Abstract

This dissertation aims to lay the groundwork for a constitutional constructivism, a counterpart to John Hart Ely's restricted utilitarian theory of representative democracy and distrust that derives from John Rawls's conceptions of justification and justice. The argument is that such a Rawlsian theory better fits, justifies, and reinforces the American constitutional document and constitutional order than does Ely's theory. ;The constitutional constructivism proposed in the dissertation comprehends both a methodological conception of constitutional interpretation and a substantive conception of constitutional justice. It incorporates the general methodological sense of constructivism illustrated by Ronald Dworkin's conception of constitutional interpretation as construction of theoretical structures of justifying principles as contrasted with exegesis of isolated clauses of the constitutional document or research into concrete intentions of the constitutional framers. It also embodies the specific substantive sense of constructivism exemplified by Rawls's grounding of the basic liberties and their priority on a conception of citizens as free and equal moral persons along with a conception of social cooperation. ;The dissertation elaborates two fundamental themes of a Rawlsian constitutional constructivism: securing the preconditions of democratic choice and securing the preconditions of social cooperation on the basis of mutual respect in a constitutional democracy, in order that everyone shall be afforded the common and guaranteed status of equal citizenship. The development proceeds through a pair-wise comparison of these two themes with Ely's two central themes: clearing the channels of political change and facilitating the representation of minorities, in order that each shall count for one and none for more than one. Unlike Ely's theory, which implies a theory of judicial review that conceives the role of courts to be that of merely perfecting the processual preconditions for a representative democracy, the constitutional constructivism advanced in the dissertation entails a theory of judicial review that conceives the role of courts as securing substantive as well as processual preconditions for a just constitutional democracy.