Vol. 5 No. 12 (December, 1995) pp. 289-293
SAVING THE CONSTITUTION FROM THE COURTS by William Gangi. Norman,
Oklahoma: University of Oklahoma Press, 1995. xxiii + 326 pp.
Cloth $45.00.
Reviewed by William Mishler, Department of Government and
International Studies, University of South Carolina.
The role of the Supreme Court in national policymaking has long
excited controversy in American democratic theory. Constitutional
scholars agree that the Court exercises considerable influence
over public policy, but controversy surrounds the propriety of an
unelected and, therefore, putatively "undemocratic"
institution exercising significant power in a democratic society.
This is widely described as the "countermajoritarian
difficulty;" by nullifying policies initiated by duly
elected representatives, the Court is assumed to vitiate the will
of the people and violate the most fundamental principles of
democracy, popular sovereignty and majority rule.
SAVING THE CONSTITUTION FROM THE COURTS is the latest
contribution to a fundamentally normative debate about the proper
role of the courts in American democracy. As the book's title
makes clear, William Gangi, Professor of Government and Politics
at St. Johns University, joins the debate on the side of those
critical of an activist Court. In a passionate and frequently
personal argument -- as much polemical as analytical -- Gangi
accuses the Court of usurping the authority of the elected
branches and depriving the American people of their democratic
birthright.
The central thesis of the book is familiar: the history of the
Court has been one of ever expanding judicial power, increasingly
both illegitimate and destructive of the public's control over
public policy. In Gangi's words, the most important right secured
for Americans by the revolution and enshrined in the Constitution
is "the people's right to decide what public policies are
conducive to the public good..." (p. xiii). Citizens must
recognize, however, that, "fidelity to the framers'
intention is the price Americans must accept for being able to
govern themselves..." (p. xv). Therefore, the Supreme
Court's "duty to interpret the Constitution is circumscribed
by the Court's obligation to discern, submit to, and apply the
clearly discernible intentions of the framers." (p. xvi).
Unfortunately, according to Gangi, the Court has abdicated its
responsibility to the founders' intent, succumbing to the
'noninterpretivist' temptation to deconstruct the Constitution
according to what Gangi sees as increasingly outlandish social
and economic theories.
Gangi develops his argument in sections. He begins by reviewing
what he understands to be the framers' political philosophy,
their critique of the Articles of Confederation and their
constitutional design for the new republic. In his highly literal
reading of the Federalist Papers, the Supreme Court was endowed
with strictly limited authority to nullify only those laws
clearly contrary to the language of the Constitution as the
founders understood and intended that language. To demonstrate
that his understanding of the constitutional role of the Court is
correct, Gangi reviews six early cases from MARBURY V. MADISON
(1803) to DRED SCOTT V. SANFORD (1856) arguing that members of
those early Courts hewed closely to the founders' design,
accepting their responsibility to interpret the Constitution and
renouncing the temptation to substitute personal policy
preferences, ethical principles or moral values for the founders'
clearly discernable intentions.
Following the Civil War, however, the political restraint of the
Court began to crumble. Seduced by social Darwinist ideas, the
Court began to 'discover' new meanings for old phrases in the
Constitution creating a range of natural economic rights, which
were substantive rather than procedural, and which contradicted
the clearly discernible intentions of the founders. Although
undesirable in its own right, the more dangerous and far reaching
consequence of the Court's promotion of an extra-constitutional,
laissez-faire philosophy, according to Gangi, was that it
legitimized the subsequent use of noninterpretivist theories and
doctrines by later Courts in many other areas. Over time, this
perversion of judicial power has infected both liberal and
conservative courts including the Warren, Burger, and even
Rehnquist Courts.
In the middle sections of the book, Gangi leaves the philosophy
and history of the Court and undertakes an extended defense of
interpretivist methods. The arguments advanced are familiar, but
little by way of original insights or evidence are presented.
Those predisposed to agree with the argument likely will do so;
those otherwise predisposed likely will find the arguments
unconvincing, perhaps even a bit shopworn. Gangi's subsequent and
spirited attack on noninterpretivist methods, which apparently
including all attempts to discern constitutional meaning that do
not rely on a strict construction of the Federalist Papers, is
similarly (un)original and (un)convincing.
In the concluding sections, Gangi proposes a strategy for
limiting judicial policymaking and restoring self-government.
This consists mostly of urging citizens to insist that their
legislators legislate responsibly and judges adjudicate with
restraint, removing from office any who depart from this strict
interpretivist path. Further, "constitutional scholars must
accept as their primary obligation their duty to inquire into the
ratifiers' intentions, and ... put aside their personal beliefs
(including religious) and assumptions..." (p. 269). In this
way, apparently, scholars can create a climate of opinion which
will encourage judicial fidelity to the framers' intentions.
The debate over the role of the Supreme Court in American
democracy is an important one and warrants serious attention. It
raises a variety of both normative and empirical questions about
American democratic theory and political practice. Unfortunately,
SAVING THE CONSTITUTION FROM THE COURTS does little to advance
understanding of the normative debate and ignores empirical
issues altogether.
A principal problem with the thesis of this volume is that it is
based on a fundamental misconception of American constitutional
theory. Contrary to the opening declaration of this volume, the
American republic was not founded on the framers' commitment to
popular sovereignty and majority rule. Although it is possible to
cite federalist scripture in support of this conception,
examination both of the policymaking institutions and processes
provided by the Constitution and of the minimal opportunities
accorded citizens to participate even indirectly in these
processes clearly contradicts the claim. The popular/majoritarian
language of the Federalist Papers cannot be reconciled with the
countermajoritarian essence of constitutional structures.
Evidence of the countermajoritarian structure of the Constitution
is bountiful and consists, inter alia of the division of
policymaking power among separate branches each with an effective
veto over the actions of the others, the further division of the
legislative power between competing houses of Congress, the
indirect election of the President, the appointment of the
Supreme Court by the President, the appointment of the Senate by
the states, and the strict limitations on the terms and powers of
the one elected institution, the House of Representatives. Surely
these features were intended to frustrate popular/majoritarian
control of public policy, not to promote it.
Popular sovereignty and majority rule are central concepts in
classical theories of democracy. They also are fundamental to
most contemporary conceptions of American democracy. They were
not, however, fundamental to the founding conception. Thus,
Gangi's repeated admonition to adhere strictly to the clearly
discernable intentions of the founders is contradicted from the
opening paragraphs of the introduction, by his own
noninterpretivist insistence that the founders established the
Constitution on the principles of popular sovereignty and
majority rule.
This criticism of Gangi's thesis is not original, of course. The
idea that American government was founded not on majoritarian but
on minoritarian principles, or what Robert Dahl describes as
"minorities rule," is a staple in the literature on
American democratic thought, a literature largely ignored or
reduced to caricature in Gangi's analysis. Although SAVING THE
CONSTITUTION FROM THE COURTS is heavily footnoted, the range of
citations is extremely narrow. Gangi's argument relies on
legalistic analyses to the virtual exclusion of more
philosophical and empirical work. Even then, it incorporates a
surprisingly limited range of legal research. Dahl, Bickel,
McClesky, Pritchett, Glaser, Ely, Commager, Mason, and Lowi are
just a few of the myriad scholars who have contributed important
ideas to this debate but whose names are missing from the index
and whose contributions receive short shrift, if they are
recognized at all.
Gangi misinterprets the founders intentions, in part, because he
relies almost entirely on a literal reading of the Federalist
Papers for evidence. Moreover, he treats the founders as if they
were a unitary rational actor, and he approaches the Federalist
Papers as if they provided a sincere statement of the framers'
constitutional philosophy and intent. The founders, however, were
not of a single mind on constitutional issues. Their views
reflected the diversity of their personal and political
interests. As a result, the design of the republic was not based
on a single, coherent political theory. Rather the Constitution
emerged from a series of compromises among competing interests
and philosophies. Moreover, one need not subscribe to a
conception of the founders' as anti-democratic co-conspirators to
accept that the founders were skilled politicians driven as much
by political pragmatism as political ideal. In contesting and
constructing constitutional language and in defending the final
compromise to a skeptical public, the founders almost certainly
engaged in strategic behavior or what Riker (1984) calls
"heresthetics," disguising their sincere beliefs where
necessary to promote desired outcomes. Among other consequences,
this conception of the founders undermines Gangi's interpretivist
faith that constitutional meanings can be clearly discerned from
a literal reading of the Federalist Papers or even from the
constitutional debates as reported by Madison or recalled by
other participants. This, again, is a standard criticism of the
interpretivist credo. It is only briefly acknowledged by Gangi
and then dismissed out-of-hand.
Even if the Federalist Papers provided an authoritative statement
of the sincere intentions of the delegates to the constitutional
convention, it is not obvious that those who wrote the
Constitution should be accepted as the authoritative 'founders'
of the republic whose clearly discernable intentions
interpretivists should follow. Gangi acknowledges that there are
several distinct groups whose 'understandings' of the
Constitution compete for political authority. Throughout most of
his argument, Gangi identifies the authoritative founders as the
delegates to the constitutional convention and, in particular,
the federalist supporters of the final document. In other places,
however, he acknowledges that those who attended state ratifying
conventions or voted in favor of the Constitution at those
conventions also could be considered as founders. In still other
places he indicates that, ultimately, the authoritative founders
were the American citizens who acquiesced in the establishment of
the new republic or participated in the election of delegates to
the ratifying convention. It is not clear, of course, how we can
discern the intentions of these latter groups -- most of whose
members have not left a written legacy of their constitutional
understandings. Neither is it evident how to reconcile the
possibly contradictory understandings that these different
founding groups might have had. Gangi does not appear not to
appreciate the import of this problem.
Finally, SAVING THE CONSTITUTION FROM THE COURTS is based on the
strong and wholly unsubstantiated empirical assumption that the
Courts are significantly countermajoritarian in practice. At the
very least, Gangi accepts Choper's argument that the Courts are
substantially less majoritarian than either of the 'elected
branches', Congress or the president. Gangi's assumptions in this
regard are commonplace among judicial scholars, but they
contradict a growing literature which is nowhere acknowledged in
this discussion. As Dahl (1957: 293) observed in his classic
study, the Supreme Court has only rarely overturned the policies
of extant law-making majorities in Congress and the presidency.
Throughout its history, except for brief periods following
political realignments, "the Supreme Court is inevitably a
part of the dominant political alliance .. [and] supports the
major polices of the alliance." Although Dahl's work has
provoked challenges, subsequent studies have served more to
temper and refine Dahl's basic insight than to rehabilitate the
Courts' reputation for countermajoritarianism.
More recently, considerable work has examined the relationship
between public opinion and the Court's decisions. Almost without
exception this research has found not only that the vast majority
of the Court's decisions are congruent with public opinion at the
moment (Marshall, 1989) but also that the Court is substantially
responsive to fundamental changes in public opinion over time.
Indeed, the most recent research indicates that, for much of the
past forty years, the Court may have been the MOST majoritarian
of American policymaking institutions in that its decisions have
been relatively more responsive to public opinion than those of
the president or either house of Congress (Mishler and Sheehan,
1995, but see Stimson, 1995). The suggestion is that this is
because the structure of American elections can substantially
distort the representative relationship. This is the result of
electoral structures and practices such as gerrymandering, the
electoral college, single member districts and plurality voting,
limited turnout, primary elections, the impact of money and
media, among myriad other factors. Ironically, the relative
insulation of the Court from electoral pressures may make it
relatively less responsive to the special interest that dominate
electoral finance and therefore relatively better able to respond
to broader public interests. Importantly, none of this empirical
literature is incorporated into Gangi's analysis.
SAVING THE CONSTITUTION FROM THE COURTS advances a passionate and
provocative argument concerning the role of the Supreme Court in
American democracy. Regrettably the argument is based on a series
of fundamental misconceptions both normative and empirical about
American democratic theory and political practice from which not
even passion can redeem it.
REFERENCES:
Dahl, Robert. 1957. Decisionmaking in a Democracy: The Supreme
Court as a National Policymaker. JOURNAL OF PUBLIC LAW 6:279-95.
Marshall, Thomas. 1989. PUBLIC OPINION AND THE SUPREME COURT. New
York: Longman.
Mishler, William and Reginald Sheehan. 1995. The U.S. Supreme
Court and American Democracy: The Unelected and Therefore Most
Democratic Branch? Paper presented at the American Political
Science Association Meetings, Chicago.
Riker, William H. 1984. The Heresthetics of Constitution Making:
The Presidency in 1787, with Comments on Determinism and Rational
Choice. AMERICAN POLITICAL SCIENCE REVIEW 78: 1-16.
Stimson, James A. Michael B. MacKuen, and Robert S. Erickson.
1995. Dynamic Representation. AMERICAN POLITICAL SCIENCE REVIEW
89:543-65. .
Copyright 1995