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Published online by Cambridge University Press: 01 August 2014
page 1215 note 1 Funston misclassifies one case. He lists Monongahela Navigation Co. v. U.S., 148 U.S. 312 (1893), as one which strikes down legislation within four years of enactment. In fact, however, the statute found unconstitutional here was passed in 1888 or five years earlier. He also omits two cases from his list altogether: Leary v. U.S., 395 U.S. 6 (1969), and O'Callahan v. Parker, 395 U.S. 258 (1969). Both are cited as declaring acts of Congress unconstitutional in Funston's only source book published after 1969, Kurland, Philip, Politics, The Constitution and the Warren Court (Chicago: University of Chicago Press, 1970), pp. 24–25Google Scholar, and are also so cited in The Constitution of the United States: Analysis and Interpretation (Washington: U.S. Government Printing Office, 1973), p. 1617Google Scholar. None of the laws struck down by these cases had been enacted within the preceding four years.
More serious is the author's miscounting. His realignment or critical periods constitute nine years rather than eight because they are inclusive of both election years. This inclusiveness is clear because the author includes cases from both the beginning and ending years in his computations of cases occurring in critical periods. Yet Funston explicitly says that there are only eight years per critical period (see, e.g., the commentary in his Table 2); moreover, his total number of critical years is 32 or four times eight. Thus the true denominator in his indices should be 36 and not 32 for the critical periods and 132 instead of 136 for the noncritical periods. The changed ratio of critical to noncritical years lowers the coefficients of counter-majoritarianism from 1.20 to 1.05 in his Table 2 and from 3.10 to 2.60 in his Table 3.
In making our calculations for this communication, we have used the same cases as Funston, a list of which he has kindly provided us. However, appropriate corrections have been made for the Monongahela case, and the Leary and O'Callahan cases have been added. In addition, in order to utilize critical periods of eight years as called for by Funston's research design, we have placed the first year of the realignment periods as he reports them (and the cases decided therein) in the noncritical period immediately preceding. Thus, Funston's inclusive nine-year period of 1928–1936 is replaced by the period 1929–1936; 1888–1896 by 1889–1896, and so on.
page 1216 note 2 See Frankfurter, Felix and Landis, James, The Business of the Supreme Court (New York: Macmillan, 1927), pp. 60 and 297Google Scholar, for data on the Court's cases in the periods cited. Opinion frequency from the New Deal era came directly from the U.S. Reports.
page 1217 note 3 In his Tables 4 and 5, Funston introduces and uses the concept of the lag period, but he combines the lag periods with the realignment period rather than making calculations for them separately. He describes two variations of the lag periods, neither of which coincide with our definition of it.
page 1219 note 1 I accepted Dahl's and Burnham's evidence and assumptions for purposes of replication. But the work of both has recently been subjected to serious criticism. Casper, Jonathan D., “The Supreme Court and National Policy Making,” American Political Science Review, 70 (March, 1976), 50–63CrossRefGoogle Scholar; James, Dorothy Buckton, Book Review, Political Science Quarterly, 91 (Spring, 1976), 147–148CrossRefGoogle Scholar. It is far too facile, however, for me simply to observe that Professors Canon's and Ulmer's quarrel lies with others than myself. I shall, therefore, attempt to respond to the more important of their specific objections.
page 1219 note 2 Dahl, Robert, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law, 6 (Fall, 1957), 279–295, 287 n. 11Google Scholar.
page 1219 note 3 Pritchett, C. Herman, The American Constitution, 2nd edition (New York: McGraw-Hill, 1968), p. 166Google Scholar, and The Constitution of the United States of America, Sen. Doc. no. 39, 88th Cong., 1st sess. (Washington, D.C.: U.S. Gov't Printing Office, 1964), pp. 1387–1402Google Scholar, report that sixty-five laws were voided by 1937. On the other hand, Professor Abraham identifies seventy-six; Abraham, Henry, The Judicial Process, 3rd edition (New York: Oxford, 1975), pp. 288–291Google Scholar. Even for more recent decisions there is no agreement; thus, Professor Casper states that for the period 1958–74 there have been 28 instances of the exercise of the power of judicial review, while Professor Dionisopoulos counts thirty-two. Casper, , “The Supreme Court and National Policy Making,” pp. 53–54Google Scholar; Dionisopoulos, Allan, “Judicial Control of Congress,” (paper, Department of Political Science, Northern Illinois University, 1976)Google Scholar.
page 1219 note 4 395 U.S. at 36.
page 1219 note 5 395 U.S. at 274 (Harlan, J., dissenting).
page 1220 note 6 Neither did Casper, “The Supreme Court and National Policy Making,” include O'Callahan as an example of the exercise of the power of judicial review.
page 1220 note 7 See also Casper, , “The Supreme Court and National Policy Making,” p. 56Google Scholar.
page 1220 note 8 Adamany, David, “Legitimacy, Realigning Elections, and the Supreme Court,” Wisconsin Law Review (September, 1973), pp. 790–846Google Scholar.
page 1220 note 9 Goldman, Sheldon and Jahnige, Thomas P., The Federal Courts as a Political System (New York: Harper & Row, 1971), pp. 261–268Google Scholar; Nagel, Stuart S., The Legal Process from a Behavioral Perspective (Homewood, Ill.: Dorsey, 1969), pp. 245–279Google Scholar.
page 1220 note 10 E.g., Mendelson, Wallace, “Judicial Review and Party Politics,” Vanderbilt Law Review, 12 (March, 1959), 447–457Google Scholar; Roche, John, Courts and Rights (New York: Random House, 1961), pp. 22–24, 46Google Scholar.
page 1220 note 11 Adamany, , “Legitimacy, Realigning Elections, and the Supreme Court,” p. 824Google Scholar.
page 1221 note 1 See Banzhaf, John, “One Man, 3.312 Votes: A Mathematical Analysis of the Electoral College,” Villanova Law Review, 13 (Winter, 1968), 304–332Google Scholar.
page 1221 note 2 See p. 85 of Shapley, Lloyd S., “Political Science: Voting and Bargaining Games,” pp. 37–92Google Scholar in Notes of Lectures on Mathematics in the Behavioral Sciences: Lectures Given at the 1973 MAA Summer Seminar at Williams College, Williamstown, Massachusetts. Notes by Selby, Henry A., Mathematical Association of America, 1973Google Scholar.
page 1222 note 3 See Banzhaf, p. 308.
page 1222 note 4 See Owen, Guillermo, “Political Games,” Naval Research Logistics Quarterly, 18 (Sept., 1971), 345–355CrossRefGoogle Scholar. This is also discussed at pp. 76–78 of Shapley.
page 1224 note 1 These comments refer principally to the first part of Achen's paper, to p. 1226; most of them apply as well to his multiple regression analysis, pp. 1227ff., but the latter does assume heterogeneity. This is purchased at the considerable price of assuming each random variable is realized only once (all sample sizes are one), introducing—obviously—a really desperate problem of sampling variation and estimation. It seems to me almost incredible that anyone would use estimates derived under such assumptions as the dependent variable in a multiple regression, but the whole issue is mooted by the fundamental problems in Achen's model that are discussed below. The sampling problem itself is considered in some detail in the Hunter and Coggin letter.
page 1226 note 1 Converse, Philip, “The Nature of Belief Systems in Mass Publics,” Ideology and Discontent, ed. Apter, David E. (New York: Free Press, 1964), pp. 206–61Google Scholar. Also Converse, Phillip, “Attitudes and Nonattitudes: Continuation of a Dialogue,” The Quantitative Analysis of Social Problems, ed. Tufte, Edward R. (Reading, Mass.: Addison-Wesley, 1970), pp. 168–89Google Scholar.
page 1227 note 2 Erikson, Robert S., “The SRC Panel Data and Mass Political Attitudes,” presented at the 1975 Annual Meeting of the American Political Science Association in San FranciscoCrossRefGoogle Scholar.
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