Response to Alon Harel on Chapter Seven of Democratic Rights, “Judicial Review: Balancing Rights and Procedures.”

 I would like to thank Alon for his comments on Chapter 7, especially given the importance of his own work on the topic of the chapter.  My conversations with him on this subject also have helped me to clarify my own thinking.  Nonetheless, there are some important points of disagreement.

Alon rejects the balancing approach when it comes to majoirtarian violations of many basic rights.  Although Alon leaves open the question of whether there might be such balancing in some cases, in his view, often when a majority violates basic rights that majority decision has no weight in terms of democratic legitimacy.  Alon gives us an example for instance of a plebiscite that would prohibit Corey Brettschneider from studying political science.  He argues that such laws not only violate rights but that there is no sense in which they are democratic.  He needs to make this last claim to show that such decisions have no weight or value on democratic grounds.

I am tempted to agree with Alon about this specific example.  But it seems to me that this example is a particular distinct kind of rights violation.  Namely, this law has the ad hoc character of the special laws that I argued in chapter 2 violated the most basic requirements of the rule of law in self-government.  Such a decision does not even result in the making of law, the most basic task of legislatures and plebiscites in a democracy.  Therefore such a policy has no weight because it does not even have the status of law.

I think, however, that not all rights violations are of this kind.  In particular many majoritarian rights violations have the force of law even when they undermine the core values of democracy. I argued in this chapter that plebiscites, which threaten democratic rights to privacy should be struck down by a Court on democratic grounds.  Alon not only agrees, he argues that as in the Corey Brettschneider case there would be no loss to democracy in such an instance.  I think these two cases are distinct. If such a plebiscite did not single out any one individual for special adverse treatment and was not retroactive, there would still be a loss to democratic values in striking it down, despite the fact that it should be overturned.  Plebiscites require wide spread debate and discussion and substantial democratic engagement from many people.  In addition they ask that citizens participate in a process with a strong presumption that the outcome will stand except in exceptional circumstances.  Thus, even when such legislation is rightfully overturned, there is still a loss to the value of the person’s participation in law making.  This is unlike a case in which a plebiscite results in policy that does not even rise to the status of law.

To turn for a moment to recent politics, the recent California plebiscite on gay marriage seems like it might be the kind of circumstance I have just described. However, there is reason to think, given that it is retroactive, that it is more like the Corey Brettschneider case raised by Alon.

In sum, I would distinguish in away that Alon does not, between justifiably overturned policy that does not rise to the level of law and the justifiable overturning of policy that does have the status of law.  I acknowledge with Alon that the former do not involve losses to democracy, but I think that the latter do entail a loss to the democratic ideal  Alon concedes in his remarks that there might be some rights violations by a majority that should be overturned but that would indeed involve a loss to democracy.  I am curious in how we could split that difference.  What distinguishes for Alon between these two kinds of substantive rights violations such that one involves a loss and the other does not without appealing to the ideal of the rule of law itself?

Alon also asks whether my chapter offers a distinct role for a supreme court, rather than for institutions as whole.  I want to note that this chapter begins with a question of non-ideal theory rather than one of institutional design.  It posits a supreme court with the power of judicial review, which finds itself faced with a law enacted by procedural democracy that violates democratic rights and then asks whether on solely democratic grounds it could be struck down. But a supreme court faces other questions aside from the question of what the most democratic thing to do is.  My hypothetical is stylized to get us to think about whether there might be democratic reasons to overturn majoritarian legislation in defense of substantive rights, but I agree with Alon that there might be other values to consider by such an institution.

That said, Alon worries that the logic I apply could be applied to other branches of government, such as an executive branch concerned to protect democratic values.  I agree.  In fact I would go a step further.  A question arises as to whether non governmental actors, in civil society for instance, might have claims to advance democratic values when they resist procedurally enacted laws, say through civil disobedience.  I am not embarrassed of these implications.  To the contrary, I embrace the idea that there are democratic rights independent of democratic procedure means that no one institutional or institutional actor has a monopoly on recognizing when these rights have been violated.  So an executive who vetoed legislation that violated democratic rights should claim to do so on the grounds that the veto is part of democratic procedure and on the grounds that it upholds democratic rights.  More radically, and I do not make this argument in the book, I also think that one ground for civil disobedience in regard to laws that have been procedurally enacted by which violate democratic rights also can be justified in regard to the values of self-government.  All citizens, not just those with official power, can appeal to procedure independent democratic values.  Indeed, in retrospect I think we rightly regard the civil disobedience of the civil rights movement as defending democracy, despite its resistance to procedurally enacted legislation.

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