Brian E. Butler
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9780226474502
- eISBN:
- 9780226474649
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226474649.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book takes the greatest democratic challenge for law to be the virtually unquestioned belief in the need for judicial supremacy in constitutional interpretation in order to protect society from ...
More
This book takes the greatest democratic challenge for law to be the virtually unquestioned belief in the need for judicial supremacy in constitutional interpretation in order to protect society from the tyranny of the majority. This is examined in the form offered by Chemerinsky in The Case Against the Supreme Court. Using the pragmatist theories of John Dewey and Charles Sanders Peirce a construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism” is offered as an alternate. This conception requires law to be practiced as a democratic means because of Dewey’s demand that democracy can only be properly pursued through democratic means. The democratic aims outlined are also informed experimentalist procedure. Through utilization of work of Michael Dorf, Charles Sabel, Oliver Wendell Holmes and Richard Posner it is argued that a jurisprudence of democratic experimentalism can offer a version of constitutional law that is democratic “all the way down.” A jurisprudence of democratic experimentalism emphasizes a decentered conception of law based upon localized rulemaking, and sees the role of the court system as more about coordination and information pooling than ultimate and foundational rulemaking. A Court practicing democratic experimentalism would have avoided various mistakes exemplified in many of the Courts great antiprecedents. Finally, “sociable contract theory” was offered to conceptually frame the evolutionary and non-foundational qualities of a constitutional regime based upon democratic experimentalism. In democratic experimentalism law becomes a flexible and evolving tool engaged in the construction of ever more democratic practices.Less
This book takes the greatest democratic challenge for law to be the virtually unquestioned belief in the need for judicial supremacy in constitutional interpretation in order to protect society from the tyranny of the majority. This is examined in the form offered by Chemerinsky in The Case Against the Supreme Court. Using the pragmatist theories of John Dewey and Charles Sanders Peirce a construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism” is offered as an alternate. This conception requires law to be practiced as a democratic means because of Dewey’s demand that democracy can only be properly pursued through democratic means. The democratic aims outlined are also informed experimentalist procedure. Through utilization of work of Michael Dorf, Charles Sabel, Oliver Wendell Holmes and Richard Posner it is argued that a jurisprudence of democratic experimentalism can offer a version of constitutional law that is democratic “all the way down.” A jurisprudence of democratic experimentalism emphasizes a decentered conception of law based upon localized rulemaking, and sees the role of the court system as more about coordination and information pooling than ultimate and foundational rulemaking. A Court practicing democratic experimentalism would have avoided various mistakes exemplified in many of the Courts great antiprecedents. Finally, “sociable contract theory” was offered to conceptually frame the evolutionary and non-foundational qualities of a constitutional regime based upon democratic experimentalism. In democratic experimentalism law becomes a flexible and evolving tool engaged in the construction of ever more democratic practices.
Brian E. Butler
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9780226474502
- eISBN:
- 9780226474649
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226474649.003.0001
- Subject:
- Law, Constitutional and Administrative Law
In overview, this book constructs a picture of law as a democratic means. This is constructed in opposition to a picture of constitutional law centered upon the protection of minorities from the ...
More
In overview, this book constructs a picture of law as a democratic means. This is constructed in opposition to a picture of constitutional law centered upon the protection of minorities from the majority. Through an analysis of cases such as Brown, Citizens United, Lochner and Obergefell, a jurisprudence of democratic experimentalism is utilized to offer a more democratic conception of constitutional law. Inspired by the pragmatism of Peirce and Dewey, and informed by the work of Dorf and Sabel, as well as Oliver Wendell Holmes and Richard Posner, the aim is to make attractive a conception of constitutional law that is democratic, experimental, and based in empirical fact rather than legalistic reasoning.Less
In overview, this book constructs a picture of law as a democratic means. This is constructed in opposition to a picture of constitutional law centered upon the protection of minorities from the majority. Through an analysis of cases such as Brown, Citizens United, Lochner and Obergefell, a jurisprudence of democratic experimentalism is utilized to offer a more democratic conception of constitutional law. Inspired by the pragmatism of Peirce and Dewey, and informed by the work of Dorf and Sabel, as well as Oliver Wendell Holmes and Richard Posner, the aim is to make attractive a conception of constitutional law that is democratic, experimental, and based in empirical fact rather than legalistic reasoning.
Brian E. Butler
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9780226474502
- eISBN:
- 9780226474649
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226474649.003.0003
- Subject:
- Law, Constitutional and Administrative Law
As opposed to a conception of constitutional law as constructing game rules prior to and foundational for democracy, this chapter constructs a picture of law as democratic means with a broader social ...
More
As opposed to a conception of constitutional law as constructing game rules prior to and foundational for democracy, this chapter constructs a picture of law as democratic means with a broader social conception of democracy. Starting with John Dewey’s conception of democracy, various examples of contemporary scholarship that include experimentalist methodology combined with democratic aims are outlined and critiqued. Most, it is found, such as those offered by Cass Sunstein or Roberto Unger, for all their emphasis upon experimentalism and democracy, cannot live up to Dewey’s strong demands for a truly democratic politics. Through utilization of the democratic experimentalism scholarship of Michael Dorf and Charles Sabel, it is argued that a plausible picture of law as a democratic means can be constructed. This pragmatic reconstruction of constitutional law, it is shown, satisfies the demands Dewey makes of democratic practice. Most importantly, such a conception of law shows that rather than the ubiquitous foundational picture of constitutional law as giving rules to democracy, democratic experimentalism offers an experimental version of constitutional law that is democratic “all the way down.”Less
As opposed to a conception of constitutional law as constructing game rules prior to and foundational for democracy, this chapter constructs a picture of law as democratic means with a broader social conception of democracy. Starting with John Dewey’s conception of democracy, various examples of contemporary scholarship that include experimentalist methodology combined with democratic aims are outlined and critiqued. Most, it is found, such as those offered by Cass Sunstein or Roberto Unger, for all their emphasis upon experimentalism and democracy, cannot live up to Dewey’s strong demands for a truly democratic politics. Through utilization of the democratic experimentalism scholarship of Michael Dorf and Charles Sabel, it is argued that a plausible picture of law as a democratic means can be constructed. This pragmatic reconstruction of constitutional law, it is shown, satisfies the demands Dewey makes of democratic practice. Most importantly, such a conception of law shows that rather than the ubiquitous foundational picture of constitutional law as giving rules to democracy, democratic experimentalism offers an experimental version of constitutional law that is democratic “all the way down.”
Brian E. Butler
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9780226474502
- eISBN:
- 9780226474649
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226474649.003.0010
- Subject:
- Law, Constitutional and Administrative Law
Through an outline of democratic challenges and possibilities in constitutional law a conception of law as a democratic means was constructed. This conception is based upon the work of Peirce, Dewey ...
More
Through an outline of democratic challenges and possibilities in constitutional law a conception of law as a democratic means was constructed. This conception is based upon the work of Peirce, Dewey and Holmes as well as the more recent legal theories of Dorf, Sabel and Posner. Through an analysis of various Supreme Court decisions such as Lochner, Brown, Citizens United, and Obergefell, a concrete picture of current jurisprudence and its differences with a jurisprudence of democratic experimentalism was made explicit. A jurisprudence of democratic experimentalism was shown to be more fact based, experimental and, ultimately, more democratic. It also is able to avoid making the mistakes that contemporary constitutional doctrines seem inevitably to produce.Less
Through an outline of democratic challenges and possibilities in constitutional law a conception of law as a democratic means was constructed. This conception is based upon the work of Peirce, Dewey and Holmes as well as the more recent legal theories of Dorf, Sabel and Posner. Through an analysis of various Supreme Court decisions such as Lochner, Brown, Citizens United, and Obergefell, a concrete picture of current jurisprudence and its differences with a jurisprudence of democratic experimentalism was made explicit. A jurisprudence of democratic experimentalism was shown to be more fact based, experimental and, ultimately, more democratic. It also is able to avoid making the mistakes that contemporary constitutional doctrines seem inevitably to produce.
