Democratic Contractualism and the Search for Equality
In earlier chapters I argued that the choice among competing theories of constitutional interpretation depends, in large part, on their philosophical foundations, in particular their assumptions about the purposes and justification of judicial review in a constitutional democracy. Each interpretive theory (except, of course, CLS, which rejects the possibility of theory in favor of pragmatism) seeks to show the Constitution as a reasonable effort to achieve worthy ends, so that theories of interpretation have what I termed a normative infrastructure. Constitutional interpretation and political philosophy are in that way bound together; interpretive theories cannot be judged independent of their normative, philosophical commitments.
Originalism and democratic proceduralism each stress the potentially antidemocratic features of judicial review, leading them to seek an account of constitutional interpretation that does not undermine self-government and that isolates judges from substantive political and moral debate. Originalism finds this judicial neutrality in the notion of an original contract, enforced by judges; proceduralism in the claim that the power of judicial review exists only to perfect the democratic process. Utilitarianism, however, rejects the claims that judicial review is limited to historical excavation of the framers' intentions or to perfecting democracy and with them the corresponding ideas that political legitimacy rests on an original social contract or on self-justifying democratic processes. Instead, claims the utilitarian, constitutional democracy seeks one basic goal: maximizing the total welfare of society.
But each of these theories fails. Originalism is not a workable theory, nor do its philosophical premises, as I have reconstructed them, withstand scrutiny; judicial review cannot reasonably be understood as a means to enforce the terms of the original social contract. Proceduralism and utilitarianism have also failed; the U.S. Constitution cannot reasonably be defended on the model of pure procedural justice, nor, I suggested, can utilitarianism give an adequate account of indi vidual dignity or the inherent fairness of democratic government. We are left,