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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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PRINTED FROM YALE SCHOLARSHIP ONLINE (www.yale.universitypressscholarship.com). (c) Copyright Yale University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in YSO for personal use.date: 28 November 2021

Constitutionalism as Democracy

Constitutionalism as Democracy

Chapter:
(p.163) Nine Constitutionalism as Democracy
Source:
Freedom and Time
Author(s):

Jed Rubenfeld

Publisher:
Yale University Press
DOI:10.12987/yale/9780300080483.003.0009

Democratic self-government can be achieved, even in principle, through an inscriptive politics rather than through a politics of popular voice. This chapter describes the basic terms of constitutionalism as democracy: its theory of judicial review, its interpretive method, and its fundamental rights. It explores constitution-writing as a constitutive element of democracy and shows that constitutionalism as democracy undoes all the theoretical perplexities associated with contemporary constitutional thought. It also shows how constitutionalism as democracy alone captures the meaning of written constitutionalism, addresses the counter-majoritarian difficulty, explains the place of judicial review in a democracy, and makes sense of supermajoritarian amendment processes. Finally, it explores how constitutional law exerts legitimate authority over time.

Keywords:   democracy, self-government, constitutionalism, judicial review, fundamental rights, constitution-writing, counter-majoritarian difficulty, constitutional law

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