Constitutional Self-Government

Judicial review and the Constitution's super-majoritarian amendment rules have been criticized as undemocratic. Defenders typically try to reconcile these institutions with majority rule or else justify them as necessary limits on democracy. This book recommends a different theory. It argues that constitutionalism is best regarded not as a constraint upon self-government, but as a means to implement a complex, non-majoritarian form of democracy. More specifically, the book argues that the Constitution's specific provisions should be understood to serve, rather than constrain, the freedom of later generations: those provisions endow later generations of Americans with useful political institutions that make democratic ideals easier to achieve. The book treats judicial review in a similar spirit. It contends that elections and legislatures provide only an incomplete representation of the people, and that the Supreme Court should be understood as another kind of representative institution, one well-shaped to speak for the people about issues of moral and political principle. The book consists of six chapters plus an introduction and a conclusion. Chapter 1 examines the purpose behind the Constitution itself. The chapter attempts to debunk the widespread idea that the point of a rigid, written Constitution is to enhance the power of past generations, or to diminish the ability of present and future generations to govern themselves. The chapter maintains that barriers to amendment can actually increase the capacity of later generations to govern themselves. The next two chapters explain how judicial review can make a valuable contribution to the democratic pursuit of justice. Chapter 2 defends the democratic legitimacy of judicial review. It argues that judicial review is reasonably regarded as a version of democratic decision-making, rather than a constraint upon it. Chapter 3 takes this argument one step further. It contends that judicial review is not merely democratically legitimate, but that in American circumstances it may be democratically desirable. Taken together, the first three chapters maintain that when judges interpret ambiguous constitutional provisions, it will often be their duty to speak on behalf of the American people about justice. The book's final three chapters consider how judges should pursue that task. Chapter 4 addresses issues of jurisprudential methodology. It emphasizes how judges have distorted the Constitution's meaning by relying too heavily on various kinds of legal craftsmanship and by pretending that constitutional questions can be decided in apolitical ways. Chapters 5 and 6 develop a conceptual framework through which to analyze the limits of judicial competence. These chapters focus on the strategic questions that complicate judicial efforts to enforce moral principles. Chapter 5 uses the Supreme Court's cases about privacy and sexual autonomy to underscore the need for judges to distinguish carefully between the moral and strategic components of their decision-making rationales. Chapter 6 identifies a set of especially profound strategic problems that arise under various constitutional doctrines, including those that pertain to federalism, the separation of powers, and the electoral process.