Toward a Political Realist Theory of Constitutionalism
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This dissertation advances a realist reconstruction of constitutionalism rather than a defense of its orthodoxies. Its orientation is diagnostic and practical: to show what, if anything, constitutionalism can justify here and now. The chapters that follow preserve the insights that animate these constitutionalist projects while relocating their transformative energy into democratic design. The wager is that institutional architectures which widen participation, structure reciprocal justification among equals, and keep settlements revisable, are better equipped to meet the Basic Legitimation Demand than court-centered moralism. Chapter 1 shows why aspirational entrenchment and court-centrism domesticate transformation rather than redistribute power. Chapter 2 tests the most sophisticated democratic rehabilitation of judicial review and finds that, once the settlement of rights is recognized as revisable by equals, judicial review either collapses into political constitutionalism or reasserts judicial supremacy under a new idiom. Chapter 3 examines constitutionalism’s most muscular brake—the UCAD—not as a transcendent veto but as a practice whose force depends on the motivational economy of officials and citizens; where that economy fails, doctrine does not bind.