Federalism as balance between the federal government and the states is a deeply entrenched principle of American constitutional law. Without the idea of balance or some replacement concept, judges and constitutional scholars seem incapable of conceptualizing federalism and resolving federalist conflicts. The thesis of the Article is that federalism as balance must be reexamined to assess whether it is jurisprudentially sound. For this purpose, the Article introduces a framework for understanding balancing discourse generally. Upon examination, federalism as balance does not (...) satisfy the requirements articulated by this framework. The result is that this conception has no discernible content and therefore can play no identifiable analytic role in either conceptualizing or resolving federalist conflicts. The failure of federalism as balance to be an analytically sound element in understanding federalism is an additional reason for reexamining the political safeguards argument for enforcing federalism. Without sufficient analytic content, federalism as balance is merely a rhetorical device which legislators can use just as well or as poorly as judges. (shrink)

This article formulates a progressive conception of communitarian democracy which rests upon the distinction between deliberative and dedicated conceptions of community. Deliberative communities seek fallibilistic change through a non-Enlightenment conception of practical reason. According to this pragmatist conception of practical reason, members of deliberative communities jointly attempt to formulate political truth independently of any a priori or non-deliberative standards of the right and the good. By contrast, dedicated communities seek what they regard as the truth about reality and insist upon (...) adhering to those cultural and social givens of their society which express this truth. The distinction between deliberative and dedicated communities is relevant to the debate between liberalism and communitarianism. Rather than viewing this debate as one between those who value community and those who do not, it is better understood as a controversy over the appropriate kind of community. Typically, liberals seek deliberative communities, while communitarians seek dedicated ones. However, a person committed to deliberativism as the method of social change can also regard deliberativism as defining a certain conception of community and the conception of the persons who are its members. Consequently, in this view, almost every serious person is a communitarian, but some people are deliberative communitarians while others are dedicated communitarians. Communitarian democracy is an attempt to describe a deliberative community. Communitarian democrats seek freedom, equality, and solidarity for the purpose of devising joint solutions to social problems. In order to achieve this, communitarian democrats devise a civic discourse shorn of dedicated features, which values each citizen equally as a member of the community. This has implication for at least three conflicts in political and constitutional affairs. Since no irreducibly dedicated premises are possible in this civic discourse, dedicated arguments are impossible without translation into deliberative terms. This implies a particular conclusion to the debate about religion in the public square, namely, that dedicated religious discourse must be translated into its deliberative counterpart, if it has one, before its proponents may use it in public justification. (The article pays close attention to Michael Perry?s work concerning the role of religion in the public square.) Similarly, concerning multicultural conceptions of the right and the good, communitarian democrats can accept only those multicultural conceptions translatable into deliberative discourse. And, finally, communitarian democrats must guard against constitutional atrophy, the process by which initially deliberative structures become dedicated through lack of vigilance, criticism, and challenge. In a communitarian democracy, atrophied deliberative structures may be just as inefficient and unfair as some decidedly dedicated structures and must be similarly avoided. (shrink)

Judicial activism is in serious, though undeserved, trouble. The current impasse over its role in constitutional discourse pits two opposed positions committed to different paradigms of judicial activism against one another. One side condemns activist judges for engaging in ultra vires adjudication by reading their idiosyncratic values into the Constitution. In this view, the charge of judicial activism has significant content and should be deployed to restrain renegade judges. The other side insists that calling someone a "judicial activist" has only (...) emotive content and is used merely as an empty epithet denouncing judges with whom one disagrees. This Article redirects the controversy over judicial activism by distinguishing between two different, but interrelated, levels of constitutional discourse: the surface level and the deep level. The problem of judicial activism exists on the surface level of constitutional discourse and will remain irresolvable on that level. However, once we attend to the deep level of constitutional discourse, the role of judicial activism becomes clear. The presence of judicial activism on the surface structure of constitutional discourse reveals on the deep structure reasonable disagreement over the meaning of key constitutional provisions. The idea of "reasonable disagreement" is profitably explicated by combining what social theorist W.B. Gallie called "essentially contested concepts" with the political philosopher John Rawls' important categorization of "the burdens of judgment." These obstacles to rational consensus are endemic to a republican democracy. Consequently, reasonable disagreement over key constitutional provisions should not be regarded negatively; it is an inevitable and positive feature of any society championing liberty, equality, and pluralism. However, the inevitability and desirability of reasonable disagreement has institutional consequences for constitutional review. When reasonable disagreement is inevitable, legislatures, not courts should have the last word on constitutional meaning. (shrink)