Abstract

http://ssrn.com/abstract=2132397
 


 



The State of Progressive Constitutional Theory: The Paradox of Constitutional Democracy and the Project of Political Justification


Nimer Sultany


University of London - School of Oriental and African Studies; Harvard University - Law School - Alumni

August 1, 2012

Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 47, No. 2, 2012

Abstract:     
Every time the Supreme Court strikes down a law enacted by Congress or a state legislature the age-old debate over the “counter-majoritarian difficulty” resurfaces. Theories of judicial review, new and old, are offered to answer this tension between constitutionalism and democracy. But what explains the persistence and contestability of this difficulty? Why has the existing wealth of scholarship failed to resolve this difficulty? In this Article, I address such questions while contextualizing “counter-majoritarianism” within larger liberal theoretical frameworks. I offer a typology and map the prominent progressive liberal answers deployed to justify judicial review in constitutional democracies. This typology and map fill a gap in the existing literature, which has been largely preoccupied with advancing positions within the debate rather than assessing it holistically. This reconstructive exercise both organizes the field of constitutional theory and identifies the discursive moves and patterns of reasoning used within the field. The Article evaluates the similarities and differences between the different positions. By mapping these differences and relations, I show that the supposed distinction between democracy and constitutionalism has been undermined without resolving the underlying tension between these competing values. The collapse of the distinction exposes the circular movement of the debate around the tension. Ultimately, I conclude, the existing body of literature offers no satisfying method for assessing whether the ruling in any controversial case is “counter-majoritarian.” I suggest that rather than attempting to solve the difficulty, scholars should recognize its irreconcilability, because only then would a better understanding of the role of law in society emerge.

Number of Pages in PDF File: 86

Keywords: Judicial review, constitutionalism, constitutional theory, constitutional democracy, progressive theory, justification

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Date posted: August 21, 2012  

Suggested Citation

Sultany, Nimer, The State of Progressive Constitutional Theory: The Paradox of Constitutional Democracy and the Project of Political Justification (August 1, 2012). Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 47, No. 2, 2012. Available at SSRN: http://ssrn.com/abstract=2132397

Contact Information

Nimer Sultany (Contact Author)
University of London - School of Oriental and African Studies ( email )
Thornhaugh Street, Russell Square
London, WC1H 0XG
United Kingdom
Harvard University - Law School - Alumni ( email )
1563 Massachusetts Ave
Cambridge, MA 02138
United States
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