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. 9, No. 4 (1990 - 1991), pp. 327-370 Published by: Springer Stable URL: http://www.jstor.org/stable/3504771 . Accessed: 19/07/2011 05:31
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DEMOCRACY OF JUDICIAL
ABSTRACT. It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriatein a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.
The authority of American courts to review and declare unconstitutional popularly enacted legislation is an aspect of our constitution that strikes many as inconsistent with the idea of democracy. As H.L.A. Hart says, English political and legal thinkers find this "extraordinary judicial phenomenon" to be "particularly hard to justify in a democracy".' Sidney Hook makes a similar claim: "Those who defend the * I am indebtedto John Rawlsand BurtonDrebenfor their helpfuladviceand H.LA. Hart, 'American Jurisprudence Through English Eyes', in Essaysin
their comments on an earlier draft of this paper.
and Jurisprudence Philosophy (New York: Oxford University Press, 1983), p. 125.
Law and Philosophy 327-370, 1990-1991. 9: C 1990-1991 Kluwer Academic Publishers. Printed the Netherlands. in
cannoteasilysquare theirpositionwith theoryof judicialsupremacy These reasonable of the theory of democracy".2 any interpretation are sinceourbeginnings. misgivings not new;theyhavebeenexpressed Thomas heldjudicialreviewto be "averydangerous doctrine Jefferson of and one which would place us underthe despotism an indeed, "The of are oligarchy".3 peoplethemselves the only safe depositories in the he said,and thatimplies"absolute acquiescence government", from decisionsof the majority- the vital principleof republics, whichthere no appeal force".4 is but muchof our history, judicialreviewhasbeenexercised Throughout of in ways that are incompatible with any reasonable interpretation I believethereis a wayto conceive democracy and of Still, democracy. the role of judicialreviewwithinit which allowsit to be consistent institutions. basicclaimis that the set of moral with democratic My and ideals that best justify democratic principles decision-making for of providea justification the institution judicialreview processes In underappropriate circumstances. arguing this,I do not meanto for in a fruitlessdispute regarding meaningof the term the engage Different formsof government be saidto be democcan "democracy". into or whatI aimto do is inquire raticin one respect another. Rather, of andmajority to be rule the reasons hold equality political we rights and centralto democratic government society.This will providea of the basisfor ascertaining institutional requirements the democratic and It to idealof freedom equality. is with respect theserequirements claim thatjudicialreviewis, not that I will assessthe philosophical I undemocratic. but inherently simplyin its practice alsoby its nature, and arguethat this a prioriclaim is withoutfoundation, that under reviewcan serveto maintain promote and certainconditions judicial rule. andmajority thesameendsthatjustify political equal rights
(Berkeley:University of California Press, of Sidney Hook, TheParadoxes Freedom 1962), p. 95. 3 Letter to William vol. Jefferson, of Jarvis, in P. L. Ford, ed., The Writings Thomas Koch and Pender, eds., The Life and SelectedWritings Thomas Jeferson (New of York: Random House, 1944), p. 324.
and Review Constitutional Democracy theLegitimacy ofJudicial
therecanbe in raising It mightbe askedwhatpractical importance review of the legitimacy judicialreviewanew. of the question Judicial withinour constitutional of is takenfor granted Questions its system. no longerariseamonglawyers, or the public. politicians, legitimacy and now centers specific on constitutional Constitutional debate issues, of as on such questions the scope of the Court'sauthority review, standards review,and the natureof constitutional of interpretation. But all of theseissuesare connected. citedin Manyof the arguments or debatefor judicial restraint againstthe WarrenCourt's public of liberalreadings the Due Processor EqualProtection Clausesare reformulations earlierobjectionsto the Court'sclaim to final of to the Whatever reasons therearefor authority interpret constitution. or against judicial review,they retaintheir force when appliedto issuesof constitutional interpretation. feelingis thatwe canfinally My resolvecontroversial constitutional issuesonly if we can come to a of of democpublicunderstanding the requirements a constitutional role and therein. racy theproper of thejudiciary In the as follows: SectionI, I discuss philodiscussion proceeds My thatgivesriseto the disputeoverthe legitimacy sophical background of judicialreview.Then in II, I reformulate traditional the objection and examinethe conception democracy of which it is based. upon III Section setsforththe basesfor an alternative of conception democtradition. that stemsfor the socialcontract SectionIV contains racy the core of the argument judicialreview.I contendthat if we for of conceive democracy a formof sovereignty not merely form as and a of government, then judicial review can be construed a shared as the precommitment free and equalcitizensto maintain conditions by of theirsovereignty. in Whetherit is appropriate a particular democraticconstitution In on strategic considerations. V, I contrast depends this argument with Hamilton's for argument judicialreviewfromthe the natureof judicialpower,andin VI, I discuss circumstances under whichjudicialreviewis appropriate. VII Section contends judicial that does not undermine basesof the review,if appropriately exercised, I close in sectionVIIIwith some remarks the conseon democracy. for quences constitutional interpretation.
see also his. n. to whichis essential utilitarian of individuals' preferences.330 I. 14 and 237-38. 'Constitutional Interpretivism. judicial involves to essentially According one commonview. legislative majoritarian and conceivedas equal representation majority whetherdemocracy. particular to like Considerations these underliemanyobjections judicialreview. 54. where he argues that the appeal of democracy can best be understood in terms of its connection with utilitarianism. 187. is an appropriate dependsupon social circumstances. and of underlies This kind of argument JohnEly'sconception democracy . who argues that in the absence of interpersonal comparability.5 legislative maintaining integrity majoritarian 5 and judicial review. see his Democracy Distrust(Cambridge:Harvard University Press. as is well known. democracy amenable a rangeof philosophical Thereis nothingintrinsic with utilitarianism. PHILOSOPHICAL BACKGROUND SamuelFreeman or one'sview regarding democratic the Inevitably legitimacy role of review must turn upon how he conceivesof democracy. because theirsimplicity.majority and historical And. 'Utilitarian Ethics and Democratic Government'. voting definedareill-suitedto reflectthe intensity as procedures traditionally calculations. 405-08. Ethics 100 (Jan 1990): 335-48. On Ely's affinities with utilitarianism. schemeof institutions rule. of and Still. Also see Jonathan Riley. equal incorporating procedures legislative majoritarian to and approxipreferences representation responsiveness individuals' that the alternative decisions mate more closelythan any practicable One utilitarian calculus. pp. most closelyassociated that to utilitarianism wouldrequire procedures.whatdemocracy in is equalconsideration and responsiveness everyone's to interests of of on deliberations laws and socialpolicies. 1980).utilitariansare necessarilydemocratic. or to the exerciseof that powerin casesthat do not involve of the Judiprocedures.it can be arguedthat undermodernconditions. n.This way of conceiving but it is to is views. Its Allure and Impossibility'. might undera moreprecise wouldbe realized then conclude that what underliesand justifies our concern for and majorityrule is that they are the most workable democracy in the for procedures determining balanceof preferences favor of laws. IndianaLawJournal 53 (1978): 339.
This justified fromthe premise thatthe interests all arenot of convention proceeds but simplyto be considered also are to be advanced government by To decisions. of This fundamental democratic value is specifiedby equal rights of selfand in that determination. bases.suppose democracy in the following way: Rather than seeing democracy represented in we its features terms. equalpolitical participation is centralto the naturalrightstheoryof the social contract of tradition Locke. the role of review. proceed fromthe assumption the basicideasunderlying socialcontract that the tradition to formsbetterthan captureour commitment democratic theoretical alternative. is of laws Appealto the commoninterest a convention democracy. equalparticipation the political procedures settlelawsandbasicsocialinstitutions citizens' life-prospects. is a forceful.and Rousseau. ciple This are to procedures designed accommodate. are commonlyarguedfor and socialinstitutions claimedto be are on groundsthat they promotethe good of everyone.andassess forceof the argument political rightsandmajority that judicial review is anti-democratic. its of and conception democracy.the case for or against judicialreviewcomes down to the questionof what is the I of most appropriate conception a constitutional democracy. participate equalterms and on in political that institutions promote person's each good. and equalrights. affecting The focushereis not uponindividuals' unconstrained and preferences theirequalconsideration (maximizing) aggregate in the satisfaction of but and of to interests. any .equalfreedom. groundthesecommonplace is ideas. uponthe capacity interest eachperson rationally decideand freelypursuehis interests. this familyof ideas.I suggestthatwe approach theseissuesfrom a differjudicial entperspective. mightconceive essential essentially procedural in termsof the equalfreedomand independence its citizens. is from this that I shall frame my inquiryinto the bases of equal perspective the rule. to the modern and versionof that tradition. While not confinedto a specifictradition democratic in thought. Ultimately.Constitutional and Review Democracy theLegitimacyJudicial of 331 cial reversals majority of decisions violatethe basicdemocratic prinwhich majority of equal consideration everyone's of interests. thoughI believemisguided.Kant. Rawls's It justice as fairness.
It is interesting to note that while Locke provided for no institutional mechanism for resolving constitutional disputes. he envisions an institution with powers of constitutional review. "to protect the sovereign [people] against the government'. Bk. II. with no share in legislative or executive power. Rousseau did. 1962). "A welltempered tribunate is the firmest support of a good constitution. 7 Alexander Bickel..332 SamuelFreeman If we see the question of the legitimacy of judicial review in that context.. then it is no longer a foregone conclusionthatjudicial review is undemocratic. The contrast is stylistic. ch. pp. 5.Instead.This is As Bickel statesit: objection. He says. Alexander Jefferson's The root difficulty is that judicial review is a counter-majoritarian force . and reflects a common perception of these two figures. 'On the Tribunate'. it does mean that a representative majority has the power to accomplish a reversal.the debate becomes an instance of a larger conflict within democraticthought.. [This]is the reasonthe chargecan be made thatjudicialreviewis undemocratic . This conflict is best describedin terms of the tension that exists when we attempt to combine the ideals expressedin Rousseauwith those of Locke. See On the Social Contract. where he discusses the need for a body. it undermines everything". The legitimacy of judicial review ultimately depends upon how we strike the balance betweenthese two setsof potentiallyconflictingrights. Although democracy does not mean constant reconsideration of decisions once made. 16-17.7 I am grateful to Professor Burton Dreben for the suggestion that the dispute over judicial review is best seen in these terms.. THE PROCEDURAL CONCEPTION AND ITS LIMITS OF DEMOCRACY Let's return and considerthe bases given for the categoricalobjection to judicial review: it is contraryto the will of the majority. Jesse Choper puts the objection in this way: "[W]hen [courts] 6 . The Least DangerousBranch (Indianapolis: Bobbs-Merrill. But if it has the slightest bit too much force. IV.6It is the conflict between citizen'sexerciseof their equal rights of politicalparticipation and the various civil and social rights which we feel should not be subject to political abridgement or calculation.
federal. or local . is culture.federaljudges in the United Statesare appointedby the executive. or to democratic judicial reviewappears cut directlyagainstthe grainof traditional Reviewand the National Political Process Unitheory".and Review Constitutional Democracy theLegitimacyJudicial of 333 A related reason offered to support the claim of the undemocratic nature of judicial review is that judges are not electorallyaccountable to the majority. Democracy Distrust. 1982). HumanRights(New Haven:Yale UniversityPress. 8 and Ely. exercise the power of judicial review to declare unconstitutional legislative.. as they are in many states' systems. 4-5.8 To formulate the basic problem of judicial review in terms of its and being contraryto majoritarianism electorallyaccountablepolicyfocuses upon symptoms of what must be a deeper problem.There are good reasonsfor this practice. Not merely antimajoritarian.. Perry. is M. Choper. 6. But the fact that federaljudges are not accountableto the majorityis an institutional fact about the constitution of our national government. Insteadit must be that the exercise of this power works as a constraintupon the equal right of citizens in a democracyto take part in and influence the government decision-making processes that significantly affect their lives. . making Constitutionally. The the and Courts.p.1980). with life tenure subject to good behavior.that requiresjustification".state. John Ely says: As The centralproblemof judicialreviewis: a body that is not electedor otherwise politically responsiblein any significantway is telling the people's elected that representatives theycannotgovernasthey'dlike. action . Constitution. not that principle.Judicial (Chicago: versityof ChicagoPress.or administrative product of the popularwill by denying policies formulatedby the majority's elected representatives their appointees.they reject the executive. Both Bickel and Choperarguereviewis still neededto promotemoralvalues(Bickel) protectminorities' and rights(Choper). judicial review. MichaelPerryconcurs:"Inour political pp.the principleof electorallyaccountable it policymaking axiomatic.some having to do with judicial review.p. Judges could be elected to office for a set term.The basic problem with judicial review is not thatjudges are not electorallyaccountableto majoritywill. and reservationsabout judicial review would remain.. 9.
Cf.is a limitation upon citizens'equal rights of participation. the I principleof equal politicalparticipation. quiringfarmore thana (bare) All of these argumentsassume that equal political rights requires rule by a bare majority. 1971).is that system of highestorder rules for making and applying those social rules recognizedas laws. where the Supreme Court says (quoting from Dunn v. following Rawls. Reports 1. The Court's revocation of popularly enacted measures can be overridden only by constitutionalamendment. By exercisingtheir equal politicalrights designedto accommodatethem. So even if presidingjudges are elected and can be recalled. at 34. 405 U. remajorityfor enactment. Mass: Harvard University Press. San Antonio Independent School District vs. Each citizen is to have an equal right to take part in constitulaws and basicsocialinstitutions.The constitution of any government. Blumstein.S. citizens throughlegislativeprocedures have alreadymade as democratica determinationas can be made. since it involves the authorityto overrule legislation enacted through proceduresthat accord with this It principle.S. 411 U. Rodriguez. n. A Theoryof Justice (Cambridge.the damage has alreadybeen done. 330 (1972)): "[A] citizen has a constitutionally protected right to participatein elections on an equal basiswith other citizens". I call this. tionalprocesses that establish The basic objection to judicial review might now be reformulated in the following way:judicial review.334 SamuelFreeman The basis for the objection that judicial review is undemocraticis expressedby the following principle:In a democracycitizens are to have an equal right to participate and to determinethe outcome of in the constitutional and legislative processes which establish the laws with which they are to comply. 74 (1973). As such it defines the basic laws and processesnecessaryfor the enactmentand applicationof valid laws. The constitutionof a democracy is designed in accordancewith the principleof equal participation. . p. does not matter whether the judges making these decisions are electorallyaccountableor not. 221ff.Later (in IV) I contend that the connection between equal participationand bare majorityrule is not as straightforwardas it is often taken to be in argumentsagainstjudicial review. 9 John Rawls.whether written or unwritten.9 assumethat this principleis a constitutionalrequirementof democracy.
we might understanddemocracy in purely proceduralterms. by B. also defines democracyin this way.'0 procedures The second view holds that though democracyinvolves substantive requirementson the kinds of law that may be enacted and enforced.judges and those whose intereststhey repreof for those of a majority. P. A proceduralconception of democracyinvolves no substantiverestrictionupon the outcomes reachedby legislativedeterminations. are those required democracy itself as a procedure".pp. Politics.Y. 1980)..N.apparently utilion that a purelyprocedural tariangrounds. Philosophy. 155-56. TerranceSandalowargues.such as substantive equality. 'The Distrustof Politics'. Society. 3. LaslettandJ." This implies that decisions about the 10 Brian "I Barrydefines a procedural conception: follow .LawReview56 See sent) 446.I reject the notion that one should build into "democracy" constraintson the any content of outcomesproduced. This conception of democracyoften underlies the objectionthat the legislativebranchshould have exclusiveauthorityto interpret the constitution.. and and where decisions are reached in accordancewith the principle of bare majorityrule. other than those rights necessary to sustain legislative themselves. objectionsto judicial review in 'Philosophy Theory p. 1979).First. (1981): p.concernfor the generalwelfare. Fishkin(Oxford: Blackwell's.. On Justifying Democracy (London:Routledge & Kegan Paul. still decisions on the nature and interpretationof these restrictions must be decided as required by the principle of equal participation and majorityrule. By a proceduralconception of democracyI mean the identification of democracy with a form of government equal rights of participation decision-makingwhere each is guaranteed influence in proceduresthat determine laws and social policies... those who insist that 'democracy' to be understood procedural is in terms.respectfor human rights. William Nelson. that and conception with legislative processis nothingmore thanthe substitution judicialinterference of preferences a minority(viz. .U.'IsDemocracy and ed. 1 This seems to be the MichaelWalzer's conceptionof democracy underlying Political 9 and Democracy'. Special?' (fifthseries).. Barry.personallibertyor the rule of law . p.. is morallysufficient. The only exceptions.and Review Constitutional Democracy theLegitimacyJudicial of 335 But for now consider a more general question: How are we to conceive of democracyif any of these objectionsare to succeed?There are but two alternatives.. (1981): 379.That is to say.
The same holds true of group decisions.We have criteriafor assessingthe rightnessof outcomes resulting from any actual political decision-making procedure. so long as it is recognizedfor what it is. is that it unduly focuses our attention upon but one aspect of societies that we think democraticto the exclusion of other featuresthat are equallyimportant. commitmentto democratic To see this we only need considerthe natureof politicalprocedures and the principleof majorityrule. are but examples of the more general rule that principlesspecifying what is right or fair to do (in this case. perhaps. on empiricalgroundswhich show that the substantive requirementsof democracy are always on balance better realized if their final interpretationis left up to legislative authority.for stipulativedefinitions no argumentativeweight. My concern is the purely philosophicalobjection that stems from a procedural conception. Furthermore.Though I doubt this can be confirmed. whether by simple or special majorityrules. No one would argue that the mere fact that a person makes a decision makes that decision right.and . matter how fair or appropriate there is no practicableway to design a political procedure which would guaranteethat the resultsreachedby satisfyingits requirements These points would alwayscorrespondto moral criteriaof assessment. What I find problematicabout this account of democracy. as well as of the normativerequirements the values and ideals that underlieour forms. following certainprocedures) can sometimesconflict with and be outweighedby other principlesof right and justice. then it is trivial that judicial review is undemocratic. A purely procedural definition of carry democracy is fine.I will not argue the point. Whatever force this objection to judicial review has must be established. Now. of course if democracyis simply defined in proceduralterms as a matter of stipulation. for certain purposes. There are moral limits to the extent of the exercise of equal political rights through majority legislative procedures. no that proceduremay be.336 SamuelFreeman nature and extent of constitutionallimitations on laws can only be decided through the very procedures that these restrictionsare intended to limit.It then leads us to ignore the backgroundconditions for stable democraticregimes.I believe.however. But this is not an argument.
85. with democratic can be definedin a way thatis consistent circumrule it be argued thatmajority procedures undercertain may can stances workout in sucha way thattheirresults be judgedto be One but not simplyunjust.or dilutionof their cal rightsby outright of Violations this sortarefamiliar votingrightsby malapportionment. is rights. being a memberof favored or politicalpartiesdoes not generally provide religiouspersuasions legal groundsfor excludingpeoplefrom socialand politicaloffices. not and wealth. in termsof property of religious. Rawls.For equal participation voice and vote.The lack of an aristocracy but an instanceof a largerrule if not actualpractice. officesto members classsystems limitingaccessto socialandpolitical are The mostfamiliar instance suchclasses racial of of favored groups. the questionis whetherthey Can ideals. law. socialclasssystems alsodefinable terms and and politicalaffiliations. Theory ofJustice. no political procedure is an instance of perfect proceduraljustice. Namely. but also equalaccessto politicaloffices.and Review Constitutional Democracy theLegitimacyJudicial of 337 will that thereis no assurance theselimitsalways be respected the by of theseprocedures.But to equal for the positions hereditary argueagainst settingasideof non-political other than equal political we need appealto considerations classes. then at leastthe publicidealsof characterizing. 359. in are But and ethnicgroups. constitutional But thesearenot the onlywaylegislain American There are structural tive outcomes can be judged undemocratic. and to otherthanequalparticipation central democracy requirements rule. alsoundemocratic? waythismightoccuris on resultin limitations citizens' decisions when majority equalpolitidenialof theirrightto vote. pp. the absenceof socialand confessional moderndemocracies.12 workings Giventhese limits on majority rule. . moral. majority The absenceof a hereditary holding real governingaristocracy of politicalpower from which other classesare by law positions insuredby an featureof democracy excludedis arguably important requiresnot only an equal politicalrights. or any more than does not being a memberof favoredhereditary 12 To use Rawls's phrase.In moderndemocracies.
fair and open trials. rules of evidence guaranteeing rationalproceduresof inquiry. though not peculiarto democracy. and how they must spend their time during a great part of the day. each has such equal rights of legal process as the right to a jury trial with representationby counsel. the right to bring suits to redress civil grievances. Equal opportunities and toleration of diverse religious. These are importantcivil.moral. there is nothing inherent in equal political participationand majority rule that would prevent the exclusion of classesfrom socialofficesand positions. there is nothing inherent in equal participationand majority rule that would prevent violations of the many rights that come under this ideal:impartial.all of which are subsumedunder legal equality. or wealth is associatedwith equality of opportunity. as opposedto political. but which are matters for citizens' own control. and philosophical views are important aspects of modern democratic societies. moral. or political affiliation has also to do with liberty of conscience and freedom of thought. sex.what they wear and eat.they are at least publicly assentedto as ideals to be obtained conditions.etc.But.and the right against self-incrimination. if they are not fully allowed for in practice. and that they not be excluded for reasonsof religious.338 Samuel Freeman racial groups.All citizens of modern democraciesare entitled to own and transferproperty(however this institution is defined). prohibitions against ex post promulgated an facto laws andbills of attainder.Beyond this. the very idea of the rule of law.publicly and clearly defined laws. where they live. an important feature of democraticsocieties is the public Finally.rights. There are limits to the extent of the exerciseof . undermore favorable There are other backgroundconditionsof modern democraciesnot guaranteedby equal political participation.to enter into contracts. We do not believe that a regime is democratic which collectivelydictateswho individualsmarry. lives that are not subject recognitionthat there are areasof individuals' to infringement by political processes.But again.Also. again.and to engage in other civil activities subject to whatever disabilitiesare recognized by law. absenceof executivefiat.is nonethelesstaken to be one of its conditions. such unfavored That personsnot be excludedfrom social and political positionson grounds of race.
if any.majority andpolitical Thenit canbe asked whatrole. might call a society politicalrightsand majority even thoughit did not providefor all of the substantive democratic rights and institutionsmentioned. necessary be to democratic tral certainpoliticalrights and procedures may in of arenot exhaustive whatis involved a society's being society.involvesa misconception democracy. THE CONTRACTARIAN JUSTIFICATION DEMOCRACY OF I havesuggested the appropriate to address that of questions the way is legitimacyand scope of judicial review in a democracy not by the politicalrightsand procedures have that focusingsimplyupon beenheld to be central a democracy. they in procedural termsdemocratic. then the categorical claimthatjudicialreviewis undemocratic be can .judicialreviewhas in promoting undermining or thesevalues. to we Instead. of the role of equal and of we rule. a pluralistic cannotbe adeAgain.Of course.and these idealsprovidethe reasons holdingequalityof to be of suchimportance. democracy solely unconstrained for as if it werejust a procedure summing preferences . need traditionally look to the valuesand idealsin virtueof which we hold such procedural of as rule. are as democratic certainidealsregarding and persons theirrelations for citizens. accountability important. to the natureof equalpoliticalrightsand quately justifiedby appeal rule. political rights III. If it turnsout thatthereis no conception judicialreviewthatwould of maintain promotethe idealsthat standbehindour commitment and to democratic better than unconstrained procedures majorityrule. aspects democracies equalpoliticalrights. majority is in of powerwithingovernment Equality the distribution political democratic ideals or the social not then sufficientto characterize Howevercenfor stabledemocratic conditions procedures.and Constitutional Review Democracy theLegitimacyJudicial of 339 and socialorderof some politicalpowerin democracies.these conditions degreeis takenfor granted. to characterize So.But we also would think that was conditions not rightin this societyandthatsomething are crucial Behind the description a constitution of and a society as missing.
simplythatjudicial based. is A second argumentfor procedural democracy one we have of It is thatdemocracy basedin the principle is encountered.hencenone upon the reasons maybe offeredto justifythe And substantive that inequalities resultfrom theseprocedures. doesruleout cracy. is can betterimplementthe idealsupon which politicaldemocracy not then this is a reasonfor concluding. on for Thus. weight and rule are then justifiedon Equalpoliticalparticipation majority that meansto insurethateverygrounds they arethe bestpracticable The ones preferences takeninto account considered. is an extremely of with substantive compatible inequalities mostanykind.in thiscasefocused the democratic is itself.Equalconof unconstrained sideration individuals' puts preferences no restrictions that the considerations will be takeninto accountin designing upon that laws. to focus our concerns fairness tively aloneis undulyshortsighted. though . already of whatever preferences they may be.340 SamuelFreeman of on sustained. themselves wouldinsureagainst that substanprocedures by majority unfairoutcomes. demoin it doesnot implyequality everyrespect. but with democracy. is sometimes to a procedural conception support that given the need for some kind of legislative authority. Other thingsbeing equal. by justice. however.treatlike casesalike . the principleof equal consideration nothingmore than a of requirement formaljustice . suggested and that fairness alonerequires it be equallydistributed thatdisputes rule.democratic be resolvedby majority be fair. thatit is an important reviewcanbe compatible institution. fairness to playa if is political processes of role in the justification politicaldemocracy must figurein at a it morefundamental level. politicalprocedures.But as the preceding decision sectionsuggests. democratic often cited in supportof equal There are two relatedprinciples rule politicalrightsand majority which might be thoughtto supply and for these institutions.appliedto It weak equalityrequirement. procedures may for thisis not sufficient their sincethereis nothingabout justification. some conception its rolejudicialreview If. which would lend sufficient justification It of democracy. problem and get vision of the requirements political of here is the same truncated For on valueof equality. equalconsideration everyone's to of expressed anddecisionaccording the greater preferences.
pp. this itself must be the and and ultimatebasison which a civil constitution established". J. Amongdemocratic ideaof political is mostcloselyassociated Rousseau. ch. 1970). se.but are simply a convenientmeans for registering and satisfyingthe of preferences.of a democratic of is the equalfreedomof individuals. therewith laws. The only conditionin positive On Bk. musthavesomeotherfoundation. of consideration interests. and on participation In the end. on this not at justification. as substantively Moreover. unjust. thinker participation. Kantmakesthe Contract. basedin the capacity society and his good in accordance with each to determine rationally pursue For freedomis not doing what one social requirements.J. of and the foundation the constitution. . individuals' and in publicaffairs decisions lawsand socialforms. Rousseausays that.Constitutional and Review ofJudicial Democracy theLegitimacy 341 certain kindsof inequalities. a partof a morebasicrightof participation all. it is for democracy is initiallywith him that the principle equalparticipation taken of is to be of such great importance. in the absence law andall otherconditions. Hans Reiss (Cambridge: ed.by definition cannotitselfbe law (hence. certain and kindsof reasons inequalfor thereis nothingaboutequal ities. CambridgeUniversity 13 Press. theSocial same claim:"Theactualprincipleof being contentwith majority decisionsmust be acceptedunanimously embodiedin a contract. Rousseau. the rational of but pleases with can of determination one'sgoodin accordance lawsa person prescribefor himself A conditionof freedomin this sense is that a personbe ableto acceptthe constraints imposed uponhis conduct by laws and other social conventions. I. 5. in Kant'sPoliticalWritings. 73-74. last sentence. equal rightsto vote and voice one'sviews are. Rousseau. "The rule of the is accepting decisionof the majority itself established agreeby ment and presupposes on at least one occasion. according all laws are made.estabit The but lishedby majority decision). greater aggregate Considernow a differentkind of argumentfor equal political the with whomthe theorists. is 'Theoryand Practice'."13 His unanimity can be formulated the followingway: The basic rules in thought to of according which lawsare madearepartof the constitution any Sincethe constitution statesthe conditions to which regime. thatwouldaccountfor such demoper cratic ideals as equal freedom.self-determination.
Behind the ideal of a unanimous to determinethe principlesof that the appropriate way thought and societyis by askingwhat free and equal persons government is and On the claim that democracy a form of sovereignty. 6.The socialcontract conditions appropriate to accommodatethis importantaspect of democratic designed is social agreement the thought. Partof the functionof the socialcontract Rousseau's in workis to the is express ideathatdemocracy not simplyone kindof government for makingordinarylaws.they would all accept. sophyin largepart.342 Samuel Freeman whichwe can inferand expectthe acceptance free individuals of by the requirements lawsis thatin whichlawsissuefromprocedures of which all could freely accept and unanimously agree to from a of equal right. principle equalparticipation. theSocial Contract. Rousseau. James Dreamer Democracy Miller. III. note to par. 5. II. ch. 1. ordering it is not the fairness equal consideration interests or of implicitin that its Instead. paragraphs 3-6. Bk. ch. and 2d Locke's Treatise.and the contractarian to been a seriesof attempts interpret reconcile and thesebasicdemoof craticvalueswith the purpose arriving the socialand political at for realizing idealis them. see On betweensovereignand government. more fundaprocedure a one mentally. in whichfree and equalpersons theiroriginal combineand exercise to political jurisdiction makethe constitution.The distinction also implicitin this discusses aspectof Rousseau's 1984) in Peace'.14 Underconditions wherefree and independent individuals are equallysituated. the of So. in Rousseau: (New Haven:Yale UniversityPress. of is work. formof sovereignty. but that it is.And the only constitutional for position procedure laws that free and equalindividuals could reasonably accept making andagreeto is thatof equalpolitical rightandsomeformof majority rule. par.as the basis for theircommonaffairs.8. politicaldemocracy provides foundation.Democratic political philoin has tradition particular. Bk. the distinction Bk. political jurisdiction sovereign Freedom equalityare the basicvaluesthat democratic and theory has drawnupon sincethe time of Locke. is stated Kant's essay'To Perpetual 14 . ch. 1. equalrights in are of participation government an extension the equalfreedom of of andoriginal democratic citizens. III.
Openandpublicdemoof for the exposition socialpolicyand the craticprocedures provide measures.). if we assume equalsituation the in sense(asRawls's of ignorance designed veil is to individuals a strong on for constitutional imply)in the agreement principles structuring reason concedea greater to forms. Justifying of open and public democratic procedures. acceptand for relations. and finds this to be the primary justification for representativedemocracy advancedby Mill. that everyone's interests represented. to To beginwith.and Constitutional Review Democracy theLegitimacyJudicial of 343 froma positionof equalright. 15 William Nelson.thennonewill havesufficient right and of politicalparticipation influenceto others. with other alternabehindgovernment reasons Compared tives. .if not explicitly madein his works. rational individuals concerned with the freedom of and for determine the socialconditions the advancement theirends the have an interestin influencing politicalprocesses determine that theirprospects. the lawssignificantly Equalrightsof political affecting when combined with the otherrightsgenerally held to participation of speechand of the for be necessary effective participation (freedom freedom assembly. vant to judicialreview. On Democracy.are press. rightto formpolitical of the parties.given that others for of conception whatis necessary theirown mighthavea different andothers' good. 111-18. can Severalarguments be made for politicaldemocracy from a Here I will brieflyreviewthosemost relecontractarian perspective. discusses the advantages pp.are at with leastconsistent hisview. by I The arguments set forth. this sort of processis more likely to lead to the adoptionof that is reasonable does not consistently and legislation disadvantage of society. Equal agreeto as the conditions theirsocialandpolitical andthe institutions a political of are participation political democracy a natural extension thisbasic of idea.I assumethe framework specified Rawls. are heardand a way of insuring of in takeninto account processes legislation.couldmutually themselves.15 this way politicaldemocracy In is particular segments instrumental free and equalindividuals' to pursuitof theirgood and their So of theirmaintaining freedom. etc.
as Mill argued.It is an essential of anyone's of successful aspect pursuit his good. however inevitably by to ultimate outcomes exercise one'spolitical the of quential legislative the rightsmay be in large moderndemocracies.we must take their interestsinto accountand 16 basic liberties.The recognition that a personis in of capable participating publiclife on equaltermsis then a condiif tion of his self-respect. see Rawls. in is confidence his capacities the worthof his pursuits and person's And undermined.Self-respect this sensedepends in of uponthe respect others and their affirmative and the one's capacities judgmentsregarding of one'sends. publicrecognition that a personhas theserightsis essential his senseof self-respect. 543-47. so then equalpolitical rightsarean imporof of one'sgood. pp. importance and our beliefs about ourselves and the value of our pursuitsare of affected thejudgments others. in a natural divinely or ordained orderof things wherebelief justifyas fixedsubordinate is no longerpublicly positions acknowledged ing the basis of the politicalorder. to For the acknowledgment one is capable takingpartin public that of affairs an equalbasiswith othersis at the sametime a recognition on of thosesamecapacities rational of deliberation judgmentnecesand formulation pursuitof his good in accorand saryfor the successful a dance with fair terms of cooperation. Without this recognition.not as capableof takingpart in publicmatterson an equal recognized in basiswith others. involvement deliberations deciand on the publicgood develops reasoning sions our capacities. also us our broadens interests beyondour own concerns. to socialgoodof self-respect its relation certain and On the primary equal . persons of political to insurefor themselves conditions the participation rights of theirself-respect. 440-45. inconseNow.would be especially debilitating modernsociety.344 SamuelFreeman free and equalsovereign would agreeupon equal Second.16 tantcondition thesuccessful pursuit our in and Third. leading to takean interestin others. involvesa sensethatyour basicends Self-respect areworthpursuing a confidence yourcapacities successfully and in to realizethem.In havingto explainand justify our claimsand positionsto others. A Theory ofJustice.We usually as thinkof ourselves othersdo. the thoughtthat one is a secondclasscitizen.
it is an importantone view of society and of since it leads us to take a more comprehensive of and the socialinterdependence individuals groups. stabilityis dependent upon citizens' desires to support and maintain social and constitutional forms. and in a society where individuals conceive of themselvesas free and equal. in encouraging the development of various social virtues. and is a condition of our realizing other values of community. including a concern for justice.Finally. So. I have mentioned how the openness and public nature of democraticproceduresis a means to just and effective legislation. Second.third. equal political participationlays the bases for civic virtue and friendship. as means for encouragingcitizens' desires to supportjust social forms. That citizens develop their social capacities and sentiments is first.Political participationcan then lead us to a larger conception of society and to the development of our reasoningcapacitiesand moral sentiments. it is conduciveto the stability importantfor a number of reasons: of government and social forms. [and]to compel a full exposition andjustification all of them . then participation in democraticpolitical proceduresis a primarymeans for everyone's realizingthis aspectof theirgood.the proper function of a representative parliament is "to watch and control government:to throw the light of publicity of on its act. A final argument for political democracy is that the rights and principles that define it satisfy what must be a requirementon laws and social forms if they are to be consonantwith freedom and mutual respect. equal rights of political participationare an important way to insure the stability of social and constitutionalarrangements. Social stability is a condition of anyone's pursuit of his ends. is important in establishingthe moral quality of civic life.But publicity is important not just for reasons of limiting government abuse.Though political participationis by no means the only form of associationthroughwhich our capacitiesand sentimentscan be developed. if we assume (as Rawls.As Mill says. As such civic friendshipis itself a social good. Kant and Rousseauall do) that the exercise and developmentof our social and moral capacitiesare intrinsicto our good.Review Constitutional and ofJudicial Democracy theLegitimacy 345 appeal to commonly held principles. Civic friendship is not only but desirablefor the sake of its stabilizingconstitutionalarrangements.
by they of as such there are considerations mutualrespectfor personsthat citiMoreover. the provide framework on socialinfluences our character andas suchareamongthe primary knowwhy legalrequireThatcitizens and the courseof life we take.346 Freeman Samuel of and The considers whichanyone questionable". ways canseeto bejustified. 3. 1-87.The publicenactment justification laws politicalforms is in this way conduciveto implicit in democratic ideal thedemocratic of freedom. TJ. Montesquieu. 82. themin is for claimthatrespect persons shown treating Cf.For laws are primary we what kind of persons are amongthe socialrulesthat determine which institutions social andcan come to be. 81. equalrightsof political participation an extension Free citizens. of theirunderstanding are mentson theirconduct as theyaredeepens and their character their interestsand promotestheir fundamental and of self-determination theirconduct the free in interest the rational of and pursuitof theirends. democratic of of the equalpolitical jurisdiction sovereign would acceptand agreeto equalpoliticalrightsof and equalpersons out of theirconcernfor theirgood and to securetheir participation theirgood to in interest theirfreedom decideandpursue fundamental on fair termswith others. p.It is by virtueof theirequalfreedomthat in in share sovereignty. XV. 4. par. On Representative (Indianapolis: 19 The and 'TheBasicLiberties TheirPriority'.17 openness publicity that all seek to democratic normallyrequires procedures legislative to conductaffectingothersby appealing principles publiclyjustify and Lawsaresocialrulesbacked coercive canaccept. sanctions.hereRawls's by 586.18 laws and zens' knowledgeof the reasonsand purposes underlying socialforms is a conditionof their freedom. requirethat they be publiclyenactedandjustified.1982). retainthatsovereignty citizens democratic they forms. 2.vol. on Lectures HumanValue(SaltLakeCity:Universityof Utah Press. realizing are To sum up. at p. they 18 Government Bobbs-Merrill.The Spiritof the Laws. ch. They shapethe primary our withinwhichwe determine courseof life. p.Bk. pp. Tanner in discussed John Rawls. John StuartMill. This passageis . in of participation constitutional forequal rights providing Now Montesquieu says:19 17 1958).
and the rights and liberties implicit in the rule of law.'TheBasicLiberties TheirPriority'. an act so excessive and contrary to reason as cannot be imputed to anyone. and in a To democraticstate is even a part of the sovereignty. and On accountthereare See. such rights and liberties as are necessary to maintain the independence and integrity of the person. are invalid. And they are not adequately justified by the principle of equal participation. many of these basic rights and requirements of justice involve conditions and concepts that we naturally associate with the idea of democracy. So. repugnant The suggestion here is that there are basic rights and liberties in addition to equal political rights that are a part of a person's freedom. Certain basic rights and liberties are then inalienable: any acts or agreements by which a person seeks to give them up for the sake of other advantages are void and cannot be enforced by the laws.20 As claimed in the previous section. even if affirmed by a majority. and his retaining them is also a condition of maintaining sovereignty and independence. these basic rights are not in practice guaranteed by the operation of decision procedures designed to satisfy the principle of equal participation. To freely give up any of these rights and liberties would be to sell part or all of one's independence and equal status as a sovereign citizen. Among the basic rights and liberties that are a part of the freedom of sovereign democratic citizens are liberty of conscience and freedom of thought. 20 . those neededto also certaininstitutional rights a insure fair equalityof opportunityand to guarantee social minimum. preciselist of basicrightsis a questionwe can passover for is of discussing legitimacyof judicialreview.What is important just the purposes to thattherebe equalbasicrightsin addition rightsof participation. sell one's freedomis so as be in to all reason canscarcely supposed anyman. Rawls's that shouldbe a part of this list. freedom of association and of occupation. given the imperfections of political procedures.These and conditionsare needed for individualindependence the effectiveexerciseof A the basicliberties. I rely here on the basic libertiesimplicit in Rawls'sfirst principleof justice.Rawls. More importantly.and Constitutional of Democracy theLegitimacy JudicialReview 347 The freedom of every citizen constitutesa part of public liberty. It follows that any purported laws which seek to infringe upon these basic rights.
effect. A primary aspect of modern constitutionalism is that the authority to make laws is an ordinary power of government. As such it is subject to . purpose Majority devicefor maximizing sum (or the average) satisfactions. the of without regard to the disadvantages imposes on some persons. the idea intuitive underlying contractarian conception IV. Legislative authority is among the ordinary powers of government that have their source in the peoples' constituent powers.Forit is generally the in is of the purpose legislative procedures a democracy to promote This of the commongood. it does not accordwith the political that to accepted publicidealswe profess justifylaws.thereby advancing interests everyone. this the this may accurately represent interest-group politicsthat Though often pervadeAmerican life. one that is both delegated and limited. procedural The conception conception represents legislativeprocesses a meansfor registering as citizens' without preferences in on the placingany constraints theirwantsor specifying advance in of legislative rule becomes.is on condition participation in be designed maintain protecttheir basicinterests the free to and of theirgood.including equal that theseprocedures and majority rule. is the of democracy. andin particular forjudicial design regime. I argue(in SectionIV) that the equalbasicrightsthat belongto of democratic providea different sovereignty understanding the purthan that providedby a procedural pose of legislative procedures of democracy. exercise their constituent power to create and define the nature and limits of ordinary political authority. I begin with some remarks on a democratic constitution. In a constitutional democracy all political authority is understood to derive from the sovereign people who.a procedures.This has important institutional for implications the of a democratic review.348 SamuelFreeman the only circumstance underwhich free and equal personswould of acceptand agreeto politicalprocedures any kind.andtherewith equalbasicrightsthatsecure the pursuit their freedom. conceived as equals. THE DEMOCRATIC JUDICIAL JUSTIFICATION REVIEW OF We are now in a position to address the democratic legitimacy of judicial review.
Sir Robert Filmer's or Power Kings Patriarcha.1960). 339/110.the people createinstitutional These governing formsendowedwith the ordinary powersof government. theNatural of a to whichLocke's doctrine largely response. [theirWill] to place at the head of this commoncommonwealth. unite to constitutethemselvesa people. by delegation (as In in certainmedievaltheoriesand theoriesof royal absolutism). Elements Ak. their consent agreement no roleinjustifying and plays authority. democratic for So a constituConstituentpower is the power of the people.then. for example. 11-13. versityPress. was socialcontract (1680).21 anypowerof government authorand for to makelawsis then fiduciary is only to be exercised the ity public good. the exerciseof constituent By power. Someperson or groupis then represented havingthe powerto make laws in as virtue of certain naturalperfectionsand virtues (as in Aristotle's or from God or his worldlyrepresentatives Politics).[forit containsthe followingrelationships]: the Will of all to first. physical (Indianapolis: 21 . we as authority havingits By contrast.SecondTreatise. 23 Kant defines democracyin this way: "The democratic form of the state is most complex. agents of the peoplemake. mightlook upon legislative sourcein the will of God or the natural orderof things.22 of is not thesecasesthe criterion the legitimacy legislative of authority in conceived termsof the will of the governed. Thoughtheymightbe to viewed as agreeingto be ruled according these principles.The distinction between the constituentpower of the people and the ordinarypower of governmentis common to the natural rights theory of the social contract Unitradition. Two Treatises Government of Cambridge (Cambridge: chs.joined togetheras a body politic.and Constitutional Review of Democracy theLegitimacyJudicial 349 are whateverconstraints placedupon it by the sovereign peoplein Like the that exercising authority. to create political authorityand determinethe form of the political constitution. 22 See. who is none other than this united Will itself".apply. legislative This is what distinguishes constitutional a from other democracy constitutional forms:all legitimate is politicalauthority derivedfrom the constituent of the sovereign conceived equals as and power people. Bobbs-Merrill. ofJustice 1965). the Will of the citizensto form a and. as havingequalrightsto determine political the and constitution. this is that authority created them with the understanding it is to be by exercised the good of each. TheMetawealth a sovereign. finally.See Locke.23 conceived.and administer laws for the publicgood.
the smaller the prescribed majority should be.whose purposeis to define and set up political institutions to determine laws and institutionsthat are necessaryfor the effective exerciseof the equal basic rights that securepersonsin the free pursuit of their good.election to offices open to all.24 argumentfor bare majorityrule The 24 Rousseau saw decision by a bare majority as appropriateonly for certain kinds of decisions: "[T]he more important and serious the decisions.the right to form and join politicalparties. the more hastily the matter under consideration must be decided. freedom of assembly.350 SamuelFreeman tion is a naturalextensionof social contractviews. any number of special majority rules (three-fifths. a majority of a single vote should . and whatever rights are necessaryfor free and informed political deliberation and public discussion (freedom of speech and of the press. the closer the prevailing opinion should be to unanimity.). The proceduresbest designed to realize this end meet the democraticrequirements justice. and address the legitimacyofjudicial review..etc. what is the place of bare majorityrule in these procedures? There is nothing about rights of equal participation that would requirethat a bare majoritymake legislativedecisions under all conditions. legislative procedures allowing for equal representation. It is the result of an agreement.If it did.two-thirds. we have seen.so long as persons are symmetrically situatedin decision procedures. In fact.It includes a universal franchise.but that it specifies rights and procedures devised to promote the good of each citizen and maintain the equal rights that constitute their democratic sovereignty.I will define the role of majoritarian legislativeproceduresin this context. political equality could not be satisfied at the level of decision on a constitution.Now...what makes a constitutiondemocraticis not equal consideration in majority procedures. Constitutionalproceduresthat incorporateequal rights of participation are. On this conceptionof democof racy. most likely to insure that equal freedom and the good of each are realized. in decisions that must be reached immediately. or be the condition of a unanimous social contract. or even unanimity)are consistentwith equal rights of participation. A just democratic constitution then must specify constitutional rights and procedures that define the principle of equal participation.
Constitutional and Review Democracy theLegitimacyJudicial of 351 must then be that at the level of constitutional agreement.pp.see Rawls. the stitutionalchoice procedure.See BrianBarryand Russell This argumentwas initiallymade 1982). These accountsare partof ideal theory.sec. and Joshua Cohen. Second. by Douglas AmericanPoliticalScienceReview 63 (1969): 40-53.Ethics97 what Rawls (1986):26-38. 'On Voting'. 54.last par. Co. For a similarconception. Contract IV. Bare majority rule should then yield results that concur more often with each person's particular good than any special majority rule. This decision rule is more likely than any alternative to result in legislation that does not unduly disadvantage anyone in the pursuit of his interests.. 305-06. I have adaptedan argumentfor majorityrule more of in accord with thisassumption partial of compliance. Valuesin Constitutional Rae.25 Social suffice".A formalproof of the argument . free and equal rational persons concerned with advancing their good would unanimously choose that ordinary legislative decisions be settled by a bare majority. for a discussion. 25 An intuitive to see this is that bare majorityrule is the only size for way which losers can never outnumberwinners. So the chance that one will be amongthose losing out is minimizedwith this rule. bare majority rule provides the most efficient way consistent with equal political rights to respond to problems requiring prompt solution. Special majority rules are more cumbersome.Bare majority is rule is best in the long run.. On the assumption that they know very little about the indefinite future. Rae contends that in a conHardin. 2. this rule is more effective than any special majority rule in advancing the particular interests of each person. Rational Man and IrrationalSociety (Beverly Hills: Sage Pub. There may be different ways to show this. 313-15. conception of voting proceduresas a means for accuratelydeterminingthe of requirements the GeneralWill. 'An Epistemic Conception of Democracy'. assumingthat voters do not know the likelihoodof their being in the majorityon issuesthat will arise. TJ. non-ideal theory. ch. collectivechoice rule that would be chosenby rational voterswishingto maximizethe agreement betweenthe collectivechoice and their own individualpreferences baremajorityrule. To begin with.presupposing that legislators will not alwaysimpartially vote the requirements justice. by choosing bare majority rule rational individuals minimize the chances that their interests will depart from legislative decisions.presupposing calls a "well-ordered Since the argumentfor judicial review is part of society".This follows from his Bk.'DecisionRulesand Individual Choice'. eds.
. By a bill of rights they. . specificconstitutional as guarantees. Primaryamong these constraints is a constitutionalbill of rights. which insure that the basic rights and requirementsof justice are taken into account and respected. certain backgroundconditions must be susequal will tained. At the level of constitutionalchoice. which further specifies their equal basic rights in light of general knowledge of their circumstances.In that case.a democraticconstitution might justifiably incorporatecertain proceduralconstraintsupon legislativeprocesses. 'Proof of a Theorem on MajorityRule'. 'Majority Rule Jr. partially Now the problem becomes how to best insure that these substantive constraintson legislativechange are respected.dividedalong ethnic or classlines).g.but also the other equal basic rightsnecessary citizens' free pursuit of their good. rule are Among these procedurallimitations upon bare majoritarian such familiarconstitutionaldevices as separationof powers. however.Given the imperfect nature of even just legislativeprocedures.and definethe ends of legislativechange. The argu8 are ment. and Philip D.In so doing they publicly recognize and acknowledgethat maintainingthe sovereignty and independence of each is a condition of their cooperation. and servesas a substantive condition of the exerciseof legislativeauthority.the rationalchoice may be a specialmajorityrule..does not work if peoples'preferences patternedor asymmetric (e. what comes to the same thing. This providesa reasonfor imposing constitutionalconstraintson bare majorityprocedures.bicameral legislaturesand other checks and balances. in effect. Straffin. agree to take certainitems off the legislativeagenda. and and GeneralDecision Rules'. Theory Decision (1977):351-60.352 SamuelFreeman But in order for these considerations be convincing to free and to rational persons.including perhaps some has been given by Michael Taylor. their representatives want to insure that the ordinaryproceduresfor making laws do not compromiseanyone'ssovereigntyby endangeringthe rights and liberties necessaryfor free persons'pursuit of their good. 14 Behavioral Science (1969):228-31. or. I arguefor in the text. This providesa way for sovereigncitizens to guaranteenot only their for equal politicalrights.to insure that the basic rightsand interestsof each citizen are actually taken into account in legislative deliberation.
the executive's authority require certain of decisions madeby the decision a special be (the majority legislative for whetherany of these executive veto). and deviating from their agreement commitment a just conand to stitution. required political procedures the principles by of rightandjusticeto securethe conditions for fair necessary citizens' basic andeffective exercise theirequal of rights? It is in this contextthatwe shouldunderstand role of judicial the review. This is one condition to they mightput on theiragreement the decisionrule that the preferences a bare majorityshall be of decisivein makingordinary laws. of equal rightsof politicalparticipation throughordinary legislative Its constraints on procedures.it maywell be a constitutionalmeasure last resort.It is amongthe procedural devicesthatfree and equalsovereign personsmight rationally agreeto and impose. it is not a limitation For but uponequalsovereignty.and Review Constitutional Democracy theLegitimacy ofJudicial 353 federalist to that and scheme. protectthe equalbasicrightsthat constitute legislative democratic reviewlimitsthe extentof the exercise Judicial sovereignty. upon in the interest protecting equalrights of the ordinary power legislative of democratic sovereignty.The criterion determining constitutional are procedures called for is as follows:what. Thereby. limit the rangeof legislative or theyfreely optionsopento themselves theirrepresentatives the future. By grantingto a non-legislative accountable powerto reviewdemothe body that is not electorally enacted citizensprovide themselves with a means cratically legislation. in to By they . judicial review is a kind of rationaland shared citizensat the level precommitment amongfree and equalsovereign of constitutional choice. So conceived. agreeing judicialreview. of But this does not imply that it is undemocratic. a constraint upon majority to processes. given is of current conditions. purposeis to enforcethe substantive that have been takenoff the legislative Sinceit legislation itinerary. for protecting theirsovereignty independence and fromthe unreasonable exercise theirpoliticalrightsin legislative of processes.in light of their of as general knowledge socialconditions.in the future ticipation they agreeto a safeguard prevents exercise theirequalpolitical of fromlaterchanging theirminds rights.By the exercise theirrightsof equalparof that them. invokesa non-legislative meansto do this.
Recallthatthe firstargument sectionIII)for equalpolitical (in is thatit is instrumental insuring the interests to that of participation all are represented and advancedin politicalprocesses. with unanimity the best. reviewis then one Judicial theirstatus equal as citizens. And yet. just in instances. in legislativecontexts.This supplies justification the tradithe for tional constitutional devicesthat limit legislative These procedures. wayto protect To conceiveof judicalreviewas a kind of shared precommitment institutions. rulesarebetter. with or without judicialreview).majorityrule is the political participation institution promoting ends that equalpoliticalrights for the primary realize.while providing the basicrightsof citizensarenot violated in the process.But suchrulesbecome being ineffectivethe larger the majorityrequired. Judicial procedure (by . to maintain legislation thatmosteffectively eachperson's promotes good andthe public that good. most rapidresponse legislative to issuesconsistent with equalpolitical But what is effectivein the long run is not always rights.and are increasingly unworkable legislative for So normally purposes. they directly restrict scopeof legislative the to authority insurethe justiceof this a bill of rights. institutionslimit these procedures either by slowing the pace of of (bicamerlegislative changeto insurethe rationality deliberation and or alism. free and equalpersonscould rationally agreeto bare decisions conditionthat they be subject reviewby an on to majority independent setupforthesepurposes. are an means procedures themselves imperfect majoritarian legislative for realizing theseends. Bare implies a division of labor among government moreeffectively thananyotherdecision majority promotes legislation rule the particular moreover provides it the good of eachindividual. Baremajority decisions not the best rule for are particular Here special insuringthat no one'sconstitutional rightsare violated. other checksand balances). federalism.354 SamuelFreeman in effecttie themselves theirunanimous into on agreement the equal basicrightsthat specifytheirsovereignty. have ordinary power majority procedures a legislative subordinate position and are justified in terms of the ends they As a decisionrule for satisfying requirements equal the of promote. body To sum up the argument thus far for judicialreview: Like any of government.
its general is thatundercertain circumstances maybe necessary it as justification a meansfor insuring that fundamental equalrightsthatare a partof democratic are respected maintained the ordinary and in sovereignty of government.But in the absence widespread publicagreement on these fundamental of democracy. mitment to equalityfits with the basic idea underlying social the .Constitutional and Review Democracy theLegitimacy ofJudicial 355 review is then one among severalconstitutional mechanisms that could be agreedto. V. interestof each democratic Wherethereis widespread and of publicrecognition acknowledgment the equalrightsof democratic and where it is publicly sovereignty.majority Amongpossiblelegislative citizen in the free pursuitof his good.to subvert rule the publicinterest justiceandto deprive in classes individuals the of of conditionsof democratic It is in these circumstances that equality. majority rule best advances the forms. justifiesour acceptance otherconstitutional procedures thatdefineandenforcelimitsto the sortsof decisions areleft up that to bare decisions. equal freedom of sovereigndemocratic also of citizens. to limit the exerciseof rightsof equalpolitical baremajority rule. THE TRADITIONAL JUDICIAL ARGUMENT REVIEW FOR I have argued that judicial review can be made consistentwith if to democracy it is viewed as a sharedprecommitment the equal of democratic To seejudicalreviewas a precomrights sovereignty. legislative and deliberation and change.itsjustification ultimately In is the processes sameas thatgivenfor majority Whatultimately rule. justifiesmajority the legislativeprocedures.Majority decisions shouldthen normally upon converge that the of just measures advance basicinterests all andenablethemto of pursuetheirgood. thereis no assurrequirements ancethatmajority will not be used. participation through legislative As such. that of is the accepted the purpose legislation to advance goodof each. thereis a placeforjudicial review.For legislation may undertheseidealconditions thereis a shared of conception justiceand the commongood to guidepublicdebate. then majority be adequate realizing for theseends. this way.as it so oftenhas.
but a shared precommitment. the agreement captures their shared acceptance of and commitment to maintaining their equal status in the free pursuit of their ends. in marriage vows. and Rawls.356 SamuelFreeman contract tradition of Locke. This is one way to envision the role of the social contract in the natural rights tradition and in Rawls. The agreement is not born of a fundamental conflict of interest.26 Let's look now more closely at legislative and judicial authority. indeed it presupposes there presently is none. The model for agreement here is economic bargains. But not all agreements are like this. see my paper. Though diversity of particular interests resulting from individuals' freedom is presupposed. It represents democratic citizens' shared fundamental interest in maintaining the conditions of their equal sovereignty. Rousseau. self-interested compromise among essentially conflicting interests. but to commit themselves to a shared ideal of association for the indefinite future. the parties make the agreement. Agreement is born of competition for scarce resources. This is the tradition that stems from Hobbes. The social contract is often described in terms of a rational. On the conception of a 26 For discussion the idea that the social contractinvolvesa sharedprecomof mitment to justice. as one among several features of that constitution. pacts among friends. It can be an effective way for free and equal persons to bind themselves to the basic terms of their social cooperation. and a contrastwith Hobbesian views. Judicial review. they agree to the equal rights and conditions of justice that maintain their equal sovereignty. For example.'Reason and Agreementin SocialContractViews'. Their agreement is not a compromise. not because of a conflict of interest. and is a bargain that is made to insure against mutually destructive conduct in each person's pursuit of his private ends. or compacts among members of the same religious faith.Philosophy Public and Affairs19 (1990) 122-57. Kant. . is a part of democratic citizens' precommitment to just social forms. and see how the democratic argument for judicial review differs from the traditional argument for that institution. By the social contract. and in agreeing to a constitution they create political institutions that tie themselves into the terms of this agreement.
government powers It for judicial. thatcreates with to be confused theconstituent power In settingup a constitution. be exercised representawith conditions for the good of and tivesin accordance constitutional it not eachcitizen. tuent power has been respected each branch's in executionof its is and powers. bodyof citizensplacethe ordinary the in Eachof thesepowershas powersof government a politicalregime. Since the constitution ordinary powers specifiesthe abstract basicrightsof citizens.legislative by to by ity is a delegated powerof government. cleardelineation constitutional the of in provided a finalinterpretation by rightsandconsistency application is essential citizens'pursuitof their good. conflicting that constitutional formsare being respected adhered by the to and of government. role. authorLikeanyinstitution created the sovereign people.Finalauthority also a delegated institutional ordinary and is not to be confused with eitherthe ordinary power. is the power to determine. residesin the sovereignbody politic. powerof sovereign claimhasbeenthatthereis nothing to intrinsic ordinary My central in a democracy wouldrequire the separate that that power legislative and distinctpowerof finalinterpretation placedor conjoined be with . in of for a final authoritative interpretation the constitution orderto thesediverse and resolvepersistent avoid coordinate disputes. it. Finalauthority interpret constitution a necessary to the is powerof thatis distinct fromthe ordinary of the legislative. powers andinsure frombeingplacedon citizens' demands conduct. is an ordinary As powerof government. insteadthey baremajority rule are not identifiable arebut a partof the institutional framework a democratic of regime. final of interpretation be seenas an institutional authority expression might of theconstituent citizens.and executivefunctions. Somewhatlike institutional for the and the procedures amending constitution a bill of rights. in out the dutyto interpret constitution carrying its assigned the therewill be a need In any regimewherethesepowersare separate. institutional whetherthe people'sexerciseof their constipurposes. as well as to just and to effective laws.Constitutional and Review Democracy theLegitimacyJudicial of 357 democratic constitutionoutlined.legislativeprocedures embodying with democracy. delegated. powersof or with ultimateconstitutional which always government authority.
the courtshave exclusiveauthority interpret to and apply powers. who then has the institutional of to make determinations authority constitutional of of is (2) validity? Separation powers a requirement the rule of law that is a part of a constitutional without democracy. The SupremeCourt. is The problem thatthe constitution a political of regimeis notjust so law It muchmoreordinary for courtsto interpret.in the courseof applying law. it as. under Marshall. The Assumption is questionable. interpretand apply the law.And therethe of of courtshaveno authority constitutional review. contrary the Constitution be valid. the crucial But and a democratic system for is of assumption our purposes (4).it is the institutional of the judiciaryto role separation is. must belong to the regarded courts"toascertain Constitution's] as [the meaning well as the meanact from the legislative (6) body." question to can The arises. I have not argued.andin the interest stability publicliberty theyshouldhave finalauthority. The Courtsthen have. Englishparliamentary (2) system is not markedby separation powersin our sense. of and tion. fundamental (5) Therefore.by mustdeclare (7) virtueof theirconstitutional authority interpret constituto the role. "public liberty" yet is prettywell maintained. is rather highest the order systemof rules for makingthose institutional rules that are .Beginwith the assumption.statedby Hamiltonin TheFederalist. of whichHamilton claimsis a requirementof the ruleof law.Separation powersis a doctrine of that thatdefinesthe divisionof thoseordinary powers government And underthe doctrine separation of existin any political of regime. later relied on it in in vs. argument basedin the of The is of doctrine separation powers.Madison claimingthe powerof the courtsto give the Marbury finalinterpretation the constitution. #78. tion mustbe placedin thejudiciary. (4) The constitution and must be law. ordinary just as the legislative authority makeall the laws. has to laws." Under of powers." It ing of any particular proceeding followsthatwhen. it (or decrees) theseactsunconstitutional. thiswith the traditional Compare for argument judicial review. (3) liberty. that the authority finalinterpretaof however...the courtsdecide the thatlegislation executive conflictwith the Constitution.358 Freeman Samuel it. thereis no protection "public for separate powers. "Nolegislative (1) act .
and Constitutional Review Democracy theLegitimacy ofJudicial 359 as laws.27 So it is a mistake interpret to judicialreviewas implicitin separaand tion of powers the ordinary of To authority the courts. Unlike American judicial review. seejudicial review in this way obscureswhat is reallygoing on when courts this It it exercise power. powersof courts under the constitutional of powers that would separation granted the to (or grantto thejudiciary any otherbranch) authority interpret thoseexceptional rulesthatconstitute threepowers government the of and assignto them theirordinary To powers. The constitutions of the Federal Republic of Germany (1949). Friedrich.in the absence of enforcement by the executive and judicial "case or controversy". of acts authority astheconservator theconstitution.it provides basisfor all laws the recognized ordinary and for the separation the powersof government. of nothingis law. (Waltham.As such. . and Austria provide for a constitutional court separate from ordinary courts. See Carl J. powersand legislature of will. 1968). Mass. judicialpower. has with the conand no institution any powers. 27 See note 6. of It mightbe argued thatthis is all thatopponents judicialreview in the of branch a democracy needto establish authority the legislative must rest with a this authority to have final interpretive authority: afterall. 261-62. suggests a solutionto the problemof who is to have the powerof final interof pretation theconstitution. Whereas what is reallyinvolved is that the courts step beyondordinary law and their role under of acts separation powersto assess ordinary of government any of by This is not a peculiarly the threeseparate it powers.Suchan institutioncurrently existsin severalconstitutional regimes.4th ed. it has lawmaking democratic because. makes seemas if theyaremerelycarrying out theirnormalconstitutional function. is therefore or at leastbest representative popular sovereign. above. ConstitutionalGovernmentand Democracy.: Blaisdell. these extraordinarycourts have the authority to review acts of legislation as they are promulgated by their parliaments. see this.we need only a separate institution that has powersof constitutional review posit overall threeordinary Thisis just whatRousseau as powers. pp. is of rather exercise a conserving the Whoever exercises final this power. as it accords except And thereis nothingaboutthe ordinary stitution.
Elites. 1983).as is evidencedby their retainingauthorityto amend the constitution.They delegate a fiduciarypower to legislativeagents to make ordinarylaws for the public good. and Liberal Democracy'. simply of legislative not will. Nomos. but also of the constitutionalwill of the people. that judicial review is inconsistent with democracy.And there is nothing about that agreementthat would requiredelegatingto those with the authorityto make ordinarylaws the final authorityto decide the natureof constitutionalconditionsfor the validity of those laws. In so doing.28 has not addressed. can he draw that conclusion.popularwill has its clearestand most originalexpressionin a democraticconstitution.just as are the legislativeproceduresit is designedto correct. The people are sovereignin a democracy. Only if one holds to the doubtful claim that legislativeinstitutions are the sole legitimate representatives. they do not alienate constituent power or any part of their sovereignty. 153-80.But this does not affect the democraticargumentfor judicial review in terms of its being appropriateunder certain conditions to maintain a just democratic constitution. My made on purely philosophicalgrounds. The likelihood that courts Peter Railton argues that the court is an elite institution that maintains the power of elites in liberal democracies via judicial review. VI. obviousobjectionto this argument is that we have no assurancethat judicial review will be properly exercised to correct for the failures of legislative processes.XXV: LiberalDemocracy (New York: NYU Press.360 Freeman Samuel But this argument also misunderstandsthe nature and function of majoritylegislativerule. 28 . It is certainly true that judicial review is subjectto abuse.Just as likely it will be used to secure the power of elites againstlegitimate This is an empirical objection my argument democratic measures.Moreover. in 'Judicial Review. THE CIRCUMSTANCES OF JUDICIAL REVIEW The democraticargumentfor judicial review rests on the assumption that the courts can play a significantrole in maintainingthe condiAn tions of democraticsovereignty. concernhas been with the categoricalobjection.
or when the legislativebranch is so controlled by particularinterests(due.Even under the ideal conditionsof what Rawlscalls a "well-ordered society". In that instance there is no need for judicial review to act as a corrective to legislative failures.Review and Constitutional of Democracy theLegitimacyJudicial 361 will. Instead. and its justification is contingent upon the extent to which these proceduresserve the ends in virtue of All which they are found appropriate. considered public of Whetherjudicial review is needed to maintainthe requirements constitution is then dependent on social and historical a democratic circumstances. We can assume. majorityproceduresare not perfect with respect to the requirements of democraticjustice. to the undue influence of wealth that it does not accuratelyreflect on elections and legislativeprocesses) views in mattersofjustice.It is a matter for factual determinationwhether the . the argument for judicial review does not attempt to show that this institution is essential to a democratic constitution.This happenswhen procedures the public sense of justice is not sufficientlydeveloped or directed to influence legislative proceduresto make the necessarycorrectionsto democraticjustice. This does not mean that it is called for requirements whenever legislative processesmight result in unjust outcomes. that has been argued is that a proper institution in a democracyto insure judicial review can be of that the democraticrequirements justice are realizedwhere there is will not insure these likelihood that legislativeprocedures a substantial themselves. Unlike the ticular democratic constitution argument for democratic legislative procedures. that under these circumstancesthe public's sense of justice is sufficiently strong and developed that. once the consequencesof unjust legislation come to public awareness. judicial reviewhold in a particular for This means that whether judicial review is appropriate a paris a strategic question. it takes democratic legislative proceduresfor granted.The cirare cumstanceswhere judicial review is appropriate where legislative are incapableof correctingthemselves. in a particulargovernment. however. most often.fail to maintaina just constitutionis one among several empirical considerationsthat must be taken into account before it can be decided that conditions appropriatefor society.legislative procedureswill themselves provide the necessaryadjustmentto justice.
accountability. mentinstitution majority rule). a societythatallowed denied for equalpoliticalrightsand majority rule. anyothergovernjudicial is used. Whatever we mightchooseto callit. then the a priori philosophical is undemocraticunfounded. hardly to less democratic the degreethat it providesfor the fundamental rights of free and equal sovereigncitizens. and we cannotcategorically judicialreviewis not undercertain say If an for theseprinciples. conditions effectiveinstitution maintaining claimthatjudicialreviewis inherso. If or democratic. thatthe legislature or its own view of the constitution. (including of to frustrate deny citizensthe effectiveexercise the equalbasic or of sovereign citizens.A societyis moreor the racy. for socialor historical reasons. primary of has been that one cannotdogmatically singleout a feature demoor cratic constitutions rule.362 SamuelFreeman estaboverallbalanceof democratic justice can be more effectively review. the institutions necessary guarantee that is not put to improper thena constitution allowsfor it is still use.as theyso oftenare.yet systematically some or most of the basicrightsI ethnic. andtheir with respect specific to democratic justification regimes.If judicialreviewis. I saidat of processes in is the outset. andconsequently deserves name. ently of This means that there are variouscombinations institutional As thatcan satisfythe requirements democracy.and insuresthe social of exercise eachperson's pursuit free for and conditions theireffective his good. that it should have exclusive can Thesecontentions be made to the authority interpret constitution.democracy not a notionthatis exhaustible procedural else terms.then that societyto that extentdoes not rights . Thisin lishedin a democratic with or without judicial regime the end is how we must assessclaimsthat majoritarian legislative consistentwith are the only form of decision-making procedures to or shouldmakedecisions according democracy.and racialclasses religious. (suchas majority or political and concludethatjudicialreviewis even equalpolitical participation) of it undemocratic because does not meet the demands this standard. among and to theserightsandconditions. with democdoes not realizethe idealswe associate havementioned. only A mustproceed empirical on pointof my argument grounds. is Morethan one principle neededto characterize democratic ideals. on the otherhand review.
and Review Constitutional of Democracy theLegitimacyJudicial 363 the Whether societyis moreor a realize idealof democracy suggested. howit is exercised. Beforethe casefor democratic and publicity. thesediscriminations pubpreferential adverse known and recognized.29 What can be racy.Penn. TheoryofJustice'.therebyfrustrating to said in response this?We can distinguish formsof political two First of suchas inequality. thereareformalinequalities political rights.it must be askedwhetherjudicialreviewis consistent thesearguments. STABILITY. is and VII. of Second. stability. self-respect. THE EFFECT OF JUDICIAL ON SELF-RESPECT. givingothersplural of rulesdepriving or These inequalities explicitlysingle out groupsfor voting privileges. mustalsolook to see of we if thispower necessary. Review121 (1973): Frank Michelman. and and are treatment. can be comlegitimacy with pleted. certainclasses the franchise. or cannotbe ascertained lookingto the presence less democratic by absence judicialreviewin its constitution.But therewere otherarguments from SectionIIIfor equalpolitical participation.Specialmajorityrules do not single out individuals or or for treatment political in and groups special adverse procedures.U. differfrom formalpolitical theseinequalities in thatthey inequalities No are anonymous. It has been suggestedthat judicial review involves a form of that the in of inequality can undermine self-respect citizens a democtheir pursuitof their good. AND PUBLIC JUSTIFICATION I have arguedfor the democratic legitimacyof judicialreviewon of its likelihood promote sameendsas thosejustifying to the grounds means rule:judicialreviewcan be an effectiveinstitutional majority for insuringthe equalfreedomof sovereign citizensand the fundafor mentalequalrightsthat are amongthe conditions necessary the madein free pursuitof theirgood. any 29 Law Rawls's 962. 1008-09. specifiedminorityhas the authority unequal of influence. Though affordingto thanequalinfluencein deciding minorities greater legislative change.there are the inequalities licly influence implicit in special majorityrules. 'In Pursuit of Constitutional Welfare Rights: One View of .
in are no formal inequalities the systemas a whole that gives a on Each specified minorityultimateauthority any politicalquestion. ultimate authority havein constitutional remains There minorities questions anonymous. express views. an executive can like veto. unlessit is just arbitrarily So stipulated thatdemocracy entails rightof a baremajority rulein all the to always because questions. it is relevant to the objection that judicial review is .364 SamuelFreeman citizen can exercisea greaterthan equalinfluenceon any occasion more wheretheseruleshold by votingagainst measure any requiring for thana bare majority itspassage. be viewed. This helps in responding two to by To undemocratic because is counter-majoritarian.and to vote upon issue or his any constitutional (eitherdirectly through representative). is rule Second. special especially majority makecertain the affect democratic sovereignty.and the of government society.seejudicialreview it as a functionalequivalent a specialmajorityrule deprivesthat of requiredto objectionof much of its force. surelyit is not undemocratic requirea But through to thosethatdirectly decisions.For equivalents specialmajority minationof unconstitutionality be overcome a constitutional can by amendment a specialmajority. citizenin the amendment retains equalrightto participate an process his in the constitutional to process.To hold otherwise and constitutional design with wouldmeanthatdemocracy inconsistent constitutionalism. equalityof basic rights. no specifiedminorityhas the ultimate and in The that authority this constitutional procedure.the claim that judicial review is undemocratic with rule by simply means it is inconsistent counter-majoritarian less than those needed to make constitutional decisions majorities to amendment.to see judicialreviewas a kind of specialmajority clarifies that practice citizens'self-respect. Constitutional limitsuponbaremajority in the formof a Bill rule of Rights withjudicialreview.as a judicialdeterfunctional of rules. seen as part of a specialmajorityrule procedure deciding objections. adverse on lawscanalways overcome a special sions of be by majority citizens or their representatives. For specialmajorities amendthe constitution retainthe ultimate to authority deteralways mine any politicalquestion. for So.First. need not undermine why For thoughthe Courtis itself a specified its deciminority.
power the Furthermore. And in holdinglegislation the unconstitutional. on balance. challenge. This requires the Courtpubliclydemonstrate laws are that that not undulycoercive areconsonant but with democratic freedom. self-respect all should better be thanwithout citizens review. layinga basisfor .The practice the Courtof publicly to of its makespublic(in a justifying decisions issuingreasoned by opinions do not) the reasons and purposes behind way legislative procedures and examines In lawsin light of the constitution.andexamine lawsin lightof theseprinciples. then.it also supplies of constitutional for reasons legislative these failures. servingthis justificatory function. in Moreover. judicialreviewitselfshoulddo little to undermine senseof self-worth. maintaining equalbasicrightsof all citizensis of far greater thanwhatever to nonimportance everyone's self-respect formalinequalities politicalpowerjudicialreviewmight involve. Courtdoes not just check failures justice.and Review Constitutional ofJudicial Democracy theLegitimacy 365 that questions bearon the constitution. procedures. upholdlegislation. conthe of can tributesubstantially thatend. of The argument political for fromself-respect Section (in III) democracy from the premisethat an equal statusas citizensis the proceeds socialbasisof self-respect. ratherthan undermining process publicjustification. othercivilandsocialrightsareequally But important.judicial review can work to establish publicreadingof the constitution its moralfoundaa and the tions. preserved judicial Consider next the argument democracy for from the publicityof democratic Here I will only note that judicial review. leastas long as that at citizens' is properly exercised.the Court seeks to ing legislationagainstconstitutional lawsby showing with the constituhow theyareconsistent legitimate tion.Recallthe third vating on argumentfor political democracy groundsof its tendencyto broaden citizens' viewsbeyondtheirown concerns. If reviewis appropriate societyand is properly to exercised to judicial insurethat theserightsand the conditions theireffectiveexercise for are legislatively the of maintained.judicial review if exercised can play an important in cultirole (again appropriately) a shared senseof justiceand the publicgood. to the equalstatusof citizensandtheirself-respect. if not moreso.In both of these ways. primary Equalpoliticalrightsarejustified on thatground.
and therebyprovides commongroundfor and As publicunderstanding support. most appropriate under conditionswhere the public sense of justice is divided or are or underdeveloped. the existence a largebodyof judicialopinions of establishes Finally. in the In gives directionto public affairs. Judicialreviewis.If we see a justificatory in addition its role in role to judicialreviewas having as abuse. an they senseof justice. are unlikelyto be capable self-correction. interpreting constitution to laws. existence a bodyof constitutional can serveas a and reminder legislators theirconstitutional to of responsibilities their ends.The justificatory function of judicial review is then partly educativeas well. judicialreviewencourages citizens'sense of justice and their desireto maintainconstitutional forms. wherelegislative representatives unresponsive when of Underthesecircumstances. for abstract and often vague constitutional principles law the of Moreover.366 SamuelFreeman that are neededto of the qualities civic virtueand civic friendship of sustain stablesociallife in the absence autocratic power.review institutional meansfor cultivating public's the the cannot only be a way of increasing likelihoodthat legislative fromjusticewill not be repeated.the Courtgivescontentto the light of its application specific and furnishesa otherwiseabstractprovisionsof the constitution. legislato the interests everyone. and basisfor publicdiscussion legislative and a doctrinal deliberation.then it can be understood a further checkinggovernment of institutionfor cultivating citizens'appreciation and government and for just democratic institutions ways of life.This can have the effectof sobering improving qualityof publicand legislative and the understood discussion argument securing and commonly by meanings and concepts.as a meansfor both rectifying to just concitizens'commitment tional legislation and cultivating . In publicly support the the the interpreting constitution. These to direct laws towardsconstitutionally legitimate duty unconstituconsiderations show that. such. Courtdemonstrates moralbases a of constitutional forms. commonsourcefor the termsof public debate. I have said. also that they will but departures notbe publicly tolerated. of from the requirements a just democratic tive procedures depart of As constitution.
be an for. politicalparticipation.thatit is inconsistent of objecting and with democracy majority .judicial review.given powers(both in as exercised the Presidency ourcountry. reviewis undemofreedomto pursueone'sown planof life.and Review Constitutional ofJudicial Democracy theLegitimacy 367 can stitutionalforms. unity.where legislative and other powersare there is a need for a single divided among severalgovernments. CONCLUSION for whichmaybe pertinent Thereareotherarguments judicialreview stem from our scheme. federalsystemand the extraordinary powerof the executive Within any federalscheme. forcein thosedemocracies whereit is called important stabilizing VIII. well as its independence by one reasons for from the legislative branch. My concernhas been to establish that the standard basisfor to the institution judicialreview. on to andhavelittle directbearing the objection judicialreviewbased of on thenature democracy.moregenerally.if correctlyexercised. reasons coordination. of authoritative voice to provide clearanduniform interpretations the for national andto protect of constitution. Furoverlyzealouspursuitof theirparticular against the extraordinary constitutional popular) and ther. unwilling of not reliedon themsincetheyconcern peculiarities our constitution.Judicial in the craticwhen it contravenes decisions orderto maintain majority .involvesa misconception the rule of natureof legislative and a shortsighted of democpower conception Thereis nothingundemocratic it is disingenuous claim to (and racy. there is) about the judicialreviewof laws that infringeagainstthe of moralrightsas libertyof conscience and equality suchfundamental freedomof occupation freedomof thought. of In fact.The most important to our constitutional branch. theseareimportant Though arguments. and choiceof careers.freedomof association. of the most compelling the authority judicialreviewis to insureagainst potential of the abuse is or whereCongress eitherincapable of executive powerin situations I have to intervene.I havehardly addressed specific the question thejustificawithinour constitution tion of judicialreviewon democratic grounds at all. states' interests. the and.
ofAmerican (Oxford: .368 Freeman Samuel of powerand legalprivileges elite socialand economicclasses against to socialchangeand economicreforms designed enableeach citizen to achieve and exercise thesefundamental independence to effectively Our Courthastakenbothdirections. no way for the Courtto avoidsubstantive considerations justice. CA.1989). how that authority to be exercised a is is democracy I have only indirectlyaddressed. perfecting" according whichthe authority judicialreview to be limited to procedural in considerations order to insure fair in and representation electoralaccountability decision-making processes.againstatand reform. of Whether.on balance. of This thatis its mandate.:Dickenson. procedures legislation. muchof its existence For rights.conventions. is not deniedthatthe Court's It role the primary is to maintain 30 David A.1985). that it is these substantive aredesigned realize. authority But the argumentfor judicial review offeredprovidesa basis for to responding theseissues. more complicated The question secondquestion botha theoryof constitutional requires interpretation. privileges tempted legislative prevailing the legalinstitution private of thatwere especially property regarding to favorable those who legally control the great mass of wealth.S. U.1977): Criticism Law (Encino. Constitution. contrasts JohnEly'sinfluential with "processto of is view. the SupremeCourt tendedto constitutionally enshrine. andan account the scopeof the Court's of ofjudicialreview.the Court'smore recentdisavowals these effortsat securing equal the and interpretations its moreconcentrated for basic rights of citizensare sufficientto compensate its earlier I of constitution a question shallnot underdistortions a democratic is taketo answer. Richards of has long arguedfor a contractarian interpretation the J. laws. in Who is to havethe finalauthority interpret constitution a to the is one question. TheMoral See of Foundations Toleration theConstitution and OxfordUniversity Press. (Oxford: Constitutionalism OxfordUniversity Press. in reviewing to thereis So.30 The contractarian of used to justifyjudicial conception democracy of review implies that certainsubstantive rights and requirements of underlieour commitmentto the politicalprocedures a justice and values that democratic democracy.
1977). Officials and the public look to the written Constitution. Robert Bork. their conditionsand limits. 1985). How we identify the constitution of our regime is the ultimate question of constitutional And nothing can identify itself as the constitutionin a interpretation. 1990). Mass: Harvard criticism see Laurence H. and it is not generallyunderor stood to be. is not. 'Neutral Principles and Some First Amendment versity Problems'. Constitutional ch. But this is simply to say that referring to this document is part of the settled conventions and proceduresof interpretation within our constitution for identifying constitutional requirements.Review and Constitutional of Democracy theLegitimacyJudicial 369 integrity of proceduralforms. and The Tempting America (New of York: Free Press. 1985). among other things.judicial review being primaryamong them . 2.31 Similar considerationsapply to the account of judicial review that saysjudges should look exclusivelyto the written Constitutionand the original intentions of its framers to decide the requirementsof its No abstractprovisions. Tribe.Our written Constitutionis then a part. the complete representation embodiment of all constitutionalconditionsand institutions. for an effective attack on this view. University Press. 2.It plays a significantthough non-exclusiverole in It constitutionalinterpretation. See Dworkin. 32 See Raoul by Berger. Mass: Harvard UniPress.32 one would deny that the historicaldocument which bears the name "The Constitution of the United States"is an important feature of the practices and principles that make up our constitution. 31 . But we cannot understandwhat these proceduralforms are..But it is importantnot to confuse the two. IndianaLaw Journal 47 (1971): 1. self-referential way. For there are many practicesthat are a part of our constitution . of our constitution. ch. without first coming to a decision on the basic rights and ends of justice these procedures aredesignedto realize. For a similar Choices(Cambridge. I do not mean to belittle the importanceof a written constitution Here I agree with Ronald Dworkin's arguments against Ely in A Matterof Principle(Cambridge. to identify the basic principles of our constitution.which are not inferablefrom this text in the way original intent proponentspropose. Mass: Harvard University Press. id. Government Judiciary (Cambridge. and only a part.
Instead. Only our intentions. And we cannot do this without ultimately looking to the requirements of a just democratic constitution. it is an important issue in constitutional interpretation which cannot be decided by looking to the text itself or the intentions of those who designed or ratified it. .370 SamuelFreeman in a democracy. Pennsylvania 19104. U. as free and equal sovereign citizens.S. we now exercise constituent power and cannot be bound by our ancestors' commitments. Philosophy Department. Our forebears' intentions can be of little relevance to constitutional interpretation in a democracy. Philadelphia.A. My point is rather that deciding the role that any such writing must play cannot be taken for granted (as original intent theorists do). University of Pennsylvania. are then relevant in assessing the constitution and assigning a role to the document that bears that name. For it is now our constitution.
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