Democracy, Popular Sovereignty, and Judicial Review

Abstract

It is eminently appropriate that the Inaugural Lecture of the Brennan Center Symposium on Constitutional Law be delivered by Frank Michelman, for no one could be more deserving or more enlightening. It is also appropriate that Michelman should choose as his topic the tension between democracy and constitutionalism, for this tension has been the central problem of American constitutional theory since the onset of the twentieth century. Constitutional theory is an odd enterprise. In contrast to certain political philosophies that aspire to systematic analysis based on first principles, constitutional theory primarily seeks to expose and clarify the principles immanent within the practice of constitutional adjudication. For this reason constitutional theory cannot posit itself behind a "veil of ignorance" or within an "ideal speech situation." Constitutional theory is always, so to speak, within our tradition and our history; it is parasitic on the very practice it seeks to explain. The achievements of revered and influential Justices, like William J. Brennan, whom we are here justly convened to honor, must therefore be taken as part of the data to be explained. In this sense, Michelman is right to place Brennan's work at the center of his investigation.