Re: Founding-Centered Constitutionalism

[Robert Justin Lipkin]

       Four inexcusably brief remarks:

       1. It was never my view that we should be contemptuous of the Founding population.

       2. Saying that the Founders never intended American government to be free of undemocratic elements merely states the problem rather than resolves it. The problem persists, namely, how are undemocratic elements in a system of government compatible with the idea of self-rule. If such compatibility exists, it must be explained and defended. (Incidentally, my hunch is that such an explanation is possible. My point is that it is necessary.)

       3.  Embracing democracy in no way entails a commitment to "populist democracy." Democratic theory contains democratic alternatives to 'populism," in the ordinary sense of that term.

       4. From both a pragmatist and democratic perspective, I think it dangerous in the extreme to canonize any group of people because their education and experience were impressive, or even because their principles were good. Whether we can learn from the Founding generation (of course, we can) is, in my view, largely irrelevant to the question of whether Founding-Centered (and famous Founder-Centered) constitutionalism is appropriate. More important, Founding-Centered constitutionalism tends to dedicate or fix constitutionalism in ways that are, I would think, incompatible for self-rule.

Bobby Lipkin
Widener University School of Law
Delaware