Constitutional Democracy and the Legitimacy of Judicial Review Author(s): Samuel Freeman Source: Law and Philosophy, Vol.

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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SAMUEL FREEMAN

CONSTITUTIONAL LEGITIMACY

DEMOCRACY OF JUDICIAL

AND REVIEW*

THE

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

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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
2

(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.
4

10,pp. 160-61.

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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.

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I. PHILOSOPHICAL BACKGROUND

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or one'sview regarding democratic the Inevitably legitimacy role of review must turn upon how he conceivesof democracy. judicial involves to essentially According one commonview,whatdemocracy in is equalconsideration and responsiveness everyone's to interests of of on deliberations laws and socialpolicies.This way of conceiving but it is to is views, democracy amenable a rangeof philosophical Thereis nothingintrinsic with utilitarianism. most closelyassociated that to utilitarianism wouldrequire procedures; legislative majoritarian and conceivedas equal representation majority whetherdemocracy, schemeof institutions rule, is an appropriate dependsupon social circumstances. as is well known,majority and historical And, voting definedareill-suitedto reflectthe intensity as procedures traditionally calculations. to whichis essential utilitarian of individuals' preferences, of and Still,it can be arguedthat undermodernconditions, because theirsimplicity, equal incorporating procedures legislative majoritarian to and approxipreferences representation responsiveness individuals' that the alternative decisions mate more closelythan any practicable One utilitarian calculus. 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. particular to like Considerations these underliemanyobjections judicialreview, or to the exerciseof that powerin casesthat do not involve of the Judiprocedures.5 legislative maintaining integrity majoritarian
5

and judicial review. On Ely's affinities with utilitarianism, see his Democracy Distrust(Cambridge:Harvard University Press, 1980), pp. 187, n. 14 and 237-38, n. 54; see also his, 'Constitutional Interpretivism, Its Allure and Impossibility', IndianaLawJournal 53 (1978): 339, 405-08, where he argues that the appeal of democracy can best be understood in terms of its connection with utilitarianism. Also see Jonathan Riley, 'Utilitarian Ethics and Democratic Government', Ethics 100 (Jan 1990): 335-48, who argues that in the absence of interpersonal comparability,utilitariansare necessarilydemocratic.

and of underlies This kind of argument JohnEly'sconception democracy

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cial reversals majority of decisions violatethe basicdemocratic prinwhich majority of equal consideration everyone's of interests, ciple This are to procedures designed accommodate. is a forceful, thoughI believemisguided, its of and conception democracy, bases, the role of review.I suggestthatwe approach theseissuesfrom a differjudicial entperspective. is of laws Appealto the commoninterest a convention democracy, are commonlyarguedfor and socialinstitutions claimedto be are on groundsthat they promotethe good of everyone. This justified fromthe premise thatthe interests all arenot of convention proceeds but simplyto be considered also are to be advanced government by To decisions. groundthesecommonplace is ideas,suppose democracy in the following way: Rather than seeing democracy represented in we its features terms, mightconceive essential essentially procedural in termsof the equalfreedomand independence its citizens. of This fundamental democratic value is specifiedby equal rights of selfand in that determination, equalparticipation the political procedures settlelawsandbasicsocialinstitutions citizens' life-prospects. affecting The focushereis not uponindividuals' unconstrained and preferences theirequalconsideration (maximizing) aggregate in the satisfaction of but and of to interests, uponthe capacity interest eachperson rationally decideand freelypursuehis interests, participate equalterms and on in political that institutions promote person's each good. While not confinedto a specifictradition democratic in thought, this familyof ideas- equalfreedom, and equalrights, equalpolitical participation is centralto the naturalrightstheoryof the social contract of tradition Locke,Kant,and Rousseau, to the modern and versionof that tradition, Rawls's It justice as fairness. is from this that I shall frame my inquiryinto the bases of equal perspective the rule,andassess forceof the argument political rightsandmajority that judicial review is anti-democratic. Ultimately,the case for or against judicialreviewcomes down to the questionof what is the I of most appropriate conception a constitutional democracy. proceed fromthe assumption the basicideasunderlying socialcontract that the tradition to formsbetterthan captureour commitment democratic theoretical alternative. any

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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.Instead,the debate becomes an instance of a larger conflict within democraticthought. This conflict is best describedin terms of the tension that exists when we attempt to combine the ideals expressedin Rousseauwith those of Locke.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. The legitimacy of judicial review ultimately depends upon how we strike the balance betweenthese two setsof potentiallyconflictingrights.
II. 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.This is As Bickel statesit: objection. Alexander Jefferson's
The root difficulty is that judicial review is a counter-majoritarian force ... [This]is the reasonthe chargecan be made thatjudicialreviewis undemocratic
... Although democracy does not mean constant reconsideration of decisions once made, it does mean that a representative majority has the power to accomplish a reversal.7

I am grateful to Professor Burton Dreben for the suggestion that the dispute over judicial review is best seen in these terms. The contrast is stylistic, and reflects a common perception of these two figures. It is interesting to note that while Locke provided for no institutional mechanism for resolving constitutional disputes, Rousseau did; he envisions an institution with powers of constitutional review. See On the Social Contract, Bk. IV, ch. 5, 'On the Tribunate', where he discusses the need for a body, with no share in legislative or executive power, "to protect the sovereign [people] against the government'. He says, "A welltempered tribunate is the firmest support of a good constitution. But if it has the slightest bit too much force, it undermines everything". 7 Alexander Bickel, The Least DangerousBranch (Indianapolis: Bobbs-Merrill, 1962), pp. 16-17. Jesse Choper puts the objection in this way: "[W]hen [courts]

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A related reason offered to support the claim of the undemocratic nature of judicial review is that judges are not electorallyaccountable to the majority. 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.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. making Constitutionally,federaljudges in the United Statesare appointedby the executive, with life tenure subject to good behavior.There are good reasonsfor this practice,some having to do with judicial review. But the fact that federaljudges are not accountableto the majorityis an institutional fact about the constitution of our national government. Judges could be elected to office for a set term, as they are in many states' systems, and reservationsabout judicial review would remain.The basic problem with judicial review is not thatjudges are not electorallyaccountableto majoritywill. 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.

exercise the power of judicial review to declare unconstitutional legislative, action - federal,state, or local - they reject the executive,or administrative product of the popularwill by denying policies formulatedby the majority's elected representatives their appointees.... Not merely antimajoritarian, or to democratic judicial reviewappears cut directlyagainstthe grainof traditional Reviewand the National Political Process Unitheory". Choper,Judicial (Chicago: versityof ChicagoPress,1980),p. 6. Both Bickel and Choperarguereviewis still neededto promotemoralvalues(Bickel) protectminorities' and rights(Choper). 8 and Ely, Democracy Distrust, 4-5. MichaelPerryconcurs:"Inour political pp. is culture,the principleof electorallyaccountable it policymaking axiomatic; is M. judicial review, not that principle,that requiresjustification". Perry, The the and Courts, Constitution, HumanRights(New Haven:Yale UniversityPress, 1982),p. 9.

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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. I call this, following Rawls, the I principleof equal politicalparticipation.9 assumethat this principleis a constitutionalrequirementof democracy.The constitution of any government,whether written or unwritten,is that system of highestorder rules for making and applying those social rules recognizedas laws. 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. Each citizen is to have an equal right to take part in constitulaws and basicsocialinstitutions. tionalprocesses that establish The basic objection to judicial review might now be reformulated in the following way:judicial review, since it involves the authorityto overrule legislation enacted through proceduresthat accord with this It principle,is a limitation upon citizens'equal rights of participation. does not matter whether the judges making these decisions are electorallyaccountableor not. By exercisingtheir equal politicalrights designedto accommodatethem, citizens throughlegislativeprocedures have alreadymade as democratica determinationas can be made. So even if presidingjudges are elected and can be recalled,the damage has alreadybeen done. The Court's revocation of popularly enacted measures can be overridden only by constitutionalamendment, remajorityfor enactment. quiringfarmore thana (bare) All of these argumentsassume that equal political rights requires rule by a bare majority.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, A Theoryof Justice (Cambridge, Mass: Harvard University Press, 1971), p. 221ff. Cf. San Antonio Independent School District vs. Rodriguez, 411 U.S. Reports 1, at 34, n. 74 (1973), where the Supreme Court says (quoting from Dunn v. Blumstein, 405 U.S. 330 (1972)): "[A] citizen has a constitutionally protected right to participatein elections on an equal basiswith other citizens".

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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.First, we might understanddemocracy in purely proceduralterms. 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, and and where decisions are reached in accordancewith the principle of bare majorityrule. A proceduralconception of democracyinvolves no substantiverestrictionupon the outcomes reachedby legislativedeterminations, other than those rights necessary to sustain legislative themselves.'0 procedures The second view holds that though democracyinvolves substantive requirementson the kinds of law that may be enacted and enforced, still decisions on the nature and interpretationof these restrictions must be decided as required by the principle of equal participation and majorityrule. This conception of democracyoften underlies the objectionthat the legislativebranchshould have exclusiveauthorityto interpret the constitution." This implies that decisions about the
10 Brian "I Barrydefines a procedural conception: follow ... those who insist that 'democracy' to be understood procedural is in terms.That is to say,I reject the notion that one should build into "democracy" constraintson the any content of outcomesproduced,such as substantive equality,respectfor human rights,concernfor the generalwelfare,personallibertyor the rule of law .... The only exceptions... are those required democracy itself as a procedure". by B. Barry,'IsDemocracy and ed. Politics, Society, Special?' (fifthseries), P. Philosophy, LaslettandJ. Fishkin(Oxford: Blackwell's, 1979),pp. 155-56. William Nelson, On Justifying Democracy (London:Routledge & Kegan Paul, 1980), p. 3, also defines democracyin this way. TerranceSandalowargues,apparently utilion that a purelyprocedural tariangrounds, is morallysufficient, that and conception with legislative processis nothingmore thanthe substitution judicialinterference of preferences a minority(viz.,judges and those whose intereststhey repreof for those of a majority. 'The Distrustof Politics',N.Y.U.LawReview56 See sent) 446. (1981): p. 1 This seems to be the MichaelWalzer's conceptionof democracy underlying Political 9 and Democracy', objectionsto judicial review in 'Philosophy Theory p. (1981): 379.

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nature and extent of constitutionallimitations on laws can only be decided through the very procedures that these restrictionsare intended to limit. Whatever force this objection to judicial review has must be established,I believe, on empiricalgroundswhich show that the substantive requirementsof democracy are always on balance better realized if their final interpretationis left up to legislative authority.Though I doubt this can be confirmed,I will not argue the point. My concern is the purely philosophicalobjection that stems from a procedural conception. Now, of course if democracyis simply defined in proceduralterms as a matter of stipulation, then it is trivial that judicial review is undemocratic. But this is not an argument,for stipulativedefinitions no argumentativeweight. A purely procedural definition of carry democracy is fine, perhaps, for certain purposes, so long as it is recognizedfor what it is. What I find problematicabout this account of democracy,however, is that it unduly focuses our attention upon but one aspect of societies that we think democraticto the exclusion of other featuresthat are equallyimportant.It then leads us to ignore the backgroundconditions for stable democraticregimes, as well as of the normativerequirements the values and ideals that underlieour forms. commitmentto democratic To see this we only need considerthe natureof politicalprocedures and the principleof majorityrule. No one would argue that the mere fact that a person makes a decision makes that decision right. The same holds true of group decisions, whether by simple or special majorityrules.We have criteriafor assessingthe rightnessof outcomes resulting from any actual political decision-making procedure, no that proceduremay be. Furthermore, 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. are but examples of the more general rule that principlesspecifying what is right or fair to do (in this case, following certainprocedures) can sometimesconflict with and be outweighedby other principlesof right and justice. There are moral limits to the extent of the exercise of equal political rights through majority legislative procedures,and

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will that thereis no assurance theselimitsalways be respected the by of theseprocedures.12 workings Giventhese limits on majority rule, the questionis whetherthey Can ideals. 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, alsoundemocratic? waythismightoccuris on resultin limitations citizens' decisions when majority equalpolitidenialof theirrightto vote,or dilutionof their cal rightsby outright of Violations this sortarefamiliar votingrightsby malapportionment. law. constitutional But thesearenot the onlywaylegislain American There are structural tive outcomes can be judged undemocratic. and to otherthanequalparticipation central democracy requirements rule. 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.For equal participation voice and vote, but also equalaccessto politicaloffices.But to equal for the positions hereditary argueagainst settingasideof non-political other than equal political we need appealto considerations classes, is rights.The lack of an aristocracy but an instanceof a largerrule if not actualpractice, then at leastthe publicidealsof characterizing, the absenceof socialand confessional moderndemocracies. Namely, officesto members classsystems limitingaccessto socialandpolitical are The mostfamiliar instance suchclasses racial of of favored groups. in are But and ethnicgroups. socialclasssystems alsodefinable terms and and politicalaffiliations, in termsof property of religious, moral, not and wealth.In moderndemocracies, being a memberof favored or politicalpartiesdoes not generally provide religiouspersuasions legal groundsfor excludingpeoplefrom socialand politicaloffices, or any more than does not being a memberof favoredhereditary
12 To use Rawls's phrase, no political procedure is an instance of perfect proceduraljustice. Rawls, Theory ofJustice, 85, 359. pp.

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racial groups.But, again, there is nothing inherent in equal political participationand majority rule that would prevent the exclusion of classesfrom socialofficesand positions. such unfavored That personsnot be excludedfrom social and political positionson grounds of race, sex, or wealth is associatedwith equality of opportunity, and that they not be excluded for reasonsof religious,moral, or political affiliation has also to do with liberty of conscience and freedom of thought. Equal opportunities and toleration of diverse religious, moral, and philosophical views are important aspects of modern democratic societies; if they are not fully allowed for in practice,they are at least publicly assentedto as ideals to be obtained conditions. undermore favorable There are other backgroundconditionsof modern democraciesnot guaranteedby equal political participation.All citizens of modern democraciesare entitled to own and transferproperty(however this institution is defined),to enter into contracts,and to engage in other civil activities subject to whatever disabilitiesare recognized by law. These are importantcivil, as opposedto political,rights.Also, 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,and the right against self-incrimination,all of which are subsumedunder legal equality.Beyond this, the very idea of the rule of law, though not peculiarto democracy,is nonethelesstaken to be one of its conditions.But again, there is nothing inherent in equal participationand majority rule that would prevent violations of the many rights that come under this ideal:impartial,fair and open trials; rules of evidence guaranteeing rationalproceduresof inquiry;publicly and clearly defined laws; prohibitions against ex post promulgated an facto laws andbills of attainder; absenceof executivefiat,etc. an important feature of democraticsocieties is the public Finally, lives that are not subject recognitionthat there are areasof individuals' to infringement by political processes, but which are matters for citizens' own control. We do not believe that a regime is democratic which collectivelydictateswho individualsmarry,what they wear and eat, where they live, and how they must spend their time during a great part of the day. There are limits to the extent of the exerciseof

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and socialorderof some politicalpowerin democracies, a pluralistic cannotbe adeAgain,these conditions degreeis takenfor granted. to the natureof equalpoliticalrightsand quately justifiedby appeal rule. majority is in of powerwithingovernment Equality the distribution political democratic ideals or the social not then sufficientto characterize Howevercenfor stabledemocratic conditions procedures. necessary be to democratic tral certainpoliticalrights and procedures may in of arenot exhaustive whatis involved a society's being society, they in procedural termsdemocratic. to characterize So, democracy solely unconstrained for as if it werejust a procedure summing preferences - involvesa misconception democracy, of the role of equal and of we rule.Of course, might call a society politicalrightsand majority even thoughit did not providefor all of the substantive democratic rights and institutionsmentioned.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. are as democratic certainidealsregarding and persons theirrelations for citizens,and these idealsprovidethe reasons holdingequalityof to be of suchimportance. political rights
III. 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. to we Instead, need traditionally look to the valuesand idealsin virtueof which we hold such procedural of as rule, aspects democracies equalpoliticalrights,majority andpolitical Thenit canbe asked whatrole, accountability important. if any,judicialreviewhas in promoting undermining or thesevalues. If it turnsout thatthereis no conception judicialreviewthatwould of maintain promotethe idealsthat standbehindour commitment and to democratic better than unconstrained procedures majorityrule, then the categorical claimthatjudicialreviewis undemocratic be can

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of on sustained. however, some conception its rolejudicialreview If, is can betterimplementthe idealsupon which politicaldemocracy not then this is a reasonfor concluding, simplythatjudicial based, but with democracy, thatit is an important reviewcanbe compatible
institution. democratic

often cited in supportof equal There are two relatedprinciples rule politicalrightsand majority which might be thoughtto supply and for these institutions, which would lend sufficient justification It of democracy. is sometimes to a procedural conception support that given the need for some kind of legislative authority, suggested and that fairness alonerequires it be equallydistributed thatdisputes rule. Other thingsbeing equal,democratic be resolvedby majority be fair.But as the preceding decision sectionsuggests, procedures may for thisis not sufficient their sincethereis nothingabout justification, themselves wouldinsureagainst that substanprocedures by majority unfairoutcomes. on for Thus, to focus our concerns fairness tively aloneis undulyshortsighted; fairness to playa if is political processes of role in the justification politicaldemocracy must figurein at a it morefundamental level. is A second argumentfor procedural democracy one we have of It is thatdemocracy basedin the principle is encountered. already of whatever preferences they may be, equalconsideration everyone's to of expressed anddecisionaccording the greater preferences. weight and rule are then justifiedon Equalpoliticalparticipation majority that meansto insurethateverygrounds they arethe bestpracticable The ones preferences takeninto account considered. problem and get vision of the requirements political of here is the same truncated For on valueof equality. by justice,in thiscasefocused the democratic is itself, the principleof equal consideration nothingmore than a of requirement formaljustice - treatlike casesalike - appliedto It weak equalityrequirement, politicalprocedures. is an extremely of with substantive compatible inequalities mostanykind.Equalconof unconstrained sideration individuals' puts preferences no restrictions that the considerations will be takeninto accountin designing upon that laws,hencenone upon the reasons maybe offeredto justifythe And substantive that inequalities resultfrom theseprocedures. demoin it doesnot implyequality everyrespect, doesruleout cracy, though

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certain kindsof inequalities, certain and kindsof reasons inequalfor thereis nothingaboutequal ities, as substantively Moreover, unjust. of consideration interests, se, thatwouldaccountfor such demoper cratic ideals as equal freedom,self-determination, individuals' and in publicaffairs decisions lawsand socialforms. and on participation In the end, equal rightsto vote and voice one'sviews are, on this not at justification, a partof a morebasicrightof participation all,but are simply a convenientmeans for registering and satisfyingthe of preferences. greater aggregate Considernow a differentkind of argumentfor equal political the with whomthe theorists, thinker participation. Amongdemocratic ideaof political is mostcloselyassociated Rousseau, it is for democracy is initiallywith him that the principle equalparticipation taken of is to be of such great importance. Rousseausays that, "The rule of the is accepting decisionof the majority itself established agreeby ment and presupposes on at least one occasion."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. according all laws are made,by definition cannotitselfbe law (hence,estabit The but lishedby majority decision), musthavesomeotherfoundation. of and the foundation the constitution, therewith laws,of a democratic of is the equalfreedomof individuals, basedin the capacity society and his good in accordance with each to determine rationally pursue For freedomis not doing what one social requirements. Rousseau, in the absence law andall otherconditions, 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. The only conditionin positive
On Bk. Kantmakesthe Contract, I, ch. 5, last sentence. J.J. Rousseau, theSocial same claim:"Theactualprincipleof being contentwith majority decisionsmust be acceptedunanimously embodiedin a contract, this itself must be the and and ultimatebasison which a civil constitution established". is 'Theoryand Practice', in Kant'sPoliticalWritings, Hans Reiss (Cambridge: ed. CambridgeUniversity
13

Press, 1970), pp. 73-74.

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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.And the only constitutional for position procedure laws that free and equalindividuals could reasonably accept making andagreeto is thatof equalpolitical rightandsomeformof majority rule. Partof the functionof the socialcontract Rousseau's in workis to the is express ideathatdemocracy not simplyone kindof government for makingordinarylaws, but that it is, more fundaprocedure a one mentally, formof sovereignty, in whichfree and equalpersons theiroriginal combineand exercise to political jurisdiction makethe constitution.14 Underconditions wherefree and independent individuals are equallysituated,they would all accept,as the basis for theircommonaffairs, principle equalparticipation. the of So, ordering it is not the fairness equal consideration interests or of implicitin that its Instead, politicaldemocracy provides foundation. equalrights in are of participation government an extension the equalfreedom of of andoriginal democratic citizens. political jurisdiction sovereign Freedom equalityare the basicvaluesthat democratic and theory has drawnupon sincethe time of Locke.Democratic political philoin has tradition particular, sophyin largepart,and the contractarian to been a seriesof attempts interpret reconcile and thesebasicdemoof craticvalueswith the purpose arriving the socialand political at for realizing idealis them.The socialcontract conditions appropriate to accommodatethis importantaspect of democratic designed is social agreement the thought.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, the distinction Bk. see On betweensovereignand government, Rousseau, theSocial Contract, III, ch. 1, paragraphs 3-6; Bk. III, ch. 5, par. 1; Bk. II, ch. 6, note to par.8. James Dreamer Democracy Miller, in Rousseau: (New Haven:Yale UniversityPress, of is work.The distinction also implicitin this discusses aspectof Rousseau's 1984) in Peace'. and 2d Locke's Treatise, is stated Kant's essay'To Perpetual
14

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froma positionof equalright,couldmutually themselves, acceptand for relations. Equal agreeto as the conditions theirsocialandpolitical andthe institutions a political of are participation political democracy a natural extension thisbasic of idea. can Severalarguments be made for politicaldemocracy from a Here I will brieflyreviewthosemost relecontractarian perspective. vant to judicialreview.I assumethe framework specified Rawls. by I The arguments set forth,if not explicitly madein his works,are at with leastconsistent hisview. to To beginwith, 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, rightto formpolitical of the parties, etc.),are press, that everyone's interests represented, are heardand a way of insuring of in takeninto account processes legislation. Openandpublicdemoof for the exposition socialpolicyand the craticprocedures provide measures. with other alternabehindgovernment reasons Compared tives, this sort of processis more likely to lead to the adoptionof that is reasonable does not consistently and legislation disadvantage of society.15 this way politicaldemocracy In is particular segments instrumental free and equalindividuals' to pursuitof theirgood and their So of theirmaintaining freedom. 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,thennonewill havesufficient right and of politicalparticipation influenceto others,given that others for of conception whatis necessary theirown mighthavea different andothers' good.

15 William Nelson, On Democracy, 111-18, discusses the advantages pp. Justifying of open and public democratic procedures, and finds this to be the primary justification for representativedemocracy advancedby Mill.

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free and equalsovereign would agreeupon equal Second, persons of political to insurefor themselves conditions the participation rights of theirself-respect. involvesa sensethatyour basicends Self-respect areworthpursuing a confidence yourcapacities successfully and in to realizethem.It is an essential of anyone's of successful aspect pursuit his good.Self-respect this sensedepends in of uponthe respect others and their affirmative and the one's capacities judgmentsregarding of one'sends.We usually as thinkof ourselves othersdo, importance and our beliefs about ourselves and the value of our pursuitsare of affected thejudgments others. inconseNow, however inevitably by to ultimate outcomes exercise one'spolitical the of quential legislative the rightsmay be in large moderndemocracies, publicrecognition that a personhas theserightsis essential his senseof self-respect. 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, in is confidence his capacities the worthof his pursuits and person's And undermined. the thoughtthat one is a secondclasscitizen,not as capableof takingpart in publicmatterson an equal recognized in basiswith others,would be especially debilitating modernsociety, in a natural divinely or ordained orderof things wherebelief justifyas fixedsubordinate is no longerpublicly positions acknowledged ing the basis of the politicalorder.The recognition that a personis in of capable participating publiclife on equaltermsis then a condiif tion of his self-respect; so then equalpolitical rightsarean imporof of one'sgood.16 tantcondition thesuccessful pursuit our in and Third,as Mill argued, involvement deliberations deciand on the publicgood develops reasoning sions our capacities, also us our broadens interests beyondour own concerns, leading to takean interestin others.In havingto explainand justify our claimsand positionsto others,we must take their interestsinto accountand
16

basic liberties, see Rawls, A Theory ofJustice, 440-45, 543-47. pp.

to socialgoodof self-respect its relation certain and On the primary equal

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appeal to commonly held principles.Political participationcan then lead us to a larger conception of society and to the development of our reasoningcapacitiesand moral sentiments.Though political participationis by no means the only form of associationthroughwhich our capacitiesand sentimentscan be developed,it is an importantone view of society and of since it leads us to take a more comprehensive of and the socialinterdependence individuals groups. That citizens develop their social capacities and sentiments is first, it is conduciveto the stability importantfor a number of reasons: of government and social forms. Social stability is a condition of anyone's pursuit of his ends, and in a society where individuals conceive of themselvesas free and equal, stabilityis dependent upon citizens' desires to support and maintain social and constitutional forms. So, as means for encouragingcitizens' desires to supportjust social forms, equal rights of political participationare an important way to insure the stability of social and constitutionalarrangements. Second, in encouraging the development of various social virtues, including a concern for justice, equal political participationlays the bases for civic virtue and friendship. Civic friendship is not only but desirablefor the sake of its stabilizingconstitutionalarrangements, is important in establishingthe moral quality of civic life. As such civic friendshipis itself a social good, and is a condition of our realizing other values of community.Finally,third, if we assume (as Rawls, Kant and Rousseauall do) that the exercise and developmentof our social and moral capacitiesare intrinsicto our good, then participation in democraticpolitical proceduresis a primarymeans for everyone's realizingthis aspectof theirgood. 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. I have mentioned how the openness and public nature of democraticproceduresis a means to just and effective legislation.But publicity is important not just for reasons of limiting government abuse.As Mill says,the proper function of a representative parliament is "to watch and control government:to throw the light of publicity of on its act; [and]to compel a full exposition andjustification all of them

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of and The considers whichanyone questionable".17 openness publicity that all seek to democratic normallyrequires procedures legislative to conductaffectingothersby appealing principles publiclyjustify and Lawsaresocialrulesbacked coercive canaccept. sanctions, by they of as such there are considerations mutualrespectfor personsthat citiMoreover, requirethat they be publiclyenactedandjustified.18 laws and zens' knowledgeof the reasonsand purposes underlying socialforms is a conditionof their freedom.For laws are primary we what kind of persons are amongthe socialrulesthat determine which institutions social andcan come to be. They shapethe primary our withinwhichwe determine courseof life, the provide framework on socialinfluences our character andas suchareamongthe primary knowwhy legalrequireThatcitizens and the courseof life we take. 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.The publicenactment justification laws politicalforms is in this way conduciveto implicit in democratic ideal thedemocratic of freedom. realizing are To sum up, equalrightsof political participation an extension Free citizens. 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.It is by virtueof theirequalfreedomthat in in share sovereignty; retainthatsovereignty citizens democratic they forms. in of participation constitutional forequal rights providing Now Montesquieu says:19
17

1958), 81. p. themin is for claimthatrespect persons shown treating Cf.hereRawls's by 586. TJ, ways canseeto bejustified. p. they
18

Government Bobbs-Merrill, John StuartMill, On Representative (Indianapolis:

19

The and 'TheBasicLiberties TheirPriority', Tanner in discussed John Rawls,

on Lectures HumanValue(SaltLakeCity:Universityof Utah Press,1982),vol. 3,
pp. 1-87, at p. 82.

Montesquieu,The Spiritof the Laws,Bk. XV, ch. 2, par. 4. This passageis

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The freedom of every citizen constitutesa part of public liberty, and in a To democraticstate is even a part of the sovereignty. sell one's freedomis so as be in to all reason canscarcely supposed anyman. 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, and his retaining them is also a condition of maintaining sovereignty and independence. 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, an act so excessive and contrary to reason as cannot be imputed to anyone. 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. It follows that any purported laws which seek to infringe upon these basic rights, even if affirmed by a majority, are invalid. 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, freedom of association and of occupation, such rights and liberties as are necessary to maintain the independence and integrity of the person, and the rights and liberties implicit in the rule of law.20 As claimed in the previous section, many of these basic rights and requirements of justice involve conditions and concepts that we naturally associate with the idea of democracy. And they are not adequately justified by the principle of equal participation. More importantly, given the imperfections of political procedures, these basic rights are not in practice guaranteed by the operation of decision procedures designed to satisfy the principle of equal participation. So, I rely here on the basic libertiesimplicit in Rawls'sfirst principleof justice. and On accountthereare See,Rawls,'TheBasicLiberties TheirPriority'. Rawls's that shouldbe a part of this list, those neededto also certaininstitutional rights a insure fair equalityof opportunityand to guarantee social minimum.These and conditionsare needed for individualindependence the effectiveexerciseof A the basicliberties. 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.
20

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the only circumstance underwhich free and equal personswould of acceptand agreeto politicalprocedures any kind,including equal that theseprocedures and majority rule,is on condition participation in be designed maintain protecttheir basicinterests the free to and of theirgood,andtherewith equalbasicrightsthatsecure the pursuit their freedom.This has important institutional for implications the of a democratic review. 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. 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, effect,a procedures. purpose Majority devicefor maximizing sum (or the average) satisfactions, the of without regard to the disadvantages imposes on some persons. this the this may accurately represent interest-group politicsthat Though often pervadeAmerican life, it does not accordwith the political that to accepted publicidealswe profess justifylaws.Forit is generally the in is of the purpose legislative procedures a democracy to promote This of the commongood,thereby advancing interests everyone. is the of democracy. the idea intuitive underlying contractarian conception
IV. THE DEMOCRATIC JUDICIAL JUSTIFICATION REVIEW OF

We are now in a position to address the democratic legitimacy of judicial review. I begin with some remarks on a democratic constitution. A primary aspect of modern constitutionalism is that the authority to make laws is an ordinary power of government, one that is both delegated and limited. In a constitutional democracy all political authority is understood to derive from the sovereign people who, conceived as equals, exercise their constituent power to create and define the nature and limits of ordinary political authority. Legislative authority is among the ordinary powers of government that have their source in the peoples' constituent powers. As such it is subject to

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are whateverconstraints placedupon it by the sovereign peoplein Like the that exercising authority.21 anypowerof government authorand for to makelawsis then fiduciary is only to be exercised the ity public good. we as authority havingits By contrast, mightlook upon legislative sourcein the will of God or the natural orderof things. 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), by delegation (as In in certainmedievaltheoriesand theoriesof royal absolutism).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, their consent agreement no roleinjustifying and plays authority. 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, 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.23 conceived, democratic for So a constituConstituentpower is the power of the people,joined togetheras a body politic, to create political authorityand determinethe form of the political constitution. the exerciseof constituent By power,the people createinstitutional These governing formsendowedwith the ordinary powersof government. agents of the peoplemake,apply,and administer laws for the publicgood.The distinction between the constituentpower of the people and the ordinarypower of governmentis common to the natural rights theory of the social contract Unitradition.See Locke, Two Treatises Government of Cambridge (Cambridge: chs. versityPress,1960),SecondTreatise, 11-13. 22 See, for example,Sir Robert Filmer's or Power Kings Patriarcha, theNatural of a to whichLocke's doctrine largely response. was socialcontract (1680), 23 Kant defines democracyin this way: "The democratic form of the state is most complex.[forit containsthe followingrelationships]: the Will of all to first, unite to constitutethemselvesa people;then, the Will of the citizensto form a and, finally, [theirWill] to place at the head of this commoncommonwealth; who is none other than this united Will itself". TheMetawealth a sovereign, Elements Ak. Bobbs-Merrill, ofJustice 1965), 339/110. physical (Indianapolis:
21

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tion is a naturalextensionof social contractviews. It is the result of an agreement,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. The proceduresbest designed to realize this end meet the democraticrequirements justice. On this conceptionof democof racy,what makes a constitutiondemocraticis not equal consideration in majority procedures,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, and address the legitimacyofjudicial review. Constitutionalproceduresthat incorporateequal rights of participation are, we have seen, most likely to insure that equal freedom and the good of each are realized. A just democratic constitution then must specify constitutional rights and procedures that define the principle of equal participation.It includes a universal franchise, legislative procedures allowing for equal representation,election to offices open to all, and whatever rights are necessaryfor free and informed political deliberation and public discussion (freedom of speech and of the press, freedom of assembly,the right to form and join politicalparties,etc.).Now, 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.If it did, political equality could not be satisfied at the level of decision on a constitution, or be the condition of a unanimous social contract. In fact, any number of special majority rules (three-fifths,two-thirds, or even unanimity)are consistentwith equal rights of participation,so long as persons are symmetrically situatedin decision procedures.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 closer the prevailing opinion should be to unanimity;... the more hastily the matter under consideration must be decided, the smaller the prescribed majority should be; in decisions that must be reached immediately, a majority of a single vote should

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must then be that at the level of constitutional agreement, free and equal rational persons concerned with advancing their good would unanimously choose that ordinary legislative decisions be settled by a bare majority. There may be different ways to show this. To begin with, 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. Second, this rule is more effective than any special majority rule in advancing the particular interests of each person. On the assumption that they know very little about the indefinite future, by choosing bare majority rule rational individuals minimize the chances that their interests will depart from legislative decisions. 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. Bare majority rule should then yield results that concur more often with each person's particular good than any special majority rule.25

Social suffice". Contract IV, ch. 2, 'On Voting',last par.This follows from his Bk. conception of voting proceduresas a means for accuratelydeterminingthe of requirements the GeneralWill. For a similarconception,see Rawls, TJ,sec. 54; and Joshua Cohen, 'An Epistemic Conception of Democracy',Ethics97 what Rawls (1986):26-38. These accountsare partof ideal theory,presupposing calls a "well-ordered Since the argumentfor judicial review is part of society". non-ideal theory,presupposing that legislators will not alwaysimpartially vote the requirements justice, I have adaptedan argumentfor majorityrule more of in accord with thisassumption partial of compliance. 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.See BrianBarryand Russell This argumentwas initiallymade 1982),pp. 305-06, 313-15, for a discussion. Valuesin Constitutional Rae,'DecisionRulesand Individual Choice', by Douglas
AmericanPoliticalScienceReview 63 (1969): 40-53. Rae contends that in a conHardin, eds., Rational Man and IrrationalSociety (Beverly Hills: Sage Pub. Co.,

the stitutionalchoice procedure, collectivechoice rule that would be chosenby rational voterswishingto maximizethe agreement betweenthe collectivechoice and their own individualpreferences baremajorityrule.Bare majority is rule is best in the long run, assumingthat voters do not know the likelihoodof their being in the majorityon issuesthat will arise.A formalproof of the argument

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But in order for these considerations be convincing to free and to rational persons, certain backgroundconditions must be susequal will tained. At the level of constitutionalchoice, 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. This providesa reasonfor imposing constitutionalconstraintson bare majorityprocedures, which insure that the basic rights and requirementsof justice are taken into account and respected. Primaryamong these constraints is a constitutionalbill of rights, which further specifies their equal basic rights in light of general knowledge of their circumstances, and servesas a substantive condition of the exerciseof legislativeauthority. This providesa way for sovereigncitizens to guaranteenot only their for equal politicalrights,but also the other equal basic rightsnecessary citizens' free pursuit of their good. By a bill of rights they, in effect, agree to take certainitems off the legislativeagenda.In so doing they publicly recognize and acknowledgethat maintainingthe sovereignty and independence of each is a condition of their cooperation,and definethe ends of legislativechange. partially Now the problem becomes how to best insure that these substantive constraintson legislativechange are respected.Given the imperfect nature of even just legislativeprocedures,a democraticconstitution might justifiably incorporatecertain proceduralconstraintsupon legislativeprocesses,to insure that the basic rightsand interestsof each citizen are actually taken into account in legislative deliberation. rule are Among these procedurallimitations upon bare majoritarian such familiarconstitutionaldevices as separationof powers;bicameral legislaturesand other checks and balances,including perhaps some
has been given by Michael Taylor, 'Proof of a Theorem on MajorityRule', 14 Behavioral Science (1969):228-31, and Philip D. Straffin, 'Majority Rule Jr., and and GeneralDecision Rules', Theory Decision (1977):351-60. The argu8 are ment, however,does not work if peoples'preferences patternedor asymmetric (e.g.,dividedalong ethnic or classlines).In that case,the rationalchoice may be a specialmajorityrule, or, what comes to the same thing, specificconstitutional as guarantees, I arguefor in the text.

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federalist to that and scheme; the executive's authority require certain of decisions madeby the decision a special be (the majority legislative for whetherany of these executive veto).The criterion determining constitutional are procedures called for is as follows:what, given is of current conditions, 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.It is amongthe procedural devicesthatfree and equalsovereign personsmight rationally agreeto and impose,in light of their of as general knowledge socialconditions, a constraint upon majority to processes, protectthe equalbasicrightsthat constitute legislative democratic reviewlimitsthe extentof the exercise Judicial sovereignty. of equal rightsof politicalparticipation throughordinary legislative Its constraints on procedures. purposeis to enforcethe substantive that have been takenoff the legislative Sinceit legislation itinerary. invokesa non-legislative meansto do this,it maywell be a constitutionalmeasure last resort. of But this does not imply that it is undemocratic. it is not a limitation For but uponequalsovereignty, upon in the interest protecting equalrights of the ordinary power legislative of democratic sovereignty. So conceived, judicial review is a kind of rationaland shared citizensat the level precommitment amongfree and equalsovereign of constitutional choice.By the exercise theirrightsof equalparof that them,in the future ticipation they agreeto a safeguard prevents exercise theirequalpolitical of fromlaterchanging theirminds rights, and deviating from their agreement commitment a just conand to stitution. This is one condition to they mightput on theiragreement the decisionrule that the preferences a bare majorityshall be of decisivein makingordinary laws. By grantingto a non-legislative accountable powerto reviewdemothe body that is not electorally enacted citizensprovide themselves with a means cratically legislation, for protecting theirsovereignty independence and fromthe unreasonable exercise theirpoliticalrightsin legislative of processes. Thereby, limit the rangeof legislative or theyfreely optionsopento themselves theirrepresentatives the future. agreeing judicialreview, in to By they

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in effecttie themselves theirunanimous into on agreement the equal basicrightsthat specifytheirsovereignty. reviewis then one Judicial theirstatus equal as citizens. wayto protect To conceiveof judicalreviewas a kind of shared precommitment institutions. Bare implies a division of labor among government moreeffectively thananyotherdecision majority promotes legislation rule the particular moreover provides it the good of eachindividual; most rapidresponse legislative to issuesconsistent with equalpolitical But what is effectivein the long run is not always rights. just in instances. Baremajority decisions not the best rule for are particular Here special insuringthat no one'sconstitutional rightsare violated. rulesarebetter, with unanimity the best.But suchrulesbecome being ineffectivethe larger the majorityrequired,and are increasingly unworkable legislative for So normally purposes. to maintain legislation thatmosteffectively eachperson's promotes good andthe public that good,while providing the basicrightsof citizensarenot violated in the process, free and equalpersonscould rationally agreeto bare decisions conditionthat they be subject reviewby an on to majority independent setupforthesepurposes. body To sum up the argument thus far for judicialreview: Like any of government, 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. in legislativecontexts,majorityrule is the political participation institution promoting ends that equalpoliticalrights for the primary realize. Recallthatthe firstargument sectionIII)for equalpolitical (in is thatit is instrumental insuring the interests to that of participation all are represented and advancedin politicalprocesses. And yet, are an means procedures themselves imperfect majoritarian legislative for realizing theseends.This supplies justification the tradithe for tional constitutional devicesthat limit legislative These procedures. institutionslimit these procedures either by slowing the pace of of (bicamerlegislative changeto insurethe rationality deliberation and or alism, federalism, other checksand balances), they directly restrict scopeof legislative the to authority insurethe justiceof this a bill of rights, with or without judicialreview). Judicial procedure (by

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review is then one among severalconstitutional mechanisms that could be agreedto, to limit the exerciseof rightsof equalpolitical baremajority rule. participation through legislative As such,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. this way,itsjustification ultimately In is the processes sameas thatgivenfor majority Whatultimately rule. justifiesmajority the legislativeprocedures, equal freedom of sovereigndemocratic also of citizens, justifiesour acceptance otherconstitutional procedures thatdefineandenforcelimitsto the sortsof decisions areleft up that to bare decisions. majority rule best advances the forms,majority Amongpossiblelegislative citizen in the free pursuitof his good. interestof each democratic Wherethereis widespread and of publicrecognition acknowledgment the equalrightsof democratic and where it is publicly sovereignty, that of is the accepted the purpose legislation to advance goodof each, then majority be adequate realizing for theseends.For legislation may undertheseidealconditions thereis a shared of conception justiceand the commongood to guidepublicdebate, legislative and deliberation and change.Majority decisions shouldthen normally upon converge that the of just measures advance basicinterests all andenablethemto of pursuetheirgood.But in the absence widespread publicagreement on these fundamental of democracy, thereis no assurrequirements ancethatmajority will not be used,as it so oftenhas,to subvert rule the publicinterest justiceandto deprive in classes individuals the of of conditionsof democratic It is in these circumstances that equality. thereis a placeforjudicial review.
V. 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. mitment to equalityfits with the basic idea underlying social the

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contract tradition of Locke, Rousseau, Kant, and Rawls. The social contract is often described in terms of a rational, self-interested compromise among essentially conflicting interests. This is the tradition that stems from Hobbes. Agreement is born of competition for scarce resources, and is a bargain that is made to insure against mutually destructive conduct in each person's pursuit of his private ends. The model for agreement here is economic bargains. But not all agreements are like this. For example, in marriage vows, pacts among friends, or compacts among members of the same religious faith, the parties make the agreement, not because of a conflict of interest, but to commit themselves to a shared ideal of association for the indefinite future. Their agreement is not a compromise, but a shared precommitment. 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; indeed it presupposes there presently is none. It represents democratic citizens' shared fundamental interest in maintaining the conditions of their equal sovereignty. Though diversity of particular interests resulting from individuals' freedom is presupposed, the agreement captures their shared acceptance of and commitment to maintaining their equal status in the free pursuit of their ends. By the social contract, they agree to the equal rights and conditions of justice that maintain their equal sovereignty; and in agreeing to a constitution they create political institutions that tie themselves into the terms of this agreement. Judicial review, as one among several features of that constitution, is a part of democratic citizens' precommitment to just social forms. It can be an effective way for free and equal persons to bind themselves to the basic terms of their social cooperation.26 Let's look now more closely at legislative and judicial authority, and see how the democratic argument for judicial review differs from the traditional argument for that institution. On the conception of a
26 For discussion the idea that the social contractinvolvesa sharedprecomof mitment to justice, and a contrastwith Hobbesian views, see my paper,'Reason and Agreementin SocialContractViews',Philosophy Public and Affairs19 (1990)

122-57.

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democratic constitutionoutlined,legislativeprocedures embodying with democracy, insteadthey baremajority rule are not identifiable arebut a partof the institutional framework a democratic of regime. authorLikeanyinstitution created the sovereign people,legislative by to by ity is a delegated powerof government, be exercised representawith conditions for the good of and tivesin accordance constitutional it not eachcitizen. delegated, is an ordinary As powerof government, it. thatcreates with to be confused theconstituent power In settingup a constitution, bodyof citizensplacethe ordinary the in Eachof thesepowershas powersof government a politicalregime. role. in out the dutyto interpret constitution carrying its assigned the therewill be a need In any regimewherethesepowersare separate, in of for a final authoritative interpretation the constitution orderto thesediverse and resolvepersistent avoid coordinate disputes, powers andinsure frombeingplacedon citizens' demands conduct, conflicting that constitutional formsare being respected adhered by the to and of government. Since the constitution ordinary powers specifiesthe abstract basicrightsof citizens, cleardelineation constitutional the of in provided a finalinterpretation by rightsandconsistency application is essential citizens'pursuitof their good, as well as to just and to effective laws. Finalauthority interpret constitution a necessary to the is powerof thatis distinct fromthe ordinary of the legislative, government powers It for judicial,and executivefunctions. is the power to determine, institutional whetherthe people'sexerciseof their constipurposes, tuent power has been respected each branch's in executionof its is and powers.Finalauthority also a delegated institutional ordinary and is not to be confused with eitherthe ordinary power, powersof or with ultimateconstitutional which always government authority, residesin the sovereignbody politic. Somewhatlike institutional for the and the procedures amending constitution a bill of rights, final of interpretation be seenas an institutional authority expression might of theconstituent citizens. 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

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it. I have not argued, that the authority finalinterpretaof however, tion mustbe placedin thejudiciary. thiswith the traditional Compare for argument judicial review,statedby Hamiltonin TheFederalist, #78. The SupremeCourt, under Marshall, later relied on it in in vs.Madison claimingthe powerof the courtsto give the Marbury finalinterpretation the constitution. argument basedin the of The is of doctrine separation powers, of whichHamilton claimsis a requirementof the ruleof law.Beginwith the assumption, "Nolegislative (1) act ... contrary the Constitution be valid." question to can The arises, 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; thereis no protection "public for separate powers, (3) liberty." Under of powers,it is the institutional of the judiciaryto role separation is, interpretand apply the law. (4) The constitution and must be law. it as, fundamental (5) Therefore, must belong to the regarded courts"toascertain Constitution's] as [the meaning well as the meanact from the legislative (6) body." It ing of any particular proceeding followsthatwhen,in the courseof applying law,the courtsdecide the thatlegislation executive conflictwith the Constitution, it (or decrees) theseactsunconstitutional. The Courtsthen have,by mustdeclare (7) virtueof theirconstitutional authority interpret constituto the role, of and tion,andin the interest stability publicliberty theyshouldhave finalauthority. The Assumption is questionable. Englishparliamentary (2) system is not markedby separation powersin our sense.And therethe of of courtshaveno authority constitutional review, "public liberty" yet is prettywell maintained. the crucial But and a democratic system for is of assumption our purposes (4).Separation powersis a doctrine of that thatdefinesthe divisionof thoseordinary powers government And underthe doctrine separation of existin any political of regime. the courtshave exclusiveauthority interpret to and apply powers, has to laws, ordinary just as the legislative authority makeall the laws. is The problem thatthe constitution a political of regimeis notjust so law It muchmoreordinary for courtsto interpret. is rather highest the order systemof rules for makingthose institutional rules that are

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as laws.As such,it provides basisfor all laws the recognized ordinary and for the separation the powersof government; of nothingis law, has with the conand no institution any powers, as it accords except And thereis nothingaboutthe ordinary stitution. 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. see this,we need only a separate institution that has powersof constitutional review posit overall threeordinary Thisis just whatRousseau as powers. suggests a solutionto the problemof who is to have the powerof final interof pretation theconstitution.27 So it is a mistake interpret to judicialreviewas implicitin separaand tion of powers the ordinary of To authority the courts. seejudicial review in this way obscureswhat is reallygoing on when courts this It it exercise power. makes seemas if theyaremerelycarrying out theirnormalconstitutional function. 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. judicialpower; is of rather exercise a conserving the Whoever exercises final this power. of acts authority astheconservator theconstitution. 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, it has lawmaking democratic because, powersand legislature of will. is therefore or at leastbest representative popular sovereign,
27

See note 6, above.Suchan institutioncurrently existsin severalconstitutional

regimes. The constitutions of the Federal Republic of Germany (1949), and Austria provide for a constitutional court separate from ordinary courts. Unlike American judicial review, these extraordinarycourts have the authority to review acts of legislation as they are promulgated by their parliaments,in the absence of enforcement by the executive and judicial "case or controversy". See Carl J. Friedrich, ConstitutionalGovernmentand Democracy,4th ed. (Waltham, Mass.: Blaisdell, 1968), pp. 261-62.

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But this argument also misunderstandsthe nature and function of majoritylegislativerule. The people are sovereignin a democracy,as is evidencedby their retainingauthorityto amend the constitution.They delegate a fiduciarypower to legislativeagents to make ordinarylaws for the public good. In so doing, they do not alienate constituent power or any part of their sovereignty.Moreover,popularwill has its clearestand most originalexpressionin a democraticconstitution.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. Only if one holds to the doubtful claim that legislativeinstitutions are the sole legitimate representatives, simply of legislative not will, but also of the constitutionalwill of the people, can he draw that conclusion.
VI. 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. obviousobjectionto this argument is that we have no assurancethat judicial review will be properly exercised to correct for the failures of legislative processes.Just as likely it will be used to secure the power of elites againstlegitimate This is an empirical objection my argument democratic measures.28 has not addressed. concernhas been with the categoricalobjection, My made on purely philosophicalgrounds, that judicial review is inconsistent with democracy. It is certainly true that judicial review is subjectto abuse,just as are the legislativeproceduresit is designedto correct.But this does not affect the democraticargumentfor judicial review in terms of its being appropriateunder certain conditions to maintain a just democratic constitution. 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, in 'Judicial Review, Elites, and Liberal Democracy', Nomos,XXV: LiberalDemocracy (New York: NYU Press, 1983), 153-80.
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will, in a particulargovernment,fail to maintaina just constitutionis one among several empirical considerationsthat must be taken into account before it can be decided that conditions appropriatefor society. judicial reviewhold in a particular for This means that whether judicial review is appropriate a paris a strategic question. Unlike the ticular democratic constitution argument for democratic legislative procedures, the argument for judicial review does not attempt to show that this institution is essential to a democratic constitution. Instead, it takes democratic legislative proceduresfor granted, and its justification is contingent upon the extent to which these proceduresserve the ends in virtue of All which they are found appropriate. 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. This does not mean that it is called for requirements whenever legislative processesmight result in unjust outcomes.Even under the ideal conditionsof what Rawlscalls a "well-ordered society", majorityproceduresare not perfect with respect to the requirements of democraticjustice. We can assume, however, that under these circumstancesthe public's sense of justice is sufficiently strong and developed that, once the consequencesof unjust legislation come to public awareness,legislative procedureswill themselves provide the necessaryadjustmentto justice. In that instance there is no need for judicial review to act as a corrective to legislative failures.The cirare cumstanceswhere judicial review is appropriate where legislative are incapableof correctingthemselves.This happenswhen procedures the public sense of justice is not sufficientlydeveloped or directed to influence legislative proceduresto make the necessarycorrectionsto democraticjustice, or when the legislativebranch is so controlled by particularinterests(due, most often, to the undue influence of wealth that it does not accuratelyreflect on elections and legislativeprocesses) views in mattersofjustice. considered public of Whetherjudicial review is needed to maintainthe requirements constitution is then dependent on social and historical a democratic circumstances.It is a matter for factual determinationwhether the

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estaboverallbalanceof democratic justice can be more effectively review. 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; thatthe legislature or its own view of the constitution; that it should have exclusive can Thesecontentions be made to the authority interpret constitution. andtheir with respect specific to democratic justification regimes, only A mustproceed empirical on pointof my argument grounds. primary of has been that one cannotdogmatically singleout a feature demoor cratic constitutions rule, accountability, (suchas majority or political and concludethatjudicialreviewis even equalpolitical participation) of it undemocratic because does not meet the demands this standard. is Morethan one principle neededto characterize democratic ideals, and we cannotcategorically judicialreviewis not undercertain say If an for theseprinciples. conditions effectiveinstitution maintaining claimthatjudicialreviewis inherso, then the a priori philosophical is undemocraticunfounded. ently of This means that there are variouscombinations institutional As thatcan satisfythe requirements democracy. I saidat of processes in is the outset,democracy not a notionthatis exhaustible procedural else terms. Whatever we mightchooseto callit, a societythatallowed denied for equalpoliticalrightsand majority rule,yet systematically some or most of the basicrightsI ethnic,and racialclasses religious, with democdoes not realizethe idealswe associate havementioned, andconsequently deserves name.A societyis moreor the racy, hardly to less democratic the degreethat it providesfor the fundamental rights of free and equal sovereigncitizens,and insuresthe social of exercise eachperson's pursuit free for and conditions theireffective his good.If judicialreviewis, for socialor historical reasons, among and to theserightsandconditions, the institutions necessary guarantee that is not put to improper thena constitution allowsfor it is still use, If or democratic. on the otherhand review, anyothergovernjudicial is used,as theyso oftenare, mentinstitution majority rule), (including of to frustrate deny citizensthe effectiveexercise the equalbasic or of sovereign citizens,then that societyto that extentdoes not rights

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the Whether societyis moreor a realize idealof democracy suggested. or cannotbe ascertained lookingto the presence less democratic by absence judicialreviewin its constitution; mustalsolook to see of we if thispower necessary, howit is exercised. is and
VII. THE EFFECT OF JUDICIAL ON SELF-RESPECT, STABILITY, 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.But therewere otherarguments from SectionIIIfor equalpolitical participation, self-respect, stability, Beforethe casefor democratic and publicity. can be comlegitimacy with pleted,it must be askedwhetherjudicialreviewis consistent thesearguments. 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.29 What can be racy,therebyfrustrating to said in response this?We can distinguish formsof political two First of suchas inequality. thereareformalinequalities political rights, certainclasses the franchise, givingothersplural of rulesdepriving or These inequalities explicitlysingle out groupsfor voting privileges. and and are treatment, thesediscriminations pubpreferential adverse known and recognized. of Second,there are the inequalities licly influence implicit in special majorityrules. Though affordingto thanequalinfluencein deciding minorities greater legislative change, differfrom formalpolitical theseinequalities in thatthey inequalities No are anonymous. specifiedminorityhas the authority unequal of influence.Specialmajorityrules do not single out individuals or or for treatment political in and groups special adverse procedures, any
29

Law Rawls's 962, 1008-09. TheoryofJustice',U.Penn. Review121 (1973):

Frank Michelman, 'In Pursuit of Constitutional Welfare Rights: One View of

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citizen can exercisea greaterthan equalinfluenceon any occasion more wheretheseruleshold by votingagainst measure any requiring for thana bare majority itspassage. Constitutional limitsuponbaremajority in the formof a Bill rule of Rights withjudicialreview, be viewed, an executive can like veto,as a judicialdeterfunctional of rules.For equivalents specialmajority minationof unconstitutionality be overcome a constitutional can by amendment a specialmajority. This helps in responding two to by To undemocratic because is counter-majoritarian.seejudicialreview it as a functionalequivalent a specialmajorityrule deprivesthat of requiredto objectionof much of its force. For specialmajorities amendthe constitution retainthe ultimate to authority deteralways mine any politicalquestion. unlessit is just arbitrarily So stipulated thatdemocracy entails rightof a baremajority rulein all the to always because questions,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. surelyit is not undemocratic requirea But through to thosethatdirectly decisions, special especially majority makecertain the affect democratic sovereignty, equalityof basic rights,and the of government society.To hold otherwise and constitutional design with wouldmeanthatdemocracy inconsistent constitutionalism. is rule Second,to see judicialreviewas a kind of specialmajority clarifies that practice citizens'self-respect. need not undermine why For thoughthe Courtis itself a specified its deciminority, adverse on lawscanalways overcome a special sions of be by majority citizens or their representatives, no specifiedminorityhas the ultimate and in The that authority this constitutional procedure. ultimate authority havein constitutional remains There minorities questions anonymous. in are no formal inequalities the systemas a whole that gives a on Each specified minorityultimateauthority any politicalquestion. citizenin the amendment retains equalrightto participate an process his in the constitutional to process, express views,and to vote upon issue or his any constitutional (eitherdirectly through representative). for So, seen as part of a specialmajorityrule procedure deciding
objections.First, it is relevant to the objection that judicial review is

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that questions bearon the constitution, judicialreviewitselfshoulddo little to undermine senseof self-worth, leastas long as that at citizens' is properly exercised. power the Furthermore, maintaining equalbasicrightsof all citizensis of far greater thanwhatever to nonimportance everyone's self-respect formalinequalities politicalpowerjudicialreviewmight involve. of The argument political for fromself-respect Section (in III) democracy from the premisethat an equal statusas citizensis the proceeds socialbasisof self-respect. primary Equalpoliticalrightsarejustified on thatground. othercivilandsocialrightsareequally But important, if not moreso, to the equalstatusof citizensandtheirself-respect. If reviewis appropriate societyand is properly to exercised to judicial insurethat theserightsand the conditions theireffectiveexercise for are legislatively the of maintained, then, on balance, self-respect all should better be thanwithout citizens review. preserved judicial Consider next the argument democracy for from the publicityof democratic Here I will only note that judicial review, procedures. ratherthan undermining process publicjustification, conthe of can tributesubstantially thatend.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. upholdlegislation, challenge,the Court seeks to ing legislationagainstconstitutional lawsby showing with the constituhow theyareconsistent legitimate tion. This requires the Courtpubliclydemonstrate laws are that that not undulycoercive areconsonant but with democratic freedom. And in holdinglegislation the unconstitutional, Courtdoes not just check failures justice;it also supplies of constitutional for reasons legislative these failures.In both of these ways,judicial review can work to establish publicreadingof the constitution its moralfoundaa and the tions,andexamine lawsin lightof theseprinciples. in Moreover, servingthis justificatory function,judicial review if exercised can play an important in cultirole (again appropriately) a shared senseof justiceand the publicgood.Recallthe third vating on argumentfor political democracy groundsof its tendencyto broaden citizens' viewsbeyondtheirown concerns, layinga basisfor

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that are neededto of the qualities civic virtueand civic friendship of sustain stablesociallife in the absence autocratic power.If we see a justificatory in addition its role in role to judicialreviewas having as abuse,then it can be understood a further checkinggovernment of institutionfor cultivating citizens'appreciation and government and for just democratic institutions ways of life. In publicly support the the the interpreting constitution, Courtdemonstrates moralbases a of constitutional forms,and therebyprovides commongroundfor and As publicunderstanding support. such, judicialreviewencourages citizens'sense of justice and their desireto maintainconstitutional forms.The justificatory function of judicial review is then partly educativeas well. Judicialreviewis, I have said, most appropriate under conditionswhere the public sense of justice is divided or are or underdeveloped, wherelegislative representatives unresponsive when of Underthesecircumstances, legislato the interests everyone. of from the requirements a just democratic tive procedures depart of As constitution, are unlikelyto be capable self-correction. an they senseof justice,review institutional meansfor cultivating public's the the cannot only be a way of increasing likelihoodthat legislative fromjusticewill not be repeated, also that they will but departures notbe publicly tolerated. the existence a largebodyof judicialopinions of establishes Finally, and basisfor publicdiscussion legislative and a doctrinal deliberation, in the In gives directionto public affairs. interpreting constitution to laws,the Courtgivescontentto the light of its application specific and furnishesa otherwiseabstractprovisionsof the constitution, commonsourcefor the termsof public debate.This can have the effectof sobering improving qualityof publicand legislative and the understood discussion argument securing and commonly by meanings and concepts. for abstract and often vague constitutional principles law the of Moreover, existence a bodyof constitutional can serveas a and reminder legislators theirconstitutional to of responsibilities their ends. These to direct laws towardsconstitutionally legitimate duty unconstituconsiderations show that,as a meansfor both rectifying to just concitizens'commitment tional legislation and cultivating

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can stitutionalforms,judicial review,if correctlyexercised, be an for. forcein thosedemocracies whereit is called important stabilizing
VIII. CONCLUSION

for whichmaybe pertinent Thereareotherarguments judicialreview stem from our scheme.The most important to our constitutional branch. federalsystemand the extraordinary powerof the executive Within any federalscheme,where legislative and other powersare there is a need for a single divided among severalgovernments, of authoritative voice to provide clearanduniform interpretations the for national andto protect of constitution, reasons coordination, unity, states' interests. Furoverlyzealouspursuitof theirparticular against the extraordinary constitutional popular) and ther,given powers(both in as exercised the Presidency ourcountry, well as its independence by one reasons for from the legislative branch, 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. theseareimportant Though arguments, unwilling of not reliedon themsincetheyconcern peculiarities our constitution, on to andhavelittle directbearing the objection judicialreviewbased of on thenature democracy. of In fact,I havehardly addressed specific the question thejustificawithinour constitution tion of judicialreviewon democratic grounds at all. My concernhas been to establish that the standard basisfor to the institution judicialreview- thatit is inconsistent of objecting and with democracy 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,freedomof association, and choiceof careers, the and,moregenerally, politicalparticipation, reviewis undemofreedomto pursueone'sown planof life.Judicial in the craticwhen it contravenes decisions orderto maintain majority

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of powerand legalprivileges elite socialand economicclasses against to socialchangeand economicreforms designed enableeach citizen to achieve and exercise thesefundamental independence to effectively Our Courthastakenbothdirections. muchof its existence For rights. the SupremeCourt tendedto constitutionally enshrine,againstatand reform, laws,conventions, privileges tempted legislative prevailing the legalinstitution private of thatwere especially property regarding to favorable those who legally control the great mass of wealth. of Whether,on balance,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. in Who is to havethe finalauthority interpret constitution a to the is one question; how that authority to be exercised a is is democracy I have only indirectlyaddressed. more complicated The question secondquestion botha theoryof constitutional requires interpretation, andan account the scopeof the Court's of ofjudicialreview. authority But the argumentfor judicial review offeredprovidesa basis for to responding theseissues.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, that it is these substantive aredesigned realize. in reviewing to thereis So, procedures legislation, no way for the Courtto avoidsubstantive considerations justice; of This thatis its mandate. contrasts JohnEly'sinfluential with "processto of is view, perfecting" according whichthe authority judicialreview to be limited to procedural in considerations order to insure fair in and representation electoralaccountability decision-making processes. is not deniedthatthe Court's It role the primary is to maintain
30 David A. Richards of has long arguedfor a contractarian interpretation the J. CA.:Dickenson,1977): Criticism Law (Encino, U.S. Constitution. TheMoral See of Foundations Toleration theConstitution and OxfordUniversity Press,1985); (Oxford: Constitutionalism OxfordUniversity Press,1989). ofAmerican (Oxford:

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integrity of proceduralforms. But we cannot understandwhat these proceduralforms are, their conditionsand limits, without first coming to a decision on the basic rights and ends of justice these procedures aredesignedto realize.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.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.But it is importantnot to confuse the two. For there are many practicesthat are a part of our constitution - judicial review being primaryamong them - which are not inferablefrom this text in the way original intent proponentspropose. How we identify the constitution of our regime is the ultimate question of constitutional And nothing can identify itself as the constitutionin a interpretation. self-referential way. Officials and the public look to the written Constitution, among other things, to identify the basic principles of our constitution. 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.Our written Constitutionis then a part, and only a part, of our constitution.It plays a significantthough non-exclusiverole in It constitutionalinterpretation. is not, and it is not generallyunderor stood to be, the complete representation embodiment of all constitutionalconditionsand institutions. 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, Mass: Harvard University Press, 1985), ch. 2. For a similar Choices(Cambridge, Mass: Harvard criticism see Laurence H. Tribe, Constitutional ch. 2. University Press, 1985), 32 See Raoul by Berger, Government Judiciary (Cambridge, Mass: Harvard UniPress, 1977); Robert Bork, 'Neutral Principles and Some First Amendment versity Problems', IndianaLaw Journal 47 (1971): 1; and The Tempting America (New of York: Free Press, 1990). See Dworkin, id., for an effective attack on this view.
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in a democracy. My point is rather that deciding the role that any such writing must play cannot be taken for granted (as original intent theorists do). Instead, 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. Our forebears' intentions can be of little relevance to constitutional interpretation in a democracy. For it is now our constitution; we now exercise constituent power and cannot be bound by our ancestors' commitments. Only our intentions, as free and equal sovereign citizens, are then relevant in assessing the constitution and assigning a role to the document that bears that name. And we cannot do this without ultimately looking to the requirements of a just democratic constitution.
Philosophy Department, University of Pennsylvania, Philadelphia, Pennsylvania 19104, U.S.A.