Democratic Theories and the Constitution

By Martin Edelman

Subjects: Democracy
Series: SUNY series in Political Theory: Contemporary Issues
Paperback : 9780873958738, 412 pages, June 1985
Hardcover : 9780873958721, 412 pages, June 1985

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Table of contents



I Historical Background

1 The Republican Constitution

The Democratic Theory of the Anti-Federalists

The Republican Theory of the Framers

The Constitution as Fundamental Law

2 The Constitution Construed and Democratic Theories Vindicated

The Democratic Theory of Jefferson

The Republican Theory of Marshall

The Decline of Republican Theory: The Whigs (Webster and Lincoln) as Democrats

3 Constitutional Exegesis Old and New

The Cooley-Field Theory of Democracy

Populists and Progressives

Brandeis as a Progressive

4 The Challenge to Tradition

John Dewey's Instrumentalism

The Detachment of Justice Holmes

The New Deal and the Supreme Court

II Contemporary Theories of Democracy: The Competitive Theories

5 The Competitive Paradigm for Democracy

Schumpeter's Competitive Paradigm

The Weakness of the Traditional Paradigm

The Virtues of the Competitive Paradigm

6 Realist Theory

Realist Theory and the Competitive Paradigm

Realist Theorists

Social Scientists: Key, Dahl, MacIver and Lipset

Political Theorist: Hook

Supreme Court Justices: Frankfurter and Harlan

An Analysis of Realist Theory


Political Participation

Political Freedom


7 Optimalist Theory

Optimalist Theory and the Competitive Paradigm

Optimalist Theorists

Social Scientists—Schattschneider and Burns

Political Theorist—Thorson

Supreme Court Justices and the Preferred Freedoms Doctrine

An Analysis of Optimalist Theory


Political Participation

Political Freedom


III Contemporary Theories of Democracy: Natural Rights Theory

8 Liberal Natural Rights Theory

Justice Douglas and the Grand Design of the Constitution

An Analysis of Liberal Natural Rights Theory


Political Participation

Political Freedom


IV Contemporary Theories of Democracy: The Contract Theories

9 The Functional Contract

Meiklejohn and Tussman

Justice Brennan

An Analysis of the Functional Contract Theory


Political Participation

Political Freedom


10 The Individualistic Contract

Justice Black

An Analysis of the Individualistic Contract Theory


Political Participation

Political Freedom


V Conclusion

11 The Utility of Reason

Contemporary Theories and the Constitution

The Role of Reason

Suggestions for Constitutional Interpretation


Political Participation

Political Freedom





Table of Cases



Although the government of the United States is traditionally viewed as a democracy, there is considerable disagreement about what democracy means and implies. In a comprehensive study Professor Edelman examines the three democratic paradigms most prevalent in America today: natural rights, contract, and competition. Theories based on these paradigms lead to different ideas of democracy, each of which yields variant interpretations of the Constitution. This close relationship between democratic theories and constitutional interpretations is analyzed in an extensive historical introduction, which focuses on some of the major thinkers in American history.

Edelman's discussion shows that neither the Constitution nor the development of American political thought can serve as an authoritative basis for any one theory of democracy. Instead of a particular theory, the historical constant was an appeal to reason inherent in our basic charter. In his methodological section, Edelman argues that we must use reason to clarify the latent values inherent in the differing concepts of democracy and the consequences that flow from them. He analyzes judicial ideas in the light of three concepts deemed central to any democratic theory—citizenship, political participation, and political freedom—and concludes with a balanced account of contemporary democratic theories, the constitutional theories related to them, and a critique of both.

Martin Edelman teaches political science at SUNY, Albany and has written numerous articles on American constitutional law and also on the Israeli court systems.