Republicanism and Judicial Review

A Review of Richard Bellamy, Political Constitutionalism. A Republican Defence of the

Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007).

Lars Vinx, Department of Philosophy, Bilkent University

Published in University of Toronto Law Journal 59 (2009) 591-597.

According to the neo-republican understanding of political freedom defended by Quentin

Skinner and Philip Pettit, citizens lack political freedom as long as governmental
authorities have the standing power to interfere with a citizens liberty at their unfettered
discretion, and without having to pay heed to the interests of the governed. Citizens are
protected against such domination, and thus enjoy political freedom, to the extent that
they are empowered to force authorities to justify their decisions in terms of the public
good and to decide in ways that make a serious effort to pay heed to the legitimate
interests of all the governed.1
It should not occasion surprise that authors attracted to the neo-republican ideal of
non-domination typically defend the legitimacy of judicial review.2 After all, the ability
to appeal to a court endowed with a power of constitutional review appears to be a potent
mechanism of civic empowerment in the face of potentially arbitrary governmental
1

See Philip Pettit, Republicanism. A Theory of Freedom and Government (Oxford: Oxford University
Press, 1997); Quentin Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press, 1997).
2
See for instance Henry S. Richardson, Democratic Autonomy. Public Reasoning About the Ends of Policy
(Oxford: Oxford University Press, 2002) 8-16; Horacio Spector, Judicial Review, Rights, and Democracy
in Law and Philosophy 22 (2003) 285-334; Philip Pettit, Republicanism (n. 1 above), chapter 6.

decision-taking. In a vigorous defence of a republican version of political

constitutionalism, Richard Bellamy objects to this standard republican assessment of
judicial review. Political Constitutionalism argues that the ideal of freedom as nondomination necessarily conflicts with the institution of judicial review and that the latter
is thus democratically illegitimate in all its possible forms.3 To achieve non-domination,
Bellamy claims, we must reject any form of legal constitutionalism characterized by
entrenched constitutions and judicial review. Needless to say, a successful defence of this
claim would constitute a highly important contribution to constitutional theory.
Bellamys argument promises to transform both our understanding of republicanism and
of the institution of judicial review.

Political Constitutionalism is divided into two parts. The first defends a strong
version of Jeremy Waldrons argument from disagreement, while the second argues that
non-domination can only be achieved in a democracy that eschews a written constitution
enforced by the courts. This review will discuss both parts in turn.

According to the argument from disagreement, members of modern, pluralist

societies, though they are committed to the liberal idea that the state ought to grant and
protect a set of individual rights, reasonably disagree about what rights citizens should
enjoy as well as about how these rights ought to be interpreted. For obvious practical
reasons, it is nevertheless necessary for society to settle on a particular scheme of rights.
This raises the question whether the social choice for a scheme of rights ought to be taken
3

Richard Bellamy, Political Constitutionalism. A Republican Defence of the Constitutionality of

Democracy (Cambridge: Cambridge University Press, 2007). Subsequent references appear parenthetically
in the text.

by a court interpreting a written bill of rights or by a democratically elected legislature.

Bellamy argues that the first option constitutes a violation of the principle of democratic
equality. If decisions about rights are taken by a court, ordinary citizens will be governed
by a scheme of rights in the choice of which they didnt have any say.
In Bellamys view, we cannot justify this violation of democratic equality by
claiming that a constitutional court is more likely to take morally correct decisions about
rights than a democratically elected legislature. To defend the claim that decisions of a
court are more likely to be correct, we need an uncontroversial standard by which we can
measure the moral correctness of decisions about rights. But such a standard is
unavailable, given that members of modern societies reasonably disagree about rights.
Bellamy concludes that decisions about rights should always be taken by a
democratically elected legislature. Since democratic decision honours the equality of
citizens by giving everyone an equal say, citizens will be able to consider even decisions
that they disagree with as legitimate, while they will lack any such reason to respect
decisions they disagree with if rights are chosen by a court.
It has frequently been pointed out that the argument from disagreement is selfdefeating unless it is subjected to restrictions of scope.4 The idea that decisions about
rights will be legitimate and deserving of respect if they are taken democratically would
appear to presuppose that the democratic process functions adequately, that it has
sufficient integrity to justify a demand for respect from those who disagree with the
results. However, there seems to be no good reason to deny that members of a society
may find themselves in disagreement about whether some democratic process possesses

See for example Thomas Christiano, Waldron on Law and Disagreement in Law and Philosophy 19
(2000) 513-43.

sufficient integrity to produce binding results. If such disagreement is reasonable, we

cannot, it seems, subject it to the arbitration of democratic procedure. Why should a
minority that reasonably contests the integrity of a democratic process have to accept the
processs decisions about its contestations as binding? If the argument from disagreement
is applied to reasonable disagreement about the basic integrity of the democratic process
itself, it thus becomes self-defeating.
The obvious way to avoid this problem is to restrict the scope of the argument
from disagreement and to argue that there is some conception of the sufficient integrity of
a democratic process that is not open to reasonable contestation. Such a restriction, of
course, creates a problem for those who, like Bellamy, want to deny the legitimacy of
judicial review in all its possible forms. If there is a defensible core-conception of
democratic integrity that must be satisfied before democratic procedure can legitimately
arbitrate the remaining disagreements about rights, there would seem to be no conclusive
reason, from a democratic point of view, not to constitutionally entrench it and to have it
enforced by the courts.
Bellamy is aware of this problem. But in contrast to Jeremy Waldron, who has
recently restated his argument from disagreement in a way that clearly restricts its scope5,
he refuses to limit the argument from disagreement in any way, so as to avoid any
concession to legal constitutionalists. Bellamy denies that there is any morally
substantive core-conception of democratic integrity that is shielded from reasonable
contestation and he thinks it follows from this that the only legitimate way to arbitrate
disagreements about the integrity of democratic procedure is to rely on democratic

See Jeremy Waldron, The Core of the Case Against Judicial Review in Yale Law Journal 115 (2006)
1346-406.

procedure itself. So how does Bellamy justify the claim that democratic procedure can
produce binding decisions even in the face of reasonable contestations of its own
integrity?
The passages in which Bellamy attempts to answer this question seem to fall well
short of answering this question. The following quotation is characteristic of Bellamys
strategy to deal with the issue:
Just as I can prefer politician A to politician B, but still regard a majority vote as the
legitimate way of choosing between them even if I know most people will opt for B, so I
can believe that PR is better than the current plurality system yet acknowledge that the
only legitimate way of instituting PR would be through the prevailing system. [] As a
matter of practical politics [] it will be necessary to defer to some procedure to decide
the issue, and as a democrat an imperfect democratic procedure through which citizens
have some chance of having their say can be reasonably preferred to one that has fewer
democratic credentials. (140)

The examples mentioned here plainly fail to establish the desired conclusion. Perhaps
decisions about democratic procedure should be taken through democratic procedure if
the existing procedure already possesses sufficient integrity to legitimize its outcomes.
Presumably, respect for the principle of democratic equality would then require
acceptance of the decision even if one thinks it is substantively mistaken. But clearly, an
argument of the form outlined in the above quotation cannot be marshalled against
minorities who reasonably contest the claim that the existing procedure possesses
sufficient integrity to legitimize its outcomes. Bellamy appears to infer from the correct
observation that some disagreements concerning the integrity of democratic procedure
can legitimately be settled through the employment of democratic procedure that all
disagreements about the integrity of democratic procedure can be so settled. But this
inference is clearly fallacious.

In order to show that all disagreements about the integrity of democratic

procedure ought to be settled through democratic procedure one would have to defend the
view that we cannot reasonably contest the legitimating power of any procedure that is
democratic in the thinnest descriptive sense that we care to give to the term, that all
reasonable disagreement about the integrity of democratic procedure must concern the
aspiration towards perfection in integrity and not the threshold of sufficiency. A view of
this sort, however, would entail patently obnoxious conclusions. For instance, it would
imply that laws that discriminate on the basis of race or gender are legitimate if they are
brought about through a democratic mechanism, and that those who are negatively
affected by such laws ought to accept such laws as binding. Unless we are willing to
accept such blatantly implausible views concerning the legitimizing power of democratic
procedure, Bellamys unrestricted version of the argument from disagreement will fail.

What, then, about the republican dimension of Bellamys attack on legal

constitutionalism? Why are republican authors wrong to think that judicial review can be
expected to advance the cause of non-domination? Bellamys argument here turns out to
be a variation of the argument from disagreement. Recall that republicans define
domination as subjection to an authority that has the power to interfere with ones liberty
at its own discretion, without being forced to pay heed to ones legitimate interests. In
Bellamys view, the problem of disagreement entails that there is no substantive
conception of rights or the common good that we can justifiably invoke to distinguish
interferences that are properly mindful of the subjects interests from interferences that

are not. To constitutionally enshrine a particular conception of non-arbitrary rule and to

have it enforced by a court is therefore itself arbitrary.
Under circumstances of pervasive disagreement, a political procedure has to meet
two requirements, in Bellamys view, in order to be non-dominating: First, citizens will
need to feel that no difference of status exists between them and the decision-makers.
(164) Second, the procedure must not give more weight to the views of some citizens on
the ground that their opinions are likely superior to those of the rest.
According to Bellamy, a legal-constitutionalist political procedure including
constitutional review necessarily fails both requirements. Judges exercising constitutional
review, Bellamy maintains, claim a status of superiority over other citizens, and they do
so in virtue of the unwarranted assumption that their opinions are more likely to be
correct than those of other citizens. Constitutional review, then, seems premised on an
unjustified assertion that those on the bench are more equal than the rest and it therefore
cannot be other than arbitrary and hence dominating. (166-7) Majoritarian democracy,
on the other hand, necessarily satisfies the two requirements for non-domination since it
accords equal weight to each citizens opinion, by giving each citizen one vote, and thus
expresses a status of political equality.
This argument, like Bellamys version of the argument from disagreement, is
altogether too sweeping. The positive claim that majoritarian democracy is necessarily
non-dominating, for the reason that it expresses an equality of status among citizens,
seems to overlook the fact that discriminatory legislation, especially if directed against
discrete and insular minorities, may well amount to a denial of equal status even where
all have an equal vote.

Bellamys argument for the claim that a constitutional court is necessarily

dominating is equally problematic. The view seems to draw its force from the implicit
assumption that we are talking about a democratic process that meets a threshold of
sufficient integrity. But the opponent of legal constitutionalism, as we have seen, is not
entitled simply to assume that all political systems that are democratic in a purely
procedural sense automatically meet that threshold.
Bellamy consistently talks about constitutional courts as if they wielded an
unbridled, purely discretionary legislative power, as if there couldnt possibly be any
other interesting difference between adjudication and legislation than the fact that judges
are few, drawn from a particular professional background, and usually unelected, while
legislators are many, elected, and more representative of the people. Needless to say, if
the question were simply whether we should be ruled by the courts of by our elected
representatives, most of us would opt for the latter. But one would have to offer a much
deeper discussion of legal constitutionalist conceptions of the separation of powers than
Bellamy cares to provide to show that we are entitled to think of the role of constitutional
courts in democratic polities in such simplistic terms.
Another shortcoming of Bellamys argument against judicial review stems from
the well-known fact that laws do not mechanically determine their judicial application.
Even if there is no written constitution and no supreme court endowed with the power to
strike down statutory law, courts will still have to be charged with the interpretation and
application of laws. And once we recognize that such interpretation and application will
frequently require interstitial judicial legislation or demand that judges make appeal to
moral principle, it is hard to see why ordinary adjudication should not, in cases where the

correct interpretation of statute gives rise to reasonable disagreement, be equally as

problematic, from Bellamys point of view, as full-blown constitutional review. It will
not do to reply to this objection that a judge can avoid moral decision through adopting a
policy of deciding as other judges would if they had to decide the same case. (87) This
standard of correct judicial decision was first put forward by Carl Schmitt.6 Schmitt
himself realized that it will ward off the need for moral decision only as long as the
individual judge can rely on a sense of appropriateness shared by all his peers. But this
condition is unlikely to hold in societies characterized by profound moral disagreement,
as critics of judicial review like Waldron never tire of pointing out.
Finally, there are ways of defending judicial review from a republican perspective
that Bellamy fails to recognize. His argument assumes that there is only one possible
basis for the claim that judicial review may help to protect citizens against domination,
namely the idea that judges have access to some higher form of moral wisdom which
allows them to rectify substantively arbitrary outcomes of the legislative process.
Bellamys assumption is grounded in the general thesis that it is impossible to design a
political procedure with a view to preventing substantively arbitrary outcomes without
prior access to an uncontroversial scheme of rights or of the common good. Such access
would allow us to choose the procedure that is most reliable in bringing about results that
are already known to be correct. But without it the only remaining standard for assessing
procedure, Bellamy claims, is the question whether the procedure gives everyone an
equal say.

See Carl Schmitt, Gesetz und Urteil. Eine Untersuchung zum Problem der Rechtspraxis (Mnchen:
C.H.Beck, 1969, first published 1912).

This general thesis is unconvincing. We have good reason to believe, for instance,
that the procedural requirements of the criminal process enhance its epistemic reliability
even without having any prior access to the set of correct outcomes. Similarly, we may
well have good reason to believe that certain features of a democratic procedure of
legislation will tend to reduce the danger of substantively arbitrary outcomes even while
we lack prior access to an agreed-upon and fully worked-out theory of rights of the
common-good. Early defenders of electoral democracy frequently stressed the point that
democratic enfranchisement will tend to prevent substantively arbitrary legislative
outcomes simply by forcing the legislator to take account of the interests of the public at
large, and not just of those of a small ruling elite. The claim that legislative outcomes are
less likely to be substantively arbitrary in a democracy than in an autocracy, then, does
not have to rely on prior access to an uncontroversial conception of the moral correctness
of legislative outcomes.
If Bellamys view about the possible grounds of institutional design fails as a
general thesis, a republican should consider the possibility that it also fails with respect to
judicial review. There may well be good reasons to believe that the institution of
constitutional review can help to prevent arbitrary exercises of power that do not depend
on prior access to an uncontroversial theory of correct outcomes. One obvious candidate
for such a reason is the expectation that the possibility of appeal to a constitutional
tribunal will reduce the danger of a tyranny of the majority, a danger that Bellamy tends
to dismiss in too cavalier a fashion. The availability of judicial review might well be
expected to reduce the danger of majority tyranny simply in virtue of providing the
minority with a particularly effective opportunity to contest a majoritys decisions.

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Whether legal constitutionalism can be defended along such lines is of course an open
question. But the question needs to be considered, not dismissed on the basis of flawed
assumptions about the available standards for institutional design.

As will have become clear, Bellamys arguments are nothing if not engaging and
provocative, and they will help to prevent self-satisfied dogmatism among legal
constitutionalists. However, legal constitutionalist readers of Political Constitutionalism
are unlikely to arrive at the conclusion that they should abandon their views. It will
require an attack of higher argumentative quality to drive a stake through the heart of
legal constitutionalism.

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