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Constitutional Law, Fifth Edition

Constitutional Law - Geoffrey R. Stone, Cass R. Sunstein I’m nearly caught up on all of the important law books I need to tell you about from this year. I’ve been saving this one because I love it so much, but now I’m in the summer. I’ve got my beach books, I’ve got my beer, and I’ve got my Bachelorette. I’m ready to tell you about constitutional law casebooks. It’s kind of like Jane Austen, where you have to give the ubiquitous hierarchy of favorites, so here it is:

1. Stone (this book)
2. Braveman
. . .

100. Sullivan, Gunther

Have I mentioned how lame the Sullivan/Gunther is? It’s really lame. The edits are the most mangled, choppy atrocities you’ve ever seen. They pulled out fingernails just because they didn’t like the nail polish. It’s the City of Bones of constitutional law.

This one, on the other hand, is like poetry. It’s beautiful. The edits are clean and powerful. I am glad I read the Braveman first because it has far fewer edits, so you have to work for the information you’re getting, but the Stone is like reading Hemingway on the Constitution. It’s lovely.

I read this one for the constitutional law class I was tutoring, and I loved every minute of it. Tutoring was fun, too, in the end. I don’t love teaching, but I love reading and debating constitutional law. The kids in my class are geniuses. About a third of them were political science majors in college, and they were all amazing. The guy I sat next to in the class looked like Marty McFly’s dad. Like, when you look at him, things turn black and white, and you transport into the 1950s. He wears a trench coat and a suit every day, and he carries a brief case, in which he has a tin where he keeps brownies that his mom made. And then he started bringing me coffee almost every class, so that was one reason it was awesome to be the tutor.

I’ve already told you tons about constitutional law, so I won’t go over it all again. Judicial review, separation of powers, federalism, commerce clause, the fourteenth amendment, etc. In this class, the professor, Dreamy McDreamerson, introduced § 5 of the fourteenth amendment before talking about due process, so that was confusing. Don’t do that.

And then there was the mistake about INS v. Chadha. That case is about the legislative veto. The legislative veto is where Congress passes a law that requires implementation by the executive branch, but then Congress gets to review the executive implementation. So, like, they said, in this case, that certain people have to be kicked out of the U.S. Then, the INS let this one guy stay. Then, the House of Representatives said, no, that’s not what we wanted, and decided to kick the guy out. Then, the Supreme Court said that the House of Representatives isn’t the boss of how the executive branch executes the law, and so the legislative veto is unconstitutional. But, Justice White pointed out that the decision is pretty wrong, and I agree. I won’t go into it now, but trust me. He’s not right about the whole thing, but he’s right.

Professor McDreamerson agreed with the Powell concurrence, though. That’s pretty legit. It’s a really well-reasoned concurrence. There’s this apocryphal story about it that I’ll tell you now, too. So, Justice Burger wrote the majority opinion (made me hungry every time we talked about it). And Justice Burger was totally pissed that Justice Powell didn’t sign on to the majority opinion and wrote his own concurrence instead. So, years later, Justice Powell was writing a pretty important opinion (I forget which one), and Justice Burger dissented from it. Justice Powell really wanted the whole court to agree, but he couldn’t get Justice Burger to sign on. After they issued the opinion, Justice Powell went to Justice Burger’s chambers and was talking to him. He asked if there was anything he could have done to persuade Justice Burger to sign on to the opinion.

Justice Burger said, “No, you were completely in the right. I agreed with you. I was just getting you back for the Chadha opinion.”

Or so they say.

Anyway, that’s not from the book. I just heard the story from an unnamed source this year and thought it was a good one. Oh, those silly Justices! I love ‘em. The lesson from all of this, though, is that if you read a constitutional law casebook on your own, in your spare time, read this one.