Brennan and Democracy / Edition 1

by Frank I. Michelman

Overview

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.

Product Details

ISBN-13:	9780691122496
Publisher:	Princeton University Press
Publication date:	02/06/2005
Edition description:	New Edition
Pages:	160
Product dimensions:	6.00(w) x 9.25(h) x (d)

About the Author

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.

Table of Contents

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

What People are Saying About This

Don Herzog

This is one of the nation's most distinguished law professors considering the work of one of its most important Supreme Court justices, and doing so with subtlety, intelligence, creativity, and flashes of mischief and wit. Frank Michelman boasts an engaging, unpretentious prose style, putting paid to the thought that serious intellectual work has to be dry or pedantic.

From the Publisher

"This is one of the nation's most distinguished law professors considering the work of one of its most important Supreme Court justices, and doing so with subtlety, intelligence, creativity, and flashes of mischief and wit. Frank Michelman boasts an engaging, unpretentious prose style, putting paid to the thought that serious intellectual work has to be dry or pedantic."—Don Herzog, University of Michigan

Editorial Reviews

"Clearly the justice would be pleased by the provocative, thoughtful, craftsmanship of this work. . . . [A] fine contribution to scholarship."

Choice

Michelman has crafted a provocative book on democratic constitutionalism that deserves serious attention by persons interested not simply in Brennan's legal thought but in the debate on what makes for a decent and legitimate democracy.

Political Science Quarterly - David E. Marion

Michelman has crafted a provocative book on democratic constitutionalism that deserves serious attention by persons interested not simply in Brennan's legal thought but in the debate on what makes for a decent and legitimate democracy.
— David E. Marion

Political Science Quarterly

"Michelman has crafted a provocative book on democratic constitutionalism that deserves serious attention by persons interested not simply in Brennan's legal thought but in the debate on what makes for a decent and legitimate democracy."—-David E. Marion, Political Science Quarterly

From the Publisher