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Abstract:
The controversy over same-sex marriage centers on whether the institution of marriage will be harmed by extending it to same-sex couples. Conservatives insist that it will and therefore argue that same-sex marriage should not be legally permitted. By contrast, liberals are mystified by the contention that same-sex marriage could even conceivably harm traditional marriage. This article shows that conservatives and liberals are both right and that they are both wrong. Conservatives are right that, in an important sense of harm, the legal recognition of same-sex marriage will indeed harm traditional marriage. Liberals are right that despite such harm, marriage should be extended to same-sex couples nonetheless. Implicit in this controversy is the question of which types of harm should be recognized as constituting reasons for and against laws in a democratic society. A corollary question is who owns and is entitled to participate in American democratic institutions. Of course, when preventing certain types of harm constitutes a compelling state interest, the state may prohibit conduct causing that harm. However, in a democratic society, harm that results only from clashing normative environments should be permitted. While perhaps satisfying extremists on neither side, this rapprochement can contribute to a cease fire between reasonable conservatives and reasonable liberals in one of the more heated battles in the so-called culture wars.

Abstract:
It is an "indispensable feature of our constitutional system," according to conventional wisdom, that "the federal judiciary is supreme in the exposition of the law of the Constitution." The doctrine of judicial supremacy, though nowhere stated in the Constitution, is considered the foundation of American constitutionalism. This Article rejects judicial supremacy because it cannot satisfy requirements of accountability. Accountability, through the consent of the governed, is the sine quo non of legitimacy in a republican democracy. Hence, the electorate's incapacity to give their consent to justices and judicial decisions through "input-accountability," "process-accountability," and "output accountability" renders judicial supremacy anathema to self-government. This Article then recommends instituting a congressional override to reverse Supreme Court decisions when the electorate, through their representatives in Congress, regards those decisions to be unconstitutional. Although the idea of a congressional override is unorthodox, it is far from radical. Congressional overrides already occur in Dormant Commerce Clause cases, and, of course, in statutory interpretation. More important, this Article shows that Congress has tried to override some important cases, for example, Texas v. Johnson and Employment Division v. Smith. After a national conversation in each case, Congress enacted the FLAG PROTECTION ACT to override Johnson and the RELIGIOUS FREEDOM AND RESTORATION ACT to override Smith. These statutes, unquestionably supported by the American people, would have been congressional overrides had the Court permitted them to stand. But a majority of justices on the Court, thoroughly intoxicated with the power judicial supremacy grants them, denied the people any say in ascertaining constitutional meaning in these cases.

judicial supremacy, democracy, accountability

Abstract:
This article formulates a progressive conception of communitarian democracy which rests upon the distinction between deliberative and dedicated conceptions of community. Deliberative communities seek fallibilistic change through a non-Enlightenment conception of practical reason. According to this pragmatist conception of practical reason, members of deliberative communities jointly attempt to formulate political truth independently of any a priori or non-deliberative standards of the right and the good. By contrast, dedicated communities seek what they regard as the truth about reality and insist upon adhering to those cultural and social givens of their society which express this truth. The distinction between deliberative and dedicated communities is relevant to the debate between liberalism and communitarianism. Rather than viewing this debate as one between those who value community and those who do not, it is better understood as a controversy over the appropriate kind of community. Typically, liberals seek deliberative communities, while communitarians seek dedicated ones. However, a person committed to deliberativism as the method of social change can also regard deliberativism as defining a certain conception of community and the conception of the persons who are its members. Consequently, in this view, almost every serious person is a communitarian, but some people are deliberative communitarians while others are dedicated communitarians. Communitarian democracy is an attempt to describe a deliberative community. Communitarian democrats seek freedom, equality, and solidarity for the purpose of devising joint solutions to social problems. In order to achieve this, communitarian democrats devise a civic discourse shorn of dedicated features, which values each citizen equally as a member of the community. This has implication for at least three conflicts in political and constitutional affairs. Since no irreducibly dedicated premises are possible in this civic discourse, dedicated arguments are impossible without translation into deliberative terms. This implies a particular conclusion to the debate about religion in the public square, namely, that dedicated religious discourse must be translated into its deliberative counterpart, if it has one, before its proponents may use it in public justification. (The article pays close attention to Michael Perry?s work concerning the role of religion in the public square.) Similarly, concerning multicultural conceptions of the right and the good, communitarian democrats can accept only those multicultural conceptions translatable into deliberative discourse. And, finally, communitarian democrats must guard against constitutional atrophy, the process by which initially deliberative structures become dedicated through lack of vigilance, criticism, and challenge. In a communitarian democracy, atrophied deliberative structures may be just as inefficient and unfair as some decidedly dedicated structures and must be similarly avoided.

Abstract:
Skepticism concerning the legitimacy of judicial review typically occurs without distinguishing between judicial review and judicial supremacy. The former gives the Court a say in evaluating the constitutionality of legislation and other government conduct. The latter gives the Court the final say over these matters. This Article defends the Court's role in judicial review but rejects the practice of judicial supremacy. The Article first critically examines some of the more important attempts to justify judicial supremacy and finds them wanting. It then explains why judicial review, as the practice of applying American political philosophical concepts such as federalism, the separation of powers, liberty, and equality to concrete contexts, is the appropriate role for courts in a republican democracy. To value judicial review as applied political philosophy does not commit one to judicial supremacy. Indeed, judicial review is valuable even if other branches of government or the people themselves have the final word in determining the constitutionality of legislation. Self-government thrives when it includes judicial review. By contrast it tends to founder when it replaces judicial review with judicial supremacy.

judicial review, judicial supremacy, federalism, courts, constitutional law

Abstract:
Judicial activism is in serious, though undeserved, trouble. The current impasse over its role in constitutional discourse pits two opposed positions committed to different paradigms of judicial activism against one another. One side condemns activist judges for engaging in ultra vires adjudication by reading their idiosyncratic values into the Constitution. In this view, the charge of judicial activism has significant content and should be deployed to restrain renegade judges. The other side insists that calling someone a "judicial activist" has only emotive content and is used merely as an empty epithet denouncing judges with whom one disagrees. This Article redirects the controversy over judicial activism by distinguishing between two different, but interrelated, levels of constitutional discourse: the surface level and the deep level. The problem of judicial activism exists on the surface level of constitutional discourse and will remain irresolvable on that level. However, once we attend to the deep level of constitutional discourse, the role of judicial activism becomes clear. The presence of judicial activism on the surface structure of constitutional discourse reveals on the deep structure reasonable disagreement over the meaning of key constitutional provisions. The idea of "reasonable disagreement" is profitably explicated by combining what social theorist W.B. Gallie called "essentially contested concepts" with the political philosopher John Rawls' important categorization of "the burdens of judgment." These obstacles to rational consensus are endemic to a republican democracy. Consequently, reasonable disagreement over key constitutional provisions should not be regarded negatively; it is an inevitable and positive feature of any society championing liberty, equality, and pluralism. However, the inevitability and desirability of reasonable disagreement has institutional consequences for constitutional review. When reasonable disagreement is inevitable, legislatures, not courts should have the last word on constitutional meaning.

judicial activism, reasonable disagreement, essentially contested concepts, burdens of judgment

Abstract:
This Article offers a rapprochement between two warring factions over the role of religion in publicly justifying laws. One faction, embracing "inclusionism," is skeptical of any constraints on democratic debate and adopts an eclectic attitude welcoming religious arguments in the public square along with secular arguments. Yet, understood in this fashion, inclusionism is committed to the propriety of those religious arguments, which may in fact create a "Tower of Babel" environment in which American citizens are unable to genuinely communicate with one another. For this reason, and because religious arguments are sometimes divisive, the opposing faction embraces "exclusionism" which seeks to limit the public square to secular arguments only. Yet, restricting the freedom of religion and speech rights of religious citizens is unfair, and more dangerously, appears incompatible with both the purposes of the First Amendment and democracy. How then can the dangers associated with both inclusionism and exclusionism be avoided?

This Article attempts to formulate a principled compromise between these two factions by replacing the distinction between the religious and the secular with the novel distinction between the dedicated and the deliberative. Dedicated arguments and reasons - including both religious and secular ones - insist on a canonical and fixed language and form of reasoning for discussing public policy. By contrast deliberative arguments and reasons - including both religious and secular ones - insist on a tentative, pragmatic, fallibilistic language and form of reasoning with which to conduct democratic debate. This Article then suggests that democracy in the public square is best understood as committed to the thesis that dedicated arguments be "reconstructed" into deliberative ones, and that all deliberative arguments - whether religious or secular - play an equal role in justifying coercive laws in democratic societies. The Article then evaluates an important objection to the Reconstruction Thesis, which helps to better illuminate the Thesis's rationale. The Article concludes with a conception of complex democracy, which is presupposed by the Reconstruction Thesis and enables us to see its plausibility and attractiveness.

Abstract:
Does political theory have an interesting relationship to presidential politics? This Article argues that the public statements of Senator Barack Obama exemplify an anti-foundationalist theory of political dispute resolution. This theory, called "deliberative conversationalism," attempts to answer the question of how agreement is possible in a republican democracy. The theory's central features include deliberation, conversation, transformative change, community, and, consensus. These are also elements in Senator Obama's vision for a new American politics. Understanding the relationship between the theory of deliberative conversationalism and Senator Obama's public statements provides a window into the mind of a politician who may become the next president of the United States.

barack obama, presidential politics, deliberative conversationalism, democracy, political theory

Abstract:
In this Article, Professor Lipkin continues the debate over the nature of indeterminacy in constitutional theory, arguing that epistemic indeterminacy is most relevant to the law, because epistemic indeterminacy is more closely tied to practical reasoning than is metaphysical indeterminacy.

Professor Lipkin further argues that the controversy over metaphysical or epistemic indeterminacy is really a controversy over truth or justification as the primary form of validating constitutional rules. In Professor Lipkin's view, the search for constitutional truth should be abandoned or, at best, should be treated as a trivial result of the best justification.

Finally, Professor Lipkin proposes a new constitutional paradigm, integrating a revised version of Rawls's conception of wide reflective equilibrium with a modified account of Kuhn's theory of scientific change that takes into account the distinction between normal and revolutionary adjudication. Such a paradigm, Professor Lipkin argues, provides an interesting and complete account of constitutional adjudication and change, and therefore is an especially appropriate vehicle to transport constitutional theory into the twenty-first century.

constitutional law, jurisprudence, indeterminacy

Abstract:
Federalism as balance between the federal government and the states is a deeply entrenched principle of American constitutional law. Without the idea of balance or some replacement concept, judges and constitutional scholars seem incapable of conceptualizing federalism and resolving federalist conflicts. The thesis of the Article is that federalism as balance must be reexamined to assess whether it is jurisprudentially sound. For this purpose, the Article introduces a framework for understanding balancing discourse generally. Upon examination, federalism as balance does not satisfy the requirements articulated by this framework. The result is that this conception has no discernible content and therefore can play no identifiable analytic role in either conceptualizing or resolving federalist conflicts. The failure of federalism as balance to be an analytically sound element in understanding federalism is an additional reason for reexamining the political safeguards argument for enforcing federalism. Without sufficient analytic content, federalism as balance is merely a rhetorical device which legislators can use just as well or as poorly as judges.

Federalism, balance, jurisprudence