We've made a mistake, urges Bruce Ackerman. We've failed to notice, or have forgotten, that ours is a dualist democracy: ordinary representatives passing their statutes are in fact the democratic inferiors of We the People, who at rare junctures appear on the scene and affirm new constitutional principles. (Actually, he claims in passing that we have a three-track democracy.)' Dwelling lovingly on dualism, Ackerman doesn't quite forget to discuss democracy, but he comes close. I want to raise some questions about the democratic credentials of Ackerman's view. Not, perhaps, the ones he anticipates. So I don't mean to argue that the Constitution places illicit restraints on popularly elected assemblies: I find the so-called countermajoritarian difficulty at least as boring as does Ackerman. (More generally, any legal theory promising to relax our obsessive focus on appellate review is to be applauded, though ironically, this one turns out to be very much about that after all.) Nor do I mean to cast Publius as the fiend who subverts the democratic promise of the Revolution in the name of class interest: I find Beard and his legacy at least as mischievous as does Ackerman. (Though Arendt's quirky misreading of Athenian democracy is a dubious remedy.) Democracy, to say something screamingly obvious, is a complex ideal. I am historicist enough to believe that a fully adequate account of democracy must in part be a critical history not just of the concept, not just of some classic texts of democractic theory, but of high politics and social practices as well. Since I can't provide that history here, I will instead have to rely on an appeal to the reader's linguistic intuitions and baldly assert that the complexities I discuss here are indeed internal to democratic theory.
Herzog, Donald J. "Democratic Credentials." Ethics 104, no. 3 (1994): 467-79.