Recasting Democratic Theory, 1984–1996 199
specifically and rights foundationalism more broadly because they
seemed to arm judges – however enlightened or well-intentioned –
with a dangerous form of morality: an a priorism that insulates
rights from the reach of the democratic sovereign. These remark-
able reservations about the status of rights in German political cul-
ture stem from his passionate convictions, expressed across decades
of writing, about the illiberalism of the tradition of the German
Rechtsstaat – and of the conservatism historically lurking within it:
Liberal constitutionalism is not yet democratic constitutionalism,
and rights foundationalism has a closer affinity to the former than
to the latter.
Habermas’s contemporary critique of the paternalism of judges
is remarkably reminiscent of his critique of the “morally laden indi-
vidual rights” that he identified as a weakness of German liberal
legal theory in the nineteenth century.^107 As Habermas put it in his
critique of contemporary U.S. legal scholar Michael Perry, overreli-
ance on the notion of “substantive values pregiven in constitutional
law” can produce a politics that is too communitarian, that is, too
“thick.” In Habermas’s characterization, Perry represents a “neo-
Aristotelian variant of the doctrine of objective values”:
[Perry]... conceives of the text of the constitution as a founding
charter that manifests the ethical self-understanding of a historical
community...
In a still more pronounced fashion than the German legal herme-
neutics following Gadamer, Perry sees the constitutional judge in
the role of a prophetic teacher, whose interpretation of the divine
word of the Founding Fathers secures the continuity of a tradi-
tion that is constitutive of the community’s life... By assuming it
should strive to realize substantive values pregiven in constitutional
law, the constitutional court is transformed into an authoritarian
agency.^108
In sum, in his discussion of the “methodological self-understand-
ing” of the Supreme Court in the United States and the Federal
Constitutional Court in the former West Germany, Habermas cri-
tiqued the notion that judges should be viewed as an elite caste of
interpreters. For example, he also argued that Ronald Dworkin’s
(^107) Habermas, BFN, 89.
(^108) Ibid., 257–8.