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The Persistence of Power and the Struggle for Dialogic Standards in Postmodern Constitutional Jurisprudence: Michelman, Habermas, and Civic Republicanism
Georgetown Law Journal (1993)
  • Stephen M. Feldman, University of Wyoming
Since the 1950s, most constitutional scholars have presumed that the American political system is pluralistic, with autonomous individuals struggling in the legislative arena to maximize the satisfaction of their preexisting private interests. The "new republicans" reject these presumptions and insist that constitutional jurisprudence must recognize the potential for virtuous citizens to engage in a political dialogue that generates public values and identifies a common good. Frank I. Michelman has pioneered this revival by confronting one of the most troubling and persistent difficulties of civic republican thought: the likelihood that the political dialogue will be closed to segments of the community and therefore will generate public values skewed toward the interests of the already dominant social groups. This article questions whether Michelman's reasoning supports his conclusion that politics should be deliberative and that the community should strive to be as inclusive and undistorted by power as possible. Postmodern theories suggest that power is so pervasive and persistent that the political dialogue must always be distorted and exclusive. If a postmodern critical theory is possible in constitutional jurisprudence, it must accept the necessity of community and tradition, of prejudices and interests, and of distortion and exclusion. This article explores Michelman's civic republican conception of politics and his neo-transcendental approach to the problem of dialogic critique. To facilitate understanding this approach, it includes a brief discussion of the relationship between Jurgen Habermas's neo-transcendental theory of communicative action and Hans-Georg Gadamer's philosophical hermeneutics. It explores how postmodern theories, including philosophical hermeneutics, reveal weaknesses in Habermas's theory that are mirrored in and ultimately defeat Michelman's effort to articulate and legitimize a critical norm in constitutional jurisprudence and proceeds to discuss how Michelman eventually acknowledges this postmodern challenge to his theory, suggesting that certain prereflective cognitive structures might create the possibility for undistorted and inclusive political dialogue. The article presents an alternative approach to resolving the struggle for dialogic standards in constitutional jurisprudence.
  • constitutional jurisprudence,
  • civic republicanism,
  • Frank I. Michelman,
  • Jurgen Habermas,
  • Hans-Georg Gadamer,
  • philosophical hermeneutics
Publication Date
Citation Information
Stephen M. Feldman. "The Persistence of Power and the Struggle for Dialogic Standards in Postmodern Constitutional Jurisprudence: Michelman, Habermas, and Civic Republicanism" Georgetown Law Journal Vol. 81 (1993)
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