CB argues for a value theory of democracy as an alternative to procedural and epistemic theories. The three core values which underlie democracy are: equality of interests, political autonomy and reciprocity. These values are implicit in the practices and institutions of contemporary democracies. They are central to democracy because they facilitate and sustain the idea of democratic citizens as free, equal and reasonable rulers. These values are understood to be not merely important and central values for a just state but central to democratic governance. A careful articulation of these values reveals that these values require respect for both majoritarian procedures – procedures which guarantee meaningful participation in decision-making — and an effective protection of substantive rights. Much of CB’s book is devoted to an examination of the conclusions which follow from the value theory of democracy. CB identifies what substantive rights individuals have and establishes the ways in which the three core values identified by him support these rights.
The question addressed by chapter 7 is what institutional structures reflect best the core values and how these institutions ought to operate. Such an institutional structure ought to respect people’s autonomy by protecting participation, protecting equality of interests and instantiating reciprocity. Determining what the ideal institutional structure is requires examining hard cases, namely cases in which the decisions generated by majoritarian procedures (and, by virtue of this fact, decisions that are congenial to some of the democratic core values) are incompatible with the substantive rights (whose protection is also congenial to the core values). When majoritarian procedures yield decisions which violate substantive rights there is always an inevitable loss to democracy. If such decisions are allowed to stand, substantive rights are violated to the detriment of the core values; if, on the other hand, these decisions are overruled by the courts, majoritarian procedures are defied to the detriment of the core values. CB believes that given such conflicts the right decision is the decision which minimizes the aggregate or overall loss to the core values. Determining what the right decision is requires therefore comparing or balancing the loss to core values resulting from an anti-majoritarian rights-respecting decision and the loss to core values resulting from a majoritarian rights-violating decision.
The rationale underlying this process of balancing is simply the fact that both honoring the decisions resulting from majoritarian procedures and overruling such decisions in case they violate substantive rights are prima facie congenial to the protection of the core values of democracy. When citizens participate in political decision-making, they exercise their autonomy “by the very act of making a decision.” Furthermore, “their equality is recognized when their vote is regarded as equal to all of their fellow citizen’s votes.” The right substantive outcomes are also congenial to democratic values either because these decisions are preconditions of democracy, e.g., free speech or because they have an impact on some or all of the democratic values. Hence, a theory of democracy should recognize that a genuine democratic regime is founded on balancing substantive rights and majoritarian procedures.
Chapter 7 also explores the ramifications of this paradigm for legal reasoning. The reasoning of judges considering whether to override decisions of representative bodies should reflect the conflicting concerns involved in such a conflict. A judge who is called upon to evaluate the constitutionality of a statute ought “to consider carefully the details of the case and the democratic right at issue, from the perspective of both procedure and outcome, before making up her mind. If the outcome is ratified by the national plebiscite system, there is a reason to think it has some democratic weight.” Yet this reason can be overridden if the countervailing considerations are sufficiently weighty, namely if the decision endorsed by the majority is highly detrimental to the democratic core values such that the loss to core democratic values resulting from the overruling such a decision is smaller than the loss to democratic values resulting from refusing to overrule it.
In challenging the compelling picture proposed by CB, I shall raise two objections. First I shall argue that many of the cases which are understood by CB to involve conflicts between democratic procedures and substantive rights are not genuine conflicts of this sort. More specifically, I shall argue that in many (and perhaps even in all of these cases) democratic values do not require granting any weight to the decisions generated by majoritarian procedures. Majoritarian procedures merit respect only when they touch upon issues which ought to be collectively and democratically made. Yet many (and perhaps all) substantive rights are not proper issues for majoritarian procedures. Second, I shall establish that CB’s analysis fails to explain why judicial review is a desirable institution. More specifically, I shall argue that while CB explains why the legislative process may be detrimental to democratic values, he fails to explain why review by judges is likely to render more democratic decisions than no review at all or, alternatively, review by non-judicial bodies. I shall also argue that this difficulty is shared by many if not all instrumentalist justifications of judicial review and it can be remedied by providing a non-instrumentalist justification.
My first objection is based on the claim that majoritarian procedures are not always congenial to democratic values. In fact majoritarian procedures are congenial to democratic values only with respect to certain types of decisions – decisions which are appropriately relegated to the majority. Hence, I side with theories of democracy which are skeptical with respect to CB’s claim that there are significant tensions between procedural and substantive democratic concerns.
To establish this claim think of the following example. Let us assume that Corey decided to study political science. Suzanne thinks this is a wrong decision for Corey either because it is detrimental to Corey’s interests or to the interests of others. Suzanne happens to be a very effective politician and she passes a directive in the municipal council forbidding Corey from studying political science in the city where he resides hoping that Corey will give up his dream to be a political scientist. It is evident that such a municipal directive is wrong and, furthermore, it is evident (to a lawyer) that in most western legal systems such a directive would be regarded as ultra-vires and therefore null. The municipal council simply does not have the power to prevent Corey from studying political science.
Presumably one reason why the municipality does not have such power is because Corey is free to study whatever he wishes (subject only to the requirement that he meets the qualifications necessary for admission). There are however two ways of explaining why the municipality ought not to have the legal power to deny Corey access to a political science department. Under the first explanation (the balancing-based description), denying the residents of the city the power to block Corey’s admission to the political science department is a loss to democratic values. Given that the directive preventing Corey from studying political science is ratified by the municipal council, there is a reason to think it has some democratic weight. Yet the loss to democratic values is offset by the normative weight of Corey’s substantive right to study whatever he wishes and run his life in accordance with his inclinations and judgments. The loss (in terms of core democratic values) resulting from forcing Corey not to study political science is greater than the loss (in terms of core democratic values) resulting from overruling the municipality decision. Under the second explanation (the categorical explanation) there is no genuine conflict. Majoritarian procedures are congenial to democratic values only with respect to some decisions and not all decisions. Depriving the municipality of the power to decide whether Corey can study in a political science department (or overruling its decision) does not constitute a loss to core democratic values because this is not a type of decision which ought to be made by the municipality.
It will come as no surprise to the reader at this point that I am inclined towards the second position namely the categorical explanation. Under such a position depriving the municipality of the power to prevent Corey from studying political science does not constitute a loss to democratic values. To provide some intuitive support for my conviction think of the most appropriate answer that Corey can provide when encountering an attempt by Suzanne to prevent him from studying political science. Most likely Corey would react to such an attempt by saying (or, in a case in which he is too polite, merely thinking) that his decision to study political science is simply none of Suzanne’s business. By saying “none of Suzanne’s business”, Corey implies that Suzanne’s preference with respect to this issue has no weight whatsoever. Similarly the preferences of the democratic polity with respect to this issue have no normative significance. Asserting that something is “none of your business” ought to be interpreted as meaning precisely what it says namely that your view on the matter has no weight whatsoever rather than as stating that your view on the matter has some weight which is overridden by conflicting considerations.
Let us inquire further into the statement that the decision of Corey to study political science is “none of Suzanne’s business.” This statement does not imply that Suzanne is wrong in believing, let us say, that Corey’s decision to study political science is the wrong decision for him or, alternatively, in believing that it is detrimental to the interests of the public. Neither does it imply that Suzanne ought not to have a view as to whether Corey ought to study political science or even that Suzanne has genuine stakes in the decision and that it can be detrimental to her interests. Perhaps, for example, Suzanne loves Corey’s poetry and his decision to study political science may affect Corey’s poetic imagination and, consequently, deprive Suanne of the joys she derives from Corey’s poetry. Furthermore, by asserting that Corey’s decision to study political science is none of Suzanne’s business we also do not imply that Corey ought not to take Suzanne’s view into account in making his decision. Perhaps Suzanne has great insights as to which professions are suitable for Corey either because she knows Corey well or because she has extensive experience in advising people about their professions. What Corey means by asserting that the decision is none of Suzanne’s interest is simply that ultimately this decision is his to make and that it is only his decision which should count. Once this decision is made, no weight (rather than little weight) should be given to Suzanne’s views or to the views of the municipal council.
If the decision of the council has any weight whatsoever, it follows that Corey has a reason grounded in democratic values to reconsider his decision in light of the decision of the municipal council. Thus, under this view, even if after considering all the relevant reasons, Corey concludes that he ought to study political science, the decision by the municipal council provides him a reason grounded in democratic values to reconsider his decision. But this conclusion seems to me counter-intuitive. Corey’s decision to study political science is Corey’s business alone and not anybody else. Judgments of others may provide reasons to reconsider his decision only to the extent that Corey believes that these judgments are right or correct but not because such reconsideration is required by respect towards democratic core values.
Is this case relevant to constitutional rights? Do legislative decisions violating substantive rights merit respect simply by virtue of the fact that they passed majoritarian procedures or should these decisions be regarded as having no weight whatsoever? CB believes that constitutional rights fall into the first category. In discussing the protection of speech he maintains that “given that a variety of procedures could have produced this outcome [protecting speech], surely it would have added legitimacy if a plebiscite rather than a court has secured it.”(143) I disagree. I am inclined to believe that many, if not all, violations of rights fall into the second category. Thus, a decision to protect gay intimacy by invalidating laws against homosexual intercourse is right not because the contribution to democratic values resulting from the protection of this right is greater than the contribution to democratic values resulting from honoring the majoritarian decision to forbid homosexual intercourse. It is right because majoritarian procedures to forbid homosexual intercourse have no weight whatsoever. If this was not the case, and the balancing explanation was true, gay couples would have a reason grounded in democratic values to reconsider their decision to live together – a decision which, presumably offend sentiments of the majority. My conclusion is therefore that overruling decisions resulting from majoritarian procedures is detrimental to democratic values only with respect to certain types of decisions, namely those decisions which ought to be decided by the public. Yet, many of the constitutional rights involve decisions which do not fall into this category; there is no principled reason therefore that these decisions be made by majoritarian institutions.
Before I turn to a second objection let me make one last qualification. I am not saying that no constitutional rights may involve balancing of the sort envisioned by CB. It is possible that sometimes courts ought to give some weight to decisions of majoritarian institutions which violate constitutional rights. Yet, CB regards balancing as a dominant and perhaps even as an exclusive paradigm in cases of conflicts between democratic procedures and substantive rights. The case of Corey and Suzanne demonstrates that this is not the only paradigm which can account for our practices. Hence, to establish his position, CB ought to establish that this example is not characteristic of constitutional rights and this is in my view a very demanding task.
Let me turn to my second main concern and explore whether CB’s analysis provides a justification for judicial review or any review whatsoever. CB maintains that judicial review is justified because there are circumstances under which protecting substantive rights is more congenial to democratic values than honoring decisions of majoritarian bodies. Justice Tension (and not Justice Results or Justice Process) is a model of the good judge because Justice Tension considers carefully the pros and cons of his decision in terms of its overall effects on democratic values.
But of course the reasoning described by CB is not unique to courts. CB’s challenge is to explain why judges are more likely to weigh accurately the different conflicting considerations. To determine the appropriateness of judicial review along CB’s view, it is not sufficient to point out (as CB does) that sometimes the decisions resulting from majoritarian procedures are detrimental to core democratic values. In addition it is necessary to establish that, as a rule, the decisions of judges are more congenial to the core democratic values than the decisions of the legislature.
This problem is not unique to CB. It is (as I have argued elsewhere Harel, Alon and Kahana, Tsvi, The Easy Core Case for Judicial Review, September 23, 2008 available at SSRN: http://ssrn.com/abstract=1272493) shared by many and perhaps all consequentialist theories of judicial review. Typically consequentialist theories are based on the view that judges are better decision-makers than legislatures at least with respect to certain decisions. For instance, the most frequent argument favoring judicial review is premised on the conviction that judges are more sensitive to the protection of rights than legislatures. But neither historical evidence nor theoretical investigation supports this claim.
CB’s balancing-based reasoning is particularly vulnerable to this objection. After all, unlike many advocates of rights-based justifications for judicial review, CB believes that protecting substantive rights ought to be balanced against procedural concerns. While there are certain plausible conjectures purporting to explain why judges are better at protecting substantive rights, it is more than likely that judges are less attuned to procedural concerns than legislatures. It is difficult therefore to make any conclusive assertions as to whether judicial or legislative decisions are overall more or less congenial to the core democratic values. CB analysis like many of the instrumentalist justifications to judicial review pays too little attention to the question of why judicial deliberation is the best means of identifying what decisions are overall most conducive to the democratic values. There is nothing in his analysis which explains why the review of legislation ought to be done by the courts rather than by an upper house, a president, a philosopher or by the representatives of human rights organizations.
Furthermore given that CB’s argument favoring judicial review is based on the alleged superior quality of judicial decisions, his argument is also vulnerable to a second objection. Many political theorists, most notably Waldron, believe that the mere superiority of a body in making certain decisions does not justify empowering this body to make these decisions. Even if we all agreed that Plato or the pope are better decision-makers than the Congress or the Supreme Court, it does not follow that Plato or the pope should be empowered to review legislation. In what respect are courts different than Plato or the pope?
Arguably, if judges are not better in identifying the decisions which promote democratic values, it follows that judges ought not to have the power to make these decisions. Can one provide a justification for judicial review which does not rest on the superior quality of the judiciary’s deliberations? In a paper exploring these issues I argued for a non-consequentialist justification which rests on the right to a hearing (Yuval Eylon, Alon Harel, The Right to Judicial Review 92 Va. L. Rev. 501 (2006) (http://www.virginialawreview.org/articles.php?article=110). Under this view, judicial review is based on a “right to voice a grievance” or a “right to a hearing”-a right designed to provide an opportunity for the victim of infringement to challenge that infringement. In such cases, the state must justify and, in appropriate cases, reconsider any infringement in light of the particular claims and circumstances of the victims of the infringement. This right-to-a hearing-based justification implies that judicial review is justified even if ultimately it is found to be detrimental to the protection of rights or democratic values and even if judicial deliberation is inferior to that of legislatures. The soundness of the right-to-a-hearing conception of judicial review does not depend on establishing that judicial review is more congenial to the protection of the rights than alternative systems or that granting the right to a hearing protects democracy or stability or other values.
This justification for judicial review is one that overcomes the problems faced by CB as well as by other consequentialist theories for judicial review because the right to a hearing is one that can be protected only by courts. To establish this claim think of what courts typically do. It seems uncontroversial (to the extent that anything can be uncontroversial) that courts, as opposed to legislatures, are designed to investigate and hear individual grievances. This is not a feature that is unique to constitutional litigation. It characterizes both criminal and civil litigation and it is widely regarded as a characteristic feature of the judicial process as such. The assessment of individual grievances in courts comprises of three components. First, the judicial process provides an opportunity for an individual to form a grievance and challenge a decision. Second, it imposes a duty on the part of the state (or other entities) to provide a reasoned justification for the decision giving rise to the challenge. Last, it involves, ideally at least, a genuine reconsideration of the decision giving rise to a challenge which may ultimately lead to an overriding of the initial decision giving rise to the grievance. If the review of statutes can be shown to be normatively grounded in these procedural features it follows that courts are particularly appropriate in performing such a review.
One way of articulating this claim is to think of the nature of a failure on the part of courts to protect the right to a hearing. Such a failure is different from a failure on the part of the court to render a right or a just decision. The latter failure may suggest that the courts have not paid sufficient attention to the particular decision or that they do not have sufficient expertise. But it does not challenge their status as courts. In contrast, the former failure, namely a failure to protect the right to hearing, is a failure on the part of courts to do what courts are specially designed to do; it is a failure to act judicially. It seems evident therefore that while it is difficult to establish that courts are congenial to the core democratic values as identified by CB, courts are specially and uniquely suited to protect the right to a hearing.
CB provides a novel way of justifying judicial review on the basis of the value theory of democracy. I raised two main critical concerns. First I argued that overruling decisions generated by majoritarian procedures is not always or even typically detrimental to democratic values. Democratic procedures are valuable only with respect to some types of decisions but not all. Second I argued that CB’s analysis does not establish why courts are particularly competent in making the decisions which are assigned to them under the value theory of democracy.