
Contents
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1. The countermajoritarian difficulty 1. The countermajoritarian difficulty
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2. Strategies for resolving the difficulty 2. Strategies for resolving the difficulty
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A. The Substantive Strategy A. The Substantive Strategy
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B. The Proceduralist Strategy B. The Proceduralist Strategy
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C. Dualist Strategies C. Dualist Strategies
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(i) Bickelian Dualism (i) Bickelian Dualism
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(ii) Problems with Bickelian Dualism (ii) Problems with Bickelian Dualism
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(iii) Ackerman’s “Dualist Democracy” (iii) Ackerman’s “Dualist Democracy”
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(iv) Problems with Ackerman’s Dualism (iv) Problems with Ackerman’s Dualism
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D. The Reductionist Strategy D. The Reductionist Strategy
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3. Waldron’s challenge 3. Waldron’s challenge
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4. Constituting democracy 4. Constituting democracy
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5. Resolving disputes about democracy 5. Resolving disputes about democracy
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A. The Possibility of Democratic Dysfunction A. The Possibility of Democratic Dysfunction
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B. The Inevitability of Democratic Disputes B. The Inevitability of Democratic Disputes
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C. The Partiality of Democratic Self-Judging C. The Partiality of Democratic Self-Judging
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D. The Promise of Constitutional Dispute Resolution D. The Promise of Constitutional Dispute Resolution
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E. The Advantages of Constitutional Rules E. The Advantages of Constitutional Rules
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6. Democratic malfunctions (and constitutional responses) 6. Democratic malfunctions (and constitutional responses)
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A. Agency Failure A. Agency Failure
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B. Majority (and Well-Organized Minority) Factions B. Majority (and Well-Organized Minority) Factions
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(i) The Nature(s) of Majority Partiality (i) The Nature(s) of Majority Partiality
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(ii) Minority Factions (ii) Minority Factions
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(iii) Factional Entrenchment (iii) Factional Entrenchment
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(iv) Constitutional Inoculation Against Factionalism (iv) Constitutional Inoculation Against Factionalism
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7. Whither “substantive” constitutional rights? (the roe v. wade problem) 7. Whither “substantive” constitutional rights? (the roe v. wade problem)
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8. From law to process 8. From law to process
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7. Law vs. democracy?
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Published:January 2011
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Abstract
Together with Chapter 8, this chapter applies the dispute-resolution account of law to the countermajoritarian difficulty—the apparent tension between democratic government and judicially interpreted constitutional constraints on democracy. It first describes the difficulty and canvasses four popular types of approach to resolving it, including those endorsed by theorists such as Ronald Dworkin, John Hart Ely, Alexander Bickel, and Bruce Ackerman. It then outlines the influential version of the countermajoritarian critique articulated by Jeremy Waldron and presents a dispute-resolution defense of constitutional law. Constitutional law is necessary not only to literally constitute democratic government, but also to prevent predictable types of breakdowns in democratic authority—including agency failure and factions—and to establish extrademocratic means to resolve disputes about whether a breakdown has occurred. These tasks must be performed by constitutional law, the chapter argues, because disputes about democratic malfunctions often cannot be resolved impartially by ordinary democracy itself.
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