Reconstituting We the People: Frederick Douglass and Jürgen Habermas in Conversation

By Gowder, Paul | Northwestern University Law Review, January 1, 2019 | Go to article overview

Reconstituting We the People: Frederick Douglass and Jürgen Habermas in Conversation


Gowder, Paul, Northwestern University Law Review


Introduction

This Article reaches into the history of Black American constitutional thought to offer an account of constitutional democratic theory that can explain why we ought to treat our Constitution as meaningful, even in the face of the profoundly unjust exclusions woven deeply into its fabric. In order to do so, it operates in three methodological domains. First is "constitutional theory," the discipline within law schools focusing on the question of how governments and democratic citizens ought to respond to their constitutions: should they be obeyed? How should they be interpreted? Second is "democratic theory," the discipline within philosophy and political science departments focusing on the question of what a government must look like in order to be described as "democratic." I contend that the core debates of constitutional theory depend on implicit (and false) assumptions of democratic theory. Third is "intellectual history," in particular, the history of the responses of Black American activists and scholars to the concentric series of exclusions (slavery, Jim Crow, mass incarceration) that have comprised the relationship of Black Americans to their government.1

This Article argues that the best way to resolve the perennial debates about the American Constitution's compatibility with the ideals of democracy is to borrow from two sources: (1) the civic republican constitutional patriotism associated, inter alios, with constitutional theorists Jürgen Habermas, Bruce Ackerman, Seyla Benhabib, and Frank Michelman and (2) Black American thought about the American Constitution and American democracy. From the constitutional patriots comes the idea that constitutions are normatively prior to democratic legitimacy and not-as most constitutional theory implicitly assumes-the other way around. From Frederick Douglass, Ralph Ellison, Patricia Williams, and other Black American democratic and constitutional thinkers comes the idea that there is a way to treat an unjust, exclusionary constitution as democratically legitimate in potentia and bootstrap it into legitimacy via the efforts of those who struggle for inclusion.2

The argument of this Article proceeds in three Parts.

Part I describes the conventional, if implicit, theory of popular sovereignty on which the core debates around the countermajoritarian problem in constitutional theory have revolved. This theory, which I call the "mechanical conception," supposes that popular will-formation must precede political outcomes and hence that legal acts that either resist the popular will or are enacted without its pre-approval-including judicial review-cannot be democratically legitimate. Part I then demonstrates that this theory of popular sovereignty cannot serve to describe the preconditions of democratic legitimacy.

Part II elucidates the main alternative to the conventional theory of popular sovereignty. This alternative theoretical framework, which I call the "constitutional conception," is associated with the work of scholars in the tradition of civic republican constitutional patriotism. It can explain how a constitution like ours can both constitute and be the product of an ongoing cross-generational public identity. That identity-the We the People or demos-in turn, can make the Constitution compatible with the ideal of popular sovereignty. Unfortunately, Part II also shows that such a theory cannot justify our actual Constitution and our government in the real world because our real-world Constitution has been marred by antidemocratic exclusion, particularly, although not exclusively, of Black Americans. For that reason, there is no We the People-the American demos has never been properly constituted.

Finally, Part III draws out one response to that exclusion from a rich history of Black American constitutional and democratic commentary. It argues that even though the Constitution cannot be justified, we can find in this tradition of thought some reason to act as if it is justified, in the course of a continuing struggle to achieve the demos envisioned, in incomplete form, by the Constitution. …

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