Law Commons^™

Minimally Democratic Administrative Law, Jud Mathews

Jud Mathews

A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what …

A Post-Racial Voting Rights Act, Jason Rathod (R-Z)

Jason Rathod (R-Z)

The Voting Rights Act of 1965 (VRA) was enacted “to foster our transformation to a society that is no longer fixated on race.” Georgia v. Ashcroft, 539 U.S. 461, 490 (2003). This article critiques the prevailing election law scholarship and jurisprudence as out of step with VRA’s post-racial aspirations and offers proposals for Congress to correct course. The United States has long been torn between civic nationalism and racial nationalism. By the mid-20th Century, the uneasy interplay of these visions had produced a remarkable expansion of citizenship to all migrants from Europe alongside appalling discrimination against, or outright exclusion of, …

Civic Republicanism, Public Choice Theory, And Neighborhood Councils: A New Model For Civic Engagement, Matthew J. Parlow

Matthew Parlow

The Persistence Of Power And The Struggle For Dialogic Standards In Postmodern Constitutional Jurisprudence: Michelman, Habermas, And Civic Republicanism, Stephen M. Feldman

Stephen M. Feldman

Since the 1950s, most constitutional scholars have presumed that the American political system is pluralistic, with autonomous individuals struggling in the legislative arena to maximize the satisfaction of their preexisting private interests. The "new republicans" reject these presumptions and insist that constitutional jurisprudence must recognize the potential for virtuous citizens to engage in a political dialogue that generates public values and identifies a common good. Frank I. Michelman has pioneered this revival by confronting one of the most troubling and persistent difficulties of civic republican thought: the likelihood that the political dialogue will be closed to segments of the community …

Republican Revival/Interpretive Turn, Stephen M. Feldman

Stephen M. Feldman

The civic republican revival and the interpretive turn are two leading movements in constitutional jurisprudence. Civic republicanism emphasizes that citizens belong to a political community where they participate in a dialogue about the common good. Interpretivism, meanwhile, holds that all of our practices, including constitutional adjudication, are interpretive; we are always situated within interpretative communities and traditions that simultaneously constrain and enable understanding. Civic republicanism and interpretivism, however, both face serious challenges. Critics of the republican revival charge that it invites oppression and silencing of divergent voices because it emphasizes the community and the common good. Opponents of the interpretive …

Whose Common Good? Racism In The Political Community, Stephen M. Feldman

Stephen M. Feldman

Political pluralists and civic republicans have launched constitutional and political theory into a controversy of paradigmatic proportions. Pluralists insist that politics is no more than a struggle between autonomous and rational individuals or groups who strive to satisfy their preexisting private interests. Civic republicans argue instead that the government should pursue the common good, not preexisting private interests. Something vital is missing from this debate: a recognition of and confrontation with American racism. In the context of American society, no constitutional or political theory can succeed without a comprehensive awareness and understanding of racism. The Constitution must be understood, interpreted, …

Engaging The Spectrum: Civic Virtue And The Protection Of Student Voice In School-Sponsored Forums, Robert R.M. Verchick

Robert R.M. Verchick

This article suggests a new justification for protecting student speech that specifically addresses the need for free expression and inquiry in school- sponsored forums. Starting with the proposition that student speech prepares one for self-government, I suggest we re-define the kind of self-government to which we ask students to aspire. By recasting our conception of democracy in a way that highlights universal participation and group transformation, we will find a theory of government much closer to the values of group discovery and social reform.