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Of Constitutional Self-Government, 71 FORDHAM LAW REVIEW 1749 (2003)


Is constitutional law democratic?

If democracy means government by the living will of the people, the answer seemingly has to be no. Why should we cavil at this answer? Constitutional law checks the excesses of popular rule; that was and is its point. Europeans, by and large, are content to say so; the entire ideology of "universal human rights," which is orthodoxy in the "international community" today, presents these rights, enforced by constitutional tribunals throughout the world, as a supra-national, supra-political imperative to which every nation, including democratic nations, must equally bend.

But Americans have never wanted to concede that their Constitution or its rights are anti-democratic. For over a hundred years, American constitutionalists have offered ever more ingenious theories reconciling constitutional law with the principle of government by the living will of the people. This is a prestigious, central line of American constitutional thought, linking such prominent figures as Tiedeman, Thayer, Holmes, Meiklejohn, Bickel and Ely.

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