Toward a People's Constitution

34 Pages Posted: 29 Oct 2002

See all articles by Gene R. Nichol

Gene R. Nichol

University of North Carolina School of Law

Date Written: October 2002

Abstract

Robert Dahl's marvelous little book, "How Democratic Is the American Constitution?" (Yale U. Press 2001) explores one of the clearest distinctions between the real and the imagined in American constitutionalism. He easily concludes that our purported democratic cornerstone - the constitutional charter itself - is not unabashedly democratic. Rather, it cabins and disables majority sentiment as it embraces it. It restricts the implementation of public preference as it nods to it. It retains antiquated compromises and processes that inappropriately thwart majority will. Applying democratic standards, Dahl concludes that our constitution is not the best that we can design to enable "politically equal citizens" to govern themselves. Thus, he calls for invigorated "public discussion that penetrates beyond the Constitution as a national icon."

In this essay I take Dahl's challenge to offer a Populist Bill of Rights. Some of the proffered amendments seek to eliminate privileges bestowed on entrenched economic interests - corporations, wealthy political financiers, international commercial enterprises, and the like. Others seek to carry forward and energize existing principles of democratic participation and constitutional accountability. Still others seek to assure, in positive terms, fundamental components of human dignity; or to modify the rankest forms of discrimination against the most vulnerable members of society. As a package, they would take a significant step toward placing the United States government more profoundly on the side of the bottom third. They would adopt a different theory of political power: government exists primarily for those who need it most.

Keywords: Constitutional law, democratic theory, comparative constitutionalism

Suggested Citation

Nichol, Gene R., Toward a People's Constitution (October 2002). Available at SSRN: https://ssrn.com/abstract=337220 or http://dx.doi.org/10.2139/ssrn.337220

Gene R. Nichol (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919 962 5928 (Phone)

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