Democracy Essential to the Legitimacy of Constitutional Interpretation
Albany Law School Research Paper No. 7 for 2017-2018
20 Pages Posted: 13 Mar 2017 Last revised: 6 Sep 2017
Date Written: March 10, 2017
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
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