Professor Lobel premises his review on a flattering, but ultimately ill-chosen, comparison between my book and John Hart Ely's Democracy and Distrust: A Theory of Judicial Review. Both books, in his view, erroneously develop a "process-based theory of the Constitution," and must therefore answer the same, familiar objection: that "it is theoretically impossible to divide process from substance." Perhaps both books could be called "process-based" in the broad sense that each offers proposals to protect and improve the decision making processes of American governmental institutions. But there fruitful comparison largely ends. As its subtitle makes clear, Professor Ely's book sought to address Alexander Bickel's "counter-majoritarian difficulty" by endorsing a constitutional theory of judicial review that would limit courts to policing the processes of representative government. My book addresses a wholly different problem - the decline of our constitutional system of checks and balances in foreign affairs - and proposes an entirely different solution: legislative reform, through enactment of a framework statute (a "national security charter") to promote the balanced participation of all three branches of government in national security decision making.
Harold H. Koh,
Yale J. Int'l L.
Available at: https://digitalcommons.law.yale.edu/yjil/vol15/iss2/8