Against majoritarianism: Democratic values and institutional design

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 1029-1042

  Macedo, Stephen ^a  

^a PRINCETON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 77954330845     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (81)

1. GEORGE PACKER, THE ASSASSINS' GATE: AMERICA IN IRAQ 95 (2005);
2. see also SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 33 (2006)
3. ("'Without the Sunni parties there will be no consensus goverament[,] ... without consensus government there will be no unity, there will be no peace.'" (quoting Iraqi President Jalai Talabani)).
4. Sabrina Tavernise & John F. Bums, Promising Troops Where They Aren't Really Wanted, N.Y. TIMES, Jan. 11,2007, at A20.
5. RONALD DWORHN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript at 218-19, on file with the Boston University Law Review).
6. See id. (manuscript at 242).
7. See CHARLES R. BEITZ, POLITICAL EQUALITY: AN ESSAY IN DEMOCRATIC THEORY 55-67 (1989).
8. See id. at x-xi.
9. See id. at 138-40 ("[T]here is no general reason to reject a system of representation simply because it does not adhere to the proportionality principle.").
10. Professor Dworkin rejects indeterminacy as the default position and would require a positive justification for a claim of indeterminacy rather than uncertainty, see DWORHN, supra note 3 (manuscript at 58-63), but, in some cases, abstract questions of democratic institutional design may be objectively indeterminate. This is not to say that one cannot make a sound case for particular reforms when one combines these principles with greater information about particular contexts and historical patterns and pathologies.
11. JEREMY WALDRON, LAW AND DISAGREEMENT 299 (1999). Democracy is founded on the premise of political equality: individuals equally hold rights, including an equal right to participate in making majority decisions. This right to participate, Waldron maintains, is the "right of rights." Id. at 232.
12. These paragraphs draw on a draft paper I coauthored with Christopher L. Karpowitz and Evan Oxman.
13. See generally Stephen Macedo, Christopher L. Karpowitz & Evan Oxman, Two Conceptions of Democracy (Mar. 7, 2006) (unpublished manuscript, on file with the Boston University Law Review).
14. DWORKIN, supra note 3 (manuscript at 242-43).
15. WALDRON, supra note 9, at 283.
16. Id. at 298.
17. Id. at 295.
18. See id. at 289-312; Mark Tushnet, Against Judicial Review 2-3 (Harvard Law Sch. Pub. Law & Legal Theory Working Paper Series, Paper No. 09-20, 2009), available at http://ssrn.com/abstract-1368857
19. (arguing that "mechanisms of displacement must be relatively easy" so that the people can "replac[e] the legislators who made choices of which [they] disapprove);
20. see also MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 96-100 (2000) (discussing the importance of ensuring non permanent majority factions, especially in a system without judicial review).
21. WALDRON, supra note 9, at 299.
22. Id. As with utilitarianism, there is another aggregative standard for decision: everyone counts for one, nobody counts for more than one. BEITZ, supra note 5, at 55-67.
23. See RONALD DWORHN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 18,68-70 (1996).
24. WALDRON, supra note 9, at 286-87.
25. See John Ferejohn, Accountability and Authority: Toward a Theory of Political Accountability, in DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION 131, 131-53 (Adam Przeworski et al. eds., 1999) (arguing that "[e]lectoral punishment... is a fairly blunt instrument," and that accountability through greater transparency can be much more effective).
26. For example, Congress can enact legislation that limits the decision's impact and lower courts can narrowly interpret the holding or call the Supreme Court's reasoning dicta.
27. See discussion infra notes 45, 46 and accompanying text (discussing how limited judicial review in countries such as the United Kingdom and New Zealand has resulted in a higher caliber of debate and discussion within the political branches). Similarly, Dworkin does not argue that the United States's institutional design is optimal.
28. See supra notes 7-8 and accompanying text.
29. Jeremy Waldron, 77ie Core of the Case Against Judicial Review, 115 YALE LJ. 1346, 1366-67 (2006) (citing both abortion and affirmative action as examples of rights-based disagreements that "define major choices that any modern society must face").
30. See id. at 1361-62 ("I assume that the [democratic] institutions, procedures, and practices of legislation are kept under constant review from this perspective, so that if there are perceived inequities of representation that derogate seriously from the ideal of political equality, it is understood among all the members of the society that this is an appropriate criticism to make and that, if need be, the legislature and the electoral system should be changed to remedy it").
31. Id. at 1361 & n.47.
32. Id. at 1369-95 (arguing that because neither majoritarian nor non-majoritarian processes clearly produce better outcomes, majoritarian processes should be preferred because they are procedurally superior);
33. Jeremy Waldron, Compared to What? Judicial Activism and the New Zealand Parliament, 2005 N.Z. L.J. 441,442-45.
34. Add a third alternative and the possibility of intransitive preferences and the familiar Arrow-type cycling problems (varying the order in which several pair-wise alternatives come up for a vote) make it impossible to say that any particular results are preferred by a majority.
35. See E.E. SCHATTSCHNEIDER, PARTY GOVERNMENT 52 (1942) ("The people are a sovereign whose vocabulary is limited to two words, 'Yes' and 'No.'");
36. see also E.E. SCHATTSCHNEIDER, THE SEMISOVEREIGN PEOPLE: A REALIST'S VIEW OF DEMOCRACY IN AMERICA 56-59, 137-38 (Harcourt Brace Jovanovich Coll. Publishers 1980) (1975)
37. [hereinafter SCHATTSCHNEIDER, SEMISOVEREIGN] (describing how the two-party system "organizefs] the electorate by reducing their alternatives to the extreme limit of simplification").
38. JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 261 (2d ed. 1947);
39. see also SCHATTSCHNEIDER, SEMISOVEREIGN, supra note 29, at 135-36.
40. For example, administrative agencies are subject to robust due process requirements codified in administrative law including publication of proposed rales, opportunities for public comment, and judicial review of agency decisions.
41. See Administrative Procedure Act 5 U.S.C. §§553(b)-(c), 702 (2006).
42. See JANE J. MANSBRIDGE, BEYOND ADVERSARY DEMOCRACY 31-33 (1983).
43. See Mathias Risse, Arguing for Majority Rule, 12 J. POL. PHIL. 41,43-48,57-62 (2004)
44. (critiquing arguments for majority rule and describing various alternate voting procedures); see also BEITZ, supra note 5, at 58-67 (arguing that simple majority rule does not completely satisfy social choice theory).
45. See BEITZ, supra note 5, at 90 ("[F]air procedures ought not to allow the more or less permanent exclusion of an entrenched minority from effective participation in politics."). As Douglas Rae has argued, if our collective choice about decision rules is guided by the aim of assuring each person that the system maximizes the chances of getting what he wants and not getting what he does not want, majority rule wins out only under extremely restrictive conditions - strictly pair-wise alternatives, strictly individualistic preferences (no factions or coalitions), no linkages across decisions, no accounting for intensity of preferences, no asymmetry of gains and losses (no preference for avoiding bads over achieving goods).
46. See Douglas W. Rae, Decision-Rules and Individual Values in Constitutional Choice, 63 AM. POL. Sei. REV. 40, 40-63 (1969)
47. (discussing the difficulties that permanent minority factions pose to majority rale). If we depart from these conditions (by allowing for the existence of factions, by including non-individualistic preferences, etc.), majority rale loses its appeal. See id.
48. United States v. Carolene Prods. Co., 304 U.S. 144,153 n.4 (1937);
49. JOHN HART ELY, DEMOCRACY AND DISTRUST, 152-53 (1980)
50. (arguing that the real issue is not that the minorities are "discrete and insular," rather that status is the result of an underlying prejudice that is harmful to a democratic system). Note here that the objection to a simple aggregation approach refers to the underlying strategy of justification.
51. Waldron argues this point in his terrific review of John Rawls's Collected Papers. See generally Jeremy Waldron, The Plight of the Poor in the Midst of Plenty, LONDON REV. BOOKS, July 15,1999, at 3-6
52. (reviewing JOHN RAWLS, COLLECTED PAPERS (Samuel Freeman ed., 1999)).
53. For another account see, for example, BEITZ, supra note 5, at 23 ("[T]he terms of democratic participation are fair when they are reasonably acceptable from each citizen's point of view.").
54. DWORKIN, supra note 3 (manuscript at 246).
55. Id. (manuscript at 250).
56. Id. (manuscript at 249-51).
57. See GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 353-54 (2d ed. 2008).
58. See id. at 415-19 ("[Tjhose who rely on the courts absent significant public and political support will fail to achieve meaningful social change, and may set their cause back.");
59. Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 VA. L. REV. 7,71, 85 (1994)
60. (arguing that "a transformation in American race relations was ... a virtual inevitability" and that judicial action through Brown "catalyz[ed] southern resistance to racial change").
61. See generally Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373 (2007) (arguing that backlash is a normal part of "democratic constitutionalism" because it permits the people to have an interpretive voice in constitutional law).
62. See MICHAEL W. MCCANN, RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION 58-65 (1994);
63. Thomas M. Keck, Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights, 43 LAW & Soc'Y REV. 151 passim (2009)
64. [hereinafter Keck, Beyond Backlash] (observing how same-sex marriage law suits resulted in a backlash against gay rights, but also laid the groundwork for future successful litigation);
65. cf. Thomas M. Keck, Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?, 101 AM. POL. Sci. REV. 321, 322-23 (2007)
66. (examining how often and under what circumstances "partisan elites regularly attempt to use the Court to promote their own policy preferences and political fortunes").
67. See Keck, Beyond Backlash, supra note 42, at 172.
68. See Lawrence v. Texas, 539 U.S. 558, 578-79 (2003) (holding a Texas sodomy law to be a violation of substantive due process).
69. See MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 151-57 (comparing the British and American models and illustrating a higher caliber of constitutional debate in the British system).
70. WALDRON, supra note 9, at 289-94 (discussing how "limited review" may have improved the quality of political dialogue on issues such as abortion and gay rights in the United Kingdom and New Zealand); see also TUSHNET, supra note 45 at 157 ("[T]he performance of legislators and executive officials [in systems with weak judicial review] in interpreting the constitution is not . . . dramatically different from the performance of judges.").
71. DWORKIN, supra note 3 (manuscript at 251).
72. See id. (manuscript at 219-20) ("We do better when we recognize that the familiar concepts of political virtue are interpretive concepts.").
73. See Yuval Eylon & Alon Harel, A Right to Judicial Review, 92 VA. L. REV. 991, 99799 (2006) (arguing that judicial review protects a moral right to a hearing rather than merely a legal "watch-dog" right).
74. DWORHN, TAHNG RIGHTS SERIOUSLY 216-17 (1977)
75. (arguing that our judicial system provides democratic opportunities for "the development and testing of the law through experimentation by citizens and through the adversarial process").
76. For two good discussions responding to Waldron, which I found helpful in writing this paper,
77. see Annabelle Lever, Is Judicial Review Undemocratic?, PUB. L., Summer 2007, at 280,
78. which argues that Waldron has underestimated "the extent to which democratic forms of politics can be judicial," and
79. Annabelle Lever, Democracy and Judicial Review: Are They Really Incompatible?, 7 PERSP. ON POL. 805 (2009),
80. which illustrates a democratic justification for judicial review. For a good discussion of the philosophical and constitutional underpinnings of judicial review and its implications on democracy and equality,
81. see RONALD DWORHN, A MATTER OF PRINCIPLE 33-71 (1985).