Cover of The Democratic Constitution
The Democratic Constitution Experimentalism and Interpretation
by Brian E. Butler
University of Chicago Press, 2017
Cloth: 978-0-226-47450-2 | Electronic: 978-0-226-47464-9
DOI: 10.7208/chicago/9780226474649.001.0001

AVAILABLE FROM

University of Chicago Press (cloth, ebook)
Amazon Kindle
Barnes & Noble Nook
DeGruyter Multi-User Ebook Program
EBSCO eBooks (formerly NetLibrary)
Google Play
Kobo
University Press Scholarship Online (UPSO)
ABOUT THIS BOOKAUTHOR BIOGRAPHYREVIEWSTABLE OF CONTENTS

ABOUT THIS BOOK

The Supreme Court is seen today as the ultimate arbiter of the Constitution. Once the Court has spoken, it is the duty of the citizens and their elected officials to abide by its decisions. But the conception of the Supreme Court as the final interpreter of constitutional law took hold only relatively recently. Drawing on the pragmatic ideals characterized by Charles Sanders Peirce, John Dewey, Charles Sabel, and Richard Posner. Brian E. Butler shows how this conception is inherently problematic for a healthy democracy.
           
Butler offers an alternative democratic conception of constitutional law, “democratic experimentalism,” and applies it in a thorough reconstruction of Supreme Court cases across the centuries, such as Brown v. Board of Education, Citizens United v. Federal Election Commission, Lucas v. South Carolina Coastal Council, and Lochner v. New York. In contrast to the traditional tools and conceptions of legal analysis that see the law as a formally unique and separate type of practice, democratic experimentalism combines democratic aims and experimental practice. Butler also suggests other directions jurisprudential roles could take: for example, adjudication could be performed by primary stakeholders with better information. Ultimately, Butler argues persuasively for a move away from the current absolute centrality of courts toward a system of justice that emphasizes local rule and democratic choice. 
 

AUTHOR BIOGRAPHY

Brian E. Butler is the Thomas Howerton Distinguished Professor of Humanities in the Department of Philosophy at the University of North Carolina. He is the editor of Democratic Experimentalism.

REVIEWS

“Dominant paradigms of political and legal theory have not been able to identify the best relationship between constitution in theory and democracy in practice, evident in the way judicial supremacy over constitutional interpretation goes almost unquestioned. Butler tackles this difficult philosophical issue with his own systematic legal experimentalism, guiding readers through dozens of Supreme Court cases across two centuries to show where the dominant paradigms require supplementation or replacement. The book will be a lightning rod for rival theories, but even scholars beholden to competing paradigms will appreciate how carefully Butler arrives at his conclusions.”
— John Shook, University at Buffalo, SUNY

TABLE OF CONTENTS


DOI: 10.7208/chicago/9780226474649.003.0000
[constitutional law;democratic experimentalism;Peirce;Dewey;Dorf;Sabel;Posner]
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.


DOI: 10.7208/chicago/9780226474649.003.0001
[Chemerinsky;constitutional law;democratic experimentalism;pragmatism;popular constitutionalism;judicial supremacy;Dewey;Peirce]
This chapter identifies and critiques a dominant explanation for judicial supremacy in constitutional law. This theory, the “protection from the tyranny of the majority” story, is examined in the form offered by Erwin Chemerinsky. Importantly, while Chemerinsky holds to this theory, his analysis actually highlights the failure of the United States Supreme Court to live up to the theory through a long list of antiprecedents. The chapter offers an alternate possibility, that of “popular constitutionalism,” as a critique of the narrow perspective offered by protection from majority theories of constitutional law. Ultimately, through an analysis of the pragmatism of John Dewey and an outline of Charles Sanders Peirce’s ways of fixation of belief, the chapter ends by proposing the construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism.” This conception is described as “law as a democratic means.” Law as a democratic means utilizes an experimental manner of reasoning that entails democratic community. This, in turn, better satisfies Dewey’s demand that democratic aims can only be properly pursued through democratic means.
This chapter is available at:
    https://academic.oup.com/chica...


DOI: 10.7208/chicago/9780226474649.003.0002
[Dewey;democratic experimentalism;democracy;constitutional law;politics;pragmatic reconstruction;Dorf;Sabel]
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.”
This chapter is available at:
    https://academic.oup.com/chica...


DOI: 10.7208/chicago/9780226474649.003.0003
[Second Amendment;gun rights;District of Columbia v. Heller;jurisprudence;originalism;Scalia;Posner]
This chapter outlines three possible ways to characterize the manner in which constitutional jurisprudence deals with information. First, there are strategies that try to exclude as much information as possible. Information excluding strategies are ubiquitous in legal thought and practice. Here Justice Antonin Scalia’s public meaning originalism is taken as a prime example of this strategy. Another strategy is to include as much information as available. Recently this strategy has been exemplified in Richard Posner’s work on judging. Therein he labels the most honest and effective judge a “constrained pragmatist.” Finally, there is the possibility that courts could be set up to actually help produce relevant information. It is argued that the jurisprudence of democratic experimentalism exemplifies this strategy. Using Scalia’s information excluding opinion in the gun-rights case District of Columbia v. Heller, and Posner’s information including Second Amendment opinion, Baskin v. Bogan, it is argued that information-rich jurisprudence offers a much more effective and sensitive jurisprudential strategy in constitutional interpretation.
This chapter is available at:
    https://academic.oup.com/chica...


DOI: 10.7208/chicago/9780226474649.003.0004
[Holmes;Scalia;Epstein;takings;Mahon;Lucas;formalist]
Chapter 4 investigates the issue of “regulatory takings” through an investigation of Oliver Wendell Holmes’ foundational case, Pennsylvania Coal Co. v. Mahon, Antonin Scalia’s Lucas v. South Carolina Coastal Council and the takings theory of Richard Epstein. Epstein’s theory, a key theory for the modern resurrection of takings jurisprudence, is outlined and utilized as an example of formalist and deductivist legal reasoning. Epstein emphasizes the importance of bright-line rules and critiques Holmes’ Mahon “matter of degree” style of reasoning as incoherent and theoretically weak. As opposed to this, the argument offered in the chapter critiques Epstein’s assumptions, showing them to be empirically and formally weak. Indeed, his argument is only as strong as every link in his argument, and many of the links are controversial and easy to dispute. In contrast, the basic reasoning shown in Holmes’ opinion exemplifies a stronger braided style of argument as Peirce advocated for.
This chapter is available at:
    https://academic.oup.com/chica...


DOI: 10.7208/chicago/9780226474649.003.0005
[Lochner;lochnering;Epstein;Dworkin;Holmes;Harlan;constitutional law;democracy]
In this chapter the Key United States Supreme Court antiprecedent decision Lochner v. New York is analyzed. “Lochnering” is, in US constitutional law an almost universal term of derision. For instance, in dissent, Roberts critiques the Obergefell decision by showing how he believes it replicates the mistakes of Lochner. Via critical literature on the case, it is argued in this chapter that Lochner highlights how conceptions of law and democracy inextricably implicate each other. The theories of Richard Epstein and Ronald Dworkin are emphasized. Ultimately, the conclusion is that the jurisprudential theories of both Ronald Dworkin and Richard Epstein replicate the undesirable antidemocratic features of Lochner. The important dissents in Lochner written by Holmes and Harlan, on the other hand, exemplify democratic virtues that foreshadow the jurisprudence of democratic experimentalism.
This chapter is available at:
    https://academic.oup.com/chica...


DOI: 10.7208/chicago/9780226474649.003.0006
[First Amendment;Citizens United;Post;Epstein;Dworkin;democratic experimentalism;campaign finance]
Citizens United is an example of a case where the Supreme Court overruled a law created by democratically elected representatives in the name of democratic process. In this chapter the important First Amendment election finance case, Citizens United, is analyzed and critiqued through a survey of recent legal literature on the decision. In particular, the evaluations of Epstein, Dworkin and Robert C. Post are highlighted. Once a set of critiques are outlined, the issues of Citizens United are then analyzed under a democratic experimentalism framework. What is concluded is that the fact-based and experimental outlook of democratic experimentalism would help the Court avoid the dogmatic and authoritarian stance that the Citizens United opinion unfortunately exemplifies.
This chapter is available at:
    https://academic.oup.com/chica...


DOI: 10.7208/chicago/9780226474649.003.0007
[Brown v. Board of Education;Obergefell;Plessy v. Ferguson;separate but equal;same-sex marriage;Posner;Baskin v. Bogan]
Chapter 7 analyzes two cases generally thought of as exemplary of the Supreme Court protecting or even progressively expanding civil rights protected under the Constitution. Brown and Obergefell are thought of by liberal theorists as examples of the Court getting things right. Of course they are also thought of as not grounded in the Constitution by conservative legal theorists. Brown famously overruled the “separate but equal” doctrine of Plessy v. Ferguson. Obergefell found a constitutional right to same-sex marriage. Interestingly, though the results are disputed by legal theorists, they are also thought by both sides of the debate to be examples of the Court properly understanding its role as supreme interpreter of the Constitution. This chapter challenges that interpretation. It presents Brown as an information-rich decision that exemplifies much that is required of democratic experimentalism. It presents Obergefell as arriving at the correct legal conclusion, but through a roundabout way that could have been better justified if the Court utilized the jurisprudence of democratic experimentalism. Posner’s opinion, Baskin v. Bogan is offered as a better option.
This chapter is available at:
    https://academic.oup.com/chica...


DOI: 10.7208/chicago/9780226474649.003.0008
[social contract theory;sociable contract theory;constitutional law;democratic experimentalism;Rawls;Gilmore;MacNeil;Gilson;Sabel;Scott]
Constitutional law theories often rest upon a foundational conception of the social contract. For instance John Rawls’ theory of justice rests upon a contractual idea whereby once and for all principles regulate all further political decisions within a society. From this a conception of constitutional law as a foundational static framework follows quite easily. In this chapter a different ideal for constitutional law is constructed – that of a “sociable contract.” Using the work of Grant Gilmore, Ian R. MacNeil, Ronald J. Gilson, Charles F. Sabel and Robert E. Scott, it is argued that an evolutionary, flexible and more empirically accurate conception of contract can inform the understanding of constitutional law in a manner that is harmonious with the demand of democratic experimentalism.
This chapter is available at:
    https://academic.oup.com/chica...


DOI: 10.7208/chicago/9780226474649.003.0009
[legal theory;constitutional law;Peirce;Dewey;Holmes;Dorf;Sabel;Posner;democratic experimentalism;jurisprudence]
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.
This chapter is available at:
    https://academic.oup.com/chica...

Book published by University of Chicago Press, 2017. Page maintained by BiblioVault.