It Pays to Discover

Frank I. Michelman's Brennan and Democracy

01.03.00 | reviewed by Jeremy Derfner

Frank I. Michelman is a political theorist with a problem. He believes in democracy-all the people deciding for themselves how they will be governed. He also believes in the Consti tution, a 200-year-old document that sets down the fundamental rules of governance, "a law of law making," as Michelman puts it. But how can he believe in both? How can he reconcile "the paradox of constitutional democracy," whereby a democratic society puts so much faith in its foundational principles, which are for the most part removed from the democratic political process? To compound his problem, Michelman also has boundless respect for former Supreme Court Justice William Brennan, who for 30 years brought his moral sensibili ties to bear on the Constitution and came to personify the "activist" judge. Now Michelman's democracy is bound by what one man says about one document that nobody alive today has had any part in drafting. All of which leads Michel man to the central question of his book: "Brennan and democracy-how to have both?"

Michelman, who served as Brennan's clerk during the 1961-- 62 term of the Supreme Court and is now a pro fessor at Harvard Law School, deals with the theoretical conundrum in the first chapter of his extended essay and with Brennan himself in the second. To frame the discussion of how demo cracy is or is not carried out in our society, Michelman draws upon two leading constitutional scholars, Ronald Dworkin of the "democracy-as-rights" school and Robert Post of the "democracy-as-procedure" school. Dworkin argues that the laws governing a society can have some intrinsic democratic character, no matter who came up with them, how, or why. Laws upholding far-reaching enfranchisement are by nature democratic laws, in Dworkin's view. Post maintains that democracy is alive and well in a public discourse that seeps into the conduct of those who govern, a discourse that ideally would be equally available to all Americans. Michelman picks apart both Dworkin and Post (not before using their ideas to advance a productive discussion of his problem) and eventually gives his own answer. It is an honest one if somewhat unsatisfying: Michelman believes that the paradox will always exist no matter how hard we try to will it away. But our struggling with constitutional democracy will prove to us that if it is a less than perfect system, it is the best one we have. Some paradoxes are just paradoxes.

The second chapter of Bren nan and Democracy takes up Brennan's judicial philosophy in some detail. Michelman examines several landmark decisions (Moore v. City of East Cleveland, Cruzan v. Direc tor, Missouri Department of Health) and tries to place Brennan on the heavily traveled continuum anchored at one end by individual rights and at the other by community rights. Michelman concludes that Brennan believed absolutely in the dignity of individual human beings and in the power of the government to make itself an activist on behalf of individual liberty-again, that paradox. The book ends on a personal note as the author recounts a Justice Brennan anecdote. Michelman's admiration for Brennan shines throughout the book and even humanizes the constitutional theory from time to time.

One reviewer wrote that Michelman went about his writing with "mischief" and "an unpretentious prose style." Attributing mischief to Michelman might be going too far, but the book can be funny, especially if you delve into the extensive footnotes. And the style is straightforward-which is not to say it is an easy read. This is a theoretical book. But if you can summon both the intellectual fortitude and the inclination to start from square one and grapple with fundamental flaws in a system we tend to work rather happily in, then Brennan and Democracy is good exercise.