For the last four decades, some form of "process" theory has dominated conventional constitutional theory, on the bench and in the academy. The organizing, usually implicit, background assumption is that the exercise of governmental power – whether by legislatures or courts – is to be tested for normative legitimacy against a set of procedures. Writing as critics of the basic framework of process theory, Professors Kimberli Crenshaw and Gary Peller discuss the contributions and constraints of a proceduralist constitutional law discourse. In light of direct democracy initiatives claiming the power of legislation, and a substantively conservative judiciary defining the "law," Professors Crenshaw and Peller suggest focusing on new ways that claims of the disempowered are articulated in constitutional doctrine.
Constitutional Law | Law | Political Science
Kimberlé W. Crenshaw & Gary Peller,
The Contradictions of Mainstream Constitutional Theory,
UCLA L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2974