By Frank I. Michelman
In Brennan and Democracy, a number one philosopher in U.S. constitutional legislation deals a few strong reflections at the inspiration of "constitutional democracy," an idea during which many have visible 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 very important social concerns as affirmative motion, crusade finance reform, and abortion rights are settled now not via a legislative vote yet by means of the selections of unelected judges. Can we--or may still we--embrace the values of democracy including constitutionalism, judicial supervision, and the rule of thumb of legislations? to respond to this query, Michelman calls into carrier the judicial occupation of ideal courtroom Justice William Brennan, the country's version "activist" pass judgement on for the earlier 40 years. Michelman attracts on Brennan's list and writings to indicate how the Justice himself may have understood the judiciary's position within the simultaneous merchandising of either democratic and constitutional govt. the 1st bankruptcy activates us to mirror on how tricky and gentle an act it truly is for the participants of a society to try residing jointly as a humans dedicated to self-government. the second one bankruptcy seeks to resume our appreciation for democratic liberal political beliefs, and comprises an in depth therapy of Brennan's judicial critiques, which areas them in terms of opposing communitarian and libertarian positions. Michelman additionally attracts at the perspectives of 2 different famous constitutional theorists, Robert put up and Ronald Dworkin, to construct a provocative dialogue of no matter if democracy is healthier conceived as a "procedural" or a "substantive" perfect.
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Extra resources for Brennan and Democracy
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. I believe it is. But that, then, returns us to the question we have already raised, about how any political conception can claim to offer a medium for anyone’s, much less everyone’s, self-government in politically decidable matters, when it rests the legitimacy of government on the appearance in the basic laws of the country of a speciﬁc content that inhabitants are not free to reexamine and reject.
For example, many Americans ﬁnd that the Equal Protection Clause stands in democracy’s way when construed to prohibit race-conscious government action in the contemporary United States—whereas, needless to say, quite a few other people think exactly the opposite. —resolved in accord with the right or best conception of a democratic regime. 16 See Dworkin, Freedom’s Law, 16–18, 24–26; Ronald Dworkin, “Equality, Democracy, and Constitution: We the People in Court,” Alberta Law Review 28 (1990): 324–46.
56 See Fay v. S. 391 (1963). ) 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.