Must Constitutional Democracy Be "Responsive"?

Ethics

Volumn 107, Issue 4, 1997, Pages 706-723

  Michelman, Frank I ^a  

^a NONE

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EID: 0043046501     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/233767     Document Type: Review

References (37)

1. See, e.g., the amendment procedures prescribed by Article V of the Constitution of the United States.
2. See Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (New York: Harper, 1960), p. 26; also quoted in Post, pp. 270, 272.
3. See New York Times v. Sullivan, 376 U.S. 254 (1964).
4. In Meiklejohn's famous words (Political Freedom, p. 26), recalled by Post (p. 270), "What is essential is not that everybody shall speak, but that everything worth saying shall be said."
5. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
6. A priori ascription of subjective autonomy to individuals, Post adds, is "a transcendental precondition" for the possibility of "democratic self-determination" and thus marks "the boundaries of our commitment" to self-government through democracy (pp. 283-84).
7. See Frank Michelman, "Law's Republic," Yale Law Journal 97 (1988): 1493-1537, p. 1500.
8. See Ronald Dworkin, Freedom's Law (Cambridge, Mass.: Harvard University Press, 1996), pp. 19-20.
9. For leading contemporary work on epistemic theories of democracy, see David Estlund, "Making Truth Safe for Democracy," in The Idea of Democracy, ed. David Copp, Jean Hampton, and John E. Roemer (Cambridge: Cambridge University Press, 1993), pp. 70-100, and "Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority," in Deliberative Democracy: Essays on Reason and Politics, ed. James Bohman and William Rehg (Cambridge, Mass.: MIT Press, 1997).
10. For leading contemporary work on epistemic theories of democracy, see David Estlund, "Making Truth Safe for Democracy," in The Idea of Democracy, ed. David Copp, Jean Hampton, and John E. Roemer (Cambridge: Cambridge University Press, 1993), pp. 70-100, and "Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority," in Deliberative Democracy: Essays on Reason and Politics, ed. James Bohman and William Rehg (Cambridge, Mass.: MIT Press, 1997).
11. "Ultimate" is important. Epistemic theory has nothing to say against the possibility that when "ultimate" constitutional lawmaking builds democratic features into a subsidiary lawmaking system that it constitutes, it does so out of regard for people's self-government interests. It is the morally mandatory democratic character of the "ultimate" lawmaking system itself that epistemic theory seeks to explain by reference to the truth-seeking or justice-seeking properties of a democratic system.
12. See the discussion below of Ronald Dworkin's recent writings.
13. Dworkin, Freedom's Law, p. 200.
14. Here the idea of responsive democracy is called "a hermeneutic apprehension of the meaning of our democratic institutions."
15. See p. 306, comparing our free-expression doctrine with those of other countries.
16. The perception of a linkage between "changing ourselves" and "changing our legal order" is expressed at p. 291.
17. "In public" is a crucial qualification, but we have to reserve for a moment the question of what it means.
18. The following account is freely adapted from my "Universities, Racist Speech, and Democracy in America: An Essay for the ACLU," Harvard Civil Rights-Civil Liberties Law Review 27 (1992): 339-69, pp. 347-52.
19. See, e.g., Ruth Colker, "Anti-Subordination Above All: Sex, Race, and Equal Protection," New York University Law Review 61 (1986): 1003-66; Owen Fiss, "Groups and the Equal Protection Clause," Philosophy & Public Affairs 5 (1976): 107-77.
20. See, e.g., Ruth Colker, "Anti-Subordination Above All: Sex, Race, and Equal Protection," New York University Law Review 61 (1986): 1003-66; Owen Fiss, "Groups and the Equal Protection Clause," Philosophy & Public Affairs 5 (1976): 107-77.
21. See, e.g., Charles R. Lawrence III, "If He Hollers Let Him Go: Regulating Racist Speech on Campus," Duke Law Journal (1990): 431-83, pp. 438-49.
22. "Groups neither reason nor have an autonomous will; only persons do. This is the source of the profound individualism that characterizes First Amendment doctrine" (p. 306).
23. For my own contribution in this vein, see Frank I. Michelman, "Conceptions of Democracy in American Constitutional Argument," Tennessee Law Review 56 (1989): 291-319.
24. See Ronald Dworkin, Freedom's Law, pp. 21-22. Dworkin's writings do also - not inconsistently, that I can see - appeal to a responsive-democratic vein in American constitutionalism. See Ronald Dworkin, "The Curse of American Politics," New York Review of Books 43 (1996): 19-24, invoking a "premise of democracy" to the effect that "citizens must be able, as individuals, to participate on equal terms in both formal politics and in the informal cultural life that creates the moral environment of the community" (p. 21). He adds, "To achieve [the] sense of a national partnership in self-government," a community must provide institutions that allow individuals to "make a contribution to [public life] even when their views do not prevail" (p. 23).
25. See Ronald Dworkin, Freedom's Law, pp. 21-22. Dworkin's writings do also - not inconsistently, that I can see - appeal to a responsive-democratic vein in American constitutionalism. See Ronald Dworkin, "The Curse of American Politics," New York Review of Books 43 (1996): 19-24, invoking a "premise of democracy" to the effect that "citizens must be able, as individuals, to participate on equal terms in both formal politics and in the informal cultural life that creates the moral environment of the community" (p. 21). He adds, "To achieve [the] sense of a national partnership in self-government," a community must provide institutions that allow individuals to "make a contribution to [public life] even when their views do not prevail" (p. 23).
26. See Dworkin, Freedom's Law, pp. 23-26.
27. See, e.g., ibid., chaps. 8-9, and Dworkin, "The Curse of American Politics," p. 21.
28. See, e.g., ibid., chaps. 8-9, and Dworkin, "The Curse of American Politics," p. 21.
29. Also nonepistemic, if it matters, is Dworkin's identificational conception of democracy. To be sure, this conception implies substantive preconditions of democratic legitimacy, which must thenceforward stand as gauges of political rightness for all devotees of democracy. Dworkin's conception does not, however, place any weight on democracy's possible virtue as a mechanism for discovering or clarifying these conditions (which are, rather, regarded as discoverable by anyone exercising powers of right reason) or in any other way attribute a truth-finding virtue to popularly based lawmaking procedures. According to Dworkin's identificational conception, the virtue of democratic procedures is their representation of an imaginable self-governing being - a people or citizenry - through which individuals can, on certain substantive-legal conditions, find fulfillment of their own interests in positive freedom by identifying their own political agency with its political acts.
30. But see also the important works of David Estlund.
31. I have also attempted somewhat more refined and extended treatments of the same material. See Frank I. Michelman, "How Can the People Ever Make the Laws?" in Bohman and Rehg, eds., and review of Between Facts and Norms, by Jürgen Habermas, Journal of Philosophy 93 (1996): 307-15.
32. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, Mass.: MIT Press, 1996), pp. 107, 459.
33. Ibid., pp. 447-48, 566, n. 15.
34. Ibid., pp. 447-48.
35. Ibid., p. 33.
36. See Sec. I above.
37. Rather, according to Habermas (pp. 288-89), we rely for deliberative-democratic legitimation on a somewhat mechanistic "interplay" between formal organs of democratic "will-formation" (majoritarian legislative assemblies) and informal arenas of democratic "opinion formation" (civil society).