The Democratic ConstitutionExperimentalism and Interpretation

The Democratic ConstitutionExperimentalism and Interpretation

Brian E. Butler

Print publication date: 2018

ISBN: 9780226474502

Publisher: University of Chicago Press

Abstract

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.