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
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SAMUEL FREEMAN
CONSTITUTIONAL
LEGITIMACY
AND
DEMOCRACY
OF JUDICIAL
THE
REVIEW*
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
their comments on an earlier draft of this paper.
H.LA. Hart, 'AmericanJurisprudenceThrough English Eyes', in Essaysin
andPhilosophy(New York: Oxford University Press, 1983), p. 125.
Jurisprudence
Law and Philosophy9: 327-370, 1990-1991.
C 1990-1991 KluwerAcademicPublishers.Printedin the Netherlands.
328
SamuelFreeman
theoryof judicialsupremacycannoteasilysquaretheirpositionwith
These
of the theory of democracy".2
any reasonableinterpretation
sinceourbeginnings.
misgivingsarenot new;theyhavebeenexpressed
ThomasJeffersonheldjudicialreviewto be "averydangerous
doctrine
one
which
and
would
us
under
the
indeed,
place
despotismof an
"Thepeoplethemselvesare the only safe depositoriesof
oligarchy".3
in the
he said,and thatimplies"absoluteacquiescence
government",
decisionsof the majority- the vital principleof republics,from
whichthereis no appealbutforce".4
Throughoutmuchof our history,judicialreviewhasbeenexercised
of
in ways that are incompatiblewith any reasonableinterpretation
I
is
a
and
believe
there
to
conceive
of
Still,
democracy.
democracy
way
the role of judicialreviewwithinit which allowsit to be consistent
with democraticinstitutions.My basicclaimis that the set of moral
principlesand ideals that best justify democraticdecision-making
processesprovidea justificationfor the institutionof judicialreview
In arguingfor this,I do not meanto
underappropriate
circumstances.
in
a
fruitless
dispute regardingthe meaningof the term
engage
Different
forms
of government
canbe saidto be democ"democracy".
raticin one respector another.Rather,whatI aimto do is inquireinto
the reasonswe hold equalityof politicalrightsandmajorityruleto be
centralto democraticgovernmentand society.This will providea
of the democratic
the institutionalrequirements
basisfor ascertaining
idealof freedomandequality.It is with respectto theserequirements
that I will assessthe philosophicalclaim thatjudicialreviewis, not
I
simplyin its practicebut alsoby its nature,inherentlyundemocratic.
arguethat this a prioriclaim is withoutfoundation,and that under
certainconditionsjudicialreviewcan serveto maintainand promote
thesameendsthatjustifyequalpoliticalrightsandmajorityrule.
2
Sidney Hook, TheParadoxesof Freedom(Berkeley:University of California Press,
1962), p. 95.
3 Letter to William
Jarvis, in P. L. Ford, ed., The Writingsof ThomasJefferson,vol.
10,pp. 160-61.
4
Koch and Pender, eds., The Life and SelectedWritingsof ThomasJeferson (New
York: Random House, 1944), p. 324.
andtheLegitimacy
Review
Constitutional
Democracy
ofJudicial
329
It mightbe askedwhatpracticalimportancetherecanbe in raising
the questionof the legitimacyof judicialreviewanew.Judicialreview
is takenfor grantedwithinour constitutional
system.Questionsof its
no
arise
amonglawyers,politicians,or the public.
legitimacy longer
Constitutional
debatenow centerson specificconstitutional
issues,and
on such questionsas the scope of the Court'sauthorityof review,
standardsof review,and the natureof constitutionalinterpretation.
But all of theseissuesare connected.Manyof the argumentscitedin
public debatefor judicial restraintor againstthe WarrenCourt's
liberalreadingsof the Due Processor EqualProtectionClausesare
reformulations
of earlierobjectionsto the Court'sclaim to final
to
Whateverreasonstherearefor
authority interpretthe constitution.
or againstjudicial review,they retaintheir force when appliedto
issuesof constitutional
interpretation.
My feelingis thatwe canfinally
resolvecontroversial
constitutionalissuesonly if we can come to a
of the requirements
of a constitutional
democpublicunderstanding
racyandtheproperroleof thejudiciarytherein.
My discussionproceedsas follows:In SectionI, I discussthe philothatgivesriseto the disputeoverthe legitimacy
sophicalbackground
of judicialreview.Then in II, I reformulatethe traditionalobjection
and examinethe conceptionof democracyupon which it is based.
SectionIIIsetsforththe basesfor an alternative
conceptionof democfor
the
stems
social
contract
tradition.
that
SectionIV contains
racy
the core of the argumentfor judicialreview.I contendthat if we
conceiveof democracyas a formof sovereignty
andnot merelya form
of government,then judicial review can be construedas a shared
precommitment
by free and equalcitizensto maintainthe conditions
of theirsovereignty.
in a particulardemoWhetherit is appropriate
craticconstitutiondependson strategicconsiderations.
In V, I contrast
this argumentwith Hamilton'sargumentforjudicialreviewfromthe
natureof judicialpower,andin VI, I discussthe circumstances
under
whichjudicialreviewis appropriate.
SectionVIIcontendsthatjudicial
review,if appropriately
exercised,does not underminethe basesof
I
democracy. close in sectionVIIIwith some remarkson the consequencesforconstitutional
interpretation.
330
SamuelFreeman
I. PHILOSOPHICAL
BACKGROUND
Inevitablyone'sview regardingthe democraticlegitimacyor role of
judicial review must turn upon how he conceivesof democracy.
Accordingto one commonview,whatdemocracyessentiallyinvolves
is equalconsideration
to everyone'sinterestsin
of and responsiveness
on laws and socialpolicies.This way of conceivingof
deliberations
democracyis amenableto a rangeof philosophicalviews,but it is
Thereis nothingintrinsic
most closelyassociatedwith utilitarianism.
thatwouldrequiremajoritarian
to utilitarianism
legislativeprocedures;
and majority
whetherdemocracy,conceivedas equal representation
schemeof institutionsdependsupon social
rule, is an appropriate
and historicalcircumstances.
And, as is well known,majorityvoting
areill-suitedto reflectthe intensity
defined
as
procedures traditionally
calculations.
whichis essentialto utilitarian
of individuals'
preferences,
Still,it can be arguedthat undermodernconditions,and becauseof
theirsimplicity,majoritarian
equal
incorporating
legislativeprocedures
to individuals'
and responsiveness
approxipreferences
representation
alternativethe decisionsthat
mate more closelythan any practicable
calculus.One might
wouldbe realizedundera morepreciseutilitarian
then conclude that what underliesand justifies our concern for
democracyand majorityrule is that they are the most workable
proceduresfor determiningthe balanceof preferencesin favor of
laws.
particular
like these underliemanyobjectionsto judicialreConsiderations
view, or to the exerciseof that powerin casesthat do not involve
Judilegislativeprocedures.5
maintainingthe integrityof majoritarian
5
and
This kind of argumentunderlies
JohnEly'sconceptionof democracy
judicial review. On Ely's affinities with utilitarianism, see his Democracyand
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.
Constitutional
andtheLegitimacy
Democracy
ofJudicialReview
331
cial reversalsof majoritydecisionsviolatethe basicdemocraticprinciple of equal considerationof everyone'sinterests,which majority
This is a forceful,thoughI
proceduresare designedto accommodate.
believemisguided,conceptionof democracy,
its bases,and the role of
I
review.
we
these
issuesfrom a differthat
judicial
approach
suggest
entperspective.
laws
Appealto the commoninterestis a conventionof democracy,
are commonlyarguedfor and socialinstitutionsare claimedto be
justifiedon groundsthat they promotethe good of everyone.This
conventionproceedsfromthe premisethatthe interestsof all arenot
simplyto be consideredbut also are to be advancedby government
decisions.To groundthesecommonplaceideas,supposedemocracyis
representedin the following way: Rather than seeing democracy
terms,we mightconceiveits essentialfeatures
essentiallyin procedural
in termsof the equalfreedomand independence
of its citizens.This
fundamentaldemocraticvalue is specifiedby equal rights of selfand equalparticipation
in the politicalprocedures
that
determination,
settlelawsandbasicsocialinstitutionsaffectingcitizens'life-prospects.
The focushereis not uponindividuals'
unconstrained
and
preferences
theirequalconsideration
in (maximizing)
the aggregatesatisfaction
of
interests,but uponthe capacityandinterestof eachpersonto rationally
decideand freelypursuehis interests,and participate
on equalterms
in politicalinstitutions
thatpromoteeachperson'sgood.
While not confinedto a specifictraditionin democraticthought,
this familyof ideas- equalfreedom,equalrights,andequalpolitical
- is centralto the naturalrightstheoryof the social
participation
contracttraditionof Locke,Kant,and Rousseau,and to the modern
versionof that tradition,Rawls'sjustice as fairness.It is from this
perspectivethat I shall frame my inquiryinto the bases of equal
politicalrightsandmajorityrule,andassessthe forceof the argument
that judicial review is anti-democratic.
Ultimately,the case for or
againstjudicialreviewcomes down to the questionof what is the
I proceed
most appropriate
conceptionof a constitutional
democracy.
fromthe assumption
thatthe basicideasunderlyingthe socialcontract
traditioncaptureour commitmentto democraticformsbetterthan
alternative.
anytheoretical
332
SamuelFreeman
If we see the question of the legitimacy of judicial review in that
context, then it is no longer a foregone conclusionthatjudicial review
is undemocratic.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
Jefferson'sobjection.As AlexanderBickel statesit:
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
6
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]
andtheLegitimacy
Constitutional
Democracy
ofJudicialReview
333
A related reason offered to support the claim of the undemocratic
nature of judicial review is that judges are not electorallyaccountable
to the majority.AsJohn Ely says:
The centralproblemof judicialreviewis: a body that is not electedor otherwise
politically responsiblein any significantway is telling the people's elected
thattheycannotgovernasthey'dlike.8
representatives
To formulate the basic problem of judicial review in terms of its
being contraryto majoritarianismand electorallyaccountablepolicymaking focuses upon symptoms of what must be a deeper problem.
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 unconstitutionallegislative,
executive,or administrativeaction - federal,state, or local - they reject the
product of the popularwill by denying policies formulatedby the majority's
elected representativesor their appointees.... Not merely antimajoritarian,
judicial reviewappearsto cut directlyagainstthe grainof traditionaldemocratic
theory".Choper,JudicialReviewand the NationalPoliticalProcess(Chicago:Universityof ChicagoPress,1980),p. 6. Both Bickel and Choperarguereviewis still
neededto promotemoralvalues(Bickel)andprotectminorities'rights(Choper).
8
andDistrust,pp. 4-5. MichaelPerryconcurs:"Inour political
Ely, Democracy
culture,the principleof electorallyaccountablepolicymakingis axiomatic;it is
judicial review, not that principle,that requiresjustification".M. Perry, The
and HumanRights(New Haven:Yale UniversityPress,
Courts,the Constitution,
1982),p. 9.
334
SamuelFreeman
The basis for the objection that judicial review is undemocraticis
expressedby the following principle:In a democracycitizens are to
have an equal right to participatein and to determinethe outcome of
the constitutional and legislative processes which establish the laws
with which they are to comply. I call this, following Rawls, the
I assumethat this principleis
principleof equal politicalparticipation.9
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 constitutionalprocessesthat establishlaws and basicsocialinstitutions.
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
principle,is a limitation upon citizens'equal rights of participation.It
does not matter whether the judges making these decisions are
electorallyaccountableor not. By exercisingtheir equal politicalrights
throughlegislativeproceduresdesignedto accommodatethem, citizens
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, requiringfarmore thana (bare)majorityfor enactment.
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".
andtheLegitimacy
Constitutional
Democracy
ofJudicialReview
335
But for now consider a more general question: How are we to
conceive of democracyif any of these objectionsare to succeed?There
are but two alternatives.First, we might understanddemocracy in
purely proceduralterms. By a proceduralconception of democracyI
mean the identification of democracy with a form of government
decision-makingwhere each is guaranteedequal rights of participation
and influence in proceduresthat determine laws and social policies,
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
proceduresthemselves.'0
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
Barrydefines a proceduralconception:"I follow ... those who insist
that 'democracy'is to be understoodin proceduralterms.That is to say,I reject
the notion that one should build into "democracy"any constraintson the
content of outcomesproduced,such as substantiveequality,respectfor human
rights,concernfor the generalwelfare,personallibertyor the rule of law ....
The only exceptions... are those requiredby democracyitself as a procedure".
B. Barry,'IsDemocracySpecial?'Philosophy,
andSociety,(fifthseries),ed. P.
Politics,
LaslettandJ. Fishkin(Oxford:Blackwell's,1979),pp. 155-56. William Nelson,
On JustifyingDemocracy
(London:Routledge & Kegan Paul, 1980), p. 3, also
defines democracyin this way. TerranceSandalowargues,apparentlyon utilitariangrounds,that a purelyproceduralconceptionis morallysufficient,and that
judicialinterferencewith legislativeprocessis nothingmore thanthe substitution
of preferencesof a minority(viz.,judges and those whose intereststhey represent)for those of a majority.See 'The Distrustof Politics',N.Y.U.LawReview56
(1981):p. 446.
1 This seems to be the
conceptionof democracyunderlyingMichaelWalzer's
objectionsto judicial review in 'Philosophyand Democracy',PoliticalTheory9
(1981):p. 379.
336
SamuelFreeman
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 proceduralconception.
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
carry no argumentativeweight. A purely procedural definition of
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
the normativerequirementsof the values and ideals that underlieour
commitmentto democraticforms.
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
matter how fair or appropriatethat proceduremay be. Furthermore,
there is no practicableway to design a political procedure which
would guaranteethat the resultsreachedby satisfyingits requirements
would alwayscorrespondto moral criteriaof assessment.These points
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
andtheLegitimacy
Constitutional
Democracy
ofJudicialReview
337
thattheselimitsalwayswill be respectedby the
thereis no assurance
of
these
procedures.12
workings
Giventhese limits on majorityrule, the questionis whetherthey
can be definedin a way thatis consistentwith democraticideals.Can
it be arguedthatmajorityruleprocedures
mayundercertaincircumstancesworkout in sucha way thattheirresultscan be judgedto be
Onewaythismightoccuris
not simplyunjust,but alsoundemocratic?
when majoritydecisionsresultin limitationson citizens'equalpolitical rightsby outrightdenialof theirrightto vote,or dilutionof their
Violationsof this sortarefamiliar
votingrightsby malapportionment.
law.But thesearenot the onlywaylegislain Americanconstitutional
tive outcomes can be judged undemocratic.There are structural
and
centralto democracyotherthanequalparticipation
requirements
rule.
majority
The absenceof a hereditarygoverningaristocracyholding real
positionsof politicalpower from which other classesare by law
excludedis arguablyan importantfeatureof democracyinsuredby
equal politicalrights.For equal participationrequiresnot only an
equalvoice and vote, but also equalaccessto politicaloffices.But to
argueagainstthe settingasideof non-politicalpositionsfor hereditary
other than equal political
classes,we need appealto considerations
is but an instanceof a largerrule
rights.The lack of an aristocracy
if
not
actual
practice,then at leastthe publicidealsof
characterizing,
moderndemocracies.
Namely,the absenceof socialand confessional
classsystemslimitingaccessto socialandpoliticalofficesto members
of favoredgroups.The mostfamiliarinstanceof suchclassesareracial
and ethnicgroups.But socialclasssystemsare alsodefinablein terms
and in termsof property
of religious,moral,and politicalaffiliations,
not being a memberof favored
and wealth.In moderndemocracies,
or
religiouspersuasions politicalpartiesdoes not generallyprovide
legal groundsfor excludingpeoplefrom socialand politicaloffices,
any more than does not being a memberof favoredhereditaryor
12
To use Rawls's phrase, no political procedure is an instance of perfect proceduraljustice. Rawls, TheoryofJustice,pp. 85, 359.
338
SamuelFreeman
racial groups.But, again, there is nothing inherent in equal political
participationand majority rule that would prevent the exclusion of
such unfavoredclassesfrom socialofficesand positions.
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
undermore favorableconditions.
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 guaranteeingrationalproceduresof inquiry;publicly
promulgated and clearly defined laws; prohibitions against ex post
facto laws andbills of attainder;an absenceof executivefiat,etc.
Finally, an important feature of democraticsocieties is the public
recognitionthat there are areasof individuals'lives that are not subject
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
andtheLegitimacy
Constitutional
Democracy
ofJudicialReview
339
and a pluralisticsocialorderof some
politicalpowerin democracies,
degreeis takenfor granted.Again,these conditionscannotbe adequatelyjustifiedby appealto the natureof equalpoliticalrightsand
majorityrule.
of politicalpowerwithingovernmentis
Equalityin the distribution
not then sufficientto characterizedemocraticideals or the social
Howevercenconditionsnecessaryfor stabledemocraticprocedures.
tral certainpoliticalrights and proceduresmay be to democratic
society,theyarenot exhaustiveof whatis involvedin a society'sbeing
termsdemocratic.
So,to characterize
democracysolelyin procedural
as if it werejust a procedurefor summingunconstrained
preferences
- involvesa misconceptionof democracy,and of the role of equal
politicalrightsand majorityrule.Of course,we might call a society
democraticeven thoughit did not providefor all of the substantive
rights and institutionsmentioned.But we also would think that
conditionsarenot rightin this societyandthatsomethingcrucialwas
missing.Behind the descriptionof a constitutionand a society as
democraticare certainidealsregardingpersonsand theirrelationsas
citizens,and these idealsprovidethe reasonsfor holdingequalityof
politicalrightsto be of suchimportance.
III. THE CONTRACTARIAN
JUSTIFICATION
DEMOCRACY
OF
I havesuggestedthat the appropriate
way to addressquestionsof the
legitimacyand scope of judicial review in a democracyis not by
focusingsimplyupon the politicalrightsand proceduresthat have
beenheld to be centralto a democracy.
Instead,we need
traditionally
look to the valuesand idealsin virtueof which we hold such proceduralaspectsof democracies
as equalpoliticalrights,majorityrule,
andpoliticalaccountability
Thenit canbe askedwhatrole,
important.
if any,judicialreviewhas in promotingor undermining
thesevalues.
If it turnsout thatthereis no conceptionof judicialreviewthatwould
maintainand promotethe idealsthat standbehindour commitment
to democraticproceduresbetter than unconstrained
majorityrule,
then the categorical
claimthatjudicialreviewis undemocratic
can be
340
SamuelFreeman
sustained.If, however,on some conceptionof its rolejudicialreview
can betterimplementthe idealsupon which politicaldemocracyis
based,then this is a reasonfor concluding,not simplythatjudicial
but thatit is an important
reviewcanbe compatiblewith democracy,
democraticinstitution.
There are two relatedprinciplesoften cited in supportof equal
politicalrightsand majorityrule which might be thoughtto supply
sufficientjustificationfor these institutions,and which would lend
supportto a proceduralconceptionof democracy.It is sometimes
suggestedthat given the need for some kind of legislativeauthority,
fairnessalonerequiresthat it be equallydistributedand thatdisputes
be resolvedby majorityrule. Other thingsbeing equal,democratic
decisionprocedures
maybe fair.But as the precedingsectionsuggests,
thisis not sufficientfor theirjustification,
sincethereis nothingabout
by themselvesthatwouldinsureagainstsubstanmajorityprocedures
unfair
outcomes.
Thus, to focus our concernsfor fairnesson
tively
is undulyshortsighted;
alone
if fairnessis to playa
politicalprocesses
role in the justificationof politicaldemocracyit must figurein at a
morefundamental
level.
A second argumentfor proceduraldemocracyis one we have
It is thatdemocracyis basedin the principleof
alreadyencountered.
of everyone'spreferences
whateverthey may be,
equalconsideration
anddecisionaccordingto the greaterweightof expressedpreferences.
and majorityrule are then justifiedon
Equalpoliticalparticipation
meansto insurethateverygroundsthatthey arethe bestpracticable
into
taken
account
considered.
The problem
ones preferences
and
get
here is the same truncatedvision of the requirementsof political
valueof equality.Forby
justice,in thiscasefocusedon the democratic
itself, the principleof equal considerationis nothingmore than a
requirementof formaljustice - treatlike casesalike - appliedto
politicalprocedures.It is an extremelyweak equalityrequirement,
compatiblewith substantive
inequalitiesof mostanykind.Equalconunconstrained
siderationof individuals'
putsno restrictions
preferences
in designing
will
that
be
taken
into
account
the
considerations
upon
to
the
reasons
that
be
offered
hence
none
laws,
upon
may
justifythe
And demosubstantive
inequalitiesthat resultfrom theseprocedures.
in
ruleout
it
does
not
does
implyequality everyrespect,
cracy,though
Constitutional
andtheLegitimacy
Review
ofJudicial
Democracy
341
certainkindsof inequalities,
and certainkindsof reasonsfor inequalities, as substantively
unjust.Moreover,thereis nothingaboutequal
of interests,per se, thatwouldaccountfor such democonsideration
cratic ideals as equal freedom,self-determination,
and individuals'
in
affairs
and
decisions
on
laws
and
socialforms.
participation public
In the end, equal rightsto vote and voice one'sviews are, on this
not a partof a morebasicrightof participation
at all,but
justification,
are simply a convenientmeans for registeringand satisfyingthe
of preferences.
greateraggregate
Considernow a differentkind of argumentfor equal political
participation.
Amongdemocratictheorists,the thinkerwith whomthe
ideaof politicaldemocracy
is mostcloselyassociated
is Rousseau,
for it
is initiallywith him that the principleof equalparticipation
is taken
to be of such great importance.Rousseausays that, "The rule of
acceptingthe decisionof the majorityis itself establishedby agreement and presupposesunanimityon at least one occasion."13
His
can
be
formulated
in
the
The
basic
rules
thought
followingway:
accordingto which lawsare madearepartof the constitutionof any
regime.Sincethe constitutionstatesthe conditionsaccordingto which
all laws are made,by definitionit cannotitselfbe law (hence,estabThe
lishedby majoritydecision),butmusthavesomeotherfoundation.
andtherewiththe laws,of a democratic
foundationof the constitution,
of
is
the
freedom
individuals,basedin the capacityof
equal
society
with
each to determineand rationallypursuehis good in accordance
For Rousseau,freedomis not doing what one
social requirements.
in
of law andall otherconditions,but the rational
the
absence
pleases
with lawsa personcanpreof one'sgoodin accordance
determination
scribefor himself A conditionof freedomin this sense is that a
personbe ableto acceptthe constraints
imposeduponhis conductby
laws
and
other
social
conventions.
The only conditionin
positive
13
Bk. I, ch. 5, last sentence.Kantmakesthe
J.J. Rousseau,On theSocialContract,
same claim:"Theactualprincipleof being contentwith majoritydecisionsmust
be acceptedunanimouslyand embodiedin a contract,and this itself must be the
ultimatebasison which a civil constitutionis established".
'Theoryand Practice',
in Kant'sPoliticalWritings,ed. Hans Reiss (Cambridge:CambridgeUniversity
Press, 1970), pp. 73-74.
342
SamuelFreeman
whichwe can inferand expectthe acceptanceby free individualsof
the requirements
of lawsis thatin whichlawsissuefromprocedures
which all could freely accept and unanimouslyagree to from a
positionof equal right.And the only constitutionalprocedurefor
accept
makinglaws that free and equalindividualscould reasonably
andagreeto is thatof equalpoliticalrightandsomeformof majority
rule.
Partof the functionof the socialcontractin Rousseau's
workis to
is not simplyone kindof government
expressthe ideathatdemocracy
for
procedure makingordinarylaws, but that it is, more fundaone in whichfree and equalpersons
mentally,a formof sovereignty,
combineand exercisetheiroriginalpoliticaljurisdictionto makethe
constitution.14
Underconditionswherefree and independentindividuals are equallysituated,they would all accept,as the basis for
So,
orderingtheircommonaffairs,the principleof equalparticipation.
it is not the fairnessor equal consideration
of interestsimplicitin
politicaldemocracythat providesits foundation.Instead,equalrights
in governmentarean extensionof the equalfreedom
of participation
of sovereign
andoriginalpoliticaljurisdiction
democratic
citizens.
Freedomand equalityare the basicvaluesthat democratictheory
has drawnupon sincethe time of Locke.Democraticpoliticalphilohas
traditionin particular,
sophyin largepart,and the contractarian
been a seriesof attemptsto interpretandreconcilethesebasicdemocraticvalueswith the purposeof arrivingat the socialand political
for realizingthem.The socialcontractidealis
conditionsappropriate
to
accommodate
this importantaspect of democratic
designed
thought.Behind the ideal of a unanimoussocial agreementis the
thought that the appropriateway to determinethe principlesof
governmentand societyis by askingwhat free and equal persons
On the claim that democracyis a form of sovereignty,and the distinction
Bk. III,
betweensovereignand government,see Rousseau,On theSocialContract,
ch. 1, paragraphs3-6; Bk. III, ch. 5, par. 1; Bk. II, ch. 6, note to par.8. James
Dreamerof Democracy
Miller, in Rousseau:
(New Haven:Yale UniversityPress,
of
Rousseau's
work.
The distinctionis also implicitin
this
discusses
1984)
aspect
andis statedin Kant'sessay'To PerpetualPeace'.
Locke's2dTreatise,
14
andtheLegitimacy
Constitutional
Democracy
ofJudicialReview
343
themselves,froma positionof equalright,couldmutuallyacceptand
Equal
agreeto as the conditionsfor theirsocialandpoliticalrelations.
and
the
institutions
of
a
politicalparticipation
politicaldemocracyare
a naturalextensionof thisbasicidea.
Severalargumentscan be made for politicaldemocracyfrom a
Here I will brieflyreviewthosemost relecontractarian
perspective.
vant to judicialreview.I assumethe frameworkspecifiedby Rawls.
The argumentsI set forth,if not explicitlymadein his works,are at
withhisview.
leastconsistent
To beginwith, rationalindividualsconcernedwith the freedomto
of theirends
determineandthe socialconditionsfor the advancement
have an interestin influencingthe politicalprocessesthat determine
the lawssignificantly
Equalrightsof political
affectingtheirprospects.
when
combined
with
the
other
participation
rightsgenerallyheld to
be necessaryfor effectiveparticipation
(freedomof speechand of the
press,freedomof assembly,the rightto formpoliticalparties,etc.),are
heardand
a way of insuringthat everyone'sinterestsare represented,
takeninto accountin processesof legislation.Openandpublicdemocraticproceduresprovidefor the expositionof socialpolicyand the
reasonsbehindgovernmentmeasures.Comparedwith other alternatives, this sort of processis more likely to lead to the adoptionof
legislationthat is reasonableand does not consistentlydisadvantage
particularsegmentsof society.15In this way politicaldemocracyis
instrumental
to free and equalindividuals'
pursuitof theirgood and
theirfreedom.So if we assumethe equalsituationof
theirmaintaining
in a strongsense(asRawls'sveil of ignoranceis designedto
individuals
imply)in the agreementon principlesfor structuringconstitutional
forms,thennonewill havesufficientreasonto concedea greaterright
and influenceto others,given that others
of politicalparticipation
have
a
different
conceptionof whatis necessaryfor theirown
might
andothers'good.
15 William Nelson, On
JustifyingDemocracy,pp. 111-18, discusses the advantages
of open and public democratic procedures, and finds this to be the primary
justification for representativedemocracy advancedby Mill.
344
SamuelFreeman
Second,free and equalsovereignpersonswould agreeupon equal
to insurefor themselvesthe conditions
rightsof politicalparticipation
of theirself-respect.
involvesa sensethatyour basicends
Self-respect
areworthpursuinganda confidencein yourcapacitiesto successfully
realizethem.It is an essentialaspectof anyone'ssuccessfulpursuitof
his good.Self-respect
in this sensedependsuponthe respectof others
and their affirmative
judgmentsregardingone's capacitiesand the
of
one's
We usuallythinkof ourselvesas othersdo,
ends.
importance
and our beliefs about ourselvesand the value of our pursuitsare
inevitablyaffectedby thejudgmentsof others.Now, howeverinconsequentialto ultimatelegislativeoutcomesthe exerciseof one'spolitical
the publicrecognition
rightsmay be in large moderndemocracies,
that a personhas theserightsis essentialto his senseof self-respect.
For the acknowledgment
that one is capableof takingpartin public
affairson an equalbasiswith othersis at the sametime a recognition
of thosesamecapacitiesof rationaldeliberation
andjudgmentnecessaryfor the successfulformulationand pursuitof his good in accordance with fair terms of cooperation.Without this recognition,a
person'sconfidencein his capacitiesand the worthof his pursuitsis
And the thoughtthat one is a secondclasscitizen,not
undermined.
as
recognized capableof takingpart in publicmatterson an equal
basiswith others,would be especiallydebilitatingin modernsociety,
wherebeliefin a naturalor divinelyordainedorderof thingsjustifyas
positionsis no longerpubliclyacknowledged
ing fixedsubordinate
the basis of the politicalorder.The recognitionthat a personis
in publiclife on equaltermsis then a condicapableof participating
if so then equalpoliticalrightsarean importion of his self-respect;
tantconditionof thesuccessful
pursuitof one'sgood.16
Mill
our
and decias
Third,
argued, involvementin deliberations
on
sions the publicgood developsour reasoningcapacities,and also
broadensourinterestsbeyondour own concerns,leadingus to takean
interestin others.In havingto explainand justify our claimsand
positionsto others,we must take their interestsinto accountand
16
andits relationto certainequal
On the primarysocialgoodof self-respect
basic liberties, see Rawls, A TheoryofJustice,pp. 440-45, 543-47.
Review
Constitutional
andtheLegitimacy
ofJudicial
Democracy
345
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
since it leads us to take a more comprehensiveview of society and of
the socialinterdependenceof individualsand groups.
That citizens develop their social capacities and sentiments is
importantfor a number of reasons:first, it is conduciveto the stability
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
desirablefor the sake of its stabilizingconstitutionalarrangements,but
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 representativeparliament
is "to watch and control government:to throw the light of publicity
of all of them
on its act; [and]to compel a full exposition
andjustification
346
SamuelFreeman
The opennessandpublicityof
whichanyoneconsidersquestionable".17
democraticlegislativeproceduresnormallyrequiresthat all seek to
publiclyjustify conductaffectingothersby appealingto principles
and
theycanaccept.Lawsaresocialrulesbackedby coercivesanctions,
of mutualrespectfor personsthat
as such there are considerations
Moreover,citirequirethat they be publiclyenactedandjustified.18
zens' knowledgeof the reasonsand purposesunderlyinglaws and
socialforms is a conditionof their freedom.For laws are primary
amongthe socialrulesthat determinewhat kind of personswe are
andcan come to be. They shapethe primarysocialinstitutionswhich
withinwhichwe determineour courseof life,
providethe framework
andas suchareamongthe primarysocialinfluenceson our character
and the courseof life we take.Thatcitizensknowwhy legalrequireof
mentson theirconductareas theyaredeepenstheirunderstanding
their characterand their interestsand promotestheir fundamental
of theirconductandthe free
interestin the rationalself-determination
pursuitof theirends.The publicenactmentandjustificationof laws
implicit in democraticpoliticalforms is in this way conduciveto
idealof freedom.
realizingthedemocratic
are an extension
To sum up, equalrightsof politicalparticipation
citizens.Free
democratic
of the equalpoliticaljurisdictionof sovereign
and equalpersonswould acceptand agreeto equalpoliticalrightsof
out of theirconcernfor theirgood and to securetheir
participation
interestin theirfreedomto decideandpursuetheirgood
fundamental
on fair termswith others.It is by virtueof theirequalfreedomthat
in
citizenssharein sovereignty;
democratic
theyretainthatsovereignty
forms.
in
constitutional
of
for
providing equalrights participation
Now Montesquieu
says:19
17
Government
Bobbs-Merrill,
John StuartMill, On Representative
(Indianapolis:
1958),p.81.
Cf.hereRawls'sclaimthatrespectfor personsis shownby treatingthemin
waystheycanseeto bejustified.TJ,p.586.
18
19
Montesquieu,The Spiritof the Laws,Bk. XV, ch. 2, par. 4. This passageis
discussedin John Rawls,'TheBasicLibertiesand TheirPriority',TheTanner
on HumanValue(SaltLakeCity:Universityof Utah Press,1982),vol. 3,
Lectures
pp. 1-87, at p. 82.
ConstitutionalDemocracyand theLegitimacyofJudicialReview
347
The freedom of every citizen constitutesa part of public liberty, and in a
democraticstate is even a part of the sovereignty.To sell one's freedomis so
repugnantto all reasonascanscarcelybe supposedin anyman.
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,
20
I rely here on the basic libertiesimplicit in Rawls'sfirst principleof justice.
See,Rawls,'TheBasicLibertiesand TheirPriority'.On Rawls'saccountthereare
also certaininstitutionalrightsthat shouldbe a part of this list, those neededto
insure fair equalityof opportunityand to guaranteea social minimum.These
conditionsare needed for individualindependenceand the effectiveexerciseof
the basicliberties.A preciselist of basicrightsis a questionwe can passover for
purposesof discussingthe legitimacyof judicialreview.What is importantis just
thattherebe equalbasicrightsin additionto rightsof participation.
348
SamuelFreeman
the only circumstanceunderwhich free and equal personswould
acceptand agreeto politicalproceduresof any kind,includingequal
and majorityrule,is on conditionthat theseprocedures
participation
be designedto maintainand protecttheir basicinterestsin the free
pursuitof theirgood,andtherewiththe equalbasicrightsthatsecure
their freedom.This has importantinstitutionalimplicationsfor the
forjudicialreview.
designof a democratic
regime,andin particular
I argue(in SectionIV) that the equalbasicrightsthat belongto
of the purdemocraticsovereigntyprovidea differentunderstanding
pose of legislativeproceduresthan that providedby a procedural
The procedural
conceptionof democracy.
conceptionrepresents
legislativeprocessesas a meansfor registering
citizens'preferences
without
placingany constraintson theirwantsor specifyingin advancethe
purposeof legislativeprocedures.
Majorityrule becomes,in effect,a
devicefor maximizingthe sum (or the average)of satisfactions,
without regard to the disadvantages
this imposes on some persons.
the interest-group
this
represent
politicsthat
may accurately
Though
often pervadeAmericanpoliticallife, it does not accordwith the
publicidealswe professtojustifylaws.Forit is generallyacceptedthat
in a democracy
is to promotethe
the purposeof legislativeprocedures
commongood,therebyadvancingthe interestsof everyone.Thisis the
thecontractarian
intuitiveideaunderlying
conceptionof democracy.
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
andtheLegitimacy
Constitutional
ofJudicialReview
Democracy
349
whateverconstraintsare placedupon it by the sovereignpeoplein
Likeanypowerof governmentthe authorexercisingthatauthority.21
make
laws
then
to
is
fiduciaryand is only to be exercisedfor the
ity
publicgood.
By contrast,we mightlook upon legislativeauthorityas havingits
sourcein the will of God or the naturalorderof things.Someperson
or groupis then representedas havingthe powerto make laws in
virtue of certain naturalperfectionsand virtues (as in Aristotle's
or by delegationfrom God or his worldlyrepresentatives
Politics),
(as
In
in certainmedievaltheoriesand theoriesof royal absolutism).22
thesecasesthe criterionof the legitimacyof legislativeauthorityis not
conceivedin termsof the will of the governed.Thoughtheymightbe
viewed as agreeingto be ruled accordingto these principles,their
consentandagreement
playsno roleinjustifyinglegislative
authority.
This is what distinguishesa constitutionaldemocracyfrom other
constitutional
forms:all legitimatepoliticalauthorityis derivedfrom
the constituentpowerof the sovereignpeople,conceivedas equalsand
as havingequalrightsto determinethe politicalconstitution,
andthis
is
created
them
with
the
that
it
is to be
authority
by
understanding
exercisedfor the good of each.23
So conceived,a democraticconstitu21
Constituentpower is the power of the people,joined togetheras a body
politic, to create political authorityand determinethe form of the political
constitution.By the exerciseof constituentpower,the people createinstitutional
formsendowedwith the ordinarypowersof government.These governingagents
of the peoplemake,apply,and administerlaws 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
tradition.See Locke, Two Treatises
of Government
(Cambridge:CambridgeUniversityPress,1960),SecondTreatise,chs. 11-13.
22 See, for example,Sir Robert Filmer'sPatriarcha,
or theNaturalPowerof Kings
to
Locke's
contract
doctrine
was
which
social
(1680),
largelya response.
23 Kant defines democracyin this way: "The democraticform of the state is
most complex.[forit containsthe followingrelationships]:
first,the Will of all to
unite to constitutethemselvesa people;then, the Will of the citizensto form a
commonwealth;and, finally, [theirWill] to place at the head of this commonwealth a sovereign,who is none other than this united Will itself". TheMetaElements
Bobbs-Merrill,1965),Ak.339/110.
ofJustice
physical
(Indianapolis:
350
SamuelFreeman
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 democraticrequirementsof justice. On this conceptionof democracy,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 majoritarianlegislativeproceduresin 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
The argumentfor bare majorityrule
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
Constitutional
andtheLegitimacy
Democracy
ofJudicialReview
351
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
suffice".SocialContract
Bk. IV, ch. 2, 'On Voting',last par.This follows from his
conception of voting proceduresas a means for accuratelydeterminingthe
requirementsof the GeneralWill. For a similarconception,see Rawls, TJ,sec.
54; and Joshua Cohen, 'An Epistemic Conception of Democracy',Ethics97
(1986):26-38. These accountsare partof ideal theory,presupposingwhat Rawls
calls a "well-orderedsociety".Since the argumentfor judicial review is part of
non-ideal theory,presupposingthat legislatorswill not alwaysimpartiallyvote
the requirementsof justice, I have adaptedan argumentfor majorityrule more
in accordwith thisassumptionof partialcompliance.
25 An intuitive
way to see this is that bare majorityrule is the only size for
which losers can never outnumberwinners. So the chance that one will be
amongthose losing out is minimizedwith this rule.See BrianBarryand Russell
Hardin, eds., Rational Man and IrrationalSociety (Beverly Hills: Sage Pub. Co.,
1982),pp. 305-06, 313-15, for a discussion.This argumentwas initiallymade
by DouglasRae,'DecisionRulesand IndividualValuesin ConstitutionalChoice',
AmericanPoliticalScienceReview 63 (1969): 40-53. Rae contends that in a con-
stitutionalchoice procedure,the collectivechoice rule that would be chosenby
rationalvoterswishingto maximizethe agreementbetweenthe collectivechoice
and their own individualpreferencesis baremajorityrule.Bare majorityrule 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
352
SamuelFreeman
But in order for these considerationsto be convincing to free and
equal rational persons, certain backgroundconditions must be sustained. At the level of constitutionalchoice, their representativeswill
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 substantivecondition of the exerciseof legislativeauthority.
This providesa way for sovereigncitizens to guaranteenot only their
equal politicalrights,but also the other equal basic rightsnecessaryfor
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
partiallydefinethe ends of legislativechange.
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.
Among these procedurallimitations upon bare majoritarianrule are
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',
Behavioral
Science14 (1969):228-31, and Philip D. Straffin,Jr., 'MajorityRule
and GeneralDecision Rules', TheoryandDecision8 (1977):351-60. The argument, however,does not work if peoples'preferencesare patternedor asymmetric (e.g.,dividedalong ethnic or classlines).In that case,the rationalchoice
may be a specialmajorityrule, or, what comes to the same thing, specificconstitutionalguarantees,
as I arguefor in the text.
andtheLegitimacy
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353
federalistscheme;and the executive'sauthorityto requirethatcertain
legislativedecisionsbe madeby the decisionof a specialmajority(the
executiveveto).The criterionfor determiningwhetherany of these
constitutionalproceduresare called for is as follows:what, given
currentconditions,is requiredof politicalprocedures
by the principles
of rightandjusticeto securethe conditionsnecessaryfor citizens'fair
andeffectiveexerciseof theirequalbasicrights?
It is in this contextthatwe shouldunderstand
the role of judicial
review.It is amongthe proceduraldevicesthatfree and equalsovereign personsmight rationallyagreeto and impose,in light of their
generalknowledgeof socialconditions,as a constraintupon majority
legislativeprocesses,to protectthe equalbasicrightsthat constitute
democraticsovereignty.
Judicialreviewlimitsthe extentof the exercise
of equal rightsof politicalparticipation
throughordinarylegislative
procedures.Its purposeis to enforcethe substantiveconstraintson
legislationthat have been takenoff the legislativeitinerary.Sinceit
invokesa non-legislative
meansto do this,it maywell be a constitutionalmeasureof last resort.But this does not imply that it is undemocratic.
Forit is not a limitationuponequalsovereignty,
but upon
in
the
of
interest
the
ordinarylegislativepower
protecting equalrights
of democratic
sovereignty.
So conceived,judicial review is a kind of rationaland shared
precommitment
amongfree and equalsovereigncitizensat the level
of constitutional
choice.By the exerciseof theirrightsof equalparticipationthey agreeto a safeguardthatpreventsthem,in the future
exerciseof theirequalpoliticalrights,fromlaterchangingtheirminds
and deviatingfrom their agreementand commitmentto a just constitution.This is one conditionthey mightput on theiragreementto
the decisionrule that the preferencesof a bare majorityshall be
decisivein makingordinarylaws. By grantingto a non-legislative
body that is not electorallyaccountablethe powerto reviewdemocraticallyenactedlegislation,citizensprovidethemselveswith a means
for protectingtheirsovereignty
andindependence
fromthe unreasonable exerciseof theirpoliticalrightsin legislativeprocesses.Thereby,
theyfreelylimit the rangeof legislativeoptionsopento themselvesor
theirrepresentatives
in the future.By agreeingto judicialreview,they
354
SamuelFreeman
in effecttie themselvesinto theirunanimousagreementon the equal
basicrightsthat specifytheirsovereignty.
Judicialreviewis then one
to
their
status
as
citizens.
way protect
equal
To conceiveof judicalreviewas a kind of sharedprecommitment
implies a division of labor among governmentinstitutions.Bare
majoritylegislationpromotesmoreeffectivelythananyotherdecision
rule the particulargood of eachindividual;
moreoverit providesthe
most rapidresponseto legislativeissuesconsistentwith equalpolitical
rights.But what is effectivein the long run is not alwaysjust in
particularinstances.Baremajoritydecisionsare not the best rule for
insuringthat no one'sconstitutional
rightsare violated.Here special
rulesarebetter,with unanimitybeingthe best.But suchrulesbecome
increasinglyineffectivethe larger the majorityrequired,and are
normallyunworkablefor legislativepurposes.So to maintainlegislation thatmosteffectivelypromoteseachperson'sgood andthe public
good,while providingthatthe basicrightsof citizensarenot violated
in the process,free and equalpersonscould rationallyagreeto bare
majoritydecisionson conditionthat they be subjectto reviewby an
independent
bodysetupforthesepurposes.
To sum up the argumentthus far for judicialreview:Like any
havea
ordinarypowerof government,
majoritylegislativeprocedures
subordinateposition and are justified in terms of the ends they
of equal
promote.As a decisionrule for satisfyingthe requirements
in
is the
rule
political participation legislativecontexts,majority
institution
for
the
primary
promoting ends that equalpoliticalrights
realize.Recallthatthe firstargument(in sectionIII)for equalpolitical
is thatit is instrumental
to insuringthatthe interestsof
participation
all are representedand advancedin politicalprocesses.And yet,
are themselvesan imperfectmeans
majoritarian
legislativeprocedures
for realizingtheseends.This suppliesthe justificationfor the traditional constitutionaldevicesthat limit legislativeprocedures.These
institutionslimit these procedureseither by slowing the pace of
legislativechangeto insurethe rationalityof deliberation(bicameralism, federalism,and other checksand balances),or they directly
restrictthe scopeof legislativeauthorityto insurethe justiceof this
Judicial
procedure(bya bill of rights,with or withoutjudicialreview).
Constitutional
andtheLegitimacy
Review
Democracy
ofJudicial
355
review is then one among severalconstitutionalmechanismsthat
could be agreedto, to limit the exerciseof rightsof equalpolitical
participation
throughbaremajoritylegislativerule.As such,its general
is
it maybe necessaryas
justification thatundercertaincircumstances
a meansfor insuringthat fundamental
equalrightsthatare a partof
democraticsovereigntyare respectedand maintainedin the ordinary
In this way,itsjustificationis ultimatelythe
processesof government.
sameas thatgivenfor majorityrule.Whatultimately
justifiesmajority
legislativeprocedures,the equal freedom of sovereigndemocratic
of otherconstitutional
citizens,alsojustifiesour acceptance
procedures
thatdefineandenforcelimitsto the sortsof decisionsthatareleft up
to baremajoritydecisions.
Amongpossiblelegislativeforms,majorityrule best advancesthe
interestof each democraticcitizen in the free pursuitof his good.
Wherethereis widespread
of
publicrecognitionandacknowledgment
the equalrightsof democraticsovereignty,and where it is publicly
acceptedthatthe purposeof legislationis to advancethe goodof each,
then majoritylegislationmaybe adequatefor realizingtheseends.For
undertheseidealconditionsthereis a sharedconceptionof justiceand
the commongood to guidepublicdebate,and legislativedeliberation
and change.Majoritydecisionsshouldthen normallyconvergeupon
just measuresthatadvancethe basicinterestsof all andenablethemto
pursuetheirgood.But in the absenceof widespread
publicagreement
on these fundamentalrequirements
of democracy,thereis no assurancethatmajorityrulewill not be used,as it so oftenhas,to subvert
the publicinterestinjusticeandto depriveclassesof individuals
of the
conditionsof democraticequality.It is in these circumstances
that
thereis a placeforjudicialreview.
V. THE TRADITIONAL
JUDICIAL
ARGUMENT
REVIEW
FOR
I have argued that judicial review can be made consistentwith
to the equal
democracyif it is viewed as a sharedprecommitment
of
democratic
To
see
review
as
a precomrights
sovereignty.
judical
mitment to equalityfits with the basic idea underlyingthe social
356
SamuelFreeman
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 discussionof the idea that the social contractinvolvesa sharedprecommitment to justice, and a contrastwith Hobbesianviews, see my paper,'Reason
and Agreementin SocialContractViews',Philosophy
andPublicAffairs19 (1990)
122-57.
Constitutional
andtheLegitimacy
Democracy
ofJudicialReview
357
democraticconstitutionoutlined,legislativeproceduresembodying
baremajorityrule are not identifiablewith democracy,insteadthey
arebut a partof the institutionalframeworkof a democraticregime.
Likeanyinstitutioncreatedby the sovereignpeople,legislativeauthorto be exercisedby representaity is a delegatedpowerof government,
with constitutional
conditionsandfor the good of
tivesin accordance
not
eachcitizen.As delegated,it is an ordinarypowerof government,
it.
that
creates
to be confusedwiththeconstituent
power
In settingup a constitution,the bodyof citizensplacethe ordinary
powersof governmentin a politicalregime.Eachof thesepowershas
the dutyto interpretthe constitutionin carryingout its assignedrole.
In any regimewherethesepowersare separate,therewill be a need
of the constitutionin orderto
for a final authoritative
interpretation
coordinatethesediversepowersand resolvepersistentdisputes,avoid
conflictingdemandsfrombeingplacedon citizens'conduct,andinsure
that constitutionalformsare being respectedand adheredto by the
ordinarypowersof government.Since the constitutionspecifiesthe
abstractbasicrightsof citizens,the cleardelineationof constitutional
providedby a finalinterpretation
rightsandconsistencyin application
is essentialto citizens'pursuitof their good, as well as to just and
effectivelaws.
Finalauthorityto interpretthe constitutionis a necessarypowerof
governmentthatis distinctfromthe ordinarypowersof the legislative,
judicial,and executivefunctions.It is the power to determine,for
institutionalpurposes,whetherthe people'sexerciseof their constituent power has been respectedin each branch'sexecutionof its
ordinarypowers.Finalauthorityis also a delegatedand institutional
power,and is not to be confusedwith eitherthe ordinarypowersof
governmentor with ultimateconstitutionalauthority,which always
residesin the sovereignbody politic. Somewhatlike institutional
for amendingthe constitutionanda bill of rights,the final
procedures
of
authority interpretation
expression
mightbe seenas an institutional
of theconstituent
of
power sovereigncitizens.
My centralclaimhasbeenthatthereis nothingintrinsicto ordinary
legislativepowerin a democracythatwouldrequirethatthe separate
and distinctpowerof finalinterpretation
be placedor conjoinedwith
358
SamuelFreeman
it. I have not argued,however,that the authorityof finalinterpretation mustbe placedin thejudiciary.Comparethiswith the traditional
argumentfor judicial review,statedby Hamiltonin TheFederalist,
#78. The SupremeCourt, under Marshall,later relied on it in
vs.Madisonin claimingthe powerof the courtsto give the
Marbury
finalinterpretation
of the constitution.
The argumentis basedin the
doctrineof separation
of powers,whichHamiltonclaimsis a requirementof the ruleof law.Beginwith the assumption,
(1)"Nolegislative
act ... contraryto the Constitutioncanbe valid."The questionarises,
who then has the institutionalauthorityto make determinations
of
constitutional
of powersis a requirement
of the
validity?(2)Separation
rule of law that is a part of a constitutionaldemocracy;without
separatepowers,thereis no protectionfor "publicliberty."(3) Under
separationof powers,it is the institutionalrole of the judiciaryto
interpretand apply the law. (4) The constitutionis, and must be
law. (5) Therefore,it must belong to the
regardedas, fundamental
courts"toascertain[theConstitution's]
meaningas well as the meaning of any particularact proceedingfrom the legislativebody."(6) It
followsthatwhen,in the courseof applyingthe law,the courtsdecide
thatlegislation(or executivedecrees)conflictwith the Constitution,
it
mustdeclaretheseactsunconstitutional.
The
Courts
then
have,by
(7)
virtueof theirconstitutional
role,authorityto interpretthe constitution,andin the interestof stabilityandpubliclibertytheyshouldhave
finalauthority.
The Englishparliamentary
Assumption(2) is questionable.
system
is not markedby separationof powersin our sense.And therethe
courtshaveno authorityof constitutional
review,yet "publicliberty"
and a democraticsystemis prettywell maintained.But the crucial
of powersis a doctrine
assumptionfor our purposesis (4).Separation
thatdefinesthe divisionof thoseordinarypowersof governmentthat
of
existin any politicalregime.And underthe doctrineof separation
the
courts
have
exclusive
to
and
apply
powers,
authority interpret
ordinarylaws,just as the legislativehasauthorityto makeall the laws.
The problemis thatthe constitutionof a politicalregimeis notjust so
It is ratherthe highest
muchmoreordinarylaw for courtsto interpret.
order systemof rules for makingthose institutionalrules that are
andtheLegitimacy
Constitutional
Review
Democracy
ofJudicial
359
recognizedas ordinarylaws.As such,it providesthe basisfor all laws
and for the separationof the powersof government;
nothingis law,
and no institutionhas any powers,exceptas it accordswith the constitution.And thereis nothingaboutthe ordinarypowersof courts
grantedunder the constitutionalseparationof powers that would
grantto thejudiciary(or any otherbranch)the authorityto interpret
thoseexceptionalrulesthatconstitutethe threepowersof government
and assignto them theirordinarypowers.To see this,we need only
posit a separateinstitutionthat has powersof constitutionalreview
overall threeordinarypowers.Thisis just whatRousseausuggestsas a
solutionto the problemof who is to have the powerof final interpretationof theconstitution.27
So it is a mistaketo interpretjudicialreviewas implicitin separation of powersandthe ordinaryauthorityof the courts.To seejudicial
review in this way obscureswhat is reallygoing on when courts
exercisethispower.It makesit seemas if theyaremerelycarryingout
theirnormalconstitutional
function.Whereaswhat is reallyinvolved
is that the courts step beyondordinarylaw and their role under
of powersto assessordinaryactsof governmentby any of
separation
the threeseparatepowers.This is not a peculiarly
judicialpower;it is
ratherthe exerciseof a conservingpower.Whoeverexercisesthis final
of theconstitution.
authorityactsastheconservator
It mightbe arguedthatthis is all thatopponentsof judicialreview
needto establishthe authorityof the legislativebranchin a democracy
to have final interpretiveauthority:this authoritymust rest with a
democraticlegislaturebecause,afterall, it has lawmakingpowersand
of popularwill.
is thereforesovereign,or at leastbest representative
27
See note 6, above.Suchan institutioncurrentlyexistsin 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.
SamuelFreeman
360
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,not simply of legislative
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 conditions of democraticsovereignty.An 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
democratic measures.28This is an empirical objection my argument
has not addressed.My concernhas been with the categoricalobjection,
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.
28
andtheLegitimacy
Constitutional
ofJudicialReview
Democracy
361
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
judicial reviewhold in a particularsociety.
This means that whether judicial review is appropriatefor a particular democratic constitution is a strategic question. Unlike the
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
which they are found appropriate.All that has been argued is that
judicial review can be a proper institution in a democracyto insure
that the democraticrequirementsof justice are realizedwhere there is
a substantiallikelihood that legislativeprocedureswill not insure these
requirementsthemselves. This does not mean that it is called for
whenever legislative processesmight result in unjust outcomes.Even
under the ideal conditionsof what Rawlscalls a "well-orderedsociety",
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 circumstanceswhere judicial review is appropriateare where legislative
proceduresare incapableof correctingthemselves.This happenswhen
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
on elections and legislativeprocesses)that it does not accuratelyreflect
consideredpublicviews in mattersofjustice.
Whetherjudicial review is needed to maintainthe requirementsof
a democratic constitution is then dependent on social and historical
circumstances.It is a matter for factual determinationwhether the
362
SamuelFreeman
overallbalanceof democraticjustice can be more effectivelyestablishedin a democraticregimewith or withoutjudicialreview.Thisin
the end is how we must assessclaimsthat majoritarian
legislative
consistent
with
are
the
form
of
procedures
decision-making
only
make
decisions
or
that
the
should
accordingto
democracy;
legislature
its own view of the constitution;or that it should have exclusive
Thesecontentionscanbe made
authorityto interpretthe constitution.
with
to
democratic
respect specific
regimes,andtheirjustification
only
mustproceedon empiricalgrounds.A primarypointof my argument
has been that one cannotdogmatically
singleout a featureof demoor
craticconstitutions
(suchas majorityrule,or politicalaccountability,
and concludethatjudicialreviewis
even equalpoliticalparticipation)
undemocratic
becauseit does not meet the demandsof this standard.
Morethan one principleis neededto characterize
democraticideals,
review
is
not
undercertain
and we cannotcategorically
sayjudicial
conditionsan effectiveinstitutionfor maintainingtheseprinciples.If
claimthatjudicialreviewis inherso, then the a prioriphilosophical
is
undemocratic
unfounded.
ently
This means that there are variouscombinationsof institutional
As I saidat
of democracy.
processesthatcan satisfythe requirements
in procedural
the outset,democracyis not a notionthatis exhaustible
terms.Whateverelsewe mightchooseto callit, a societythatallowed
denied
for equalpoliticalrightsand majorityrule,yet systematically
religious,ethnic,and racialclassessome or most of the basicrightsI
havementioned,does not realizethe idealswe associatewith democracy,andconsequently
hardlydeservesthe name.A societyis moreor
less democraticto the degreethat it providesfor the fundamental
rights of free and equal sovereigncitizens,and insuresthe social
conditionsfor theireffectiveexerciseandeachperson'sfreepursuitof
his good.If judicialreviewis, for socialor historicalreasons,among
to guaranteetheserightsandconditions,and
the institutionsnecessary
is not put to improperuse,thena constitutionthatallowsfor it is still
If on the otherhandjudicialreview,or anyothergoverndemocratic.
mentinstitution(includingmajorityrule),is used,as theyso oftenare,
to frustrateor deny citizensthe effectiveexerciseof the equalbasic
rightsof sovereigncitizens,then that societyto that extentdoes not
andtheLegitimacy
Constitutional
ofJudicialReview
Democracy
363
Whethera societyis moreor
realizethe idealof democracysuggested.
less democraticcannotbe ascertained
by lookingto the presenceor
absenceof judicialreviewin its constitution;
we mustalsolook to see
if thispoweris necessary,
andhowit is exercised.
VII. THE EFFECT OF JUDICIAL ON SELF-RESPECT,
STABILITY, AND PUBLIC JUSTIFICATION
I have arguedfor the democraticlegitimacyof judicialreviewon
groundsof its likelihoodto promotethe sameendsas thosejustifying
majorityrule:judicialreviewcan be an effectiveinstitutionalmeans
for insuringthe equalfreedomof sovereigncitizensand the fundamentalequalrightsthat are amongthe conditionsnecessaryfor the
free pursuitof theirgood.But therewere otherargumentsmadein
fromself-respect,
SectionIIIfor equalpoliticalparticipation,
stability,
and publicity.Beforethe casefor democraticlegitimacycan be completed,it must be askedwhetherjudicialreviewis consistentwith
thesearguments.
It has been suggestedthat judicial review involves a form of
inequalitythatcan underminethe self-respectof citizensin a democracy,therebyfrustratingtheir pursuitof their good.29What can be
said in responseto this?We can distinguishtwo formsof political
of politicalrights,suchas
inequality.Firstthereareformalinequalities
rulesdeprivingcertainclassesof the franchise,or givingothersplural
voting privileges.These inequalitiesexplicitlysingle out groupsfor
and adversetreatment,and thesediscriminations
arepubpreferential
known
and
the
there
are
Second,
inequalitiesof
licly
recognized.
influence implicit in special majorityrules. Though affordingto
minoritiesgreaterthanequalinfluencein decidinglegislativechange,
theseinequalitiesdifferfrom formalpoliticalinequalitiesin thatthey
are anonymous.No specifiedminorityhas the authorityof unequal
influence.Specialmajorityrules do not single out individualsor
andany
groupsfor specialor adversetreatmentin politicalprocedures,
29
Frank Michelman, 'In Pursuit of Constitutional Welfare Rights: One View of
Rawls'sTheoryofJustice',U.Penn.LawReview121 (1973):962, 1008-09.
364
SamuelFreeman
citizen can exercisea greaterthan equalinfluenceon any occasion
wheretheseruleshold by votingagainstany measurerequiringmore
thana baremajorityforitspassage.
Constitutional
limitsuponbaremajorityrulein the formof a Bill
of Rightswithjudicialreview,canbe viewed,like an executiveveto,as
functionalequivalentsof specialmajorityrules.For a judicialdeterminationof unconstitutionality
can be overcomeby a constitutional
amendmentby a specialmajority.This helps in respondingto two
objections.First, it is relevant to the objection that judicial review is
To seejudicialreview
undemocratic
becauseit is counter-majoritarian.
as a functionalequivalentof a specialmajorityrule deprivesthat
objectionof much of its force. For specialmajoritiesrequiredto
amendthe constitutionalwaysretainthe ultimateauthorityto determine any politicalquestion.So unlessit is just arbitrarily
stipulated
thatdemocracy
alwaysentailsthe rightof a baremajorityto rulein all
questions,the claim that judicial review is undemocraticbecause
simply means it is inconsistentwith rule by
counter-majoritarian
less
than
those
needed to make constitutionaldecisions
majorities
to requirea
amendment.
But
surelyit is not undemocratic
through
to
those
thatdirectly
make
certain
decisions,especially
specialmajority
affect democraticsovereignty,the equalityof basic rights,and the
constitutionaldesignof governmentand society.To hold otherwise
withconstitutionalism.
wouldmeanthatdemocracy
is inconsistent
Second,to see judicialreviewas a kind of specialmajorityrule
clarifieswhy that practiceneed not underminecitizens'self-respect.
For thoughthe Courtis itself a specifiedminority,its adversedecisionson lawscanalwaysbe overcomeby a specialmajorityof citizens
or their representatives,
and no specifiedminorityhas the ultimate
in
The ultimateauthoritythat
this
constitutional
authority
procedure.
There
minoritieshavein constitutional
questionsremainsanonymous.
are no formal inequalitiesin the systemas a whole that gives a
specifiedminorityultimateauthorityon any politicalquestion.Each
citizenin the amendmentprocessretainsan equalrightto participate
in the constitutional
process,to expresshis views,and to vote upon
issue(eitherdirectlyor throughhis representative).
any constitutional
So, seen as part of a specialmajorityrule procedurefor deciding
andtheLegitimacy
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Democracy
365
questionsthatbearon the constitution,
judicialreviewitselfshoulddo
little to underminecitizens'senseof self-worth,at leastas long as that
poweris properlyexercised.
Furthermore,
maintainingthe equalbasicrightsof all citizensis of
far greaterimportanceto everyone'sself-respectthanwhatevernonformalinequalitiesof politicalpowerjudicialreviewmight involve.
The argumentfor politicaldemocracyfromself-respect
(in SectionIII)
from
the
an
that
status
as
citizens
is the
proceeds
premise
equal
primarysocialbasisof self-respect.
Equalpoliticalrightsarejustified
on thatground.But othercivilandsocialrightsareequallyimportant,
if not moreso, to the equalstatusof citizensandtheirself-respect.
If
review
is
is appropriate
to societyand properlyexercisedto
judicial
insurethat theserightsand the conditionsfor theireffectiveexercise
are legislativelymaintained,then, on balance,the self-respectof all
thanwithoutjudicialreview.
citizensshouldbe betterpreserved
Considernext the argumentfor democracyfrom the publicityof
democraticprocedures.Here I will only note that judicial review,
ratherthan underminingthe processof publicjustification,can contributesubstantially
to thatend.The practiceof the Courtof publicly
justifyingits decisionsby issuingreasonedopinionsmakespublic(in a
way legislativeproceduresdo not) the reasonsand purposesbehind
In upholdlegislation,and examineslawsin light of the constitution.
ing legislationagainstconstitutionalchallenge,the Court seeks to
legitimatelawsby showinghow theyareconsistentwith the constitution. This requiresthat the Courtpubliclydemonstrate
that laws are
not undulycoercivebut areconsonantwith democraticfreedom.And
in holdinglegislationunconstitutional,
the Courtdoes not just check
failures
of
it
also
reasonsfor
suppliesconstitutional
legislative
justice;
these failures.In both of these ways,judicial review can work to
establisha publicreadingof the constitutionand its moralfoundations,andexaminethelawsin lightof theseprinciples.
Moreover,in servingthis justificatoryfunction,judicial review
can play an importantrole in culti(againif exercisedappropriately)
a
shared
senseof justiceand the publicgood.Recallthe third
vating
argumentfor political democracyon groundsof its tendencyto
broadencitizens'viewsbeyondtheirown concerns,layinga basisfor
366
SamuelFreeman
the qualitiesof civic virtueand civic friendshipthat are neededto
sustainstablesociallife in the absenceof autocraticpower.If we see
judicialreviewas havinga justificatoryrole in additionto its role in
checkinggovernmentabuse,then it can be understoodas a further
governmentinstitutionfor cultivatingcitizens'appreciationof and
supportfor just democraticinstitutionsand ways of life. In publicly
the constitution,the Courtdemonstrates
the moralbases
interpreting
of constitutional
forms,and therebyprovidesa commongroundfor
andsupport.As such,judicialreviewencourages
publicunderstanding
citizens'sense of justice and their desireto maintainconstitutional
forms.The justificatoryfunction 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 unresponsive
or wherelegislativerepresentatives
underdeveloped,
when legislato the interestsof everyone.Underthesecircumstances,
of a just democratic
tive proceduresdepartfrom the requirements
As an
constitution,they are unlikelyto be capableof self-correction.
institutionalmeansfor cultivatingthe public'ssenseof justice,review
cannot only be a way of increasingthe likelihoodthat legislative
fromjusticewill not be repeated,but also that they will
departures
notbe publiclytolerated.
Finally,the existenceof a largebodyof judicialopinionsestablishes
and
a doctrinalbasisfor publicdiscussionandlegislativedeliberation,
gives directionto public affairs.In interpretingthe constitutionin
light of its applicationto specificlaws,the Courtgivescontentto the
otherwiseabstractprovisionsof the constitution,and furnishesa
commonsourcefor the termsof public debate.This can have the
effectof soberingand improvingthe qualityof publicand legislative
discussionandargumentby securingcommonlyunderstoodmeanings
for abstractand often vague constitutionalprinciplesand concepts.
law can serveas a
Moreover,the existenceof a bodyof constitutional
andtheir
reminderto legislatorsof theirconstitutional
responsibilities
ends.
These
to
direct
laws
towards
constitutionally
legitimate
duty
considerations
show that,as a meansfor both rectifyingunconstitutional legislationand cultivatingcitizens'commitmentto just con-
andtheLegitimacy
Review
Constitutional
ofJudicial
Democracy
367
stitutionalforms,judicial review,if correctlyexercised,can be an
forcein thosedemocracies
whereit is calledfor.
importantstabilizing
VIII.
CONCLUSION
Thereareotherargumentsforjudicialreviewwhichmaybe pertinent
to our constitutionalscheme.The most importantstem from our
federalsystemand the extraordinary
powerof the executivebranch.
Within any federalscheme,where legislativeand other powersare
divided among severalgovernments,there is a need for a single
of the
authoritative
voice to provideclearanduniforminterpretations
for reasonsof coordination,
nationalunity,andto protect
constitution,
interests.Furagainststates'overlyzealouspursuitof theirparticular
the
constitutional
andpopular)
ther,given extraordinary
powers(both
in ourcountry,as well as its independence
exercisedby the Presidency
from the legislativebranch,one of the most compellingreasonsfor
the authorityof judicialreviewis to insureagainstthe potentialabuse
of executivepowerin situationswhereCongressis eitherincapableor
I have
unwillingto intervene.Thoughtheseareimportantarguments,
of our constitution,
not reliedon themsincetheyconcernpeculiarities
andhavelittle directbearingon the objectionto judicialreviewbased
on thenatureof democracy.
In fact,I havehardlyaddressed
the specificquestionof thejustification of judicialreviewon democraticgroundswithinour constitution
at all. My concernhas been to establishthat the standardbasisfor
objectingto the institutionof judicialreview- thatit is inconsistent
with democracyand majorityrule - involvesa misconception
of the
natureof legislativepowerand a shortsighted
of
conception democis
it
is
There
undemocratic
to claim
(and
racy.
nothing
disingenuous
there is) about the judicialreviewof laws that infringeagainstthe
moralrightsas libertyof conscienceand
equalityof suchfundamental
freedomof thought,freedomof association,freedomof occupation
and choiceof careers,politicalparticipation,
and,moregenerally,the
freedomto pursueone'sown planof life.Judicialreviewis undemocraticwhen it contravenes
majoritydecisionsin orderto maintainthe
368
SamuelFreeman
powerand legalprivilegesof elite socialand economicclassesagainst
socialchangeand economicreformsdesignedto enableeach citizen
to achieveindependence
andto effectivelyexercisethesefundamental
Our
Court
has
taken
bothdirections.Formuchof its existence
rights.
the SupremeCourt tendedto constitutionally
enshrine,againstatandprivileges
temptedlegislativereform,prevailinglaws,conventions,
the
of
that
were
institution
privateproperty
especially
regarding legal
favorableto those who legally control the great mass of wealth.
Whether,on balance,the Court'smore recentdisavowalsof these
effortsat securingthe equal
andits moreconcentrated
interpretations
basic rights of citizensare sufficientto compensatefor its earlier
of a democratic
constitutionis a questionI shallnot underdistortions
taketo answer.
Who is to havethe finalauthorityto interpretthe constitutionin a
democracyis one question;how that authorityis to be exercisedis a
more complicatedquestionI have only indirectlyaddressed.The
secondquestionrequiresbotha theoryof constitutional
interpretation,
andan accountof the scopeof the Court'sauthorityofjudicialreview.
But the argumentfor judicial review offeredprovidesa basis for
to theseissues.30
responding
The contractarian
conceptionof democracyused to justifyjudicial
review implies that certainsubstantiverights and requirementsof
justice underlieour commitmentto the politicalproceduresof a
democracy,and that it is these substantivevalues that democratic
aredesignedto realize.So, in reviewinglegislation,thereis
procedures
no way for the Courtto avoidsubstantiveconsiderations
of justice;
thatis its mandate.This contrastswithJohnEly'sinfluential"processview,accordingto whichthe authorityof judicialreviewis
perfecting"
to be limited to proceduralconsiderations
in order to insure fair
in
and
electoral
representation
accountability decision-making
processes.It is not deniedthatthe Court'sprimaryroleis to maintainthe
30 David A. Richardshas
of the
interpretation
J.
long arguedfor a contractarian
Law
CA.:
U.S. Constitution.See TheMoralCriticism
Dickenson,
1977):
(Encino,
of
Toleration
andtheConstitution
(Oxford:OxfordUniversityPress,1985);Foundations
Constitutionalism
ofAmerican
(Oxford:OxfordUniversityPress,1989).
andtheLegitimacy
Constitutional
ofJudicialReview
Democracy
369
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 one would deny that the historicaldocument
abstractprovisions.32
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
interpretation.And nothing can identify itself as the constitutionin a
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
constitutionalinterpretation.It is not, and it is not generallyunderstood to be, the complete representationor 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
criticism see Laurence H. Tribe, ConstitutionalChoices(Cambridge, Mass: Harvard
University Press, 1985), ch. 2.
32 See Raoul
Berger, Governmentby Judiciary (Cambridge, Mass: Harvard UniRobert Bork, 'Neutral Principles and Some First Amendment
Press,
1977);
versity
Problems', IndianaLaw Journal 47 (1971): 1; and The Temptingof America (New
York: Free Press, 1990). See Dworkin, id., for an effective attack on this view.
31
370
SamuelFreeman
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.