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Freedom and TimeA Theory of Constitutional Self-Government$
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Jed Rubenfeld

Print publication date: 2001

Print ISBN-13: 9780300080483

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300080483.001.0001

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Constitutional Self-Government on the Model of Speech

Constitutional Self-Government on the Model of Speech

(p.45) Three Constitutional Self-Government on the Model of Speech
Freedom and Time

Jed Rubenfeld

Yale University Press

A common metaphor in contemporary political theory figures democracy or self-government in the language of speech, conversation, dialogue, voice, discussion, or some other speech-cognate. This rhetoric is evident in the so-called dialogic, discursive, or deliberative models of democracy that integrate an entire code of “speech-act ethics.” This chapter describes a speech-modeled conception of self-government organized around freedom of speech and within which a written constitution is a necessity but also a scandal. Speech-modeled self-government also demands constitutional restraints on popular will and places constitutionalism at odds with democracy. However, the incompatibility between constitutional restraints and democratic self-government need not be seen as a logical dilemma which, in the American constitutional literature, is known as the “counter-majoritarian difficulty.” Both Robert Bork and Alexander Bickel agree with the thesis that democracy exists in deep tension with constitutionalism.

Keywords:   political theory, democracy, self-government, freedom of speech, constitution, constitutionalism, logical dilemma, counter-majoritarian difficulty, Robert Bork, Alexander Bickel

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