The Democratic Constitution: Butler and Posner on Pragmatism, Democracy, and Adjudication

In this review essay, I offer a summary of Brian E. Butler’s The Democratic Constitution: Experimentalism and Interpretation. Butler’s democratic experimentalism offers the thesis that democracy needs to be protected democratically rather than by relying on the judicial supremacy over constitutional interpretation by the Supreme Court. Butler illustrates what democratic experimentalism looks like through a close reading of key cases showing the virtues of an on-going, open-ended, empirical, fallibilist, and collaborative approach to constitutional interpretation against rival formalist and exclusionary theories. Butler relies on Richard Posner’s iconoclastic empirical approach to adjudication in advancing his thesis. However, Posner is skeptical of the Deweyan democracy Butler deploys to illustrate the democratic constitution. Further, Posner dismisses the philosophical pragmatism of Peirce and Dewey that Butler uses to ground his theory. Because of Butler’s reliance on Posner’s judicial practice and his side-stepping of Posner’s views on democracy and philosophical pragmatism, I ask how Butler’s proposal stands in relation to the ways it departs from Posner’s theory, if not his practice.