Brennan and Democracy by Frank I. Michelman

By Frank I. Michelman

In Brennan and Democracy, a number one philosopher in U.S. constitutional legislation deals a few robust reflections at the notion of "constitutional democracy," an idea within which many have obvious the makings of paradox. the following Frank Michelman explores the it seems that conflicting commitments of a democratic governmental method the place key elements of such vital social concerns as affirmative motion, crusade finance reform, and abortion rights are settled no longer via a legislative vote yet by means of the selections of unelected judges. Can we--or should still we--embrace the values of democracy including constitutionalism, judicial supervision, and the guideline of legislations? to respond to this question, Michelman calls into carrier the judicial occupation of ultimate court docket Justice William Brennan, the country's version "activist" pass judgement on for the previous 40 years. Michelman attracts on Brennan's checklist and writings to indicate how the Justice himself may need understood the judiciary's function within the simultaneous advertising of either democratic and constitutional executive. the 1st bankruptcy activates us to mirror on how difficult and mild an act it really is for the participants of a society to aim dwelling jointly as a humans dedicated to self-government. the second one bankruptcy seeks to resume our appreciation for democratic liberal political beliefs, and contains an in depth remedy of Brennan's judicial evaluations, which areas them on the subject of opposing communitarian and libertarian positions. Michelman additionally attracts at the perspectives of 2 different well-liked constitutional theorists, Robert submit and Ronald Dworkin, to construct a provocative dialogue of even if democracy is better conceived as a "procedural" or a "substantive" excellent.

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But I want to say something stronger here than that the precept of unrestricted discourse, as it appears in responsive democracy theory, is a substantive social norm—a prescription for how to treat people (as free to speak), in view of their interests (in selfgovernment), not just for deciding how to treat them. I want to say it is a foundational substantive social norm. In responsive democracy theory, uncompromising obedience to the principle of unrestricted public discourse is a prerequisite for legitimate government, a requirement that all who espouse the theory must regard as beyond all debate and all possibility of revision.

It offers resolution of an apparent contradiction between two of our deepest (professed) political desires—for a government of laws, for self-government. His argument seems meant to reassure and persuade us that we really can reconcile a democratic aspiration to political self-government by everyone with the practice of letting a few judges decide the applied contents of the country’s basic laws. But I think the real, darker-hued, message is that there is no such reconciliation to be had. And this brings us back at last to the crushing logical objection I mentioned before, against the very idea that the contents of the laws of lawmaking could themselves be within the keeping of a democratic procedure to decide.

I want to say it is a foundational substantive social norm. In responsive democracy theory, uncompromising obedience to the principle of unrestricted public discourse is a prerequisite for legitimate government, a requirement that all who espouse the theory must regard as beyond all debate and all possibility of revision. 57 If responsive democracy theory does thus rest on a foundational proposition of substantive moral import, then maybe it is a closer cousin to Brennan’s apparent constitutional theory than we have yet noticed.

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