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The Democratic Challenge to Constitutional Law

The Democratic Challenge to Constitutional Law

(p.4) Chapter One The Democratic Challenge to Constitutional Law
The Democratic Constitution
Brian E. Butler
University of Chicago Press

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.

Keywords:   Chemerinsky, constitutional law, democratic experimentalism, pragmatism, popular constitutionalism, judicial supremacy, Dewey, Peirce

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