George Skouras

Can democracy be birthed in our civilizational time? Is democracy compatible with judicial review? This chapter lays out the foundations of American democracy and judicial review by comparing the American and British models, and distinguishes a "thick" democracy from a "thin" one. It asks whether a thick democracy can exist over a thin one, and examines how property power functions as the critical matrix of the political system — whether democracy can exist side by side with property power, and how a reduced, "nightwatchman" state correlates with increased power for private property holders. Underlying it all is a single question: where do We the People fit into the political system? The chapter frames democracy as an ongoing experimental endeavor whose practical viability must be tested against its theoretical ideals.

This chapter traces how English constitutional development emerged from generations confronting feudalism and the hierarchical "Great Chain of Being." The seventeenth-century English Civil War challenged royal authority and eventually established Parliamentary Supremacy, reducing the Crown to a largely ceremonial role. Thomas Hobbes and John Locke developed influential political theories in this period, while Sir Edward Coke advocated for the common law and for judicial review residing with judges — though the British ultimately refused to let judges serve as final arbiters of the law. Britain developed no written constitution, but rather, as the chapter puts it, "a layering of generations of law that identifies important markers or turning points in their history." Locke's theories of natural rights, individualism, and property protection influenced the American Declaration of Independence, which adapted his language from "life, liberty, and property" to "life, liberty and the pursuit of happiness." The chapter closes by showing how Colonial Americans drew on British constitutional tradition to build a civilization fundamentally different from the societies already on the continent.

"The birthing and early American state is based on a mixed government with a written Constitution." The founders created a Republic built on Montesquieu's division of powers, and while the Constitutional Convention of 1787 took up the matter of judicial review, it never explicitly wrote that power into the Constitution — the proposal was debated and ultimately dropped, before being later claimed by the Supreme Court under Chief Justice John Marshall. The chapter argues that property protection became central to American constitutionalism, removed from democratic control through the Bill of Rights, and contends that Alexander Hamilton out-maneuvered both Madison and Jefferson in establishing the judiciary as the primary institution of constitutional interpretation — positioning an unelected body as the protector of property rights while limiting democratic control elsewhere in the Constitution.

This chapter examines how the Fuller Supreme Court (1888–1910) "set the legal agenda in America" by reinterpreting the Fourteenth Amendment's due process clause in substantive rather than procedural terms. It argues this interpretation prioritized property protection over democratic rule, undermining legislative efforts to help agricultural workers displaced into industrial employment, while Social Darwinism and laissez-faire economics combined with judicial protection of property rights to leave workers vulnerable and antitrust efforts facing judicial resistance. The chapter closes with a caution for comparative constitutional scholars: the American model — Bills of Rights included — was widely adopted internationally after World War II, and "the 'color' of law may hide more than it reveals" when examining other nations' legal frameworks.

Establishing pragmatic democracies around the globe is a challenge. Setting aside the possibility of a "substantive" democracy and focusing simply on a "procedural" or "thin" democracy, the difficulty is that special or class interests have little interest in seeing the general public rule over them. Americans, the chapter argues, have pursued "a lengthy trial and error approach of getting a better grip on the process of trying to run elections," on the understanding that inclusive representation improves over successive elections. Both Tocqueville and Wilson learned from experience that establishing democracy "is not an easy business" — and the chapter contends that property interests fundamentally conflict with democratic governance, with constitutional protections of property standing inherently opposed to majority rule.

"The jurisprudence of a democracy cannot be the same as the jurisprudence of republicanism or aristocracy." This chapter argues that legal realism brings the judicial system down to the ground where flesh-and-blood creatures live, and that responsibility for an agent's actions rests on the presence of a conscious state of being — an unconscious agent is blameless. Modern legal systems expect agents to comport themselves reasonably and judge them by the "reasonable person" standard, a legacy of the Enlightenment whose end, in the trenches of the First World War, "has yet to catch up to modern legal systems." The chapter also probes the gap between legal interpretation methods — originalism, intentionalism, "neutral" standards — and argues that communication always leaves slippage between intention and reality: what one intends to communicate and what is in fact communicated are not the same thing. Where originalists expect a static world of permanent meaning, the chapter insists on a contingent world of "contingent animals fully aware of their finality," with history resting on the here and now rather than "the beyond land of tomorrow."

"Our civilization, just as is the case of previous civilizations, is built by contingent animals that survive from the 'now' until tomorrow however measured." This chapter contrasts nature's permanence with civilization's transience — nature's "simples" care nothing about change, while composite entities like human beings are constantly undergoing temporal transformation. History serves as a record enabling human survival and continuity, and "our institutions are built to reflect our preferences, desires, understanding within the realm of time." On causation, the chapter argues that responsibility must be cut to the proximate cause rather than the final cause, and that unlike other species, humans possess a unique awareness of finitude that lets us "build structures and institutions not only to house our own being but the being of our posterity." The chapter situates democratic institutions within that uniquely human, and uniquely temporal, moral condition.

Constitutionalism and democracy can co-exist as long as the agents cooperate with one another as to their respective domains of responsibility: the constitution tries to bring order out of chaos and anarchy, while the political system gives greater voice to We the People. If justice and voice are not fairly distributed, the result is always instability in the institutions themselves — and, the chapter argues, there is no such thing as "neutral" law or "fair" politics in the world of politics at its most elemental, the tooth and claw nature has equipped the human animal with. The reader is warned about the danger the human animal poses to its own kind and to the other creatures of the earth: if presented with a constitution, "kick the tires first before buying it"; if a Bill of Rights goes by fine phrases like "human rights" or "civil rights," look under the hood — the central protection to be found there, the chapter argues, is property rights. "We can expect no metaphysical justice to save us or our institutions. Any justice available can only be found in our bones and muscle power. The role of democracy in our civilizational time can go so far and no further."