Constitutional Self-Government

ISBN 9780674025400

Publication date: 09/30/2007

Most of us regard the Constitution as the foundation of American democracy. How, then, are we to understand the restrictions that it imposes on legislatures and voters? Why, for example, does the Constitution allow unelected judges to exercise so much power? And why is this centuries-old document so difficult to amend? In short, how can we call ourselves a democracy when we are bound by an entrenched, and sometimes counter-majoritarian, constitution?

In Constitutional Self-Government, Christopher Eisgruber focuses directly on the Constitution's seemingly undemocratic features. Whereas other scholars have tried to reconcile these features with majority rule, or simply acknowledged them as necessary limits on democracy, Eisgruber argues that constitutionalism is best regarded not as a constraint upon self-government, but as a crucial ingredient in a complex, non-majoritarian form of democracy. In an original and provocative argument, he contends that legislatures and elections provide only an incomplete representation of the people, and he claims that the Supreme Court should be regarded as another of the institutions able to speak for Americans about justice. At a pivotal moment of worldwide interest in judicial review and renewed national controversy over the Supreme Court's role in politics, Constitutional Self-Government ingeniously locates the Constitution's value in its capacity to sustain an array of institutions that render self-government meaningful for a large and diverse people.

Praise

This is a cogent defense of a robust form of judicial review in a democratic polity. Eisgruber rejects simplistic majoritarian conceptions of democracy and the idea that judges owe any kind of mechanical obeisance either to constitutional or statutory texts or to ascribed legislative intentions. Rather, he advances a conception of democracy that sees judges as participants in democratic deliberation, and that demands of them that they make and defend moral readings of the constitution. The book is sure to spark controversy and debate and to widen and deepen our understanding of the judicial role in a well-functioning democratic government.

—John Ferejohn, Stanford University
Chris Eisgruber has done something very unusual, which is to say something fresh and interesting, in defending a strong role for courts in our polity. What is most intriguing (and, for some, troublesome) is his ingenious argument in behalf of the capacity and authority of judges to make moral judgments about what best instantiates a vibrant democracy.

—Sanford Levinson, University of Texas at Austin School of Law
Constitutional theories that justify judicial review on grounds that emphasize the Court's ability to advance moral principles have been an important part of the legal landscape for the past generation; so, too, have been theories that defend judicial review as a means of promoting democratic self-government. For the most part, however, these approaches have been viewed as irreconcilable alternatives, producing a theoretical impasse that has bogged down debate. In this ambitious book, Eisgruber links the two approaches, revealing them as complementary rather than conflictual. As an added bonus, while managing this theoretical innovation, he also shows what it means for a truly broad range of issues--including many that are typically ignored by proponents of one view or the other.

—Larry Kramer, New York University School of Law
Eisgruber has written a groundbreaking work defending a vigorous use of judicial review in the US. As such, it is also likely to be controversial...Admirably, [Eisgruber] cites not only legal scholars but also those in history, philosophy, and political science...Highly recommended.

—M. W. Bowers, Choice