The State of Progressive Constitutional Theory: The Paradox of Constitutional Democracy and the Project of Political Justification
86 Pages Posted: 21 Aug 2012
Date Written: August 1, 2012
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.
Keywords: Judicial review, constitutionalism, constitutional theory, constitutional democracy, progressive theory, justification
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