Brennan and Democracy

Brennan and Democracy

Brennan and Democracy

Brennan and Democracy

Synopsis

In "Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government.

The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living

Excerpt

In American law schools today, cheek-by-jowl with the study and teaching of constitutional law, you find a sibling branch of academic exertion called “constitutional theory.” What's the difference?

It all starts with judicial review, that noteworthy practice of American government by which unelected judges hear and decide cases of complaint—“it's unconstitutional”—against laws enacted by electorally accountable legislatures. Unmistakably, these are legal cases, in which judges explain and justify their decisions with the same sorts of arguments about the best interpretations of legal texts and precedents that lawyers use in urging the decisions they favor. How much these legal arguments cause the decisions of judges and how much they merely decorate them is unknown. What is clear is that many people think it practically worthwhile to acquire a professional, insider knowledge of the materials— the legal texts, precedents, and doctrines—to which lawyers and judges refer in these cases, along with knowledge of the conventional codes and understandings that guide and ease professional exchange about the materials, the history of professional debate about their origins and meanings, and the relevant dispositions toward them of currently sitting judges. Such knowledge can become subtle and deep. Acquiring, refining, and conveying it is the business of the academic field of constitutional law. But then what is left for “constitutional theory?”

Most people who study constitutional law with much seriousness do so with the purpose of getting good at doing it as . . .

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