the so-called "standard" leading cases, such as Marbury v. Madison. However, the introductory essays are designed to provide an appropriate setting for such cases. A major effort is made to distinguish clearly judicial from legislative or executive action (or inaction) in broad policymaking areas. Where possible the issues chosen for analysis are those that have created the most intense contemporary social and political antagonisms: labor-management relations, rural versus urban political ascendancy, race relations, and problems relating to the intellectual freedoms. The emphasis upon social and political conflict is employed to demonstrate the diversity of institutional and individual responses which are manifest in the judicial process.

The shift in emphasis in the textbook is not limited to substance but extends to questions of method as well. Without eschewing the very useful and necessary techniques of historical analysis and biographical interpretation that have influenced teaching and writing in constitutional law in the past three decades, the selections and essays are also designed to apply, where appropriate, the methods and findings of the behavioral sciences.

The intellectual debts incurred in the preparation of this work are many. Interest in the broad problems inherent in a process-oriented text was stimulated during my graduate student days at the University of Virginia. Of great benefit were two opportunities to consider problems of teaching and research in the company of scholars from diverse fields. The first of these was a Research Institute on the Judicial Process sponsored by the Social Science Research Council in 1958. The second was the program for research in law and the behavioral sciences conducted at the Law School of the University of Chicago (1959-1960). Carl Auerbach and William Beaney, co-directors of the Institute on the Judicial Process, were especially helpful. Michigan Supreme Court Justice Talbot Smith demonstrated in splendid fashion the highest qualities of the appellate judge during his visit to the Institute. At Chicago, Professors Hans Zeisel, Rita James, and Duncan MacRae were especially helpful with respect to the problems attending the application of behavioral techniques to analysis of the judicial process.

I also owe a great personal debt to Mr. Francis Winter and Mr. Dick Wells for invaluable assistance in gathering relevant materials and aiding in the editorial work entailed. Mrs. Maurine Wells rendered expert typing assistance of the highest order. Despite such excellent assistance, both editorial and substantive, errors may well remain. For these I am solely responsible.

John R. Schmidhauser

April, 1962 State University of Iowa Iowa City, Iowa . . .

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