Abstract
In Democratic Rights: The Substance of Self-Government, Corey Brettschneider develops an attractive and powerful conception of self-government – the value theory of democracy – that encompasses both substantive rights like privacy and procedural rights. Although he argues, following Habermas and Rawls, that substantive rights and procedural rights are “co-original,” the structure of his theory may lead him to reduce the former into the latter and not fully to account for personal self-government in his conception of democratic self-government. The wages of his democratic justifications for substantive rights may be a surprising anxiety or unwarranted tension concerning judicial review protecting such rights.
Keywords
Introduction
I am delighted and honored to write an essay for this mini-symposium on Corey Brettschneider’s excellent book, Democratic Rights: The Substance of Self-Government. 1 I am the author of a similar book, Securing Constitutional Democracy: The Case of Autonomy, 2 likewise concerned with justifying a conception of self-government that encompasses both substantive rights (such as the right to privacy) and procedural rights (like rights to participate in the political processes). For that reason, I may be either the best or the worst person to write about Brettschneider’s book. The best, because I may be an especially careful and sympathetic reader. The worst, since I may be inclined, wherever we differ, to say essentially that my book is superior to his! With this caveat, I offer these reflections on the substance of self-government. I shall focus on how best to justify substantive rights and what form substantive theories of self-government should take. I shall suggest, contrary to the implications of his title, that Brettschneider’s conception of democratic rights and the substance of self-government is too procedural – or that it is not substantive in the most compelling way.
I shall begin by introducing some salient similarities and differences between our books. First, the similarities. Both Brettschneider and I defend capacious conceptions of democracy – the value theory of democracy and constitutional democracy, respectively – within which substantive rights along with procedural rights are integral to constitutional self-government. Indeed, each of us argues, following Jürgen Habermas and John Rawls, that procedural rights and substantive rights are “co-original.” 3 Both of us argue, with Rawls, that not only procedural rights but also substantive rights are necessary to secure the status of free and equal citizenship for all. 4
What is more, both Brettschneider and I advance conceptions of democracy with two principles or themes. Brettschneider’s democratic contractualist framework centers on two principles or themes inspired by Habermas’s conception of citizens as both “authors” of law and as “addressees” impacted by law. 5 He also puts forward another formulation with two principles: democracy’s public reason and inclusion. 6 My constructivist framework with two themes – securing the procedural liberties related to deliberative democracy along with the substantive liberties associated with deliberative autonomy – builds on Rawls’s conception of citizens as having two moral powers, the capacity for a conception of justice and the capacity for a conception of the good. 7 Applying these frameworks, both of us argue that the right of privacy, interpreted in cases like Lawrence v. Texas (2003) to include a right of intimate sexual association, is integral to democracy as we conceive it. 8 And both of us argue that welfare rights are integral to democracy, though neither of us argues that they are judicially enforceable in the absence of legislative action. 9
Now, a few differences. One, Brettschneider claims to be elaborating a conception of ideal democracy, whereas I am elaborating the conception of democracy that best fits and justifies the American constitutional document and underlying constitutional order. 10 Two, both of us develop theories that are, broadly speaking, Rawlsian, but our books illustrate two different varieties of Rawlsian analysis. Brettschneider deploys a democratic contractualism. 11 To oversimplify, such an approach asks, what principles would reasonable persons agree to in the original position. I develop a constitutional constructivism (by analogy to Rawls’s political constructivism developed in Political Liberalism). 12 Such an approach asks, what principles justify the practices of constitutional democracies such as that of the United States.
And three, we advance different justifications for the substantive right of privacy. Brettschneider’s is a “democratic” justification, as we shall see. My justification is more eclectic and draws upon arguments in the constitutional cases – sounding in “decisional autonomy,” “personhood,” or “dignity” – which he rejects in favor of a “democratic” justification. I frame my justification in terms of deliberative autonomy or personal self-government.
In this essay, I shall elaborate these similarities and differences in exploring how best to justify substantive rights and what form substantive theories of self-government should take. In Part I, I shall take up the relationship between political theories of ideal democracy and constitutional theories that aim to fit and justify the practices of constitutional orders such as our own, suggesting that Brettschneider’s theory and my theory, despite apparent differences, actually occupy roughly the same space or ground. In Part II, I shall assess the structure of Brettschneider’s value theory of democracy, comparing it with that of my own theory of constitutional democracy. In Part III, I shall analyze the content of his value theory of democracy, suggesting that he may reduce what I shall call our irreducible, dualist Constitution (of fundamental rights and democracy) to democracy and that he may not fully account for personal self-government in his theory of democratic self-government. Finally, in Part IV, I shall criticize his analysis of judicial review, suggesting that the cost of his democratic justification for substantive rights like privacy is a surprising anxiety or unwarranted “tension” concerning judicial review protecting such rights.
I. Ideal Political Theory in Relation to Constitutional Constructivism
When I first read Brettschneider’s book, in preparation for a roundtable on his book and mine at the annual meeting of the American Political Science Association, 13 I thought there was a basic division of labor between our two books. As I put it in the introduction, he claims to be elaborating a conception of ideal democracy, whereas I am elaborating the conception of democracy that best fits and justifies the American constitutional document and underlying constitutional order. As such, Brettschneider is more engaged with political theorists about the best conception of ideal democracy, while I am engaged with constitutional theorists about the conception of democracy embodied in our constitutional practice.
If both of our theories are, broadly speaking, Rawlsian, what accounts for the apparent division of labor? As stated above, our theories illustrate two different varieties of Rawlsian analysis. Brettschneider deploys a democratic contractualism. 14 Such an approach asks, what principles would reasonable persons agree to in the original position. And I develop a constitutional constructivism (by analogy to Rawls’s political constructivism, using Rawls’s guiding framework of basic liberties as an architecture for a constitutional theory). 15 Such an approach asks, what principles justify the practices of constitutional democracies such as that of the United States.
I have come to believe that our theories occupy roughly the same space or ground: not the ground of ideal political theory, but that of the best account of the form of self-government embodied in constitutional orders such as our own. Careful readers will notice the Rawlsian sound to this formulation: it sounds in political constructivism rather than ideal theory. It may seem presumptuous to do so, but I shall quibble with Brettschneider’s characterization of his own theory. He presents the value theory of democracy as a form of ideal theory – or a theory of what democracy ideally, or truly, means. 16 By contrast, I frame my theory of constitutional democracy as the best account of the form of government embodied in a constitutional order such as our own. So framed, our accounts might seem to be parallel, perhaps even complementary, but to occupy different space or ground.
But I believe that this formulation overstates the differences between our projects. I shall make two observations. First, Brettschneider’s account of ideal democracy seems also to be an account of the form of government embodied in our constitutional practice. In elaborating and defending his theory, he offers examples drawn from American constitutional practice concerning the right to privacy, the rights of the punished, and the rights to private property and welfare. He analyzes the American Constitution and discusses leading constitutional cases. And he develops his account of ideal democracy with the American practice of judicial review – and anxieties about the “counter-majoritarian difficulty” said to be posed by judicial review enforcing substantive rights – uppermost in mind. 17 Thus, I think it fair to say that he is not offering a theory of ideal democracy in the abstract, as a utopian theory, without regard for the character and practice of constitutional orders such as our own. Also, he offers his democratic justifications for rights – as opposed to traditional liberal justifications sounding in autonomy, dignity, or personhood – with the debates in American constitutional theory – not just those concerning ideal political theory – in mind. And so, again, it seems fair to suggest that what he styles an account of ideal democracy is very much an account of the form of democracy embodied in our constitutional practice.
Second, my account of the form of government embodied in our constitutional scheme reflects an aspiration to ideal theory in a bounded, constructivist sense. My constitutional constructivism, by analogy to Rawls’s political constructivism, aspires to develop the theory that best fits and justifies our constitutional practice. It does not make straightforward arguments of normative theory about ideal democracy, unbounded by the legal materials of our constitutional scheme: the constitutional document and underlying constitutional order, including its cases, tradition, practice, and culture. Nonetheless, my constructivism, in seeking reflective equilibrium between the “fixed points” of extant legal materials and underlying justifying principles, aspires to a certain sort of bounded ideal: not an ideal in the sense of positing a utopian theory, but an ideal in the constructivist sense of working toward the justification that interprets the extant constitutional practice in its best light. In my book, I have sought to capture, and to bound, this aspiration by characterizing my constitutional theory as a Constitution-perfecting theory – it aspires to interpret the Constitution so as to make it the best it can be (to recall Dworkin’s famous formulation). 18 Thus, my theory may seem to aspire to ideal theory – in a bounded, constructivist sense.
To recapitulate: Brettschneider presents his book as an account of ideal democracy, though he clearly has at least one foot in justifying a certain account of American constitutional practice. I present my book as an account of American constitutional practice, though I clearly have at least one foot in normative liberal theory – of a bounded, constructivist kind. And so, despite the evident division of labor between them, our books converge upon, and occupy, roughly the same theoretical space or ground. In sum, I think the ideal that theories like Brettschneider’s and mine aspire to is not ideal democracy as such, but the best account of the form of democracy embodied in constitutional orders such as our own. This is certainly how I characterize my project of constitutional constructivism. And I think this is a better way to understand his project than his own characterization of it as developing an ideal theory of democratic rights that includes the substance of self-government.
II. The Value Theory of Democracy
In Chapters One and Two, Brettschneider develops and defends the value theory of democracy as against majoritarian and procedural theories. The value theory views democracy as justified by three core substantive values – equality of interests, political autonomy, and reciprocity – rather than majority will or procedures as such. 19 Furthermore, these three core values entail not only procedural rights of participation in democratic processes but also substantive rights that constrain majority will and democratic processes. His main examples of such substantive rights, in Chapters Four, Five, and Six, are the right to privacy, the rights of the punished, and the rights to private property and welfare. Brettschneider presents an attractive and sophisticated account of liberal democracy. The three underlying values that he emphasizes are indeed core values. And they do underlie and justify substantive rights along with procedural rights. Liberal theories do typically justify such rights and prize such values.
What is distinctive about his account – as a form of liberal theory – is that he rejects traditional liberal justifications of substantive rights on the ground that they are prior to, and more fundamental than, procedures of democracy. He contends that such liberal accounts run into “the problem of constraint.” 20 As he sees it, they are forced into saying that substantive rights like privacy, autonomy, dignity, and the like are more fundamental than democracy itself. 21 Brettschneider argues, to the contrary, that substantive rights limiting majority will are entailed by the ideal of democracy itself. For they are justified by the core values of democracy – again, equality of interests, political autonomy, and reciprocity. 22 In that sense, they are, as he puts it, “democratic rights” or the “substance of self-government.” He claims that his account, by grounding substantive rights in the ideal of democracy itself, “avoids the problem of constraint.” 23 He also claims that it “resolves” that problem. 24
Not so fast. Brettschneider’s account of the substantive rights that constrain majority will may relocate, rather than avoid or resolve, what he calls “the problem of constraint.” The traditional liberal formulations, he says, conceive substantive rights as prior to and constraining democracy on the basis of fundamental rights. Brettschneider’s account, by contrast, conceives substantive rights as inherent in the fundamental values that justify democracy itself. The traditional liberal accounts conceive the fundamental rights as grounded in autonomy, dignity, or personhood, whereas Brettschneider conceives them as grounded in equality of interests, political autonomy, and reciprocity, the fundamental values underlying democracy itself. Yet in both instances, fundamental rights or fundamental values – which are conceived as more fundamental than majority rule – constrain majority rule. And so, both accounts justify the same substantive constraints on majority rule in the name of values that are more fundamental than majority rule. That is what I mean when I suggest that Brettschneider’s account, instead of avoiding or resolving the so-called problem of constraint on majority rule, may relocate it from values that are said to be prior to majority rule to values that are said to inhere in democracy itself.
I fear that Brettschneider takes this route because of the limitations of the architecture of his value theory of democracy. My theory of constitutional democracy, instead of conceiving substantive constraints on majority rule as a problem to be avoided or relocated, conceives those constraints as a solution to the problem of unlimited majority rule! It builds this solution into the very structure of constitutional democracy. For I meld justifications for procedural rights on the basis of democracy (its first theme) with justifications for substantive rights on the basis of autonomy (its second theme). And, with Rawls, I justify both themes as “co-original and of equal weight,” rather than conceiving democracy as more fundamental than autonomy. Thus, my theory of constitutional democracy preserves the co-originality of democracy and autonomy in the very architecture of the justifications for rights.
Brettschneider invokes Habermas’s idea of the co-originality of democracy and autonomy, 25 but I fear that his account, like that of Habermas, ultimately treats democracy as more fundamental than autonomy. For both of them, substantive constraints on majority rule must derive from democracy itself. Put another way, I shall suggest that Brettschneider’s account tends to reduce our Constitution from a dualist structure of democracy and autonomy into democracy (and that there are costs of doing so). I also shall suggest that, for this reason, he does not fully account for personal self-government in his theory of democratic self-government. 26
III. The Democratic Justification for the Substantive Rights to Privacy: The Missing Selves in Constitutional Self-Government
In this section, I shall focus on the missing personal selves in Brettschneider’s theory of self-government: he does not develop an adequate theory of personal self-government as an aspect of constitutional self-government. But I want to begin by making a point about the architecture of his theory. It is inadequate to our irreducible, dualist Constitution. Accordingly, and surprisingly, he ends up reducing our dualist scheme – combining constitutionalism and democracy – into the mold of democracy.
1 Constitutionalism, Democracy, and Our Irreducible, Dualist Constitution
Abner Greene has put forward the idea of our “irreducible Constitution,” 27 and I have embraced such an idea. 28 For present purposes, the idea, roughly, is this. Our constitutional scheme of government combines elements of democracy and constitutionalism, or democracy and fundamental rights. Some constitutional theorists reduce our constitutional scheme to a democracy, to the neglect of fundamental rights that constrain democracy. Others overemphasize fundamental rights constraining democracy, to the neglect of democracy.
Greene argues that our “irreducible Constitution” resists being reduced to either democracy or fundamental rights (and that this is a good thing, too). I would add that we should learn to live with the tension between constitutionalism and democracy, rather than reducing constitutionalism and fundamental rights into democracy. Although Greene has lumped me in with the camp that overemphasizes fundamental rights to the neglect of democracy, 29 I have tried to agree with him concerning the importance of not reducing our Constitution into either democracy or fundamental rights. 30 Indeed, I have made “irreducible Constitution” criticisms of the conceptions of democracy in the works of John Hart Ely, Cass Sunstein, and Bruce Ackerman. 31 I have argued that each of them has sought, in analogous ways, to reduce or level our irreducible, incorrigible, 32 dualist Constitution into a scheme of democracy or popular sovereignty to the neglect of constitutionalism and fundamental rights. Even when they do not neglect constitutionalism and fundamental rights, they recast them into the mold of democracy, to the detriment of autonomy.
In Securing Constitutional Democracy, I have put forward a Constitution-perfecting theory with an architecture that honors the imperative of not reducing our constitutional scheme into democracy or fundamental rights, and of not reducing constitutionalism into democracy. This is a theory of securing constitutional democracy with a guiding framework of two fundamental themes of deliberative self-government. 33 As stated above, the first theme is concerned to secure the basic liberties that are preconditions for deliberative democracy, to enable citizens to apply their capacity for a conception of justice to deliberating about the justice of basic institutions and social policies. The second theme is concerned to secure the basic liberties that are preconditions for deliberative autonomy, to enable citizens to apply their capacity for a conception of the good to deliberating about and deciding how to live their own lives.
I have argued that there are good reasons – architectural reasons, or reasons concerned with the construction of theories – for conceiving our basic liberties in terms of securing the preconditions not only for deliberative democracy but also for deliberative autonomy, instead of framing them as, or reducing them into, preconditions for democracy 34 – or instead of conceiving rights of autonomy as “democratic rights,” in Brettschneider’s formulation. The first reason is prophylactic: articulating a constitutional theory with these two themes protects us against taking flights from substance to process by recasting substantive liberties as procedural liberties or neglecting them. Even if imaginative democratic theorists can recast some of the substantive liberties that are preconditions for deliberative autonomy as preconditions for deliberative democracy, renditions of those liberties in such terms fail to capture what is at stake in some instances or leave out something important in the translation. Constitutional constructivism is not driven to undertake such reductive flights in the first place, for it does not entertain any (untenable) presupposition that the idea of democracy is relatively uncontroversial and a matter of stable consensus while the idea of autonomy is hopelessly contested and a matter of profound disagreement. It understands that both are normatively contested and can be elaborated only through substantive political theory or substantive constitutional choices.
The second, related reason is architectonic: presenting our basic liberties by way of the guiding framework illustrates that the two fundamental themes of deliberative democracy and deliberative autonomy are, as Rawls put it, “co-original and of equal weight.” 35 For both themes derive from a common substrate – namely, a conception of citizens as free and equal persons (with two moral powers) and a conception of society as a fair system of social cooperation. Thus, the guiding framework may help meet such long-standing objections as those stemming from the traditions of civic republicanism and discourse ethics – that liberal theories treat the liberties of the moderns (associated with autonomy) as being “prepolitical” or “prior to all political will formation” and thus as having “priority” over the liberties of the ancients (related to democracy). 36 Similarly, it may rebut objections that the basic liberties associated with autonomy are anomalies while the basic liberties related to democracy are integral. For it shows that both themes are constitutive of, and articulate preconditions for, the sovereignty of free and equal citizens.
The third, more general reason is heuristic: articulating our basic liberties through these two themes keeps in view that our constitutional scheme is a dualist constitutional democracy, not a monist or majoritarian representative democracy. Doing so fortifies us against being fooled by the tyranny of simple labels like “democracy” into thinking that there is something illegitimate or embarrassing about arguing for rights related to autonomy (or that there is nothing illegitimate or problematic about majoritarian representative democracy). It also wards off any illusion that we can accomplish an easy resolution between democracy and autonomy through a unified account of democracy such as “Democracy and autonomy are one and that one is democracy.” 37
A final reason is elegance: the importance of being elegant (though not too reductive) in constructing a constitutional theory. 38 A major reason for the attractiveness of Ely’s theory of reinforcing representative democracy is its elegance. Ely provides an elegant account of judicial review as perfecting the processes of representative democracy through two intelligible, comprehensive themes: first, keeping the processes of political communication and participation open, and second, keeping those processes free of prejudice against discrete and insular minorities in order to ensure equal concern and respect for everyone alike. 39 In Securing Constitutional Democracy, I suggested that an important reason for the persistence of process-perfecting theories such as Ely’s, notwithstanding the resistance to them, is that no one has done for “substance” what Ely has done for “process.” That is, no one has developed an alternative substantive Constitution-perfecting theory – a theory that would reinforce not only the procedural liberties (those related to deliberative democracy) but also the substantive liberties (those related to deliberative autonomy) embodied in our Constitution and presupposed by our constitutional democracy – with the elegance and power of Ely’s process-perfecting theory. By developing a Constitution-perfecting theory with two fundamental themes of deliberative democracy and deliberative autonomy, I attempt to emulate the elegance of Ely’s theory without taking a reductive flight from substance to process like that which he takes.
The dualist Constitution-perfecting theory that I have developed would not reduce our Constitution into democracy or fundamental rights, but would conceive both as “co-original and of equal weight” and would cast both in the architecture of the theory of constitutional democracy. I imagine that Brettschneider would be sympathetic with most of these arguments, and I grant that his theory is less vulnerable to these criticisms than are Ely’s, Sunstein’s, and Ackerman’s. Nonetheless, I fear that his framing of substantive rights as democratic rights may lead to such difficulties.
With these qualifications in mind, we should ask, does Brettschneider reduce or level constitutionalism into democracy? On the face of it, it might seem that he does not. After all, he emphasizes that his theory of democracy is decidedly non-majoritarian, and is instead a substantive theory of self-government (a formulation that appears to preserve the tension between constitutionalism and democracy). And he advances a conception of democracy that is pointedly dualist (in the ways I have sketched): it protects not only procedural rights but also substantive rights through its two principles (both his two themes related to the authors and addressees of law and his two principles of democracy’s public reason and inclusion). So it would seem that he does not reduce or level constitutional self-government into democracy.
At the same time, it seems that Brettschneider does reduce or level constitutionalism into democracy. For one thing, he repeatedly says that his substantive conception of self-government is democracy and he goes so far as to say that his substantive constraints on majorities are required by democracy. For another, he rejects familiar constitutionalist and liberal understandings of substantive rights of privacy or autonomy as fundamental rights of personal self-government, instead recasting these rights into the mold of his conception of democracy.
These moves raise concerns for me as a proponent of the irreducible Constitution thesis. We should not labor under the compulsion always to say that a theory of constitutionalism or fundamental rights is a theory of democracy, or that fundamental rights are elements of democracy. These moves suggest that the constitutionalism or fundamental rights elements of our irreducible Constitution are being reduced or leveled into democracy. Again, in my book, I have argued that the best architecture for resisting such reductions or leveling is a substantive dualism with two themes corresponding to democracy and constitutionalism: a Constitution-perfecting theory of securing constitutional democracy through protecting not only the procedural liberties associated with deliberative democracy, but also the substantive liberties related to deliberative autonomy.
2 The Missing Personal Selves in Constitutional Self-Government: Personal Self-Government
Strikingly, and relatedly, Brettschneider does not put forward a theory of self-government. Say what? Doesn’t he have “self-government” in the title of his book? My argument will be that he does not develop an adequate account of personal self-government in his theory of democratic self-government.
The dualist conception of constitutional democracy that I defend is a theory of deliberative self-government in two senses: (1) deliberative democracy – or political self-government, and (2) deliberative autonomy – or personal self-government. In Ordered Liberty: Rights, Responsibilities, and Virtues, Linda McClain and I also have engaged with the literature on reviving civil society that argues that persons have to learn self-government – how to govern themselves as persons – before they can become good citizens and thus participate in political self-government. 40 I have criticized this literature for failing to articulate how the former leads to the latter. But here I want to note that it has the virtue of highlighting two senses of self-government: personal self-government and political self-government.
Brettschneider rejects liberal justifications for the right to privacy in terms of “decisional autonomy” or personal self-government in favor of what he conceives as a democratic justification for it. 41 To him, the self that governs in self-government is the people. And the core value of autonomy is political autonomy, not personal autonomy. 42 For him, our Constitution includes a democratic right of privacy to protect our status as free and equal citizens. 43 But it evidently does not include a liberal principle of personal self-government – what I have called deliberative autonomy – to enable persons to govern themselves. And so, his democratic justification for privacy does not entail a notion of deliberative autonomy (or deliberative personal self-government). Instead, he wants to derive privacy from the core values of democracy.
Why would Brettschneider reject the idea of a right to personal self-government or deliberative autonomy? Two possible reasons are implicit in what I have already said. The first reason is rooted in his concern to “avoid the problem of constraint” that he sees as afflicting traditional liberal justifications of fundamental rights on the basis of autonomy, dignity, personhood, and the like. But, as stated above, I believe he merely relocates rather than avoids this problem (if it is a problem). The second reason is that his invocation of Habermas may lead him to reject grounding substantive rights to privacy on a conception of deliberative autonomy or rights necessary for personal self-government. This despite his criticism of Habermas for conflating “the substantive rights of addresses with procedural rights enjoyed by citizens as authors of law.” 44 Here I would reiterate that there are advantages to building instead upon Rawls’s dualistic guiding framework.
At two points in his justification for the right to privacy, I interpret Brettschneider as coming close to articulating a view like that I am espousing. At one point, he mentions Rawls’s conception of persons as having two moral powers – the capacity for a conception of justice and the capacity for a conception of the good. 45 In speaking of Rawls’s idea of the second moral power, the capacity for a conception of the good, he seems to be on the brink of articulating a conception of privacy as protecting personal self-government: one that would link up with his second themes of (1) addressees of law and (2) the principle of inclusion. But he merely intimates such an idea before going back to his “democratic” justification for privacy as rooted in “democratic autonomy,” not personal autonomy. 46
The other point where Brettschneider seems about to offer a conception of personal self-government is where he speaks of his theory as supporting a “presumption of freedom,” or a “presumption of privacy.” 47 In context, it would appear that the best reason for having such a presumption would be to protect a realm of personal self-government from majority compulsion or intrusion.
But I worry that his formulation, the presumption of freedom or the presumption of privacy, could get his theory into trouble. For it could make his account seem more libertarian, and more rights-absolutist, than it is. It sounds like Randy Barnett’s libertarian formulation of the “presumption of liberty” and against governmental regulation. 48 That could spell trouble for his attempt to show that his democratic justification of privacy does not rule out feminist arguments for state intervention to protect women in order to secure their status as free and equal citizens. 49 And that does in fact spell trouble when he cashes out the presumption of freedom or presumption of privacy in terms of requiring “compelling interests” and a “presumption of invalidity” where governmental regulation touching upon privacy is concerned. 50 These formulations are code for “strict scrutiny” to protect fundamental rights.
In Ordered Liberty, McClain and I expose the “myth of strict scrutiny for fundamental rights,” including privacy, under the Due Process Clause. 51 We show that protection of basic liberties under the Due Process Clause has never been that strict – and that that’s generally been a good thing. We show that the constitutional cases under that clause have protected important substantive rights stringently, but not as strictly as “strict scrutiny” implies – and not so strictly as to preclude governmental encouragement of responsibility and inculcation of civic virtues. We argue that this is a good thing from the standpoint of a constitutional liberalism – by analogy to political liberalism – concerned to secure the status of free and equal citizenship for all.
I do not want to overstate my criticism here, or to deny that Brettschneider’s democratic justification for privacy has close affinities to my deliberative autonomy justification for it. But I do think that my use of Rawls’s guiding framework with two themes provides a clearer and sturdier structure for justifying such rights than does Brettschneider’s use of Habermas’s two themes.
IV. “Tension” Surrounding Judicial Review: The Wages of Democratic Justifications for Substantive Rights
So far, my observations about (and gentle criticisms of) Brettschneider’s democratic justifications for substantive rights have been largely architectural. In various ways, I have suggested that he and I are saying similar things about substantive rights – with similar advantages over majoritarian and procedural accounts – while suggesting that there are subtle architectural advantages of my formulations over his. Now, I want to express a concern that his democratic justifications for substantive rights do have a cost – a cost that comes out in Chapter Seven in his discussion of judicial review in a democracy.
Brettschneider opens his book by developing a substantive account of democratic rights that resolves the “counter-majoritarian difficulty” (and associated anxiety over judicial review in a democracy). He shows that substantive rights are integral to, rather than anomalous in, our form of democracy as best understood. Yet, in the final chapter, when he offers a justification for judicial review within his value theory of democracy, it seems that he reintroduces the anxiety over counter-majoritarian substantive rights that it was the point of his theory to alleviate. He distinguishes three hypothetical figures: (1) Justice Process (a pure proceduralist like Jeremy Waldron who rejects judicial review enforcing substantive rights as illegitimate); (2) Justice Results (someone like Dworkin who accepts judicial review protecting substantive rights as unproblematically legitimate); and (3) Justice Tension (someone who accepts judicial review enforcing substantive rights but who regrets it as entailing “a loss to democracy”). 52 Brettschneider concedes that some readers might expect him to side with Justice Result: that judicial review enforcing substantive rights is fully justifiable and inflicts no loss to democracy. Yet he presents himself as aligned with Justice Tension: that judicial review enforcing substantive rights limiting majorities creates “tension” and does inevitably lead to a loss to democracy. 53
I daresay that such are the wages of democratic justifications for substantive rights. For Brettschneider purports to resolve the counter-majoritarian difficulty (and anxiety over judicial review) with his value theory of democracy, only to reintroduce this “tension” when the rubber hits the road. As I see it, purportedly democratic justifications for substantive rights constraining majorities have this tendency – to postpone or relocate but not to overcome this anxiety (or tension). At the beginning of his book, he alleviates or even overcomes this tension, again, by arguing that substantive rights like privacy themselves are democratic rights, entailed by the value theory of democracy. At the end, however, Brettschneider reintroduces this tension, through his regrets or anxiety over the loss to democracy from judicial review protecting substantive rights and overturning decisions of majorities. Yet it is not clear, on his own account, why we should worry about this supposed tension.
From the standpoint of my theory, once we have built the substantive rights into our conception of democracy – whether Brettschneider’s value theory of democracy or Dworkin’s or my theories of constitutional democracy – we should not regret judicial enforcement of those substantive rights as somehow imposing a cost on democracy (as rightly understood). Any more than we should fret over the justification of substantive rights themselves in a democracy – or the tension between substantive rights and majority will. That tension is built into the very dualistic structure of our constitutional democracy. Perhaps Brettschneider is concerned with this supposed tension because his value theory of democracy tends to reduce our irreducible, dualist Constitution (of fundamental rights and democracy) to democracy and fails adequately to account for personal self-government in his theory of democratic self-government. Here is where my theory of securing constitutional democracy provides a sturdier architecture for and defense of the substantive rights necessary for not only political self-government but also personal self-government. Thus, it better secures the substance of self-government.
Footnotes
1.
Corey Brettschneider, Democratic Rights: The Substance of Self-Government (Princeton, NJ: Princeton University Press, 2007).
2.
James E. Fleming, Securing Constitutional Democracy: The Case of Autonomy (Chicago, IL: University of Chicago Press, 2006).
3.
Brettschneider, Democratic Rights, pp. 3–4 (quoting Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, MA: MIT Press, 1996), p. 104); Fleming, Securing Constitutional Democracy, p. 78 (quoting John Rawls, “Reply to Habermas,” Journal of Philosophy 92 (1995), pp. 132–80, 163).
4.
Brettschneider, Democratic Rights, pp. 34–5 (citing John Rawls, Political Liberalism (New York, NY: Columbia University Press, expanded ed., 2005), p. xlii); Fleming, Securing Constitutional Democracy, pp. 46, 69 (citing Rawls, Political Liberalism, p. 335).
5.
Brettschneider, Democratic Rights, pp. 28–38.
6.
Op. cit., pp. 55, 61–9.
7.
Fleming, Securing Constitutional Democracy, pp. 67–9.
8.
Brettschneider, Democratic Rights, pp. 1–5, 73, 78–80 (analyzing Lawrence v. Texas, 539 U.S. 558 (2003)); Fleming, Securing Constitutional Democracy, pp. 1–4 (also analyzing Lawrence).
9.
Brettschneider, Democratic Rights, pp. 126–35; Fleming, Securing Constitutional Democracy, pp. 66, 71, 213–15.
10.
Fleming, Securing Constitutional Democracy, pp. 92–8.
11.
Brettschneider, Democratic Rights, pp. 5, 54–70.
12.
Fleming, Securing Constitutional Democracy, pp. 60–74 (outlining a constitutional constructivism by analogy to Rawls’s political constructivism developed in Political Liberalism).
13.
“The Complexities of Securing Rights and Democracy: A Roundtable on Corey Brettschneider’s Democratic Rights: The Substance of Self-Government and James E. Fleming’s Securing Constitutional Democracy: The Case of Autonomy,” Annual Meeting of the American Political Science Association, Toronto, September 5, 2009. Thanks to Elizabeth Beaumont for organizing the roundtable, and to Eric Beerbohm, Jack Knight, and Steve Macedo for giving such thoughtful comments on our books.
14.
Brettschneider, Democratic Rights, pp. 5, 54–70.
15.
Fleming, Securing Constitutional Democracy, pp. 61–74.
16.
Brettschneider, Democratic Rights, pp. 11, 17, 160–61.
17.
Op. cit., pp. 1–2, 78.
18.
Fleming, Securing Constitutional Democracy, p. 211 (citing Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), pp. 176–275, in particular, p. 255).
19.
Brettschneider, Democratic Rights, pp. 19–26.
20.
Op. cit., pp. 7–8, 10.
21.
Op. cit., pp. 7–8.
22.
Op. cit., pp. 19–26.
23.
Op. cit., p. 72.
24.
Op. cit., pp. 8, 136–7.
25.
Op. cit., pp. 3–4, 17.
26.
James E. Fleming, “The Missing Selves in Constitutional Self-Government,” Fordham Law Review 71 (2003), pp. 1789–806. In Part III, I draw from pp. 1792–6 of this analysis.
27.
Abner S. Greene, “The Irreducible Constitution,” Journal of Contemporary Legal Issues 7 (1996), pp. 293–311.
28.
Fleming, Securing Constitutional Democracy, pp. 76–9; James E. Fleming, “We the Unconventional American People,” University of Chicago Law Review 65 (1998), pp. 1513–42, 1516.
29.
Greene, “Irreducible Constitution,” p. 296.
30.
Fleming, Securing Constitutional Democracy, pp. 76–9; Fleming, “We the Unconventional American People,” p. 1516.
31.
See, e.g., Fleming, Securing Constitutional Democracy, pp. 29–34, 43–51 (critiquing John Hart Ely, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980) and Cass R. Sunstein, The Partial Constitution (Cambridge, MA: Harvard University Press, 1993)); Fleming, “We the Unconventional American People” (critiquing Bruce Ackerman, We the People: Transformations (Cambridge, MA: Harvard University Press, 1998)).
32.
See Lawrence G. Sager, “The Incorrigible Constitution,” New York University Law Review 65 (1990), pp. 893–961 (arguing that our “incorrigible” justice-seeking Constitution resists being reduced to an expression of popular sovereignty or democracy).
33.
See, e.g., Fleming, Securing Constitutional Democracy, pp. 3–4, 67–74.
34.
Here I draw from op. cit., pp. 78–9.
35.
My argument here parallels that of Rawls in replying to Habermas’s charge that Rawls’s political liberalism treats the “modern liberties” or “private autonomy” as “prepolitical” or “prior to all political will formation.” See Rawls, “Reply to Habermas,” pp. 156–70 (replying to Jürgen Habermas, “Reconciliation through the Public Use of Reason: Remarks on John Rawls’s Political Liberalism,” Journal of Philosophy 92 (1995), pp. 109–31, 128–31). Rawls argues that the “liberties of the moderns” (which I relate to deliberative autonomy) and the “liberties of the ancients” (which I associate with deliberative democracy) are “co-original and of equal weight.” Rawls, “Reply to Habermas,” p. 163.
36.
For examples of such critiques, see, e.g., Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley and Los Angeles: University of California Press, 1984), pp. 30–32, 43–4, 142–3 (from standpoint of civic republicanism); Habermas, “Remarks on John Rawls’s Political Liberalism” (from standpoint of discourse ethics). For Rawls’s reply to Habermas’s critique, see Rawls, “Reply to Habermas,” pp. 156–70.
37.
Compare Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press,1989), p. 3 (“Marxism and feminism are one and that one is Marxism”) (citation omitted).
38.
By “elegant,” I mean to suggest the notion of elegance in the construction of scientific theories.
39.
Ely, Democracy and Distrust, pp. 75–88.
40.
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Cambridge, MA: Harvard University Press, forthcoming 2013), pp. 87–90.
41.
Brettschneider, Democratic Rights, pp. 7–11, 71–4.
42.
Op. cit., pp. 23–4.
43.
Op. cit., pp. 73–5.
44.
Op. cit., p. 30.
45.
Op. cit., p. 76.
46.
Op. cit.
47.
Op. cit., pp. 75–7.
48.
Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, NJ: Princeton University Press, 2004).
49.
Brettschneider, Democratic Rights, pp. 85–94.
50.
Op. cit., p. 149.
51.
Fleming and McClain, Ordered Liberty, pp. 237–241.
52.
Brettschneider, Democratic Rights, pp. 138–40.
53.
Op. cit., pp. 140–41.