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A Matter of DisputeMorality, Democracy, and Law$
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Christopher J. Peters

Print publication date: 2011

Print ISBN-13: 9780195387223

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780195387223.001.0001

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Constitutional process

Constitutional process

(p.273) 8. Constitutional process
A Matter of Dispute

Christopher J. Peters (Contributor Webpage)

Oxford University Press

This chapter continues Chapter 7's defense of constitutional law and judicial review, focusing on both the relative impartiality and the reasonable competence of constitutional procedures. It explains how the most frequently criticized aspects of constitutional process—its obsession with the past, its constraint by a text, the political insulation of its judges—give it a crucial advantage in impartiality over ordinary democracy with respect to issues of democratic authority. The chapter also contends that the superdemocratic nature of the framing and amendment processes, the long-term political dynamics of constitutional decision making, and the participatory nature of constitutional adjudication combine to generate reasonable democratic competence. It rejects strict formalism and open-ended pragmatism in constitutional interpretation, offering instead a methodology based on the concepts of semantic intention and justification discussed in Chapter 5. It closes by comparing the dispute-resolution approach to the popular responses to the countermajoritarian difficulty canvassed in Chapter 7.

Keywords:   countermajoritarian difficulty, constitutional law, judicial review, impartiality, decision-making competence, constitutional process, textualism, originalism, legal pragmatism, constitutional framing

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