Vol. 2 No. 10 (October, 1992) pp. 151-152

CONSTITUTIONAL LAW, 12th Ed. by Gerald Gunther. Westbury, New York: Foundation Press 1991 1675 pp. Cloth $46.00.

Reviewed by Joseph F. Kobylka, Department of Political Science, Southern Methodist University

Gerald Gunther's CONSTITUTIONAL LAW is a "venerable" text. I became aware of it as an undergraduate in the 1970s, but Gunther's association with it dates back to 1965. This durability is impressive, but still more so is the fact that his first edition of this case law text was ITS seventh; it was first issued in 1937 by Noel T. Dowling, a professor of law at Columbia University. Thus, students of constitutional law have been using this volume, in one incarnation or another, for over 55 years! Surely something that has survived the vagaries of the publishing world this long is doing something right, and this volume provides an impressive overview of much of the legal literature on the cavernous subject matter of "Constitutional Law."

Evaluating a case law reader is a difficult task. Different people teach this material in different ways and, as such, any evaluation will be prejudiced by two sets of competing preferences: those of the book's user, and those of its editor/author. Although I try to separate MY instructional taste, style, and emphasis from this discussion, what follows is undoubtedly influenced by the way I approach teaching law-based classes. Indeed, while I would not adopt Gunther's volume as required reading for my classes, Foundation Press's advertisements note that it has been adopted in over 200 schools. Given its many virtues, this is not surprising. What keeps me from joining my colleagues in their decision is the essentially legalistic structure of the work, a structure that too frequently obscures the extent of the political nature of the Court in the American system of governance.

In the "Preface to the Ninth Edition," reprinted here, Gunther writes that there are three ways to structure a constitutional law text -- traditional, historical, and methodological -- and that each approach has its own utility. He opts for<he "traditional, topical organization," holding it "to be the best vehicle for the pursuit of all the major themes" (p. xxvi). Using this schema, Gunther presents the material under three general headings: Part I, Judicial Function; Part II, Structure of Government; and Part III, Individual Rights. Parts I and II take up about a quarter of the book, with Part III -- curiously omitting criminal law issues and cases -- occupying the remainder.

The case coverage provided by Gunther borders on the encyclopedic. He includes most noteworthy cases via lengthy excerpts (denoted by boldface title, formal opinion presentation), brief excerpts (denoted by capitalized title, substantial opinion quotation), or citations (occasionally in opinions, usually in introductory or linking essays). The case presentation follows a traditional arrangement, and the three chapters on freedom of expression issues are first rate, as is the text's chapter (Part I) on "The Judicial Function in Constitutional Cases." Although one could quibble with the excerpt length of the selected cases -- for example, the CURTISS-WRIGHT opinion includes none of the historical analysis that undergirds its holding -- the major issues are clearly and comprehensively covered. I particularly liked his coupling of EX PARTE MCCARDLE with a discussion of U.S. V. KLEIN -- an important limiting case that most texts neglect. Also excellent is the coverage accorded the "state action doctrine." Surprisingly, however, his judicial power section does not contain a pointed discussion of the dimensions of activist and restraintist role orientations, and his treatment of "technical barriers" such as standing, mootness, ripeness, is put off until the last chapter of the book. Although one could assign the last chapter along with the first, joint textual treatment puts these difficult concepts in more pointed relief.

Gunther pays a price for his encyclopedic discussion of the areas of law he canvasses in some of his excerpting. A good example of these difficulties is his treatment of the religion clauses. Although noting most of the significant cases --

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conspicuously absent is extended analysis of BOARD OF EDUCATION V. ALLEN and WALZ V. TAX COMMISSIONER -- Gunther presents substantial excerpts of only seven cases (five establishment clause, two free exercise). Notably lacking are substantial extracts from the school prayer cases ENGEL V. VITALE, ABINGTON SCHOOL DISTRICT V. SCHEMPP, and WALLACE V. JAFFREE, and the "parochaid" cases LEMON V. KURTZMAN -- the genesis of the tripartite test that has "controlled" establishment clause litigation since 1971 -- COMMITTEE FOR PUBLIC EDUCATION V. NYQUIST, MEEK V. PITTINGER, WOLMAN V. WALTER, and COMMITTEE FOR PUBLIC EDUCATION V. REGAN. In the absence of extended coverage of some of these cases, the parochaid case Gunther chose for fuller excerpting -- MEULLER V. ALLEN -- hangs without context and, in large measure, content.

A fuller airing of at least some of the opinions in these cases is necessary to develop an understanding of the doctrinal confusion that characterizes establishment clause litigation and the shifting coalitions of justices that are responsible for it. In legalistic fashion, Gunther accounts for the holdings in these cases, but his treatment does little to allow students to see the constitutional values and political dynamics underlying them. The internal structure of the religion chapter compounds this problem. Eschewing a historical organization of the cases for a legally topical one, he artificially particularizes doctrinal developments as they evolved and shifted over time. For one approaching the Court as a political scientist rather than as a lawyer, Gunther's presentation of this area of law is ultimately unsatisfactory.

Much of the criticism noted above applies to the rest of this volume. The volume presents so much material, and assumes such a large store of prior knowledge about things constitutional, that I fear most undergraduates will get lost in the thicket of the law and never quite grab onto the cases that provide the law its structure and the Court its ongoing tradition and direction. The latter form the grist of an undergraduate course in constitutional law. A few other qualms include: fragmenting discussion of voting rights between two very different chapters (civil rights and technical barriers); splitting the discussion of pre-New Deal economic regulation cases between two chapters; and depreciating the Court's early treatment of contract clause litigation by only noting, not excerpting, FLETCHER V. PECK, DARTMOUTH COLLEGE V. WOODWARD, and CHARLES RIVER BRIDGE V. WARREN BRIDGE.

Gunther's CONSTITUTIONAL LAW is stunningly comprehensive. Save for the omission of any treatment of criminal law issues, the scope of its coverage is extensive; the legal analysis it provides is relevant and impressive; and the introductory and bridging essays it provides are wonderfully informative. (Note, for example, the timely section on "hate speech.") It stands -- for both students and professors -- as an excellent reference resource for cases and law review articles on selected topics. Indeed, it is not really as much a case law textbook, though it is that, as it is an introductory treatise on constitutional law. Its primary problem -- and problem is not REALLY the right word -- is that its coverage is so extensive and intensive that I think it would numb all but the most intelligent and persistent undergraduate students. Add to this the book's legalistic focus -- Gunther is, of course, a professor of law and not a social scientist -- and I think that many undergraduates would find themselves mired in legal minutiae and miss the political dimensions and ramifications of the Court's treatment of the issues that come before it. In form, style, and content, CONSTITUTIONAL LAW seems to me better suited for use in a graduate seminar or law school setting, or as a supplemental reference work for highly motivated undergraduates who wish to explore more fully particular facets of the law in which they have a keen interest.