Law’s Republic

Frank Michelman

Recent years have witnessed several proposals to reconsider American constitutionalism in light of the “civic republican”strain identified by historians in the political thought of the founding era. This new republicanism must meet (among others) two objections. First, that traditional republicanism was a solidaristic doctrine presupposing a degree of moral consensus that is nonexistent in a modern, diverse, liberal society. Second, that it was a majoritarian doctrine of popular legislative supremacy that is fundamentally incompatible with the modern constitutionalist aim of securing, by judicially enforced higher law, individual rights against political oppression. Professor Michelman takes up these two objections to the “republican revival,”contending that only through a modern reconsideration of republican constitutional thought can we hope to make sense for our age of Americans’ persistent beliefs and avowals that political liberty calls for both “a government of the people, by the people”and “a government of laws and not of men.”Drawing support from both traditional republican sources and contemporary readings, the author argues that these two demands are jointly satisfiable only by ideally conceiving of both legislative politics and constitutional adjudication as forms of self-revisionary normative dialogue through which personal moral freedom is also achieved. Using Bowers v. Hardwick as an example, he suggests that such a dialogic-republican constitutional theory can inspire stronger judicial protection of individual rights than do competing theories.

Author: international

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