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The Democratic Constitution

Experimentalism and Interpretation

The Supreme Court is seen today as the ultimate arbiter of the Constitution. Once the Court has spoken, it is the duty of the citizens and their elected officials to abide by its decisions. But the conception of the Supreme Court as the final interpreter of constitutional law took hold only relatively recently. Drawing on the pragmatic ideals characterized by Charles Sanders Peirce, John Dewey, Charles Sabel, and Richard Posner. Brian E. Butler shows how this conception is inherently problematic for a healthy democracy.
Butler offers an alternative democratic conception of constitutional law, “democratic experimentalism,” and applies it in a thorough reconstruction of Supreme Court cases across the centuries, such as Brown v. Board of Education, Citizens United v. Federal Election Commission, Lucas v. South Carolina Coastal Council, and Lochner v. New York. In contrast to the traditional tools and conceptions of legal analysis that see the law as a formally unique and separate type of practice, democratic experimentalism combines democratic aims and experimental practice. Butler also suggests other directions jurisprudential roles could take: for example, adjudication could be performed by primary stakeholders with better information. Ultimately, Butler argues persuasively for a move away from the current absolute centrality of courts toward a system of justice that emphasizes local rule and democratic choice. 

248 pages | 6 x 9 | © 2017

Law and Legal Studies: General Legal Studies, Law and Society, Legal Thought, The Constitution and the Courts

Philosophy: American Philosophy


“Dominant paradigms of political and legal theory have not been able to identify the best relationship between constitution in theory and democracy in practice, evident in the way judicial supremacy over constitutional interpretation goes almost unquestioned. Butler tackles this difficult philosophical issue with his own systematic legal experimentalism, guiding readers through dozens of Supreme Court cases across two centuries to show where the dominant paradigms require supplementation or replacement. The book will be a lightning rod for rival theories, but even scholars beholden to competing paradigms will appreciate how carefully Butler arrives at his conclusions.”

John Shook, University at Buffalo, SUNY

Table of Contents

Chapter 1: The Democratic Challenge to Constitutional Law
Chapter 2: Democratic Aims and Experimentalist Procedure
Chapter 3: Information-Rich Jurisprudence
Chapter 4: Epstein, Holmes, and Regulatory Takings Jurisprudence
Chapter 5: Lochnering
Chapter 6: Citizens United
Chapter 7: Brown and Obergefell: Two Positive Precedents?
Chapter 8: From Social Contract Theory to Sociable Contract Theory

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