"Basic Cases in U.S. Constitutional Law. The Separation of Powers by Pawel Laidler and U.S. Foreign Policy: Procedure and Substance by Worldliczek, Łukasz" review by György Novák
György Novák is Associate Professor at the Department of American Studies, University of Szeged, Hungary. E-mail:
Basic Cases in U.S. Constitutional Law. The Separation of Powers
(Series Editor: Andrzej Mania), Jagiellonian UP, Kraków, 2005.
U.S. Foreign Policy: Procedure and Substance
(Series Editor: Andrzej Mania), Jagiellonian UP, Kraków, 2005.
American history, that is to say, the history of the United States, as we Europeans like to remind ourselves with a hint of inferior superiority, is short. Which is not untrue in the face of a millenium of good or bad luck, glories, sorrows and traditions. On the other hand, and this is where most Europeans will raise their hands in defeat, in some senses the United States has continuities which are much longer than we on the old continent, or in some parts of it, even begin to comprehend. Can we, Hungarians imagine any legislative document from the time of the French revolution, or Joseph II, if you please, have any binding or force today? It would indeed be difficult to dig up anything of national significance even from the nineteenth century that has been in force since those days. Feudalism was abolished, true, but one would not really like to say that the April Laws (of 1848) are still in force and binding.
That is why it is such a different and exciting feeling to look into a book like the first of the two to be reviewed on these (virtual) pages, Basic Cases in U.S. Constitutional Law.
The editor of the series Basic American Documents is Professor Andrzej Mania, PhD, Director of the Institute of American Studies and Polish Diaspora at Jagiellonian University, Cracow. The author/editor of the volume (I understand there are two twin volumes, but for technical reasons I have seen only the first of the two) is Pawel Laidler, PhD, Associate Professor at the same Institute.
The book is indeed a basic volume, a collection of documents, or rather excerpts from documents essential to an understanding of one aspect of American constitutional studies: the separation of powers. The main concept of the series itself is grounded, as Professor Mania explains in the Foreword, in a “non-American” understanding of the term “American Studies”. However, there is nothing wrong with excerpts if they are selected as carefully and as amply as they are in this volume. The short introductions are succint, to the point, and they do not give away the end of the story, that is to say, you have to read the document itself to see what the ruling of the Supreme Court was. Discussing the separation of powers, one, if not the most important, elements in the American Constitution, Professor Laidler thakes the natural and easy way, taking each branch in turn, just like the Constitution does, but here, unlike in the Constitution, the judiciary comes first. Like the order of the branches, the chapter titles are also speak for themselves: Judiciary and Judicial Authority, Congress vs. the States, and The Struggle for Power, thus highlighting the most significant aspect of the position and development of the particulat branch in the apparently simple but actually very complicated, and constantly developing structure/system of the American form of government.
The 35 cases listed and excerpted (11 for the Executive, and 12 each for the other two) span two centuries, in the case of the Legislative chapter itself, for example, from McCulloch v. Maryland in 1819 to United States v. Morrison in 2000. The first chapter on the genesis of American Constitutionalism provides the basic text, the Constitution cum Amendments, plus a short descriptive note on the functioning of the Supreme Court, which, as a result of the Judiciary Act of 1789, sits on top of a system of federal courts (today 94 district [trial], and 13 circuit [appellate] courts). The volume concludes with an Appendix, which lists the Supreme Court Justices from 1789 to 2005.
Continuity spanning two hundred years notwithstanding, the chapter on the judiciary contains five cases decided by Chief Justice Marshall’s court, and the number of still living but historic cases from that venerable court diminishes — three in the chapter on legislation, and only one on the chapter on the executive. Besides reflecting the great task John Marshall undertook and performed by practically transforming the American constitutional system, these proportions also indicate the enormous weight and authority that the judiciary has in the long run and in the final account.
The cases in the chapter on the legislative trace the long and still on-going struggle inherent in the federal system between the states and the national government, in which the federal level has gained the upper hand most of the time, but the states also have managed to assert their rights and importance, as in City of Boerne v. Flores as late as in 1997.
The chapter on the executive begins with the historic case of Myers v. United States (1926), in which former President Taft, as then Chief Justice affirmed the scope of the president’ power of removal. Four cases of the eleven in that chapter, interestingly, concern presidents during the last 35 years (Nixon, Reagan, Clinton, and G.W. Bush), the last being a case (Bush v. Gore, 2000) in which the Supreme Court, for the only time during its more than two hundred years history, decided who would serve as the Chief Executive.
The other volume from the same series, U.S. Foreign Policy: Procedure and Substance is much less historical, but no less informative. The author, Łukasz Worldliczek, is an Associate Professor in the Institute of American Studies and Polish Diaspora at Jagiellonian University, Cracow.
The structure of the volume is clear and logical like that of the other. First the fundamental texts for the birth of American foreign policy are provided — these are Articles VI and IX from the Articles of Confederation, and seven sections, or parts thereof, from the first three articles of the Constitution. The main doctrines defining the foreign policy of the United States are ordered in the theoretical dichotomies of Isolationism/Internationalism and Idealism/Realism, and are reviewed through utterances by Presidents from George Washington to George W. Bush. The practical aspects of American foreign relations are divided into four major areas after Lerche: political, military, economic, and psychological, and are discussed in that order. The documents excerpted in these chapters (3 to 5) include basic documents like the NATO Treaty (1949), or President Kennedy’s speech announcing the Alliance for Progress Program (1961), or the Freedom Promotion Act (or rather bill) in the wake of 9/11.
Chapters 6 to 8 discuss and excerpt documents concerning foreign policy and the three branches of government. Interestingly, again, the executive gets four pages, the legislation eight, while the judiciary more than twenty pages, subdivided into sub-chapters on Treaty Powers, War Powers, Appointment/Removal Powers, and Information Policy. Finally, the last chapter treats federal bureaucracy and foreign policy beginning with the organization of the Department of State and concluding with the Intelligence Reform and Terrorism Prevention Act, in 2004.
The Annexes include various charts (Foreign Aid Funding as % of GDP 1946-2004), lists (Secretaries of State, Defense, National Security Advisors, CIA Direstors), and organization charts (Department of Defense, and State).
Curiously, but absolutely logically and naturally, the sources the volume lists after every document include not only printed materials, like the Congressional Record, but internet websites, as well, such as The Avalon Project of Yale University, or law.cornell.edu.