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Brennan and Democracy

Brennan and Democracy

Frank I. Michelman
Copyright Date: 1999
Pages: 160
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  • Book Info
    Brennan and Democracy
    Book Description:

    InBrennan 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.

    eISBN: 978-1-4008-2336-9
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface and Acknowledgments
    (pp. ix-2)
  4. CHAPTER 1 Brennan’s Constitutional Democracy
    (pp. 3-62)

    In American law schools today, cheek-by-jowl with the study and teaching of constitutional law, you find a sibling branch of academic exertion called “constitutional theory.” What’s the difference?

    It all starts with judicial review, that noteworthy practice of American government by which unelected judges hear and decide cases of complaint—“it’s unconstitutional”—against laws enacted by electorally accountable legislatures. Unmistakably, these are legal cases, in which judges explain and justify their decisions with the same sorts of arguments about the best interpretations of legal texts and precedents that lawyers use in urging the decisions they favor. How much these legal...

  5. CHAPTER 2 Brennan’s Democratic Liberalism
    (pp. 63-138)

    If a man writes frequently over many years about political matters, his collected writings would seem to make fair game for an effort to gather and restate his most general, leading thoughts on the subject of politics. But what if the man is a judge and the writings are almost exclusively his judicial opinions—in this case, William Brennan’s, over a thirty-four-year span of associate justiceship on the United States Supreme Court?

    There are obvious grounds for caution about attempts to pry a judge’s political vision out of his judicial work product. Judges and judicial nominees regularly proclaim the irrelevance...

    (pp. 139-146)

    August 29, 1961. A Tuesday. My first or second week on the job as law clerk to Justice Brennan. I caught a first glimpse of my new boss at work, conducting (of all things) an oral argument in chambers.

    The case wasBoard of Education of New Rochelle v. Taylor.¹ The name may not ring a bell, butTaylorwas a historic case, the first to impose a constitutional responsibility on a northern school district to desegregate its schools. True, the Supreme Court did not exactly decide the case itself. It was a federal trial court that did the heavy...

  7. Index
    (pp. 147-148)