Democracy Essential to the Legitimacy of Constitutional Interpretation

20 Pages Posted: 13 Mar 2017  

Stephen E. Gottlieb

Albany Law School

Date Written: March 10, 2017

Abstract

Contemporary risks to democracy sharpen the question about what use the Court should make about democratic thought, especially empirical thought. By contrast, the argument over originalism has largely eliminated democracy from constitutional interpretation, partly in reaction to Carolene Products. This manuscript argues, first, that no theory of constitutional interpretation can be legitimate without democracy, and then explores the implications of that conclusion.

Keywords: constitutional law, democracy, self-government, empirical, evidence, horizontal effect, private law, fundamental rights, consequentialism

Suggested Citation

Gottlieb, Stephen E., Democracy Essential to the Legitimacy of Constitutional Interpretation (March 10, 2017). Available at SSRN: https://ssrn.com/abstract=2931153 or http://dx.doi.org/10.2139/ssrn.2931153

Stephen E. Gottlieb (Contact Author)

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States
518-445-2348 (Phone)

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