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The philosophical tensions underlying constitutional democracy are variations of tensions underlying democracy generally according to Frank Michelman. His attempt at combining procedural and substantive theories of constitutional democracy is not tenable and has little of the stated connection to the jurisprudence of US Supreme Court Justice William Brennan.

The US Supreme Court in 1991 has not exhibited the expected overwhelming conservatism, but instead has been surprisingly moderate in many areas, including abortion rights, freedom of speech, property rights and state autonomy. The court has split over whether constitutional interpretation should take the form of rules or of standards, with those advocating standards checking the conservatism of those advocating rules. The use of standards tends to result in moderation, whereas rules favor ideological extremes.