In Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government. The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government.
The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan's judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal.
Frank I. Michelman is Robert Walmsley University Professor of Law at Harvard University. He was law clerk to Justice William J. Brennan, Jr. during the 1961-62 term of the U.S. Supreme Court.
Preface and Acknowledgments ix Chapter 1. Brennan's Constitutional Democracy 3 Constitutional Law, Constitutional Theory 3 The Paradox of Constitutional Democracy 4 Democracy, Individuals, and Self-Government 11 The Substantive Conception of Democracy 16 A Paradox of Democratic Commitment 33 The Procedural Conception of Democracy 34 The Remaining Possibility for Self-Government in Politics 51 Politics and Knowledge 54 Distrust and Democracy (Responsive Democracy with a Difference) 57 Brennan on Democracy 60 Chapter 2. Brennan's Democratic Liberalism 63 The Judge as Political Theorist 63 Liberal Political Thought 65 Justice Brennan and Liberal "Romance" 68 Community 89 Equality, Groups, and Positive Social Rights 119 Summation: Who Is Brennan to Us? 133 Epilogue 139 Index 147