The Democratic Constitution: Experimentalism and Interpretation. Chicago: University of Chicago Press, 2017.

Butler’s democratic experimentalism offers the thesis that democracy needs to be protected democratically rather than by relying on the judicial supremacy over constitutional interpretation by nine unelected Supreme Court Justices. Butler illustrates what democratic experimentalism looks like through a close reading of dozens of key cases showing the virtues of an on-going, open-ended, empirical, fallibilist, and collaborative approach to constitutional interpretation against rival formalist and exclusionary theories. The latter include, among others, Antonin Scalia’s textual originalism, Ronald Dworkin’s vision of Hercules, the ideal moral guardian of the constitution, and Richard Epstein’s reliance of a univocal value underlying constitutional interpretation—market competition. Butler critiques a ubiquitous and recurring theme in these constitutional theories, that of ‘exclude in order to bind,’ whose aim of conceptual clarity forestalls the democratic means available to an experimentalist judiciary. Butler uses the philosophies of Charles Sanders Peirce and John Dewey to show that the method of science in fixing belief and the method of intelligence in inquiry are models for democratic experimentalism in constitutional interpretation. Butler threads a discussion of Deweyan democracy and Richard Posner’s adjudicative preference for empirical facts and skepticism of legal formalities through cases involving regulatory takings, Lochner-style constitutional interpretation, Citizens United v. FEC, Brown v. Board of Education, and Obergfell v. Hodges.