The Court and the Constitution Essay - Critical Essays

Archibald Cox

The Court and the Constitution

Professor Cox, a leading authority on constitutional law, gained national recognition in 1973 as the first Watergate special prosecutor. He has divided this historical survey into four parts: “Building a Nation,” “From Laissez-Faire to the Welfare State,” “Constitutional Adjudication as an Instrument of Reform” and “Constitutionalism and the Rule of Law.”

Among the topics receiving in-depth treatment are judicial supremacy, the expansion of federal power, the Warren Court, school desegregation, abortion, affirmative action, and the future of judicial review.

Cox succeeds, for the most part, in humanizing the story of judicial interpretation. There is no denying his assertion “that great constitutional decisions grow out of common human incidents.” One example of this is the story of Harry Briggs, one of twenty black parents from Summerton, South Carolina, who, in 1949, filed suit in federal court alleging that the local dual school system violated the Constitution’s Equal Protection Clause.

Brown v. Board of Education settled the constitutional issue five years later. Then there is the account of “Jane Roe,” a pseudonym assigned by the Court to a young woman who challenged Texas’ antiabortion statute. The majority decision in Roe v. Wade determined that a woman’s right to choose to have an abortion was guaranteed by the liberty cited in the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment. This controversial decision is still being debated.

While Cox’s style is somewhat pedantic, readers will come away from this book with a clearer understanding of our system of checks and balances. Chapter notes and a thorough index complete the volume.