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.
Using the distinction between discrete and comprehensive principles, Eisgruber (law and public affairs, Princeton Univ.) examines the Supreme Court's role in building and repairing the institutional structures of American democracy. In this context, he addresses the separation of powers, voting rights, and federalism, showing how all three doctrines require the Court to refine the rules that specify which institutions and which officials can claim authority to represent the American people. Confronting closely related problems and implicating a common set of principles, the author threads a common theme with a variety of examples. Thus, when Congress invented the legislative veto to enhance its power over administrative agencies, the executive branch rightly cried foul. INS v. Chadha (1983) was an immigration case concerning congressional action to deport a group of immigrants. Justice Lewis Powell, writing for the majority, argued that Congress was, in effect, deciding the rights of specific persons, rights that are thus subject to the tyranny of a shifting majority. The focus here is on the protection of local democracy in spite of large bicameral legislatures, judicial review, and the Constitution's abstract moral and political concepts. This book is a scholarly treatise dealing with complex relationships between law and politics and is recommended mainly for academic libraries. Philip Y. Blue, New York State Supreme Court Criminal Branch Lib., New York Copyright 2001 Cahners Business Information.
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Harvard University Press
September 29, 2007
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