What are the cases in the Constitutional Canon?

We surveyed twelve of the leading constitutional law casebooks

|The Volokh Conspiracy |

In our new book, Randy Barnett and I selected the 100 cases that we think belong in the "constitutional canon." This process was quite difficult, and we had to make extremely difficult cuts. Some topics were excluded altogether. For example, we did not consider constitutional criminal procedure cases, as well as related cases involving the death penalty. We also omitted political-process decisions about redistricting, voting rights, etc. Even among the topics we selected, there were many tough cuts.

We compared our list to the coverage in twelve of the leading constitutional law casebooks. Here are the results, sorted by the texts that included the greatest number of our 100 cases:

  1. Choper, Dorf, Fallon, and Schauer: 80 cases
  2. Stone, Seidman, Sunstein, Tushnet, & Karlan: 73 cases
  3. Chemerinsky: 71 cases
  4. Maggs & Smith: 69 cases
  5. Farber, Eskridge, Frickey, and Schacter: 68 cases
  6. Varat & Amar: 67 cases
  7. Brest, Levinson, Balkin, Amar, & Siegel:  64 cases
  8. Feldman & Sullivan: 64 cases
  9. Paulsen, Calabresi, McConnell, Bray, and Baude: 63 cases
  10. Weaver, Friedland, Hancock, Fair, Knechtle, & Rosen: 59 cases
  11. Massey & Denning: 57 cases
  12. Rotunda: 54 cases

An Introduction to Constitutional Law would make an excellent supplement for every casebook on the market. Please let us know if you are a professor (law or undergraduate), and would like a review copy.

We divided our book into 15 parts. This spreadsheet compares the coverage in each part, to the other leading casebooks. We included primary cases that are listed in the table of contents, and did not mention cases mentioned in passing in the notes. (Students frankly never read the squibs–our casebook excludes them.) The titles highlighted in red are published by Wolters Kluwer (our publisher). The titles highlighted in blue are published by West Academic Press.

Part I: Foundational Cases on Constitutional Structure

Every casebook covered MarburyMcCulloch, and Gibbons. Five casebooks covered Barron. Only one other case taught Chisholm. This latter case, the Supreme Court's first major constitutional decision, is almost certainly included in Federal Courts texts.

Part II: Enumerated Powers

Part II is, by far, the most thorough section in our book. Almost all of the casebooks included McCulloch and Gibbons. To our surprises, only two casebooks discuss Prigg, a foundational case about implied powers. None of the books covered enumerated powers on the Chase Court, including Dewitt, and the seminal Legal Tender cases (Hepburn and Knox). Almost all of the books pick up in the Progressive Era, with E.C. KnightChampion, and Hammer. The coverage across the New Deal is consistent: Schechter PoultryJones & Laughlin SteelDarby, and Wickard. The two leading cases from the Warren Court–Heart of Atlanta and Katzenbach are well represented. (Though, more books include the latter than the former.) Virtually every book included Lopez; several omitted Morrison and Raich. Every book included NFIB.

Part III: Federalism Limits on Congressional Power

Most casebooks included the leading commandeering cases: New York and Printz. Only two cases discussed Hans, and none covered Seminole TribeBoerne was included in every case, and there was sparse coverage of following cases, like Garrett and Hibbs.

Part IV: The Executive Power

Only two other books covered Ex Parte Merryman. A few books included the Prize Cases, which we opted to exclude. Every book included Youngstown. Though, much to our surprise, a handful of books excluded Korematsu. Most books did not mention the companion case, Ex Parte Endo.

Part V: The Separation of Powers

Every casebook included Morrison v. Olson. (Justice Scalia would be proud.) We opted not to include Myers and Humphrey's Executor; Morrison covers those issues well. Most books covered Noel Canning.

Part VI: Slavery and The Reconstruction Amendments

We were shocked that four casebooks excluded Dred Scott. We were pleased that almost every book covered Slaughter-House. Alas, only thee taught Bradwell, an important follow-up case on the Privileges or Immunities Clause. And only Brest/Levinson included Cruikshank. Five casebooks covered Strauder. Every book included the Civil Rights Cases. And most books included Yick Wo and Plessy.

Part VII: Expanding the Scope of the Due Process Clause

The coverage on Due Process cases was quite inconsistent. Every casebook covered Lochner. Only two included Muller. And only one mentioned Buchanan v. Warley. Half of the books covered Meyer and Pierce. All but one taught Buck. Only we consider O'Gorman & Young, Inc. v. Hartford Fire Insurance Co. (1931). This case teaches that the Court's shift away Adkins began prior to Roosevelt's election. Among the New Deal cases, about half the books included NebbiaWest Coast Hotel, and Carolene Products. Several books discussed Footnote Four, but excluded the actual case it was delivered in. To my surprise, eight books covered Lee Optical.

Part VIII: Equal Protection of the Law: Discrimination on the Basis of Race

The eight cases we selected were consistently included in all of the casebooks. Every book had Brown. Though only seven included Bolling. Most books discussed Cooper and LovingBakke still has good coverage. Ditto for the more recent affirmative action cases, GrutterGratz, and Fisher.

Part IX: Equal Protection of the Law: Sex Discrimination and Other Types

Most of the books covered Frontiero, and almost every book included Craig and VirginiaCleburne and Romer (the "other" cases) had solid representation. Given Windsor and Obergefell, I suspect these two cases will slowly fade away.

Part X: Modern Substantive Due Process

The casebooks had uniform coverage on modern substantive due process. Every text included GriswoldRoe, and Casey. Most of the books included Whole Woman's Health (and those that didn't may have included it in recent supplements). The LGBT cases were also uniformly included: Lawrence and Obergefell. Most books now excluded Windsor. (We labored about whether to omit that case, but decided to include it as a bridge from Lawrence to Obergefell).

Part XI: Freedom of Speech

Many 1L ConLaw classes do not cover the First Amendment. Some classes cover it, only briefly. Yet, almost all of the leading casebooks had fairly thorough coverage in this space. (Brest/Levinson does not discuss the First Amendment.) Most books covered the foundational quartet from the early 20th century: SchenckDebsAbrams, and Gitlow. None covered Stromberg, the first case in which a state law was found to violate the Freedom of Speech. Most books also covered O'BrienTexas v. Johnson, and R.A.V. Buckley and Citizens United were well covered; a few added McConnell v. FEC. Sullivan, which most students also learn in Torts, was in most books. Finally, most books included the leading cases from the Roberts Court: SnyderStevens, and EMA.

Part XII: The Free Exercise of Religion

The casebooks had far less discussion of the Free Exercise Clause than the Free Speech Clause. Half of the books included Sherbert. Others included Yoder. (We preferred Sherbert over Yoder because the former helps to explain the post-RFRA standard.) Almost every book added Employment Division. Fewer cases added Lukumi. We added Hobby Lobby. Though not a constitutional decision, RFRA illustrates how most modern Free Exercise Clause cases are litigated.

Part XIII: No Law Respecting an Establishment of Religion

This topic had considerable divergence among the casebooks.  We decided to only include the leading monument cases: McCreary County and Van Orden. (The Bladensburg Cross, decided after our book went to press, was far too fragmented to be included). We did not include public prayer cases like Town of Greece and Weisman. We also did not include school funding cases like Engel v. Vitale.

Part XIV: The Right to Keep and Bear Arms

The Supreme Court has only decided two Second Amendment cases. Every book included Heller. Only one omitted McDonald. This canon is fairly well set.

Part XV: Taking Private Property for Public Use

Almost all law students learn takings in Property. We do not have a sense of how many students also learn that topic in Constitutional Law. (I cover it in Property II.) As a result, we included three basic cases to give students a brief introduction to regulatory and physical takings: Penn. CoalPenn Central, and Kelo. Most casebooks excluded this topic altogether.

 

 

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  1. We also omitted political-process decisions about redistricting, voting rights, etc.

    Why?

    1. You must be new here. Welcome.

    2. Aside from Reynolds v Sims which would you add? This area doesn’t seem to have a set doctrine and is also highly intertwined with statutory provisions, so listing it in 100 constitutional cases everyone must know becomes difficult. That isn’t really a lot cases, so you can’t cover everything.

      Shelby County was undoubtedly a hugely important cases, but right now the principle of equal sovereignty of the states hasn’t been applied elsewhere to know of it’s importance and removing preclearance and moving enforcement to section 2 hasn’t been fleshed out enough to know of it’s effects. There is also questions about whether Congress could enact section 5 again with a more up to date formula. This may become a historically significant case in the future depending on it’s effects, but I understand why that hasn’t manifested yet to say it is.

  2. Which cases that fall into these categories that you omitted were most covered by the case books? There were a few cases where your choices weren’t really covered at all, is the inverse true where there were cases you omitted that they all are mostly all covered?

  3. IANALS but got the book just out of general interest. At three pages per case it’s just about right for casual reading and holds off on the obscure terms of art.

    Plays it straight, except maybe on the cases Barnett himself argued there’s just a slight whiff of taking sides. Which is fine and adds to the fun.

    Would’ve liked more 4th Amendment but I understand there had to be cuts.

    1. Although much of criminal procedure is actually constitutional law, being based in Amendments 4, 5, 6, 8, and 14, it’s typically seen as a distinct area from “constitutional law.” Although in a lot of ways criminal procedure is perhaps the most relevant part of the Constitution to individuals as it contains the substantive limitations on what the government can physically do to human beings.

      That would be an interesting experiment for the authors: Do 100 constitutional canon cases, but they need to include criminal procedure cases too.

      1. Thanks, I didn’t know that the term “constitutional law” had a distinct meaning like that among lawyers.

        The makeup of the book makes a lot more sense now, I was also noting the absence of Miranda and similar cases.

        1. Due to the time limitations of many Constitutional Law classes, some major decisions are covered in alternative classes. Criminal Procedure classes will cover Miranda, Mapp, etc., Property classes will cover Kelo, and who can forget Erie Railroad Co. v. Tompkins in Civil Procedure. I would argue that Law Schools should teach more about Younger v. Harris, Rooker-Feldman doctrine, etc., but that area is often left out of introductory Civil Procedure classes more concerned about FRCP.

  4. Which of the hundred cases appear ONLY in your case book?

  5. I ordered my copy on September 19 and am still waiting for delivery (in Switzerland, admittedly). I suppose constitutional development is a slow process.

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