Review by Christopher Osakwe
Two general propositions of law are basic to the American constitutional system: that the Constitution of the United States is the supreme law of the land and that the Constitution of the United States is what the Supreme Court of the United States says it is. Whereas the text of the Constitution has tended to remain relatively stable, the interpretations given to its provisions have tended to vary not only from one economic era to another, and in direct relation to changes in the relationship between the federal and the state governments, but also with the men who sit on the Court. This can be seen most clearly in constitutional criminal procedure, where the principal gains of the revolutionary reforms of the law of criminal due process by the activist Warren Court are today being circumscribed and blunted by the Burger Court. Because of such zig-zag trends in Supreme Court decisions in constitutional criminal procedure, any scholar who undertakes a commentary necessarily embraces the almost impossible task of capturing a perennially changing phenomenon. Professor Fellman realizes this dilemma through personal experience because the state of the law he captured in his 1958 book was virtually preempted by the Warren Court. In this update of that work, the author traces the major gains of the Warren Court revolution in criminal due process as well as the comprehensive reevaluation of the Warren Court decisions by the Burger Court to the end of the 1974-1975 Term.
The book covers both federal and state law (with emphasis on the latter) through all the stages of the criminal process—from the defendant's first contact with the criminal justice system to postconviction remedies. Because the author himself is a nonlawyer—a professor of political science at the University of Wisconsin at Madison—the book has the advantage of being written in a language devoid of the deliberately cryptic and oftentimes concealing legal jargon that one has come to expect from most lawyers. Yet the author's analyses of the holdings in the cases discussed are as insightful, penetrating, and erudite as can be expected of a trained lawyer. It is regrettable, however, that the author shies away from any substantial, critical appraisal of the policy aspects of American criminal procedure. Since the book has done a marvelous job of capturing the present status of the law of criminal due process, this review focuses on a reevaluation of the policy underpinnings of some of the decisions so ably discussed by Professor Fellman.
About the Author
Christopher Osakwe. LL.B. 1966, LL.M. 1967, Ph. D. 1970, Moscow State University; J.S.D. 1974, University of Illinois. Visiting Professor, University of Pennsylvania; Professor of Law, Tulane University.
Citation
52 Tul. L. Rev. 211 (1977)