Jamin B. Raskin
Washington, D.C.: CQ Press, 2000
Reviewed by Jennifer Brandsberg-Engelmann
Public schools, by their very nature, have been hotbeds for constitutional litigation over the years. As public spaces where values are transmitted through the direct and acute contact between government and young people, schools are testing grounds for our constitutional tenets. Schools occupy a special place in constitutional law because it is here, among few other spaces in society, that arguments about safety, social and academic progress, and values can often legitimately trump arguments supporting basic constitutional freedoms. Certainly, students do not shed their constitutional rights ... at the schoolhouse gate, but those rights are often balanced against other values we hold dear.
Jamin B. Raskins We the Students: Supreme Court Cases For and About Students explores this tension in a casebook format aimed at students themselves. The book is a welcome addition to the literature available for teachers and students about Supreme Court decisions. Many states now include specific Supreme Court cases in their academic standards for civics and government. Some of the key landmark decisions included in standards are school cases chosen for what they reveal about the balance between constitutional rights and other values.
We the Students is well-organized for teaching about this balance. The cases it explores are grouped according to the rights involved. There is a chapter devoted to each of the following: freedom of expression, freedom of student press, freedom of religion, search and seizure, due process with regard to discipline and punishment, equal protection (including sexual harassment), and privacy. By organizing the material in this way, Raskin helps teachers and students better understand these rights as well as the judicial decisions that have interpreted them.
Some teachers in government and law-related education (LRE) may find this book too narrowly focused; after all, students should learn about many other Supreme Court cases, not just those related to schools and students. The government/LRE community also knows that, when taught well, kids enjoy learning about all kinds of Supreme Court cases. But these considerations do not detract from the value of this book for students. Though they may enjoy learning about other kinds of cases, there is no denying that tapping into students experiences in school adds a measure of excitement and interest to the study of judicial decision making.
In addition, student cases provide important lessons about the role of enforcement in judicial decision-making. The courts make decisions, but they cannot enforce them. The ultimate legitimacy of judicial decisions thus may depend on the willingness of average people to comply with them and interpret them appropriately. For example, after reading the Supreme Courts decision in West Virginia v. Barnette, what student would not question whether a teacher can make the class stand for the Pledge of Allegiance? Yet, how often is this common practice contested? In their schools, students have a chance to observe and discuss the link or disjunction between judicial ideals and everyday practice in a way they do not in other areas of their young lives.
A strong feature that distinguishes this book from many other Supreme Court materials for schools is its inclusion of key portions of the dissents in various cases. It is vital for students to understand the role of dissents in judicial decision making, and the importance these counter arguments may take on as constitutional interpretation evolves over time. In the average government textbook, students might learn what the Supreme Court decided in Plessy v. Ferguson (1896), but not what Justice John Marshall Harlan argued in his spirited dissent to the decision. Harlans arguments provide an interesting point of comparison for the logic involved in the later Brown v. Board of Education (1954) decision, which focused more on psychological testimony than constitutional precedents.
Raskins inclusion of dissents provides students and teachers with a greater context for understanding Supreme Court decisions. So do the profiles of Supreme Court justices who wrote decisions or dissents in various cases. These profiles, not often seen in other materials, help demonstrate the complex factors at work in Supreme Court decisions and the justices who make them. For instance, though Justice Harlan opposed the majority decision in Plessy, he had earlier opposed both the Emancipation Proclamation and the Thirteenth Amendment abolishing slavery. The carefully chosen background information in these profiles can help students explore the broader issues of how historical context and a judges personal background influence judicial decision making.
Perhaps most importantly for high schools, We the People includes exercises to help students and teachers dissect the critical issues involved in cases. At the beginning of the book, most of these exercises resemble the tried-and-true moot court strategy. But as the book progresses, the exercises become more varied and creative. Raskin has included traditional and provocative essay questions as well as some great authentic assessments. Most constitutional law casebooks only present background material and excerpts from the decisions and dissents; Raskins inclusion of exercises marks this book as a true aid for teachers and students. Although there is no teachers guide to the book, the open-ended nature of many of the exercises makes such a guide unnecessary.
There are several minor shortcomings of the book that teachers should be aware of. First, there are few exercises that ask students to explore how a decision is enforced (or not) in their own school. Given that schools are one of the only places that young people can observe firsthand the relationship between judicial decision making and enforcement, it seems especially important for teachers on their own to address this with their students. Second, the books subtitle is a bit misleading, as there are several federal appellate court and state court decisions in the book. Students need to understand that, unlike Supreme Court decisions, lower court decisions have limited applicability within specific judicial jurisdictions. The book does not call enough attention to this distinction for teachers who do not have much legal background.
In the final analysis, none of these shortcomings detracts from the overall value of this book for teachers and students. Raskin is a great writer for young students of constitutional law; the language, organization, pictures, and profiles all demonstrate a carefully crafted book that is both interesting and substantive. I hope that it is the first of many books to come on constitutional law for young people.
Jennifer Brandsberg-Engelmann teaches government and economics at Walter Johnson High School in Bethesda, Maryland, and is a curriculum consultant for several government and law-related educational organizations.