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.
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. .