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The Democratic ConstitutionExperimentalism and Interpretation$
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Brian E. Butler

Print publication date: 2017

Print ISBN-13: 9780226474502

Published to Chicago Scholarship Online: January 2018

DOI: 10.7208/chicago/9780226474649.001.0001

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Democratic Aims and Experimentalist Procedure

Democratic Aims and Experimentalist Procedure

Chapter:
(p.22) Chapter Two Democratic Aims and Experimentalist Procedure
Source:
The Democratic Constitution
Author(s):

Brian E. Butler

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226474649.003.0003

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.”

Keywords:   Dewey, democratic experimentalism, democracy, constitutional law, politics, pragmatic reconstruction, Dorf, Sabel

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