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As always, I will
be happy to send the relevant paper to all interested parties. it is
forthcoming in an anthology from Oxford.
MAG
>>> [EMAIL PROTECTED] 07/22/05 10:34AM
>>>
Mark:
Do you have a particular case or series of cases in
mind? I'd appreciate a cite.
Thanks,
Richard Dougherty
Mark Graber wrote:
For
those interested, until 1939, not one majority opinion on the Supreme Court
spoke of the United States as a democracy or had anything good to say about
democracy (Brandeis did, but in concurring and dissenting opinions). The
floodgates opened in 1939. MAG
>>> [EMAIL PROTECTED] 07/22/05 08:32AM >>>In a message dated 7/22/2005
3:21:54 AM Eastern Standard Time, [EMAIL PROTECTED]
writes:
Put another way, Republicans
believe they have at least as good a claim as
Democrats to being committed to
democratic principles; given their view that
Democrats wish to use
nondemocratic courts to overturn democratic decisions
on matters such as
abortion and gay marriage, Republicans see themselves
as
more democratic than Democrats. Mark is on to
something that transcends this thread and probably should be discussed on the
ConlawProf List. In my view, the terms "democratic" and "democracy" have
replaced the term "republican" in popular culture, and even in the use of
pretty sophisticated statespersons, politicians, constitutionalists, and
jurists. Most of the features of republican theory--such as, representative
democracy, the common good, civic virtue, and so forth--have been absorbed by
the term "democracy." Indeed, I would venture a guess that the use of
"republican," save for occasional use on radio talk shows, is reserved, of
course only for the most part, to political philosophy. Thus, when people talk
about self-rule or self-government, they usually think of democracy not
republicanism. One continued use--a tedious one in my view--still
appears in discussions of the countermajoritarian problem or when indicting
the Court for being antidemocratic. Accusing the courts of being
countermajoritarian or antidemocratic is met with the predictable refrain "The
Constitution creates a republic not a democracy." In my view, this
distinction, or shall I say this dichotomy, is typically a
conversation-stopper, and forestalls the pursuit of the best theory of
democracy. I suspect that this point, regrettably, is still controversial; but
in my view it should not be.
Strictly speaking, few commentators advocate pure majoritarianism or even pure
directdemocracy. Thus, I would think "republicanism" should be granted a
well-deserved retirement. All the distinctions and points that some
think can only be articulated by using "republican" can be made through the
capacious tent of "democracy," and that's where they should be
made. Bobby Robert Justin Lipkin
Professor of
Law
Widener University School of Law
Delaware
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