The following is a response by William Gangi to the review of his book SAVING THE CONSTITUTION FROM THE COURTS.
 

In the December 1995 issue OF THE LAW AND POLITICS REVIEW William Mishler dismisses as "shopworn" and ultimately "(un)original and (un)convincing" the interpretivist position put forth in my book, SAVING THE CONSTITUTION FROM THE COURTS (1995). Your readers deserve a more extensive reply than is possible here, and in due course it will be published elsewhere. But for now the following comments may prompt your readers to reevaluate the merits of Mishler’s review.

Mishler’s first criticism is that the book is overly dependent on a "highly literal reading of the Federalist Papers" when in fact the founders did not act in a "unitary rational" manner and THE FEDERALIST PAPERS do not provide "a sincere statement of the framers’ constitutional philosophy and intent." But a pejorative use of the word "literal" does nothing to offset the fact that Publius understood the judicial role to be a limited one. Mishler offers no support for a competing view. Instead he injects the insincerity and the absence of a unitary actor criteria which, if logically pursued, would render our entire political process suspect and ultimately incomprehensible. Maybe Mishler is comfortable in that theoretical milieu, but the framers were not, and in fact, there is nothing incomprehensible about our daily experience of legislation being passed, executed, and interpreted. Mishler concedes that I acknowledged such issues but complains I dismissed them "out-of-hand." Given the ground covered in the book I think they received the attention they deserved. Let the reader decide.

Second, Mishler asserts that "the American republic was not founded on the framers’ commitment to popular sovereignty and majority rule." He goes further: alleging that "the design of the republic was not based on a single coherent political theory" and that our intricate checks and balances system was "INTENDED [curious usage given his rejection of the interpretivist position] to frustrate popular/majoritarian control of the public policy, not to promote it." The opposite stance taken in my book is described by Mishler as containing "a fundamental misconception of American constitutional theory." I disagree. Although Americans would accept no other system of government but a republican one, the framers pointed out that by their very nature popular governments were seriously flawed" Since they regularly injected public passion directly into public policy making, they always proved to be ineffective and unstable. Understanding that passion is difficult to sustain if delayed, the framers proposed a system of government which institutionalized delay. They also forthrightly explained that the price Americans would pay for adopting such a system could be delay in enacting even beneficent laws. What separates Mishler and me, therefore, is whether or not the framers’ concern for democratic excess can be reconciled with their commitment to popular sovereignty. I think they can be and I believe it is Mishler who holds a "fundamental misconception." Such issues, again, are for the reader to resolve.

Finally, Mishler chides me for not providing an empirical foundation for my charge that "the Courts are significantly countermajoritarian in practice." He points out that in fact "the most recent research" indicates that its decisions may "have been relatively more responsive to public opinion" than those of Congress or the President. Let’s put aside the fact that in the first paragraph of his review he concedes that just such a "‘countermajoritarian difficulty’ ... is widely described" in the literature. He missed the point: if my recounting of the framers’ understanding of the limits of judicial power is accurate, and if constitutionalism requires that all citizens and governmental branches respect that design until it is formally altered, then such research--whatever its merits--is irrelevant.

It would stand on no higher constitutional ground than, say, research which unequivocally establishes that three-year congressional terms would be more efficacious than two-year terms. Under the constitutional system adopted by our forefathers, the people and [THEY ALONE--not the judiciary] have the right to assess alleged system defects and to change the Constitution accordingly. Instead of either submitting to the design, or pursuing the proper channels for its reform, Mishler abandons the democratic republic and recommends a judicial oligarchy, embracing the very evil the framers’ studiously and wisely avoided (the injection of public passion into public policy making). Again, the reader may choose to weigh these and so many other claims and counter-claims discussed in my book.