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Samuel Moyn & Ryan Doerfler, The Pseudo-Democratization of American Constitutional Theory in the Twentieth Century, SSRN (Oct. 8, 2025).


Abstract: In the last one hundred years, the United States Constitution has remained essentially the same. About halfway through that century, however, constitutional theory reimagined it. In the time before, everyone agreed that the U.S. Constitution was undemocratic. That was the point of it, for its defenders; and it was the cause of America’s crises and thus the predicate of reform, for its critics. Nor was this fact especially surprising: the point of constitutionalism, ancient or modern, was generally to limit democracy or not to have it. After a brief transition, in the middle of the twentieth century, almost everyone came to agree that the U.S. Constitution — indeed constitutionalism generally — is democratic, actually and potentially. Nothing about the document had changed; indeed, it had changed more through formal amendment before this development, compared to since. This turn is best understood as the pseudo-democratization of American constitutional theory. The purpose of this chapter is descriptive and narrow. It is to establish the fact of pseudo-democratization. The core of the chapter is an enumeration of the forms of the new (pseudo)democratic constitutional theory.