Document Type

Article

Publication Date

1998

Abstract

Several legal theorists have recently explored the idea that constitutional law has a canon, a set of greatly authoritative texts that above all others shape the nature and development of constitutional law. In a piece published earlier this year in the Harvard Law Review, Jack Balkin and Sanford Levinson enter that discussion and argue that the constitutional canon has heretofore laid too much emphasis on court cases in general and on opinions of the Supreme Court in particular. In the course of their argument, they cite an earlier study of constitutional law casebooks currently in use to show that certain cases are, by consensus, indispensable to a knowledge of constitutional law. In parallel to the function that anthologies of literature perform in fields like English, Balkin and Levinson note, casebooks play a large role in the construction of the constitutional canon. According to the study they cite, ten Supreme Court cases appear in every one of the eleven major casebooks included in the survey. The list of ten is largely intuitive to anyone familiar with constitutional law. No one, I suspect, would be surprised to learn that Marbury v. Madison, McCulloch v. Maryland, and Brown v. Board of Education appear in every major constitutional law casebook now on the market. Each of those cases is the locus classicus of a major doctrine of constitutional law. Indeed, the Court's decisions in nine of the ten cases listed established propositions that continue to shape the law today. Lawyers and courts continue to cite those nine decisions for their legal authority, and many of the cases carry symbolic value as high moments in the exposition of constitutional law.

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