The Persistence of Power and the Struggle for Dialogic Standards in Postmodern Constitutional Jurisprudence: Michelman, Habermas, and Civic Republicanism

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 Michelmans 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 Michelmans civic republican conception of politics and his neotranscendental approach to the problem of dialogic critique To facilitate understanding this approach it includes a brief discussion of the relationship between Jurgen Habermass neotranscendental theory of communicative action and HansGeorg Gadamers philosophical hermeneutics It explores how postmodern theories including philosophical hermeneutics reveal weaknesses in Habermass theory that are mirrored in and ultimately defeat Michelmans 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 jurisprudenc