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
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
|