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 --
Page 152 follows:
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.
Copyright 1992