Democratic Community: Nomos XXXV

9. The Real World of Democratic Community

9 THE REAL WORLD OF DEMOCRATIC COMMUNITY GERALD N. ROSENBERG INTRODUCTION Robert Post examines democratic community through the perspective of the American legal system, focusing on the Supreme Court and constitutional law. He understands democratic community as "a complex dialectic between ... two phases of the self and their corresponding social formations."l Believing that Court decisions both shape and uncover social practices, he examines constitutional jurisprudence, arguing that the dialectic of democratic community is contestable and that the Court strives to find a balance in ever-changing circumstances. "The ultimate revelation of the law," Post concludes rather mystically, "is merely the shape and contours of our own deepest commitments.,,2 In this chapter, I suggest that Post mischaracterizes democratic community because he constructs artificial views of both democracy and community, and focuses his analysis too narrowly on the Court. He does not ground democracy, community, the Court, or constitutional law in the political, social, and economic environment in which they exist. Also, because he does not give determinate meaning to the terms "community" and "autonomy," his description of constitutional law as mediating the tension be228 THE REAL WORLD OF DEMOCRATIC COMMUNITY 229 tween them is vague. To understand them one must identify the values that autonomy comprises and the interests that form community . In doing so, one finds that the role of the Court has been to support majority preferences and the interests of those controlling power, wealth, and status. Legal victories for individuals occur most often when there is no tension between their interests and the interests ofthose controlling power, wealth, and status, or when the matter is trivial. Further, the implicit assumption that constitutional law can be understood as a conflict between two notions of the self idealizes the role of constitutional law and removes the Court from the real world in which it operates. Finally, relying onjudicial decisions to understand the larger society creates two important problems. First, it overstates the importance ofthe Court by assuming that Court opinions matter in a uniform and consistent way. Second, focusing solely on cases cannot distinguish between those that are trivial for the larger society and those that reflect important trends. Whether studying constitutional law or democratic community, claims about importance and meaning need grounding in the real world. To proceed, I summarize Post's argument, examine the Court's relation to governmental, commercial, and majority interests , and explore how a grounded investigation ofcommunity and autonomy sheds greater light on the nature of democratic community. POST'S ARGUMENT Post's argument is based on his understanding ofcommunity and democracy. For Post, the social form of community is what gives individuals identity; it constitutes what they are. It is not something they choose, as injoining an association, but an attachment they discover. This approach to community views people as socially embedded and dependent. In contrast, democracy is based on the principle that people are autonomous and independent. Identity is self-determined, not socially embedded. Whereas community strives to restrict the field of social choice, autonomy strives to open it. For Post, democracy as autonomy, and community , are "deeply antagonistic forms ofsocial behavior.,,3 A democratic government requires both community and de- 230 Gerald N. Rosenberg mocracy, in which the laws are made by the same people to whom they apply.4 For this to occur, for there to be democratic self-determination, there must be an open structure of communication . "Coercion is precluded from public debate"S by this notion, and both the majority and minority must have the opportunity to participate fully and freely. Indeed, the "legitimacy " of democracy depends on maintaining a system of communication that preserves this openness. Without such public discourse, government is reduced to majority tyranny. Post calls this understanding of democracy "responsive democracy." The nature of democratic community, then, is the clash between community and responsive democracy. The role of the Court is to struggle to balance the two. Examining that struggle, Post finds a tradition that gives "central importance" to the concept of responsive democracy.6 Several important aspects of democratic community follow from this. First, the Court relies on "the ideal of responsive democracy to shape the nation's political landscape."7 Post finds this "most obvious" in the Court's First Amendment jurisprudence.8 Second , responsive democracy, with its emphasis on autonomy, highlights the individualism pervasive in American constitutionallaw . This includes a public/private distinction and a right to privacy...