many—even those most sympathetic tornhis arguments—might well question hisrnbold assertion that Federalist 10 “impliesrnthere will be a single national interest”rnwhich “the framers believed” wouldrn”emerge . . . through the working of divinernintervention.”rnOf particular interest in Presser’s analysisrnof how the Court has strayed offrncourse is his treatment of the Brown decisions.rnHe maintains—correctly, in myrnview—that the Court in ordering thernstates to integrate acted ultra vires. Hernproperly faults Bork for contending thatrnthe constitutional justification for theserndecisions can be derived from the 14thrnAmendment. But Presser’s own treatmentrnof the Brown decisions is deficientrnon two matters which raise importantrnquestions about the Court that bear, albeitrnindirectly, on Presser’s proposals forrnrecapturing the Constitution.rnFirst, his assertion that the desegregationrndecisions can be “credited with facilitatingrnthe passage of the Civil RightsrnAct of 1964 and the Voting Rights Act ofrn1965,” though intended to presentrnsomething on the positive side in an otherwisernvery critical analysis of these decisions,rnis highly questionable. The mostrnsystematic study we have that measuresrnthe impact of major court decisions isrnGerald Rosenberg’s The Hollow Hope.rnAfter careful analysis of the impact of thernBrown decisions, Rosenberg finds no evidencernthat they hastened or otherwisernhelped the passage of either of these acts.rnThe more general point, long suspectedrnby students who have studied the impactrnof the Court’s prayer decisions andrnreinforced by Rosenberg’s more generalrnanalysis, is that the capacity of the Courtrnto effect intended and large-scale socialrnchange through its decisions is greatlyrnoverestimated. Conversely, as documentedrnby Graglia and others, thernSupreme Court has the demonstratedrncapacity to cause unintended andrnirreparable social damage on a massivernscale.rnSecond, contrary to what Presser intimates,rnWarren was not the moving forcernbehind the desegregation decisions. FelixrnFrankfurter played this role, his behind-rnthe-scenes maneuvering, when itrneventually came to light, raising ethicalrnconcerns even among the editors of thernNew York Times. Frankfurter’s role in thernBrown cases is astonishing in view of thernfact that he is still generally rememberedrnas the leading proponent of “judicialrnself-restraint.” Indeed, his dissent in thernBarnette case, with which Presser deals atrnsome length, ranks as perhaps the mostrneloquent defense of this doctrine. Historyrnwill now remember Frankfurter as thernfather of modern judicial activism becausernof his persistence in securing desegregationrnby judicial fiat in the absencernof any constitutional warrant. Butrnthe moral to be drawn from the episodernis clear enough, and it is supported by innumerablernless dramatic examples: inrnour discussions about the proper role andrnfunction of the Court in a republicanrnregime, we must never assume or take forrngranted that judges will behave in a principledrnmanner. On the contrary, wernshould assume the opposite.rnWhile most conservatives will findrnPresser’s “corrections” for the Court’srndecisions regarding race, religion, andrnabortion sensible, his final chapter is disappointingrnfrom almost any perspective,rnhi proposing amendments that wouldrnoverturn Court decisions in the areas ofrnprayer in the public schools, abortion,rnand discrimination as a way to recapturernthe Constitution, he is clearly dealingrnwith the symptoms of our constitutionalrndisorder, not their causes. Unless we canrnpermanently contain the judiciary,rnsomehow confine it to its proper sphere,rnwe have every reason to believe that inrndue course there will be judicial abusesrnin still other areas, so that succeedingrngenerations will have to go through thisrncorrective process over and over again.rnAt various points Presser seems to bernaware of the need for fundamentalrnchange to curb the judiciary. In ChapterrnFour, he remarks that “selective incorporation”rnis “an unprincipled usurpation ofrnlaw making power.” He believes that “Itrnought to be reexamined and rejected, asrneffectively obliterating federalism.” Wernare left to ask why he does not concernrnhimself with amendments that wouldrnachieve this objective, amendments thatrnwould go a long way toward effectivelyrnand permanently restoring the intendedrnrelationships between the componentsrnof our constitutional system. A betterrnquestion, and one that is clearly suggestedrnby Presser’s analysis, would be this;rnGiven the duplicity of the judges, givenrntheir propensity to ignore their constitutionalrnobligations, to distort the Framers’rnintent, and inter alia to thwart the legitimaternwill of deliberative majorities, whyrnshould we not amend the Constitutionrnto strip them of the power of judicial review?rnIn my judgment, given the provenrninsufficiency of constitutional checks onrnan irresponsible judiciary, this may wellrnbe the only way for the people to recapturernthe Constitution.rnGeorge W. Carey’s most recent book is InrnDefense of the Constitution, in a revisedrnand expanded edition (Liberty Press, Indianapolis).rnMissing thernObviousrnby Paul GottfriedrnThe Populist Persuasionrnby Michael KazinrnNew York: Basic Books;rn381 pp., $24.00rnMichael Kazin (editor of Tikkun,rnson of a New York man of letters,rnAlfred Kazin, and professor of history atrnAmerican University) has produced arnbook on populism which highlightsrnhis own concern: namely, that “left populism”rnis losing its appeal in America.rnFor Kazin this is a lost opportunity.rnAt the end of the last century, populistsrnIgnatius Donnelly, James Weaver,rnLeonidas Polk, the young Tom Watson,rnand William Jennings Bryan had a reputationrnfor being socially radical. ThernPeople’s Party and the populist Omaharnplatform of 1892 supported the extensionrnof public services, particularly in education,rnand proposed the socializationrnof railroads and utilities. How is it thatrnpopulism has become a “reactionary”rnforce, one that, in the words of KevinrnPhillips, is about “who hates whom”?rnKazin worries that at the present timernpopulism’s “assertion of resentmentsrnbased on class and status may be a barrierrnto constructing a new type of universalism.”rnInstead of “having compassionrnfor the poor and transplanted at homernand abroad,” populism “too easily becomesrna language of the dispirited, thernvengeful, and the cynical.”rnIn all fairness it should be said thatrnKazin does not hide the politically incor-rnTo order these books, (24hr$, 365 days)rnplease call (800) 962-6651 (Ext. 5200)rnJULY 1995/31rnrnrn