The Practice of American Constitutional Law

What areas of our lives are governed by constitutional law? When asked about what constitutional law is, Americans tend to think of notable Supreme Court cases such as the abortion law case Roe v. Wade or the Civil Rights landmark of Brown v. Board of Education. But vast swaths of our lives are governed by, of all things, the Commerce Clause of the US Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

This is just one of the fascinating facts that we learn from H. Jefferson Powell's book The Practice of American Constitutional Law (Cambridge UP, 2022).

Powell robustly, movingly argues that those Americans who feel that the Supreme Court and constitutional law itself have become so politicized that justice is now unattainable and that raw power has replaced dispassionate legal analysis in our polity are mistaken. He contends that those who dwell in the world of the actual practice of constitutional law are people operating in good faith with identifiable “tool kits,” as he puts it. Powell shows how everyone involved has to determine if a legal case is even a matter of constitutional law specifically and if so, what part or parts of the Constitution are concerned and possibly being violated.

One of the great strengths of the book is the delineation of who some of these actors are—from congresspeople to Department of Justice lawyers to legal advisors to presidents to judges at all levels to lawyers in the nonprofit advocacy sector. Powell shows how those engaged in the practice of constitutional law go about their work, be they giants of American jurisprudence such as John Marshall to unnamed state legislators of our own day. Powell makes the case that in spite of the normal human tendency to be influenced by our backgrounds and attitudes when thrashing out contentious matters, the practice of American constitutional law operates within clear parameters and procedures that to a large extent result in justice or at least a plausible attempt to achieve it.

Powell’s plea for a more sympathetic attitude towards judges, legislators and legal advocates is helped by the fact that his book is filled with vivid word-portraits of figures such as the Supreme Court justices Robert H. Jackson, William Rehnquist, David Souter (who comes across better in Powell’s book than he does in many other accounts) and, of course, John Marshall.

Powell’s book is ideal for the non-lawyer who wants a better understanding of the nuts and bolts of constitutional law, who the players are and what aspects of constitutional law affect us in our daily lives. Powell fascinatingly shows that those include everything from guns in school zones to violence against women to the regulation of the length of trucks on state highways.

Powell persuasively and engagingly makes his case that those who make cases are not malign influences twisting the law for partisan purposes but, by and large, honorable people doing their best to apply the text and thrust of the Constitution in defensible, sensible and yes, just, fashions.

Let’s hear from Professor Powell himself.

Hope J. Leman is a grants researcher.