Constitutionalism and Democracy 2005056909, 9780754624684, 9781315095455

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Constitutionalism and Democracy

The International Library of Essays in Law and Legal Theory Second Series Series Editor: Tom D. Campbell Titles in the Series: Freedom of Speech, Volumes I and II Larry Alexander

Human Rights Robert McCorquodale

Law and Legal Interpretation Fernando Atria and D. Neil MacCormick

Anti-Discrimination Law Christopher McCrudden

Privacy Eric Barendt

Medical Law and Ethics Sheila McLean

Comparative Legal Cultures John Bell

Mediation Carrie Menkel-Meadow

Constitutionalism and Democracy Richard Bellamy

Environmental Law PeterS. Mene/1

The Rule of Law and the Separation of Powers Richard Bellamy

Criminal Law Thomas Morawetz

Contract Law, Volumes I and II Brian Bix

Law and Language Thomas Morawetz

Corporate Law William W. Bratton

Law and Anthropology Martha Mundy

Law and Democracy Tom Campbell and Adrienne Stone

Gender and Justice Ngaire Naffine

Legal Positivism Tom D. Campbell

Seminal Issues in Mental Health Law Jill Peay

Administrative Law Peter Cane

Law and Economics Eric A. Posner

International Trade Law Ronald A. Cass and MichaelS. Knoll

Japanese Law J. Mark Ramseyer

Sociological Perspectives on Law, Volumes I and II Roger Cotterrel/

Restorative Justice Declan Roche

Intellectual Property Peter Drahos Cyberlaw, Volumes I and II Brian Fitzgerald Family, State and Law, Volumes I and II Michael D. Freeman Natural Law Robert P. George

Constitutional Theory Wojciech Sadurski Justice Wojciech Sadurski Regulation Colin Scott War Crimes Law, Volumes I and II Gerry Simpson Restitution Lionel D. Smith

The Creation and Interpretation of Commercial Law Clayton P. Gillette

Freedom of Information Robert G. Vaughn

Competition Law Rosa Greaves

Relocating Sovereignty Neil Walker

Law and Morality Kenneth Einar Himma and Brian Bix

Tort Law Ernest.!. Weinrib

Chinese Law and Legal Theory Perry Keller

Rights Robin West

Constitutional Law Ian D. Loveland

Welfare Law Lucy A. Williams

Constitutionalism and Democracy

Edited by

Richard Bellamy University College London

~~ ~~~;~:n~~:up LONDON AND NEW YORK

First published 2006 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint ofthe Taylor & Francis Group, an iriforma buJiness

Copyright © Richard Bellamy 2006. For copyright of individual m·ticles please refer to the Acknowledgements. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now knmvn or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing t1·om the publishers. Notice: Product or cmvorate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Constitutionalism and democracy. - (The international libnu·y of essays in law and legal theory. Second series) L Constitutional law 2. Democracy 3. GlobalizationPolitical aspects I. Bellamy, Richm·d (Richard Paul) 342 Library of Congress Cataloging-in-Publication Data Constitutionalism and democracy I edited by Richm·d Bellamy. p. em.- (The international library of essays in law and legal theory. Second series) Includes bibliographical references. L Constitutional law. 2. Constitutional law-Philosophy. 3. Democracy. I. Bellamy, Richard (Richard Paul) II. Series. K3165.C623 2006 342-dc22 2005056909 ISBN 9780754624684 (hbk)

Contents Acknowledgements Series Preface Introduction

PART I

2 3 4 5 6

7

8 9

11

3 13 37 81 115

137

CONSTITUTING DEMOCRACY: PROCEDURAL VIEWS

John Hart Ely (1978), 'Toward a Representation-Reinforcing Mode of Judicial Review', Maryland Law Review, 37, pp. 451-87. Mark Tushnet (1980), 'Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory', Yale Law Journal, 89, pp. 1037-62. Laurence H. Tribe (1980), 'The Puzzling Persistence of Process-Based Constitutional Theories', Yale Law Journal, 89, pp. 1063-80.

PART III

10

CONSTITUTIONAL DEMOCRACY: SUBSTANTIVE VIEWS

Ronald Dworkin (1995), 'Constitutionalism and Democracy', European Journal of Philosophy, 3, pp. 2-11. Ronald Dworkin (1990), 'Equality, Democracy, and Constitution: We the People in Comt', Alberta Law Review, 28, pp. 324--46. John Rawls (1997), 'The Idea of Public Reason Revisited', University of Chicago Law Review, 64, pp. 765-807. Jeremy Waldron (1993), 'A Right-Based Critique of Constitutional Rights', Oxford Journal of Legal Studies, 13, pp. 18-51. Cecile Fabre (2000), 'A Philosophical Argument for a Bill of Rights', British Journal of Political Science, 30, pp. 77-98. RobertA. Dahl (1957), 'Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker', Journal of Public Law, 6, pp. 279-95.

PART II

vii ix xi

157 195 221

CONSTITUTIONALIST DEMOCRACY: RECONCILING SUBSTANCE AND PROCEDURES

RobertA. Burt (1985), 'What was Wrong with Dred Scott, What's Right about Brown', Washington and Lee Law Review, 42, pp. 1-25. Jiirgen Habermas (1995), 'On the Internal Relation between the Rule of Law and Democracy', European Journal of Philosophy, 3, pp. 12-20.

241 267

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vi

12 13

Jtirgen Habermas (1994), 'Three Normative Models of Democracy', Constellations: An International Journal of Critical and Democratic Theory, 1, pp. 1-10. 277 Frank Michelman (1996), 'Democracy and Positive Liberty', Boston Review: A 287 Political and Literary Forum, 21, pp. 1-15. (Original pagination, pp. 3-15.)

PART IV

14 15

16

CONSTITUTIVE DEMOCRACY: POPULIST CONSTITUTIONALISM

Bruce A. Ackerman ( 1984 ), 'The Storrs Lectures: Discovering the Constitution', Yale Law Journal, 93, pp. 1013-72. Ulrich K. Preuss (1993), 'Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution', Cardozo Law Review, 14, pp. 639-60. Richard Bellamy and Justus Schonlau (2004), 'The Normality of Constitutional Politics: An Analysis of the Drafting of the EU Charter of Fundamental Rights', Constellations: An International Journal of Critical and Democratic Theory, 11, pp.412-33.

PARTV

305

365

387

CONSTITUTIONAL DEMOCRACY: BEYOND THE NATION-STATE

17

James Tully (2002), 'The Unfreedom of the Moderns in Comparison to their Ideals of Constitutional Democracy', Modern Law Review, 65, pp. 204-28. 18 William E. Scheuerman (1999), 'Economic Globalization and the Rule of Law', Constellations: An International Journal of Critical and Democratic Theory, 6, pp. 3-25. 19 James Bohman (2004), 'Republican Cosmopolitanism', Journal of Political Philosophy, 12, pp. 336-52. 20 Dieter Grimm (1995), 'Does Europe Need a Constitution?', European Law Journal, 1, pp. 282-302. 21 Jiirgen Habermas (1995), 'Remarks on Dieter Grimm's "Does Europe Need a Constitution?'", European Law Journal, 1, pp. 303-7. 22 Jiirgen Habermas (2001), 'Why Europe Needs a Constitution', New Left Review, 11, pp. 5-26. 23 J.H.H. Weiler (2003), 'In Defence of the Status Quo: Europe's Constitutional Sonderweg', in J.H.H. Weiler and M. Wind (eds), European Constitutionalism Beyond the State, Cambridge: Cambridge University Press, pp. 7-23. 24 Richard Bellamy (2003), 'Sovereignty, Post-Sovereignty and Pre-Sovereignty: Three Models of the State, Democracy and Rights within the EU', inN. Walker (ed.), Sovereignty in Transition, Oxford: Hart, pp. 167-89.

Name Index

411

437 461 479 501 507

529

547

571

Acknowledgements The editor and publishers wish to thank the following for permission to use copyright material. Alberta Law Review for the essay: Ronald Dworkin (1990), 'Equality, Democracy, and Constitution: We the People in Court', Alberta Law Review, 28, pp. 324-46. Blackwell Publishing Ltd for the essays: Ronald Dworkin (1995), 'Constitutionalism and Democracy', European Journal o.f Philosophy, 3, pp. 2-11; Jiirgen Habermas (1995), 'On the Internal Relation between the Rule of Law and Democracy', European Journal o.f Philosophy, 3, pp. 12-20; Jiirgen Habermas (1994), 'Three Normative Models of Democracy', Constellations: An International Journal of Critical and Demographic Theory, 1, pp. 1-10; Richard Bellamy and Justus Schonlau (2004), 'The Normality of Constitutional Politics: An Analysis of the Drafting of the EU Charter of Fundamental Rights', Constellations: An International Journal of Critical and Democratic Theory, 11, pp. 412-33; James Tully (2002), 'The Unfreedom of the Modems in Comparison to their Ideals of Constitutional Democracy', Modern Law Review, 65, pp. 204-28; William E. Scheuerman (1999), 'Economic Globalization and the Rule of Law', Constellations: An International Journal o,fCritical and Democratic Theory, 6, pp. 325; James Bohman (2004), 'Republican Cosmopolitanism', Journal of Political Philosophy, 12, pp. 336-52; Jiirgen Habermas (1995), 'Remarks on Dieter Grimm's "Does Europe Need a Constitution?'", European Law Journal, 1, pp. 303-7. Cambridge University Press for the essays: Cecile Fabre (2000), 'A Philosophical Argument for a Bill of Rights', British Journal o.f Political Science, 30, pp. 77-98. Copyright © 2000 Cambridge University Press. Reproduced with permission; J.H.H. Weiler (2003), 'In Defence of the Status Quo: Europe's Constitutional Sonderweg', in J.H.H. Weiler and M. Wind (eds), European Constitutionalism Beyond the State, Cambridge: Cambridge University Press, pp. 723. Copyright © 2003 Cambridge University Press. Reproduced with permission from the author and publisher. Cardozo Law Review for the essay: Ulrich K. Preuss (1993), 'Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution', Cardozo Law Review, 14, pp. 639-60. Hart Publishing for the essay: Richard Bellamy (2003), 'Sovereignty, Post-Sovereignty and Pre-Sovereignty: Three Models of the State, Democracy and Rights within the EU', inN. Walker (ed.), Sovereignty in Transition, Oxford: Hart, pp. 167-89. Maryland Law Review for the essay: John Hart Ely (1978), 'Toward a RepresentationReinforcing Mode of Judicial Review', Maryland Law Review, 37, pp. 451-87.

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Frank Michelman for the essay: Frank Michelman ( 1996), 'Democracy and Positive Liberty', Boston Review: A Political and Literary Forum, 21, pp. 1-15. New Left Review for the essay: Jiirgen Habermas (2001), 'Why Europe Needs a Constitution', New Left Review, 11, pp. 5-26. Oxford University Press for the essay: Jeremy Waldron (1993), 'A Right-Based Critique of Constitutional Rights', Oxford Journal o.f Legal Studies, 13, pp. 18-51. The Yale Law Journal Company for the essays: Mark Tushnet (1980), 'Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory', Yale Law Journal, 89, pp. 1037-62; Laurence H. Tribe (1980), 'The Puzzling Persistence of Process-Based Constitutional Theories', Yale Law Journal, 89, pp. 1063-80; Bruce A. Ackerman (1984), 'The Storrs Lectures: Discovering the Constitution', Yale Law Journal, 93, pp. 1013-72. All reprinted by permission of The Yale Law Journal Company and WilliamS. Hein Company. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Preface to the Second Series The first series of the International Library of Essays in Law and Legal Theory has established itself as a major research resource with fifty-eight volumes of the most significant theoretical essays in contemporary legal studies. Each volume contains essays of central theoretical importance in its subject area and the series as a whole makes available an extensive range of valuable material of considerable interest to those involved in research, teaching and the study of law. The rapid growth of theoretically interesting scholarly work in law has created a demand for a second series which includes more recent publications of note and earlier essays to which renewed attention is being given. It also affords the opportunity to extend the areas of law covered in the first series. The new series follows the successful pattern of reproducing entire essays with the original page numbers as an aid to comprehensive research and accurate referencing. Editors have selected not only the most influential essays but also those which they consider to be of greatest continuing importance. The objective of the second series is to enlarge the scope of the library, include significant recent work and reflect a variety of editorial perspectives. Each volume is edited by an expe1t in the specific area who makes the selection on the basis of the quality, influence and significance of the essays, taking care to include essays which are not readily available. Each volume contains a substantial introduction explaining the context and significance of the essays selected. I am most grateful for the care which volume editors have taken in carrying out the complex task of selecting and presenting essays which meet the exacting criteria set for the series. TOM CAMPBELL Series Editor Centre for Applied Philosophy and Public Ethics Charles Sturt University

Introduction

1

The term 'constitutional democracy' can be interpreted as either an oxymoron or a tautology. On the one hand, constitutionalism and democracy can appear opposed to each other. Whereas the first term refers to 'restrained and divided' power, the second implies its ultimately 'unified and unconstrained' exercise. 2 On the other hand, constitutions can be presented as codifying the rules of the democratic game, indicating who can vote, how, when and why. Since the democratic ideal involves more than mere adherence to the formal procedural devices of democracy, such as majority rule, many constitutionalists argue that no true democrat could consistently allow a democracy to abolish itself. There is no contradiction, therefore, in entrenching the rights that are inherent to the democratic process itself and preventing their abrogation even by democratically elected politicians. Consequently, it is an unconstitutional, rather than a constitutional, democracy that represents a contradiction in terms. Although this resolution is superficially compelling, a continuing source of conflict remains. There are many different models of democracy, all of which define citizenship and the democratic game in a variety of, often incompatible, ways. For democracy to mean 'people rule', the demos should be free to redefine the nature of their democracy whenever they want and not be tied to any given definition. After all, we value democracy as giving effect to the status of individuals as autonomous rights-bearers and, therefore, a consistent democrat should believe that individuals are entitled to play a role in determining both their rights as citizens and the political rules they have to play by (see Bellamy, 2001; Waldron, 1999, ch. 11). The need to keep open the possibility of democratic review seems pa:tticularly important when one remembers that the constitutions of many democracies have excluded significant categories of people from citizenship, notably women and those without property, and placed severe limits on the exercise of the popular will, such as the indirect election of representatives. Of course, some exclusions and limitations are inevitable- they m·e intrinsic to any rule-governed activity. That we m·e not lumbered with the exclusions and limitations of the eighteenth century, though, is in large pa:tt due to successive social and democratic movements and reforms. However, a fmther source of potential complementarity or opposition m·ises at this point. Most constitutions have been democratically enacted and lm·gely derive their legitimacy from that fact. The great constitutional moments, be they the British reform acts of the nineteenth and em·ly twentieth centuries, the conventions of the French and American revolutions or the constitutional assemblies of the post-1945 and post-colonial period, have been exercises of democratic politics that have transformed earlier conceptions of democracy. As a result, we should see constitutions not as constraints imposed upon democracy, but as the limits that a mature democracy places upon itself. Since constitutions have an actual, as well as a logical, relation to democratic practice, the em·lier objection that they infringe the autonomy of individuals as citizens proves misplaced. If constitutions are simply a:ttefacts of democracy, though, it seems difficult to accord them any independent weight. All democratic regimes operate within a fra:tnework inherited from the past, but there seems no compelling reason to prevent them from updating and rejecting

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that inheritance. Indeed, the very possibility of a people binding not only themselves but future generations as well seems fraught with difficulties. 3 Yet, constitutionalists may retort that the notion of democracy pulling itself up by its own bootstraps or being able to abolish itself sounds similarly odd. Surely, they argue, democracy is constituted by values, such as autonomy and equality, and rules - such as one person, one vote - that it does not itself create. If so, then their belief that the constitutional rules defining democracy cannot be curtailed even by the demos itself still holds. In which case, we appear to have come full circle, returning in the process to the objections raised against this argument above. This Introduction, and the volume as a whole, reviews the four main arguments that contemporary legal and political philosophers have employed to cut the Gordian knot of constitutional democracy. All four seek to redefine the terms of the opposition so as to render them compatible: the first by assimilating democracy into constitutionalism and emphasizing the importance of a framework of rights and liberties as necessary conditions of citizenship; the second by insisting, more modestly, that certain rights and rules are simply inherent to, and so necessary for, democratic procedures; the third by attempting to synthesize these two and emphasizing the implicit constitutional substance of democratic procedures; and the fourth by conceiving the constitution as the outcome of a democratic process. The first four sections of this Introduction discuss two prominent examples of each of these four theses, with the parallel sections of the volume as a whole containing essays that illustrate these views. Almost all the authors surveyed are American and I shall emphasize throughout how the dominant versions of these arguments have been inspired by rival understandings of the US constitution and the status of 'We the People' as its supposed authors. As we shall see, these idealizations of the American model prove disputable in their own terms and are, more often than not, belied by the reality. 4 The main focus of the essays in this collection is on constitutionalism and democracy within states. However, some theorists argue that such settlements are increasingly being challenged by globalization. A short final section, which does not even attempt to do justice to this all-important issue, brief1y considers to what extent that is true.

Constitutional Democracy: Substantive Views Theorists have offered two main accounts of why democracy should be viewed as preconstituted. The first, represented here by the essays by Ronald Dworkin and John Rawls (Chapters 1 and 3) in Part I of this volume, claims that democracy assumes certain moral values- notably that all citizens deserve equal concern and respect as autonomous rights-bearers and that we need a constitution to ensure that even democratically made laws adhere to them. The second, represented by John Ely's essay in Part II, merely observes that democracy involves certain rules and practices, such as majority vote and free speech, and that these alone deserve special protection. How far the procedures advocated by the second can be identified and defended without some reference to the values noted by the first is a moot point. Accordingly, I shall begin by examining the merits and pitfalls of Dworkin's and Rawls's accounts of constitutional democracy, reserving to the next section an assessment of the various attempts to overcome their drawbacks within an allegedly purely procedural theory. As we shall see, the substantive view largely focuses on the role and justification for a bill of rights upheld by judicial review. The essay by Jeremy Waldron, reproduced as Chapter 4 in Part I, directly criticizes such bills,

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while that of Cecile Fabre (Chapter 5) defends them. Meanwhile, the essay by R.A. Dahl (Chapter 6) questions the degree to which the US Supreme Court has worked as a counter-majoritarian force as Dworkin and Rawls claim.

Dworkin and the Substantive Rights of Citizenship In recent writings Ronald Dworkin has sought to reconcile his advocacy of judicial review based on the 'moral reading' of constitutions with what he calls the 'relational' conditions presupposed by democracy (Dworkin, 1996, p. 24). Dworkin contends that the 'defining aim of democracy' to be 'that collective decisions be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect' (ibid., p. 17). He contrasts a constitutional democracy, where legislation is subject to rights-based judicial review, with a 'mechanical' or 'statistical' form of majoritarian democracy, where legislation needs only to be endorsed by a majority or plurality of voters to pass. In his view, each type of democracy must be measured by their 'results' at promoting democratic rights. By this criterion 'the best institutional structure is the one best calculated to produce the best answers to the essentially moral question of what the democratic conditions actually are, and to secure stable compliance with these conditions' (ibid., p. 34). To be applicable, there must be some generally acceptable view of the 'best answers' to this moral question. However, there are a number of quite different and often conf1icting answers that might reasonably be given. Indeed, it is this very conf1ict that majority voting seeks to overcome by offering an authoritative decision procedure. True, judicial review also offers an authoritative procedure for overcoming this dilemma. However, the test of its superiority cannot be that it is more likely to produce right answers and majoritarian democracy wrong ones if what counts as a right or wrong answer is precisely the issue in dispute. The appeal will have to be some intrinsic quality of the procedure that does not beg this particular question. Dworkin hazards a number of arguments that might move in this direction. For a start, he suggests that, even if the 'best' answer sub specie aeternitatis may be in dispute, those countries, like the United States, that have a written constitution could be said to have committed themselves to an answer- namely, that given in the constitution (ibid., pp. 34-35). As we shall see in the fourth section of this Introduction (and the related essays in Part V of the volume), it is doubtful how far a people can be said to have committed themselves in this way, or what democratic authority it may claim. Worse, though, the problem simply reappears in the guise of conf1icting interpretations of constitutional principles. Of course, constitutional law 'is anchored in history, practice and integrity' but, as Dworkin concedes, 'we must not exaggerate the drag of that anchor. Very different, even contrary, conceptions of constitutional principle- of what treating men and women as equals really means, for example - will often fit language, precedent and practice well enough to pass these tests' (ibid., p. 11). As a result, we find ourselves back at square one and having to search for a reason why having judges decide these issues will be at least as democratic as leaving it to the demos. That can no longer be the result-based standard that they offer the 'best' answers. At most, it is the slightly different and more procedural argument that they are in some way better at, or more suited to, giving the answer. Once it is conceded that 'personal moral conviction' proves more important than 'the ordinary craft of a judge' in deciding such issues (ibid.), then - even within an already established constitutional democracy- the reason for giving judges the power of substantive review cannot

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be that they are 'experts on the law'. Dworkin suggests that an alternative reason is that majoritarian democracy is liable to flout- indeed, in many respects is logically at variance with - the basic values of democracy. He identifies these with the qualities needed for each citizen to count as 'a moral member' of the political community- that is, as someone possessing 'equal status' within it. For moral membership to be secured an individual must be guaranteed 'a part in any collective decision, a stake in it, and independence from it' (ibid., p. 24, original emphasis). In other words, individuals have to be given equal and adequate opportunities to influence the political agenda and the decisions that are taken, be viewed as of equal worth and shown equal consideration in the decision itself, and finally, and most controversially, they must be able to take responsibility for certain features of their life by not being interfered with by collective decisions. How does majoritarianism fare with respect to each of these aspects of democratic morality? Dworkin contends that majority decision-making tends simply to aggregate interests, or arrange trade-otis between them, encouraging 'compromises that may subordinate important issues of principle' (ibid., p. 30). Yet, this view of democracy as unprincipled bargaining is disputable, while rights and interests are often intimately related. Moreover, it is arguably the very mechanical and statistical features of a majoritarian system based on one person, one vote that guarantee individuals play an equal 'part' and, because each counts for one and no more than one, ensures them an equal 'stake' in which their views are treated on a par with everyone else's. As for compromise, it too can often be a principled recognition of the equal stake each has in a decision and the need to make mutual concessions (Bellamy, 1999, chs 4 and 7). Of course, majoritarianism per se cannot guarantee that the electorate includes all relevant parties, that some voters will not be motivated by prejudice towards others, or that certain minorities might not be oppressed or individual rights curtailed by majority vote. However, neither can judicial review. As American legal history shows, courts can interpret constitutional rules in ways that systematically prejudice the part, stake and independence of particular groups. Moreover, which interpretation prevails frequently turns on a majority vote among the Supreme Court justices. In any case, Dworkin's apparent assumption that a crude American form of majoritarianism based on 'first past the post', on the one hand, and a Supreme Court practising rights-based judicial review, on the other, offer the only games in town is simply mistaken. Majority rule has more often than not been modified in various ways to reduce some of its potential tyrannical effects. Most majorities turn out to be shifting coalitions of minorities, which perforce must compromise with a wide range of groups to sustain a government, with consistent minorities often catered for by consociational or self-government arrangements that introduce a degree of proportionality into the system. The flawed majoritarianism of the American and British plurality systems, like American- and German-style substantive judicial review, are exceptions rather than the rule within mature democracies. There is also little support for Dworkin's empirical assertion that substantive judicial review has rendered the United States more just (in the democratic sense of promoting equal concern and respect among citizens) than if rights had been left to majoritarian institutions (Dworkin, 1986, p. 356). In fact, judicial review has often blocked the very legislation that advanced rights protection in other democracies (Dahl, 1989, pp. 189-90). For example, if one takes women's parliamentary representation as an indicator of an equal right to play a 'part' in collective decisions, then, as Dahl has shown, the United States ranks eighteenth out of the 22 stable postwar democracies within advanced industrial societies. It fares almost as badly on voter turnout,

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coming twenty-first (Dahl, 2002, App. B, Table 9, pp. 189-90). These low levels cannot be attributed to satisfaction with the policies achieved by the judicial and other democratic delegates. If we take unemployment, family policy or the welfare state index as indicators of the 'stake' that the poorest sections of the American population have in the decisions made in their name, then the United States scores eighth, twelfth and seventeenth respectively. In sum, it does no better, and on many counts substantially worse, than those democratic systems that have not adopted substantive judicial review. Of course, this rough and ready empirical evaluation of these two models of democracy adopts a 'results-based' test that takes the largely social-democratic understanding of equal concern and respect that Dworkin favours (as do I). However, as we have seen, part of the problem is that no such agreement on results exists. After all, the assessment might be rather different from a libertarian's point of view. For example, they might be inclined to think that only property-owners (or taxpayers) should rightfully either play a part or be accorded a stake, since they foot the bill for government action. Suppose, though, that we were agreed on the best understanding and the Supreme Court was made up of Ronald Dworkin clones who could be guaranteed to make the 'right' decisions when democratic values were at stake. Would a democrat not be entitled to feel there had been a diminution of democracy? On non-democratic issues, Dworkin accepts there would be a loss of self-government, but not in the case of a decision about democracy (Dworkin, 1996, p. 32). In his view, if the legislation struck down by the Court had violated the 'best' understanding of democratic conditions, then the judiciary's 'decision is not anti-democratic, but, on the contrary, improves democracy (ibid.). This conflation of democratic ends and means seems somewhat curious. Surely we would designate a regime where a paternalistic dictator treated all his subjects with equal concern and respect a dictatorship rather than a democracy? Dworkin offers two responses to this objection. He identifies one reason for criticizing a purely results-based conception of democracy in the 'civic republican' argument for the morally improving character of political participation and deliberation. He suggests that civic republicans overlook the fact that Supreme Court decisions can also spark 'a widespread public discussion' within the media, classrooms and around dinner tables that, because it is focused on matters of principle rather than political horse-trading, 'better matches [the] conception of republican government that almost anything the legislative process on its own is likely to produce (ibid., pp. 30-31; 1986, pp. 345--46). This thesis seems doubly flawed. For a start, whatever the failings of debates within the legislature, they clearly provoke just as lively and principled debates outside the chamber as anything achieved by the courts. As Jeremy Waldron has noted, one only has to think of the discussion surrounding the legalization of homosexuality sparked by the 1957 Wolfenden Report in Britain and which precipitated the extended exchange between Hart and Devlin over the law's role in enforcing public morals (Waldron, 1999, p. 290). It might be suggested that the advantage of judicial review is that it focuses attention on the interpretation of constitutional rights. But neither Hart nor Devlin, nor the many others who entered the debate, was inhibited from considering the principles involved by the absence of this dimension. Indeed, one could say that they were better able to engage directly with the philosophical questions thrown up by the issue through not having to couch their arguments in terms of a particular reading of a loosely worded eighteenth-century document and the ways in which it ought to be interpreted. It is also misleading to view the debates sparked by court decisions as Platonic dialogues, untouched by interest group pressures, prejudice or ideology.

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In fact, when the court becomes the maker of important policy decisions, campaigning groups simply tum their attention to capturing the court and pressurizing judges. Indeed, courts generally follow public opinion on key moral issues (McKeever, 1995). Most importantly, though, Dworkin's counterargument simply misses the point that it is not just debating, but also deciding, that matters. Certainly, participation in a public debate can be educationally and no doubt morally improving- as experiments with purely advisory citizens juries reveal. However, these studies also show that it is the sense that one has played a part in a collective decision that generates a sense of moral responsibility on the part of citizens, obliging them both to respect the views of their fellows and to abide by the majority view. If the decision is effectively taken out of their hands, why should they feel any need to moderate their views to accommodate others or view it as in any sense 'theirs'?5 The importance of deciding, as well as debating, becomes even more heightened once we acknowledge that courts can get it wrong. Dworkin remarks that since politicians may also be mistaken, the potential damage done to democracy by courts and legislatures making an error is 'symmetrical'. Yet, in the latter case, citizens may either blame themselves or the politicians they elected. In particular, they can rectify the error by threatening to withdraw their support from the incumbent government unless the decision is altered. Dworkin's second argument comes in here. He argues that the appeal of democracy cannot be that it gives citizens an equal impact or influence over issues. These goals are not only unrealistic, since those in positions of power or with greater wealth will inevitably exert greater sway over any decision, but also undesirable, given that 'we want those with better views, or who can argue more cogently, to have more influence' (Dworkin, 1996, p. 27). What counts is equality of status. That merely requires that the rules for selecting decision-makers, be they judges or politicians, do not formally discriminate against any group, and that the decisions themselves treat all equally (ibid., p. 28). Now, wealth and privilege may be even more of an advantage for those pursuing a political career, at least in the United States, than they are in aiding access to a top-flight law school and ascending to the bench. However, you do not have to become a politician or fund a political campaign to have your vote count the same as everyone else's. Certainly, the weight of any single vote is very small. But the need to woo ordinary voters should not be discounted either. As the women and workers who struggled for the vote appreciated all too well, periodic elections provide politicians with a crucial incentive to respect the interests of citizens - those without the franchise tend to get overlooked. Even so, do we really wish to accord equal weight to the ignorant, stupid and bigoted as we do to the well-educated, intelligent and fair-minded? Unfortunately, prejudice, self-interest, shortsightedness and indifference are not exclusive to the ill-educated or unintelligent. The rich, powerful and even the clever are all too often ill-informed about, and disinterested in, the experiences of those less fortunate than themselves. If we have no agreed metric for deciding the best way of according each individual equal concern and respect, then we have no reason not to give everyone an equal weight in determining how this principle will be deployed in their community. Not to do so would be to deny them equal status as rights-holders to play an equal part in defining and defending their rights on an equal basis with others. Moreover, as we have seen on Dworkin's own account of what equality involves, all the evidence suggests that it is the most reliable (if not an infallible) way of ensuring that all citizens have an equal stake in that decision as well.

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It will be countered that this conclusion raises the issue of how we determine whether the process is itself equal for all. Before turning to this procedural argument in the next section, we need to deal with two final arguments for the substantive view- one raised by Dworkin and the other developed by Rawls in his later writings. As we saw, Dworkin defines the relational conditions of democracy as involving 'independence' from a collective decision as well as a 'part' and a 'stake' in it. At first blush, this criterion appears more as a right against democracy than one entailed by democratic values. However, Dworkin insists that he is not invoking the 'rights as trumps' argument here. Rather, he maintains that, if collective decision-making is to preserve self-respect, then those involved in it must be free to make up their own minds about certain issues and have a realm of personal responsibility. The first element is certainly an intrinsic part of democracy and can be stated even more strongly as a right to dissent. We shall look at the case for constitutionalizing such procedural rights in the next section. The second is trickier, though, because that realm will itself have to be a matter of collective agreement and concern. Indeed, it may even be made possible by collective measures. Moreover, as critics of J. S. Mill's self-regarding/other-regarding distinction have observed, there are relatively few (if any) personal acts that do not have implications for the public good. For example, we see marriage and the family as 'private', 'personal' matters but both are largely defined by law, and relations within them are publicly regulated- we no longer consider a man's home to be his impregnable castle where he is free to batter his wife and abuse his children. Dworkin clearly has issues such as abortion and euthanasia in mind, both of which have been treated by the US Supreme Court as personal matters protected by the individual's right to privacy. 6 Yet these cases reveal the weaknesses of this individualistic approach more than its strengths. Democrats have always been suspicious of rights against the collective process because they see them as attempts by individuals to escape their collective responsibilities and retain their unmerited or indefensible privileges. Making something a private matter, though, can also be a way of removing a collective responsibility for it and ignoring the effects of personal choices on others. As Mary Anne Glendon has shown, this is precisely what has happened in the United States with regard to abortion. Meagre social support for maternity and child-raising, and the absence of public funding for abortions in many jurisdictions, leave poor, pregnant woman 'largely isolated in their privacy' (Glendon, 1991, p. 65). By contrast, in Europe, where abortion has been largely tackled by legislatures, there has been much more social support and flexibility, both to facilitate continuation or overcome the trauma of termination (ibid., pp. 61-66). In other words, we should see 'independence' as a democratic right, but, like other such rights, one that, through being subject to democratic approval, we have a collective responsibility to uphold.

Rawls and the Citizens' Contract Dworkin infers democratic morality from a given account of democracy. He defines democracy in a certain way and then contends that all who call themselves democrats must agree with the reading of democratic principles that is most consistent with this model. That seems too neatit builds one's conclusions into a particular and rather contentious premise. John Rawls can be interpreted as trying to reach rather similar conclusions from the other end. Instead of deriving democratic principles from a given view of democracy, he argues that democracy presupposes certain principles. He contends that citizens would only be willing to adopt and abide by

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democratic decision-making if there was a consensus on certain political principles. To illustrate this argument, he models the substantive rights of citizenship as the product of a democratic contract. Unfortunately, this approach merely serves to underscore the circularity of the constitutionalist case, since his conception of the democratic contractors is derived from his account of what he believes them to have consented to. Rawls contends that 'the burdens of judgement, ... the many hazards involved in the correct (and conscientious) exercise of our powers of reason and judgement in the ordinary course of political life' (Rawls, 1993, pp. 55-56). make it almost impossible to reach agreement between opposed ideological and cultural views. As a result, such disagreements provide the prime source of tension and instability within modern societies (ibid., p. xxv). Consequently, politics must be isolated as far as possible from these disputes. A constitution achieves this isolation in three distinct ways. First, the constitution itself has to be based on a strictly 'political' conception of justice that is 'freestanding' with regard to any given metaphysical position (ibid., pp. 10, 12). Rawls maintains that persons who are inclined to work together as democratic citizens are able to abstract from their distinctive ethical, epistemological and ontological allegiances to arrive at an 'overlapping consensus' on purely political values - the basic liberties that supposedly must be respected for democracy to exist (ibid., pp. 140-42). Such a consensus is possible because, although people often disagree about the nature of the good, they can agree on the principles of justice that govern their behaviour towards others when pursuing whatever good they may value. Thus, although he argues that this consensus is based on a liberal reading of political values, he does not believe that it is premised on a commitment to liberal ideals of autonomy and equality. Second, constitutions apply to, and both constrain and defend, a narrowly defined political sphere, consisting of the basic social and political institutions. As a result, there is a clear separation of the public and the private. On the one hand, the Rawlsian constitution protects the realm of what Dworkin called 'independence', where people may choose to act on their deep personal commitments on matters such as abortion. On the other hand, these same commitments are excluded from political debate when constitutional essentials are at stake. He believes that both the limited scope of the political sphere and its insulation from non-political considerations are vital to the success of his project. Finally, to ensure that this is the case, the legislative process has to be subject to judicial review by an independent court that can guarantee political values are upheld. Like Dworkin, Rawls portrays the resulting system as an idealization of American constitutional arrangements and the role of the Supreme Court. Indeed, he explicitly endorses the Court's deliberations as offering a model of his account of public reasoning. 7 The upshot of Rawls's threefold set of exclusions is for the constitution to effectively depoliticize basic political rights and liberties since this not only 'takes those guarantees off the political agenda' but also 'removes from the political agenda the most divisive issues', the various other values and commitments that might lead us to interpret the political values in conflicting ways- or even dispute their importance in the first place (Rawls, 1993, pp. 161, 157). The result, he claims, will be a stable political settlement based on mutual tolerance. By contrast, I shall argue this proposed insulation of the political sphere from people's prime concerns is not only impossible but also undesirable. It not only prevents politics from performing its crucial function of reconciling differences through negotiation and debate, but also risks excluding important minority issues from the political agenda and thereby delegitimizing the

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public sphere - the very problem that Rawls seeks to avoid. Moreover, it assumes what it purports to show - namely, that a functioning democracy requires that citizens adopt a certain view of democratic values. Rawls's theory of an 'overlapping consensus' on political values rests on claims of both a sociohistorical nature and of a more philosophical kind. Sometimes, Rawls argues that he is only articulating the ethos of the liberal democratic tradition as it has developed since the wars of religion of the sixteenth and seventeenth centuries (ibid., 'Introduction'). Originating as a modus vivendi thanks to a fortuitous equitable balance of power between competing religious groups, liberal-democratic values have gradually become part of the unconscious convictions of most citizens within Western societies. The philosopher's task is to bring these principles and their underlying rationale to light so that they may be adequately protected. The 'original position' should not be interpreted as an objective point of view for judging the justice of all possible societies and moralities, as Rawls appeared to argue in A Theory of Justice (1971). Instead, it serves as a 'device of representation' that 'models' the basic intuitive ideas at the heart of the liberal democratic tradition and brings them into some degree of 'reflective equilibrium' (Rawls, 1993, pp. 22-28). There are several oddities in this argument. For a start, it potentially undermines much of Rawls's case for constitutional democracy. If citizens already act on liberal-democratic principles, then articulating the theoretical basis of this practice seems both redundant and, as conservative and communitarian critics of liberalism point out, risks producing a rationalistic and limited abridgement that fails to do justice to its true complexity and so potentially undermines it. 8 However, matters are not quite so neat, because the cunning of reason through history has not culminated so clearly in the Rawlsian state. On the contrary, the political arrangements of the world's most stable democracies vary considerably. They have very different electoral systems, forms of judicial review, types of executive and divisions and levels of governmental power. These differences seem to go against Rawls's contention that stability can only be obtained if the political system takes a certain canonical form. Granted, because these countries are all democracies, they acknowledge more or less the same set of political and civil rights. However, their ways of doing so often diverge considerably, both in terms of the mechanisms employed to secure them and the precise meanings they are given. Rawls does accept that even within an agreed account of political justice there will be arguments over the details. Yet, there are quite a few detailed variations, such as the public funding of religious schools, that he rules out but many mature democracies rule in. In particular, those countries where cultural and other cleavages are greatest have tended to secure consensus not by removing these differences from politics but by giving them explicit political recognition through consociational and other types of power-sharing. In fact, there are ongoing disagreements about political justice within all democracies; indeed, these disputes animate much political debate. Certainly, there is no agreement on the peculiarly American liberal reading that Rawls gives of the basic liberties. Rawls has invented, and then idealized, a historical consensus that does not, and probably could not, exist. To see why Rawls overlooks such dissent (and is wrong to do so), we need to tum to the philosophical assumptions of his theory. Rawls contends that democracy rests on a distinctive conception of the citizen as possessing two moral powers: a capacity to form, revise and pursue a conception of the good, and a sense of justice (Rawls, 1993, p. 19). However, the key issue for him is how far these two powers are separable, so that the former can be exercised in the

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private sphere, subject to the public constraints determined by the latter. It is certainly true that claims for political justice can be distinguished to some degree from conceptions of the good. Few Catholics, for example, would advocate political rule by the pope. Yet, Catholics may be liberal, socialist, conservative, and so on: this ideological diversity means that disagreement about political justice in this case cuts across their agreement on the nature of the good and, in many cases, their different views of political justice will at least partly ref1ect conflicting interpretations of Christian morality. So what sort of person could adopt the Rawlsian model? Probably, only liberals who do not just conceive society in terms of a collection of free and equal individuals pursuing autonomously chosen goals, but also share Rawls's particular reading of what autonomy and equality involve. Rawls argues that the 'basic liberties', which on his view underpin democracy and provide the language of political argument, must themselves be 'no longer regarded as appropriate subjects for political decision by majority or other plurality voting ... They are part of the public charter of a constitutional regime and not a suitable topic for ongoing public debate and legislation' (ibid., p. 151, n. 9). Nevertheless, he accepts that conflicts between the different liberties occasionally arise, although he believes that a given liberty can only be restricted by a different liberty, and that the general intention must always be to promote to the full the overall scheme (ibid., Lecture 8). Moreover, he thinks that such balancing should only be done by judges in a constitutional court. The 'basic liberties', though, may prove not only noncompossible but also incommensurable. Indeed, the way in which we characterize any given liberty and identify the constraints that determine its presence or absence depends on normative and empirical judgements that, on Rawls's own admission, the 'burdens of judgement' make subject to reasonable disagreement. Such factors not only undermine the neutral balancing of liberties, they may even result in a failure to agree whether a conflict of liberties exists or not. Needless to say, the problem of on-balance judgements becomes even more intractable when liberty has to be weighed against other values because the exercise of freedom itself causes harm or suffering. These sorts of difficulty lie at the heart of some of the most heated contemporary American constitutional debates - from disagreements over the legitimacy of affirmative action or welfare to debates about the character and range of free speech raised by issues such as pornography and official secrets. In such cases, it will be impossible to weigh up the basic liberties involved, and in some cases balance them against other values, without referring to our comprehensive moral commitments. 9 These considerations substantially weaken the case for restricting the debate of constitutional and other principled matters to the Supreme Court. Rawls's reasons for so doing appear to be largely pragmatic. Judges' legal training and life tenure supposedly render them relatively immune to 'non-political' inf1uences compared with politicians, and so they are more inclined to reason solely in terms of public values when constitutional fundamentals are at stake (Rawls, 1993, p. 240). However, I have questioned the theoretical possibility of isolating these values in this way. If this criticism is correct, then it will be impossible for judges to resolve conflicts between the basic liberties under discussion in a 'pure' manner simply on the basis of an interpretation of 'higher' constitutional law. Rather, they will end up drawing on their own more 'comprehensive', and often partial, background values, opinions, prejudices and interests. 10 As a result, the practical consequences of such judicial foreclosure may be quite other than those anticipated by Rawls. If people can reasonably dissent from the Court's view, they cannot be expected not to do so, especially in cases where an unrepresentative position is foisted upon

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them. If they cannot voice their opposition through regular political channels, they will be tempted to employ unreasonable methods- such as violent attacks on doctors iu abortion clinics. I would not wish to deny that, on rare occasions, it might be advisable either to take certain things off the agenda or to hand them to a third party, and that this decision could be the only stable solution where disagreement risks turning into armed conflict. The mistake is to turn what may be an occasional necessity in exceptional circumstances into a matter of general policy. InA Theory ofJustice Rawls observed how the principle of participation is intimately related to the contractarian argument, directly following from the notion that the social compact should be capable of gaining the assent of free and equal individuals. As he put it, 'the principle of participation transfers [the notion of equality] from the original position to the constitutional process'. In this context, it 'requires that all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply'. Indeed, 'if the state is to exercise a final and coercive authority over a certain territory, and ... affect permanently men's prospects in life, then the constitutional process should preserve the equal representation of the original position to the degree that this is feasible' (Rawls, 1971, p. 221-22). Unfortunately, Rawls failed to draw the radical conclusions to which his contractual argument points (Waldron, 1999, pp. 156-57). Rawls's contractarian thesis suggests that citizens must always have the ability to contest and reconstitute the rules of the democratic game and ensure that they treat them as equals including making adjustments for relevant differences. Given that people's disagreements over political justice are both intractable and constantly evolving as their ideals and concerns alter in response to changing circumstances, constitution-making needs to be seen as an ongoing political process (Bellamy, 2001). Think of the ways in which the successive demands for equal treatment by workers, women, minority ethnic groups and environmentalists, to name just some of the more obvious examples, have altered our understanding of how politics should be framed. Consider, too, how each of these demands has been contested in their turn, often with some success (Tully, 1999). Rawls overlooks these processes of political contestation because he assumes that the only possible choice in the original position would be in favour of his principles of justice and that these provide the necessary basis for our disagreements to play out (Rawls, 1971, p. 198; 1993, p. 227). Within a 'well-ordered', stable democracy, disagreement must not be between conceptions of political justice but between different understandings of his own two principles. That contention is demonstrably false in both theory and practice. Not only has the derivation of the two principles been widely disputed (as has the chosen starting point), but it is also plain that opposing views of justice inform political debate in all mature democracies without threatening their very existence. What Rawls ignores is the 'civilizing activity' of politics itself, the moralizing role played by citizenship that we explored in the discussion of Dworkin. He fears that political solutions may be unjust and unstable, the product of a temporary modus vivendi between groups motivated by interest and prejudice rather than by fairness. That can be true. But, as the historical aspect of his theory clearly assumes, successive compromises and negotiations can also bind people to doing things in a certain way and gradually produce a consensus. Moreover, such agreements come not from people dropping their interests and values but through them seeing the concerns recognized and respecting those of others through the political process. After all, when workers struggled for the vote they did so in order to advance the cause of labour. Likewise, as Rawls

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himself notes, civil rights activists such as Martin Luther King frequently referred to their conception of the good- in King's case, his Christian beliefs. That does not mean that people can make no distinction between political justice and their conception of the good. Clearly, committed democrats do distinguish their acceptance of the political process from their agreement with the outcome. At least part of that acceptance, though, comes from the process allowing the expression of their deep commitments and concerns rather than excluding them. The problem with both Rawls and Dworkin is that they blur that distinction by trying to skew the process in order to yield their preferred result.

Constituting Democracy: Procedural Views A number of theorists have accepted this criticism of the sort of substantive constitutional judicial review advocated by Dworkin and Rawls, but have argued that the courts retain a role in policing democratic procedures. The claim here is that, although we should allow the democratic process to decide such issues as abortion, capital punishment and privacy, we need judicial review to oversee that the process by which these decisions are made is fair - that minorities are appropriately represented and so on. How far is this possible? Can this position really be distinguished from the arguments from democracy made by Dworkin and Rawls? This section considers the work of John Hart Ely, along with the criticisms of his thesis made by Mark Tushnet and Laurence Tribe in the essays reproduced in Part II of this volume. Policing the Democratic Process: J.H. Ely

John Hart Ely has been the most influential exponent of the procedural view- not least because he challenges the interpretation of the US constitution and the activism of the Warren Court that provides the backdrop to much of Dworkin's and Rawls's arguments. Ely starts by criticizing what he calls the 'fundamental values' thesis, according to which the US Supreme Court is empowered to strike down legislation that infringes the key principles enshrined within, or underlying, the US constitution (Ely, 1980, esp. chs 2 and 3). He argues that no clear enumeration of such values can be found in it, nor is there any unambiguous source for them outside it. Judges invariably disagree about what these values and sources may be and, even when they agree, dispute their implications for a given case - that is why the decisions of the Supreme Court (like other constitutional courts) are so rarely unanimous. Summarizing his survey of the various failed attempts to find a non-personal, objective method for interpreting the values lying within or behind the constitution, he concludes that 'what [the judge or commentator in question] is really likely to be "discovering", whether or not he is fully aware of it, are his own values' (ibid, p. 44). Drawing inspiration from Justice Stone's famous footnote in United States v. Carolene Products Co. of 1938, Ely proposes an alternative approach (ibid., pp. 75-77). What constitutional courts should really do is 'to ensure [that] the political process- which is where such values are properly identified, weighed, and accommodated- [is] open to all view points on something approaching an equal basis' (ibid., p. 74). Like Dworkin, he regards majority tyranny as the chief problem with democracy (ibid., pp. 81-82). However, he proposes combating it not by asking whether the decision itself conforms to a given understanding of rights or

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equality of concern and respect, but by seeing that the procedures by which it has been made are equitable. In other words, the aim of both a constitution and its judicial guardians should be to realize the ideal of equal participation enunciated by Rawls in the quote towards the end of the last section. Of course, as Ely concedes, participation itself is a value, which (somewhat controversially) he is asserting to be fundamental to the constitution. Nevertheless, he disputes that his view thereby collapses into the position that he is criticizing. For: ... value imposition refers to the designation of certain goods (rights or whatever) as so important that they must be insulated from whatever inhibition the political process might impose, whereas a participational orientation denotes a form of review that concerns itself with how decisions effecting value choices and distributing the resultant costs and benefits are made. (Ibid., p. 75)

The crux is whether this distinction does in fact hold. According to Ely, 'the original [US] Constitution was principally, indeed I would say overwhelmingly, dedicated to concerns of process and structure and not to the identification and preservation of specific substantive values (ibid., p. 92). As he notes, the body of the text 'is devoted almost entirely to structure' (ibid., p. 90). However, he also claims that we should pursue a processual reading of the Bill of Rights. These rights focus on either 'procedural fairness in the resolution of individual disputes (process writ small)' or 'ensuring broad participation in the processes and distributions of government'- what 'might be capaciously designated as process writ large' (ibid., p. 87). 11 Above all, the constitution seeks to guard against majority tyranny. However, he maintains that this defence is achieved not by setting up a body independent of the majority that can itself represent the will of the community but, as James Madison put it in Federalist No. 51, 'by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable'. Indeed, as Madison noted, this second method is much more certain than the first- which seems more appropriate to a hereditary system and offers 'at best ... but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties' (Madison, cited by Ely, 1980, p. 80). I find this approach highly congenial. However, Ely believes it to be insufficient in itself and contends that this political constitutionalism needs reinforcing by a limited form of legal constitutionalism. Why does he think so? As analysts of democratization have shown, the basis for democracy lies in a pluralist society in which rulers require the collaboration of the ruled to govern (Dahl, 1989, Part 5). Political institutions, which constitute the way in which politics works within any polity, facilitate and partly mould the social competition required for democracy. However, they also reflect, and are shaped and sustained by, these social forces. Unfortunately, Ely has little faith in these social processes lying behind democratic institutions. The pluralist model may work 'sometimes', but, as he (rightly) notes, it is not an absolute guarantee: 'No matter how open the process, those with the most votes are in a position to vote themselves advantages at the expense of others, or otherwise refuse to take their interests into account' (Ely, 1980, p. 135). Of course, overturning the unjust privileges of a minority would be an entirely legitimate reaction of a hitherto oppressed majority - indeed, democracy has played this crucial role throughout its history. Nevertheless, as Ely appositely remarks with regard to the black minority within the United States, minority oppression can be compatible with that minority having gained every official attribute of access to the democratic process. So

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it turns out that it will not be sufficient just to check that participation 'in the political process by which values are appropriately identified and accommodated' has not been 'unduly constricted'. It will also be necessary to ensure that 'the accommodation those processes have reached' also admit an equal opportunity to participate in order to protect 'even minority interests that are not voteless' (ibid., pp. 77, 86). In particular, it may be necessary to prevent a majority motivated by pure prejudice from consistently ignoring the interests of what Justice Stone in his famous footnote called 'discreet and insular minorities'. The danger for such groups is that, for one reason or another, their votes never count enough, if at all, to give them any bargaining power with the main competing parties. Each can obtain power without them, so may safely overlook or even actively discriminate against them. Ely has undoubtedly identified a real worry for pluralist politics, even convincing the premier theorist of contemporary political pluralism, Robert Dahl, of the need for procedural judicial review to guard against such pitfalls. 12 However, I think his solution proves incoherent. The problem for Ely and those who follow him, and one which Dworkin has not hesitated to jump on (Dworkin, 1985, pp. 57-69), is that you cannot judge whether the process is fair without a view of what counts as a fair outcome, and you cannot judge a fair outcome without referring to some account of fundamental values. Put succinctly, the only coherent way to adjudicate on the justice of democratic 'inputs' is to have some notion of what counts as a just 'result'. Consequently, the distinction between substantive and proceduralist approaches to judicial review collapses. The difficulty arises from there being different models of democracy, each of which rests on divergent and often incompatible normative assumptions. Choosing between them is just as contentious and often intimately related to, substantive disagreements over policy. Different models of democracy offer contrasting accounts of the virtues and vices of alternative electoral systems, from 'first past the post' to the many versions of proportional representation; the design of constituencies - such as whether territorial units should be supplemented, or even supplanted, by functional ones; the advantages and disadvantages of unicameralism as opposed to bicameralism; the pros and cons of presidential and parliamentary systems; the democratic merits of different kinds of judicial review; and so on. These disagreements relate to the very two issues that Ely wants judges to settle -namely, who gets included and the ways in which their voice gets heard. Moreover, although they relate to process, which procedure you prefer will largely depend on your view of the purpose of democracy and the type of outcomes you hope to promote. For example, if you see the main aim of democracy as choosing effective leaders, then you are likely to hold a different view of the most appropriate procedures to someone who prioritizes the aggregation of preferences. These differences, in their turn, involve divergent views of the substantive value of participation and hence of what equal participation entails. Those who believe that participation involves direct involvement in deliberative processes will have rather more exacting views of what equal treatment requires to those who contend that popular involvement should be limited to casting a periodic vote for a credible leader. Consequently, any decision over the appropriate representation of minorities is likely to be as contested and to spark as much disagreement as decisions on non-procedural policy questions. These disagreements over the democratic process will frequently be motivated by the selfsame reasons underlying divisions on substantive policies. On many issues, people's policy preferences either reflect their view of democratic morality, and in particular their understanding of equality, or vice versa. For example, libertarians wanting to restrict the role of the state and

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promote the market, tend to have a narrow view of participation. As I mentioned earlier, some even favour only enfranchising those who pay taxes in order to guard against the poor engaging in what they regard as rent-seeking behaviour by voting to increase welfare spending. By the same token, social democrats have a broader view of the state and usually a similarly enlarged view of participation as well - advocating corporatism, say, or forms of industrial democracy (see, for example, Dahl, 1985). These problems clearly emerge from Ely's own discussion of his approach. He takes freedom of speech as a key instance of a 'processual right' that is vital to a well-functioning democratic system (Ely, 1980, pp. 105-16). However, there are many different rationales for why that it is so - be it that free competition and criticism is the best way for truth to emerge, or that free discussion is of fundamental importance to individual development and so on. These various rationales may, in their turn, yield rather different policy recommendations when it comes to limiting speech. Even among those who hold similar views, there may be a divergence of opinion on a given case. Although Ely takes a largely libertarian view of the matter, the record of the US Supreme Court has been somewhat mixed. As he remarks, the cases that introduced the 'clear and present danger' test following the First World War saw the defendants going to prison for ten years 'for quite tame and ineffectual expression' (ibid., p. 107). The difficulty is that it is practically impossible for the Court not to become involved in contestable substantive judgements over whether speech is related to the political process or not (and so has a prima facie case for being protected on Ely's view) or the degree to which certain instances of it may, or may not, damage that process. As Ely acknowledges, even an absolutist, no restrictions ever, stance would be substantively contentious and raise difficulties as to its application (ibid., p. 109). Consider the way in which the US Supreme Court has employed this position to prevent limitations on campaign finance. 13 Matters become even more complicated when we turn to those areas where Ely expects the Court to ensure not just that the process is formally open but also gives minorities a fair hearing. This issue has been a key problem in the United States, where a number of devices- from the inconvenient location of polling booths to the imaginative drawing of constituency boundaries - have been employed in southern states in particular to weaken the impact of black votes. In fact, creative redistricting to favour incumbents has become the norm. 14 Moreover, most states lack a tradition of independent public service, making electoral commissions heavily biased towards the prevailing administration of which they often form a part, either as appointees or as members of the same electoral ticket. However, this has been an area where the Supreme Court has usually been reluctant to intervene. This reticence is unsurprising, for it is a political minefield. Take the familiar arguments about the various merits of different electoral systems. In the United States, as in the United Kingdom, there has been a broad popular debate about the relative virtues and vices of both the plurality, 'first past the post', system and of the various systems of proportional representation. As with freedom of speech, all these arguments involve substantive judgements about outputs, not just a view on the fairness of inputs (see, for example, Amy, 1993; Guinier, 1994). 15 Who or what should be represented is intimately linked to the ends you see the process as serving- the trade-offs you make between representativeness and accountability, say, or whether you want a politics of ideas or of presence, or the degree to which you see representatives as being mandated delegates or free to exercise their own judgement and so on. Related issues emerge in debates about districting. Here, too, you can give different rationales for drawing the lines of constituencies in particular ways, depending

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on what you are trying to achieve. Some seek to represent a territorial community, for example; others seek to represent given groups of people as identified by religion, occupation, gender and so on. Ely tries to get round this problem by not judging the outcome per se but by focusing instead on the motivations of those proposing the policy. If the intention of a policy was to discriminate, then, on his reading, we are only objecting to a distortion in the process, not to the substance of the policy as such. Of course, Ely admits that motives are always difficult to uncover and will usually have to be inferred from outcomes. However, he maintains that some policies involve such egregious distortions that their aim cannot but have been anything other than discriminatory. He takes as an example the redrawing of the City of Tuskegee boundary by the Alabama legislature in 1957, changing it from a square shape to an 'uncouth twenty-eight-sided figure' that just happened to exclude all but a handful of the city's previous 400 black voters- an action the Supreme Court did in fact invalidate (Ely, 1980, pp. 139-40). 16 Once again, though, the difficulty is that, in certain circumstances, some might consider such discrimination to be justified. For instance, it can be a way of securing a 'presence' for particular disadvantaged groups by increasing the likelihood that they will be represented by a member of their minority group. This rationale has been used to justify majority/minority districts, for example (see McKeever, 1999). Here, too, what does the work will be not the uncovering of a discriminatory input but one's evaluation of the discriminatory character of the output. The difficulties with this approach become even more evident when Ely applies it to cases that are not directly related to process but nevertheless seem intended to discriminate against minorities, such as the racial segregation of schooling in the American South. It is possible to devise general laws that apply equally to all and yet adversely discriminate against particular groups, thereby preserving the legal formalities of equity and fairness, yet explicitly or implicitly picking out a particular group for special treatment in ways that adversely affect them. Moreover, all law discriminates to some degree, and special treatment can often be legitimate when there are relevant differences that call for people being treated differently to others. How, then, can we have a non-substantive, processual way of deciding when such discrimination is unjustified? Ely relies once more on seeking out discriminatory motivations, seeing the doctrine of 'suspicious classifications' as a key tool for identifying them (Ely, 1980, p. 145). This doctrine involves determining whether the policy goal, or the means employed to pursue it, could only have been chosen if there was some malign intent to discriminate. There has to be a reasonable fit between the ostensible goal and the classification, with neither the burdens nor the benefits disproportionately impacting on any group. The supposed paradigm case is a 'self-serving generalization' when a dominant 'we' devises a rule that will only impact adversely against a certain minority 'them' (ibid., pp. 157-61). 17 However, there are a number of problems with applying this criterion. First, discriminatory 'we-they' legislation is often inevitable and arguably justified. Consequently, as Ely himself acknowledges, such scrutiny can be problematic because the ostensible goal may appear harmless or be given a prima facie acceptable justification, yet in reality hide a more sinister purpose. For example, a headmaster may justify black and white children sitting on different sides of the school stage at a graduation ceremony for aesthetic reasons, even if the real reason is segregation (ibid., p. 148). How can we uncover such spurious rationalizations without judging the purposes to which they have been put? After all, progressive

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taxation has a negatively discriminatory 'we-they' character. As Riker and Weingast ask, 'why is the abridgement of some minority's economic rights less troubling than an abridgement of the political rights of minorities?' (1998, pp. 378-79, cited in Shapiro, 2003, p. 65). True, this particular 'they' can inf1uence the political process in other ways than sheer numbers of votes. Yet, a participational approach might want to close off such informal channels. If this is the case, such measures do appear procedurally unacceptable on Ely's grounds- a conclusion that many, Ely iucluded, would find counteriutuitive. If 'we-they' legislation per se is not illegitimate, though, then the problem of finding procedural grounds for distinguishing acceptable from unacceptable policies remains. Second, not all 'we-they' legislation need be presented as such (see Tushnet, this volume, pp. 210-11). It can be formally dressed up as 'we-we' by being framed in very general terms or as 'they-they' by specifying certain features of the legislation rather than others. Criminal legislation, for example, is formally 'we-we', since all of us might commit a crime. Yet, most legislators probably assume that neither they nor their constituents will become members of the criminal class, treading rather more softly in those areas- such as driving offences- where that assumption does not hold, and in this case unfairly discriminating against victims in the process. It might be argued that the tendency of legislators to be too severe in the former cases and too lenient in the latter make this a rather good area for an Ely-type judicial review to protect the rights of certain kinds of criminal. However, as I have already noted, this is a grey area: we are potential criminals in a way that a white person is not potentially black. Moreover, with regard to many crimes most voters and legislators will be neither criminal nor victim, so much criminal legislation is really 'they-they' (or, with ingenuity, could be portrayed as such). Victims' rights also need to be factored in and arguably should count for more- and 'we' are more likely to fall into that category. Meanwhile, judges are no less members of the dominant 'we' than legislators- a point to which I shall return below. Third, Ely's thesis will only really apply to consistent minorities, even though these are fairly rare in national politics. Within pluralist democracies most majorities are coalitions of minorities which shift from issue to issue. As priorities alter, so parties tend to alternate in power. There is no settled 'we' oppressing a given 'they'- the 'we' prevailing today may well be the 'they' that will be outvoted tomorrow. At the local level, a given 'they' may consistently lose. But if they can form part of a national 'we' that could override that local legislation, or could move to another locality, then 'participational' avenues arguably exist and court intervention would be inappropriate (Tushnet, this volume, pp. 206--7). Ely's support for the Warren Court suggests that he would still want judicial review in such circumstances; however, such judicial intervention may not only be illegitimate in his own terms, but also be less efficacious, and potentially detract from, action by a national legislature and government. Fourth, 'we-they' stereotyping may not be the main source of discrimination. Ely grants that his approach will offer little succour to the poor. Although many laws actively or (more commonly perhaps) passively, through government inaction, discriminate in favour of the wealthy, they rarely do so 'by drawing on some comparative generalization about the relative characteristics of the poor on the one hand, and those who more nearly resemble the legislators on the other' (Ely, 1980, p. 162). Of course, as with criminals, some very diffuse and unarticulated prejudices may underlie many policies - people tend not to ascribe their good fortune to luck alone. However, sorting out which of these assumptions, if any, might be justified or not will be highly contentious. The problem for the poor lies not in the blocking of formal channels or

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deliberate discrimination, but in their social powerlessness leading them to fail to exploit fully the political power formally open to them: they find it hard to organize, a high proportion do not vote and, as a result, they cannot make people aware of the often mistaken views they may hold about their plight. Despite his participational approach, Ely fails to address such problems. In fact, it is hard to see how judicial review could be employed to do so without giving courts the very sort of broad brief to address substantive issues that Ely wishes to exclude from their authority. The main trouble with Ely's approach is that one person's 'suspicious classification' may often be another person's valid interpretation of 'equality of concern and respect'. None of the criteria he offers seems able to distinguish unreasonable bias from an acceptable difference of opinion. Take a decision to segregate schools on the basis of gender, subject to a proviso that the facilities will be 'separate but equal'. The policy might be defended on the basis that some evidence exists that, on average, girls perform better in single-sex schools. The fact that boys do marginally worse in such schools could be seen as justifiable given that, on the whole, social structures still favour men more than women, with males generally enjoying higher pay, better employment prospects and so on. On this view, the policy merely evens out women's chances by giving them a better start. By contrast, opponents might argue that a mixed environment is better for the socialization of both sexes and may work against those structural disadvantages that still adversely affect women, and perhaps, in the long term, tackle the conditions that currently lead girls to perform worse in co-educational as opposed to all-girls schools. Some might worry that a separate system would never be equal - that one or other sex will suffer. Here we have two views of education policy, each of which could charge the other with having discriminatory effects. Ely would be unable to say which would have been chosen had there been no discriminatory intent in the process without taking sides on the issue of substance. Even if there was very good reason in the 1950s and 1960s American debates about racially segregated schools to doubt the good intentions of those concerned, one can certainly imagine an argument being made about how such segregation might actually counteract discrimination by allowing black children to be educated in an environment where nobody is intimidating them or setting inappropriate standards. Indeed, this is just the sort of case that has been used to justify all-girls schools and has been employed by some in Britain to defend separate schools for pupils of different religious faiths. The fact is, good or bad intentions are not really what count here but a judgement call on outputs. Given that there are many imponderables in what might happen, and a range of nondiscriminatory values that might be invoked to evaluate such a policy, a decision by a constitutional court in this area will involve precisely what Ely has been seeking to avoid namely, judges rather than elected legislators deciding the issue of substance and weighing the various principled and other considerations involved.

Nemo Judex in Sua Causa: Breaking the Monopoly of Democracy's Winners over the Means of their Success Although Ely has been primarily associated with trying to decouple procedural from substantive views of democracy, his view does not necessarily turn on this distinction- or at least a strong version of it. Indeed, much of the time he accepts that our view of the democratic process may well be conditioned by substantive policy considerations. However, precisely for that

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reason he argues that decisions about democracy itself ought not to be left to those involved in that process. Ely suggests that his approach might be likened to 'an "antitrust" as opposed to a "regulatory" orientation to economic affairs'. Because input into the process and policy outcomes are so related, those in power often have an incentive to 'choke off the channels of effective change' or, if their majority is secure, can afford to discriminate against a minority without fear of any effective opposition. Now, if they are the main culprits, it seems 'obvious' that 'our elected representatives are the last persons we should trust with identification of either of these situations'. Alhough 'no one could suppose' that any evaluation of how far the representative system is doing its job of representing interests 'won't be full of judgement calls', as 'comparative outsiders' the courts are appropriate third-party arbitrators (Ely, 1980, pp. 102-3). How convincing is this argument? Let's take an example that illustrates both the strengths and weaknesses ofthis proposal: the US Supreme Court's ruliug in Bush v. Gore in the aftermath of the 2000 US presidential election. 18 On the one hand, the dispute over the Florida electoral count was one that clearly was difficult for the partisans themselves to resolve in a way that most would accept as fair. The election in both the country and Florida was too close for a decision not to matter. The final result might have hung on the disputed chads. The administration of the election was also open to suspicion of self-serving bias given that, as is common practice in the United States, many of the officials involved were political appointees, while the state governor was a brother and fellow party member of one of the candidates. In this sort of situation, deference to a respected third party applying the acknowledged rules of the game seems a reasonable, if not uncontested, solution. On the other hand, however, although the losing litigant, Al Gore, stayed true to his pledge to accept the Court's ruling without criticism, the decision attracted widespread condemnation for alleged partisan bias by the judges. Over 500 American law professors signed a public statement declaring that 'the U.S. Court used its power to act as political partisans, not judges of a court of law' ('Statement', 2001). Indeed, in an unprecedented move, a minority on the Court itself condemned the ruling for eroding 'the Nation's confidence in the judge as an impartial guardian of the Rule of Law'. 19 The Florida case seems to offer as good an example as one could find for Ely's argument. 20 It had the policing of the democratic process at its heart, with the politicians and the electorate not only obvious partisans, but also evenly split, making third-party arbitration an obvious way of resolving the impasse. However, it quicldy emerged that the judges were themselves a party to the more general political disagreement. Like every other American citizen, they were affected by the outcome of the presidential election and held opinions on the merits of the candidates. On the issue of the rules of the democratic game, there can be no group that has to live under those rules that is not a judge in their own case. Indeed, the judges are doubly so - both as citizens and as adjudicators of their own place within the system. Because they are at the apex of the system, they are also judges over their own constitutional competence in the matter. Yet that issue was as contentious as the decision itself. As Jeremy Waldron (2002) has observed, disagreement over the Court's decision was not just over whether it had interpreted this or that provision of Florida electoral law correctly. Rather, there was a far broader debate, related to differing interpretations of the rule of law, over whether the Court should be involved at all21 and, in the event of a recount, if there were either clear rules that officials could follow or any truly independent electoral officials to administer them.

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Of course, it might be argued that judges have fewer incentives to distort the process or accumulate power in self-serving ways than politicians. Perhaps. To ensure that is so, though, the procedures employed to select judges and the balance of opinion among them will become of as much interest as those surrounding the choice of democratic representatives. In fact, this has already happened to a large extent. Despite Gore's personal demurral, the Court has become so politically controversial within the United States that any decision was likely to attract accusations of bias from some quarter. As a result, the self-same procedural issues surrounding the legislature arise with regard to the Court- and who is going to rule on them? We seem to be faced with an infinite regress.

Constitutionalist Democracy: Reconciling Substance and Procedures Some theorists acknowledge the difficulties of both substantive and procedural accounts and search for a middle way. Two attempts at such ecumenical solutions will be explored. The first, advanced in Robert Burt's essay, Chapter 10 in Part III of this volume, distinguishes striking down a law on substantive grounds related to the morality of democracy from the Court's putting forward its own substantive solution to a given issue. The second, put forward by Jiirgen Habermas in Chapters 11 and 12 and questioned there by Frank Michelman in Chapter 13, goes further and sees substantive values as issuing from the theoretical and practical attempt to design perfect democratic procedures. The Substance of Procedures: The Burt-Ginsburg View Some theorists accept that courts inevitably employ substantive judgements in ruling on process, but contend that they can still avoid imposing their own substantive view of what the policy should be. They argue that courts can legitimately suspect legislation that appears to involve a majority employing its power to dominate another by not affording them equal protection of the laws. Moreover, such domination can be identified by procedural criteria- namely, that the policy fails to provide the same opportunities for the equal consideration of relevant interests that one expects from an open democratic procedure. However, the role of a court should not be to offer its own solution to the policy in question but, rather, to send it back to the legislature for it to devise an alternative (Burt, 1992; Shapiro, 2003, pp. 66--77). In the essay representing this position reproduced as Chapter 10 of this volume, Robert Burt compares the decision in Dred Scott v. Sandford 22 with that of Brown v. Board of Education. 23 These cases have become the benchmarks of the US Supreme Court's authority. No acceptable theory of constitutional adjudication can fail to declare Dred Scott wrong or Brown right. Nevertheless, Burt argues that the reasons for doing so are often unconvincing. 24 These cases might be thought to confirm the straightforwardly substantive approach. After all, most people now would want to condemn Dred Scott for supporting slavery and praise Brown for defending racial equality. However, placed in the context of the times, the 'outcome' approach yields the embarrassing result of endorsing certain questionable aspects of Dred Scott (Burt, 1992, pp. 13-15). In Burt's view, the fault in the Dred Scott decision lay less in the justices' substantive interpretation of the constitution- morally repugnant and arguably wrong though it was- than

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in the Court's view that its role was to decide the policy issues raised by the case rather than simply determining the parameters within which any such decision could be made (Burt, this volume, pp. 256-57). He argues that the real question posed by the case was how this deeply divisive issue could be resolved in ways that enabled the antagonistic parties to remain equal members of the same Union. In finding the ongoing political process of seeking compromises unconstitutional, Burt contends that the Court implicitly suggested that the Union should be dissolved. The reasons why the Supreme Comt chose to act in this way were ones that proponents of 'outcome' or 'result-based' judicial reasoning typically advocate (p. 251). Congress and the territorial legislatures were denied authority on the question on the grounds that public institutions were bound simply to uphold the 'private rights' of masters in their slave property. Issues of 'private right' were to be decided by those courts with the appropriate jurisdiction. No doubt, the Supreme Court also hoped that taking the issue off the political agenda might avert civil war. However, far from being viewed as an impartial and neutral arbitrator, the Court itself became an object of criticism for having usurped the democratic role of the people. This critique was made most famously and forcefully by Abraham Lincoln in his first inaugural address. As he put it: If the policy of the Government upon vital questions, affecting the whole people, is to be irrevocably

fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. (Lincoln, cited by Burt, 1992, pp. l-2)

Lincoln's point- delivered at a time when he still hoped to avert war, and powerfully reiterated in the Gettysburg address- was that a political community can only subsist if all participants remain committed to finding solutions to common problems as a collectivity. That commitment is subverted when one party is prevented from putting forward its case and negotiating with others. To say, as most contemporary substantive theorists would, that the Court's mistake lay in getting it wrong by deciding for the slave-holders, rather than the slaves, misses the point. The Court would have been 'wrong' in Burt's sense even had they decided the case for the other side. Judgement on the basis of 'good' or 'bad' outcomes is fine in retrospect but, as Burt remarks, 'it gives no guidance for action in confronting an uncertain future' (Burt, this volume, p. 259). For a start, this argument ignores the fact that the substantive outcome was a matter of such deep dispute at the time that a court could (and did) adopt a view which we would now all reject. Given that the justices belong to the same political culture as ordinary citizens, one can not expect them to get it right at a time when everyone else - or a large proportion of them - is getting it wrong. Even more important than these pragmatic considerations, though, is the normative point that a democratic community cannot subsist if one group's views in a deep dispute are simply ruled out of consideration. If we deem the prime purpose of a constitution within a democracy to be upholding its core values, then the role of judicial review ought not to be to decide outcomes in ways that effectively exclude one group in a dispute from making its case; that can only alienate that group from the political community. Instead, Burt contends that their aim should be to uphold the process as an ongoing search for solutions that treat the parties equitably.

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On this account, a constitution serves as a framework for ongoing dispute resolution within a political community, not as a resource of right answers to those disputes. Burt's claim is that what Brown got right was precisely to see its task as 'facilitating a process of public conversation, of mutually respectful dialogic engagement, between the adversaries' rather than as cutting off that conversation by placing the issue out of bounds of politics and putting forward a resolution of its own supposedly derived from constitutional principles (p. 261). He observes how Brown presented much the same dilemma as Dred Scott. In both cases, the Comt was faced with a profoundly divided nation, in which the parties were putting forward apparently ineconcilable claims. In each case, victory for one party would be interpreted as a crushing defeat for the other and lead them to challenge the legitimacy of existing political arrangements. Yet, whereas Dred Scott effectively declared victory on one side, thereby consigning the other to perpetual defeat, Brown studiously avoided offering a settlement ofthe case. All it did was insist that any resolution had to be on the basis ofthe mutually acknowledged equality intrinsic to the democratic process. Of comse, there are matters of substance in such procedural decisions. Brown, after all, did 'unsettle a legislative resolution that one disputant found intolerable' (p. 261). And it did so on the substantive grounds that the segregation laws 'violated the democratic principle of equality by inflicting a permanently subordinate status on blacks (marking them, in effect, as "permanent losers" in any disputes with whites)' (pp. 261-62). The key aspect, however, was that '[t]his unsettling was all that the Comt in fact did in Brown' (p. 261). In Brown II the Court steadfastly 'refused to specify what would constitute an ultimately appropriate resolution ... and instead remanded this issue for further proceedings in the various federal district courts' (p. 262). In effect, it acknowledged the difficulties of blacks getting an equal hearing in the state and other more local democratic forums, but tried nonetheless to create forums where black and white disputants could face each other and try to seek a solution for themselves. The Court only took a more proactive role in the wake of the more substantive civic equality called for by the Civil Rights Acts of 1964, 1965 and 1968. Does Burt's argument square the circle between process and substance? Ian Shapiro has dubbed this approach a 'middle way' between Ely and Dworkin- that is, as 'more than process, less than substance' (Shapiro, 2003, p. 66). The problem is that its view of process is so substantial that it effectively decides the very issues it claims to leave open. As Burt concedes, Brown aroused huge opposition because it had clearly required desegregation, even if it had not determined how it was to be implemented or when. The distinction between disallowing and deciding has a tendency to become blurred once it is clear that only a small range of policies of a certain kind will be allowed. Even Bmt admits that the Supreme Court arguably overstated its case in contending that separate could never be equal as a matter of principle grounded in 'objective' social scientific fact (Burt, 1992, pp. 14-16). As I noted in the discussion of Ely above, however right the decision may have been in the context of the American South, in other conflicts separate provision has been seen as a guarantee or sign of equality - for example, in Northern Ireland where Catholics and Protestants are educated in separate religious schools and in the desire of British Muslims for publicly funded faith-based schools alongside those of Jews, Catholics and the Church of England on the mainland. True, the Court pragmatically waited for the political process to decide. But it is unclear whether it did so for quite the principled, process-related reasons which Burt attributes to it. 25

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Perhaps Brown is a bad example. More recently, Burt - and following him, Ruth Bader Ginsburg, now a Supreme Court Justice, and Ian Shapiro, have made parallel points in comparing Brown with Justice Blackmun's 1973 judgment in Roe v. Wade. 26 Once again, we have a deeply contentious issue, with current American debates over abortion being spoken of as the source of a second civil war. In Dworkin's words, 'Abortion is tearing America apart ... distorting its politics, and confounding its constitutional law' (Dworkin, 1995, p. 3). Burt et al. argue that Roe resembles Dred Scott in misguidedly trying to decide the case. Rather than just striking down the offending Texas abortion statute, the Court essentially authored a statute of its own by laying out a detailed test specifying the conditions under which abortion would be acceptable (Shapiro, 2003, p. 67). But, arguably, Shapiro does much the same in laying down procedural criteria for an acceptable decision. It's not just that these criteria for 'a nondominating policy' are themselves subject to different interpretations, but also that applying these considerations rather than others is itself controversial. He suggests that abortion policy should be guided not by considerations of any 'metaphysically imponderable' 'right to life' but by whether a policy places an undue burden on a woman's democratic procedural rights. 27 However, a woman's 'democratic procedural rights' are as 'metaphysically imponderable' as the right to life and are subject to just as much disagreement. 28 Choosing these criteria is also to effectively take sides in the debate and suggest that the 'right to choose' of the mother takes precedence. Burt and his followers see his substantive process approach as less confrontational than Dworkin's substantive outcome view. Yet there is no real evidence that it is in practice, or that it can avoid in theory effectively shading into an outcome view in much the same way as Ely's did. Many analysts argue Brown added to Southern resentment, leading Southern politicians to sharply shift to the right without advancing the black cause. All agree that the crucial changes came from the civil rights movement and the resulting democratic decisions of the Civil Rights Acts. There is some support for Burt's view in the fact that Brown did provide a symbol that helped mobilize civil rights action: for example, the first Freedom Ride of 1961 was planned to arrive at its destination on the anniversary of Brown. However, it seems fairly likely that some civil rights movement was inevitable and that this would have engaged the sympathy of a national political majority that had increasingly found southern segregation and political discrimination an embarrassment - even in 1954 (for a detailed analysis see Klarman, 1994 ). Meanwhile, the Civil Rights Act, which allowed federal funds to be denied to schools that continued to discriminate, was arguably also an 'imposed' decision. After all, only seven senators outside the South voted against the Southern filibuster that sought to derail it, as similar measures had been in the past. Yet there is a difference in a defeat by, at the time, an unprecedented two-thirds majority of the representatives of millions of fellow citizens making common cause with a black minority and a vote by nine judges representing no body. The latter is much harder to portray as an elite affair. Rather, it signified the entry of blacks into a condition of political equality in which they could demand a say in how the affairs of the South were run - a point reinforced dramatically by the Voting Rights Act that was to transform Southern politics. It also shows that legislative majority's need not be tyrannous Uust as Dred Scott indicates how courts do not necessarily uphold the rights of minorities). In other words, the substantive procedural claims of democracy were far more effectively made through struggles within the democratic process itself than they ever could have been made through the courts.

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Substantive Proceduralism: Habermas and the Preconditions of Democratic Discourse

Jiirgen Habermas also seeks a way out of Ely's dilemma. Like Ely, Habermas maintains that 'the democratic process bears the entire burden of legitimation' (Habermas, 1996, p. 460). In a 'postmetaphysical' age, an uncoerced, rational consensus between autonomous individuals offers the only acceptable basis for law (ibid., p. 448). However, he also believes that this approach presupposes a substantive theory of the preconditions of democracy and criticizes Ely for assuming, but failing to develop, such a position (ibid., p. 266). He contends that this gap can be filled by an account ofthe 'system of rights that makes citizens' private and public autonomy equally possible' (ibid., p. 263). Habermas claims that the resulting conception of democracy is a procedural one: it looks at, 'on the one hand, the communicative presuppositions that allow the better arguments to come into play in various forms of deliberation and, on the other, procedures that secure fair bargaining conditions' (ibid., pp. 278-79). Habermas sees his argument as a synthesis and critique of 'communitarian' or 'civic republican' accounts of democracy and judicial review, on the one hand, and 'liberal' positions, on the other. The first treat democracy as a process premised on, and aimed at, the discovery of common values (ibid., pp. 269-79). 29 Habermas criticizes these views for seeing citizenship in ethical terms, as membership of a community possessing shared values, rather than in legalpolitical terms, as simply involvement in a set of common discursive practices. In today's complex and pluralist societies, a convergence on values is unlikely. Judicial review premised on this understanding of citizenship will necessarily fall foul of Ely's strictures regarding a substantive values approach, with the judge ending up imposing his or her own views in the name of society as a whole (ibid., p. 279). The second, liberal positions, though, go too far in the opposite direction. They see democracy simply as the pushing and shoving of interests between self-owning rights bearers (ibid., pp. 268-70). These approaches treat rights as 'natural' and so pre-discursive and pre-social. Rights thereby become endorsements of self-interest, legitimizing the ways in which those with most power skew or subvert the process of bargaining in self-serving ways within both the public and private spheres (ibid., pp. 271-72, 282-83, 293-94). Liberal models also ignore the fact, recognized by communitarians, that democracy concerns arguments and not just interests (ibid., pp. 273-74). Theorists who view democracy in these terms either demand too little of judicial review, simply looking to see if formal rights to vote are granted to all, or are tempted to correct its potential injustices by demanding too much, asking the courts to pronounce on the policy implications of defending pre-political individual rights (ibid., pp. 297-98). Habermas's own position aspires to overcome the respective problems ofthese two approaches by seeing courts as defending the norms of democratic discourse (ibid., pp. 269-97). He contends that, unlike either communal values or individual natural rights and interests, these norms are not relative to the society or persons concerned. Rather, they are universal preconditions of rational communication oriented towards a consensus. As a result, he argues that 'a constitutional court guided by a proceduralist understanding of the constitution does not have to overdraw on its legitimation credit'- it can merely stay within its authority to maintain the law as given by the 'logic of argumentation' (ibid., p. 279). I doubt this. As we have seen, people may reasonably disagree about the right as well as the good. They can differ in their views of private and public autonomy, and so propose different accounts of democracy and the procedural rights it entails. Indeed, communitarian and liberal

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views offer two such different accounts. Both involve democratic communication; they simply entail different conceptions of political communication to his. Habermas argues that 'a consistent proceduralist understanding of the constitution relies on the intrinsically rational character of a democratic process that grounds the presumption of rational outcomes' (ibid., p. 285). Although that sounds like a pure proceduralist argument, it turns out to be a form of perfect proceduralism because a 'rational outcome' for Habermas is a decision that respects what he regards as the criteria for a rational process- namely, one that respects a certain reading of civil, political and social rights that derive from his understanding of autonomy (ibid., pp. 241--42, 269). This argument brings us full-circle back to Dworkin, as well as being circular in itself.3° For the conditions of communication can be as much at issue as what is communicated - the two are frequently intimately related. Habermas does partly acknowledge this dilemma. In a critique ofRawls's Political Liberalism (1993) he has complained that the American's idea of a democratic contract places the foundations of democracy outside the democratic process, so that 'the act of founding the democratic constitution cannot be repeated under the institutional conditions of an already constituted just society'. As a result, 'it is not possible for the citizens ... to reignite the radical democratic embers of the original position ... for ... they find the results of the theory already sedimented in the constitution' (Habermas, 1995, p. 128). However, despite this criticism, Habermas himself can only find a space for the remaining elements of radical constitutive democracy outside the formal channels of already constitutionalized politics. The pressure for constitutional change comes from a diffuse public opinion, operating through the media, unions, social movements, churches and other institutions of civil society (Habermas, 1996, pp. 35859, 369-70). The supposed dangers of majoritarianism are to be avoided by divorcing a populist and allegedly 'subjectless' constitutional politics from a constitutionally constrained normal politics (ibid., pp. 304, 486). It is to the coherence of such populist appeals to the constitutive power of 'the people', and the division between 'normal' and 'constitutional' politics on which it rests, that we now tum.

Constitutive Democracy: Populist Constitutionalism The problem with both the substantive and procedural accounts of how democracy should be constituted is that they simply end up advocating those policies that the theorist in question believes an ideal democracy ought to come up with. They overlook the substantive and procedural virtues of democratic decision-making as a mechanism for legitimately handling our disagreements - including those about the very constitution of democracy. However, a fourth group of theorists have sought to overcome this objection by seeing the constitution as the product of a special kind of democratic politics. On this account, democracy binds itself. Such self-binding is not of the idealized kind that could be said to emerge from a Rawlsean or some other democratic contract. Rather, it involves real politics. Nevertheless, it implies a qualitative difference between 'constitutional' and 'normal' politics that only makes sense if the first can be treated as somehow more ideal than the second. In other words, here too the ordinary processes of 'actually existing' democracy are to be regulated by the norms of some version of 'true', populist democracy. The essays in Part IV begin with Bruce Ackerman's inf1uential account of a dual form of democracy- constitutional and normal, with the one framing the other. However,

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the essays by Ulrich Preuss and myself and Justus Schonlau offer an analysis of actual constitutional politics that challenge that distinction in various ways.

Constitutional Politics: Bruce Ackerman's We the People Bruce Ackerman's We the People (1991) offers one of the most elaborate theories of how a people employ a democratic constitutional consensus to bind the process of democracy. Though offered as an account of US constitutional history, it has been taken up by others as a more general democratic justification for a constitution. Ackerman argues that we must distinguish between 'normal' politics, which occurs under settled constitutional systems, and 'constitutional' politics, which arises in exceptional times and places the whole system of government in discussion. By virtue of this 'dualist' scheme (Ackerman, 1991, pp. 3-33), he aims to cut through the vicious circularity that surrounds the relationship between constitutionalism and democracy. Ackerman contends that the constitutionalists' objections to simple majoritarianism are valid with respect to 'normal' politics but do not hold for 'constitutional' politics. During 'normal' politics, people do not speak with a single voice but are divided into different ideological factions and interest groups. At such times, the democratic process is best captured by an 'economic' model which characterizes voters as instrumental agents bent on maximizing their own preferences. Consequently, fear of a tyrannous majority during such periods is fully justified: judicial review, divided representation and Madisonian checks and balances are needed to curb such tendencies as much as possible (ibid., pp. 181-83, 186-95). 'Constitutional' politics, by contrast, only takes place when some national crisis manages to unite the people and leads them to transcend their own particular interests and consider the common good. On such occasions, political decision-making is deliberative, rather than economic, in nature. The aggregating and trading-off of group interests gives way to debate on the basis of publicly justifiable reasons. The aim is no longer the will of all, so much as the general will. As a result, objections to the will of the majority lose much of their force. Instead of representing the aggregate of the largest number of personal preferences, which is then imposed on others who wanted something quite different, a deliberative majority reflects a general opinion on the rules and principles necessary to benefit everyone. In this latter case, voters should already have taken the rights of other individuals into account when making their decision and, when necessary, weighed them as best they could (ibid., pp. 266-94). Ackerman identifies three instances of constitutional politics in the United States - the Founding, Reconstruction and the New Deal. These constitutional moments established a framework for normal politics that the Supreme Court could then defend from populist incursions until such time as 'we the people' reconvened to reform it (ibid., pp. 58-104). This thesis aims to synthesize three different views of constitutionalism (ibid., pp. 7-24 ). The concerns of 'rights foundationalists', such as Dworkin, can be catered for because dualist democracy gives rights special protection by making them only reformable in the context of constitutional politics. Between times, they can be upheld by judicial review. He also hopes to accommodate the views of 'monist' democrats, who believe that the will of the people should always prevail. These theorists make the mistake of believing that the popular will is expressed in the ordinary law-making of 'normal' politics. In fact, at such times, personal interests tend to supervene over the national interest, so that the everyday legislation of governments reflects, at best,

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majority preferences rather than the common good. However, the constraints imposed on majorities by the constitution and its judicial guardians result from constitutional politics and so do genuinely mirror the collective voice of the people. In bowing to them, therefore, governments submit not to certain elites or imposed norms but to the considered will of the demos. Finally, Ackerman also tries to take the approach of historicist interpreters of the constitution on board. This group divides into roughly two camps: those who argue that judicial interpretation should concentrate on divining the original intent of the founders and those who regard the constitution as an evolving document that judges need to update to ref1ect current conditions. Ackerman merges the two within his dualist perspective. The role of Supreme Court judges must be to uphold the intentions of the people as expressed at the last relevant moment of constitutional politics. Since the constitution has never been entirely rewritten, this will almost always involve them in a complex process of integrating various elements from each of the three moments. The Founders' intentions remain important, but have been modified by later new beginnings. The constitution does evolve, but not as a result of judicial interpretation. It would be quite illegitimate for judges to take on the responsibility of updating it. Rather, the judges' role is to force the people to deliberate on whether they think change is necessary or not by upholding the status quo until citizens are sufficiently minded to reform it. Allowing a constitutional role for politics appears to be diametrically opposed to the contractual argument of John Rawls or the results-based view of Ronald Dworkin. In Rawls's words, for these theorists 'the idea of right and just constitutions and basic laws is always ascertained by the most reasonable political conception of justice and not by the result of an actual political process' (Rawls, 1993, p. 233). Constitutions are inevitably framed by fallible human beings, but their legitimacy will always derive not so much from the act of framing itself as their meeting certain substantive criteria that judges are fully justified in seeking to read into them. However, Ackerman's view of constitutional politics turns out to incorporate many of the conditions that are supposed to give rise to an 'overlapping consensus' on a reasonable conception of political justice and orientate judicial decision-making about its implications. The added advantages are supposed to be twofold. Greater democratic legitimacy is said to arise from its being an act of self-commitment, while periodic review allows for the correction of errors and its adaptation to changing circumstances. Let's take each of these points in turn. Like others (for example, Gauthier, 1993, p. 322), Ackerman portrays 'constitutional' politics as a form of deliberative democracy. According to its proponents 'deliberation aims to arrive at a rationally motivated consensus- to find reasons that are persuasive to all who are committed to acting on the results of a free and reasoned assessment of alternatives by equals' (Cohen, 1996, p. 23). This account is plausible enough as a characterization of the best rationale for democratic argument - namely, the desire to win one's opponents round by appealing to the fairness and correctness of one's position. However, we all know that real democracy often falls short of this ideal. Deliberative democrats standardly attribute such shortcomings to group interest or ideology leading politicians or citizens to abandon reasoning for rhetoric and bargaining in order to get their way. Undeniably, much political debate eschews argument from the very beginning. However, often arguments simply run outthere is a reasonable difference of opinion or a clash of legitimate interests, with no convergence of views on a single position all regard as right in sight. In these circumstances, argument has to be reorientated towards the search for mutually acceptable compromises- that is, solutions all can live with, even if all the participants personally regard other solutions as superior.

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Deliberation is frequently associated with communitarian theories that stress the need for shared goals and mores for democracy. Here, discussion serves merely as a means of discovering what those common understandings and ends are. But, as I noted above, in modem pluralist societies, such commonality is unlikely. It may be that, in the periods of crisis that Ackerman associates with constitutional politics, a shared fear of some military or economic threat brings people closer together in ways that make convergence more likely. Certainly, a crisis may promote a willingness to make greater sacrifices and cooperate more for the common good. However, the evidence of constitutional conventions reveals that political divisions remain of both a bad, narrowly self-interested kind, and a good or legitimate nature. Each sort was plainly in evidence at Philadelphia. As Dahl recounts, 'The delegates had to confront ... the need to engage in fundamental compromises in order to secure agreement on any constitution at all ... Compromises were necessary because, like the country at large, members of the convention held different views on some very basic issues' (Dahl, 2002, pp. 12-13). If slavery is the notorious example of a bad compromise, others, such as the presidency and the mechanisms employed for his election, evolved out of genuine disagreements about the nature of a republic, the dangers of popular rule and so on. A very similar mix surfaces in other conventionsY Indeed, they provide a vivid illustration of how the very constitution of politics itself always lies within 'the circumstances of politics'. Constitutional politics, therefore, turns out to be remarkably similar to normal politics - the one is less high-flown and consensual than its advocates imagine, the second more principledeven in the negotiation of compromises, than its critics contend. As a result, it becomes hard to accord it any special weight. Many of the agreements will simply reflect the concerns and beliefs of people at a given time, and these can be expected to change. For example, the US constitution was drafted prior to the era of mass party politics and before parliamentary systems had properly emerged. There is evidence that, as these began to develop, Madison, for one, changed his views regarding the anti-majoritarian biases of the constitution (Dahl, 2002, pp. 1213). Had the constitution been drafted in 1820, it would have had a very different shape to that of 1787. Some commentators view a constitution as a form of popular precommitment. Yet, as Jefferson noted, it is not the same people binding themselves. Why, he asked, should the living be bound by the dead? Surely, the collective autonomy of the demos required that 'each generation is as independent of the one preceding, as that was of all which had gone before', possessing 'like them, a right to choose for itself the form of government it believes most promotive of its happiness' (Jefferson, 1975a; see also Holmes, 1988). That certainly is a powerful case if we see precommitment as a set of discrete individual acts. Of course, we usually see such binding as a collective act of the people as a whole. As such, it is more plausible to imagine a people thinking about future generations as well as its own concerns. Still, how far-sighted can any people be? Moreover, the notion of self-binding works if one regards the danger as periodic weakness of will, myopia or madness, as with Ulysses tying himself to the mast to be able to resist the allures of the sirens. But what a constitution effectively binds people to is a view of the nature of democracy and its workings about which they may well have disagreed even at the time. The analogy here would not be with a drunk being bound by his sober self, but with someone, in more secular times, being bound by a long family tradition of the eldest son entering the priesthood even if he had lost his faith or had never believed.

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It is sometimes argued that, because democracy would not even exist without certain constitutive rules securing the conditions of vigorous debate, democrats should surely want to bind themselves to some rules (Holmes, 1988, pp. 227-28, 232-35). As we have seen, though, there are no views of democratic procedures that all can agree best produce majority rule, guarantee free discussion or protect minorities - even if democrats of all persuasions would sign up to these goals in the abstract. Issues such as the televising of parliament, public funding for parties, term limits and proportional representation have always been controversial. Moreover, the balance of opinion about them has often shifted over time. As new information comes to light and societies change, it is perfectly possible for people's opinions to alter. For example, when the Philadelphia convention chose to submit members of Congress to two yearly elections they followed a fairly common contemporary view about the desirability of having a frequent turnover of representatives and holding them very regularly to account. With experience, most people now regard these terms as too short, more or less forcing American politicians to continually campaign and raise funds, responding to short-term demands rather than tackling long-term problems (King, 1997). True, it is possible that reforms may be motivated by the desire of a dominant group to entrench its power even more. However, that cannot be regarded as the norm. If one thinks of the successive constitutional changes in Britain throughout the nineteenth and twentieth centuries, these have been invariably motivated to give greater numbers of people more of a say, either by enfranchising previously excluded groups or through the devolution of power to sub-units. The amendments to the US constitution have largely operated in a similar direction (Grimes, 1978, p. 166). Even so, there is never likely to be total agreement. After all, referenda on constitutional amendments are rarely unanimous and, where supermajorities are not required, often get through with a bare majority. So though we do need procedural rules to hold elections, conduct debates and so on, we cannot fix which set are the most constitutive of democracy. That always remains open. Naturally, it would be unwise to alter the rules of the democratic game too often. Madison objected to Jefferson's proposal of periodic conventions to allow each generation a chance to bind itself on just these grounds, fearing that it would produce a highly unstable system (Jefferson, 1975b; Madison, 1981). To some degree, Ackerman's argument for periodic 'constitutional moments' offers a more restrained and plausible version of that thesis, but it still begs the question of whether change can only be justified in exceptional circumstances and through a special kind of politics. If the debates of constitutional politics cannot result in a rational consensus that transcends the disagreements and compromises of normal politics - and we have seen that they cannot because the burdens of judgement render such agreement unachievable -then the rationale of a Rawlsean-style democratic contract cannot be invoked for this limitation. Nor does the mere possibility of formal amendment overcome this problem. Unless the amendment process is as easy as ordinary legislation, it simply reflects and entrenches the now discredited precommitment thesis. A purely pragmatic case for constraining change might be made if subsuming constitutional reform within normal politics produced regular root-andbranch alterations of the potentially destabilizing kind that Madison feared from Jefferson's scheme. However, in countries such as Britain and New Zealand, where hitherto parliament has had the power to make sweeping changes, reforms have been incremental and piecemeal. Instead of a Jeffersonian new beginning, there has been a more or less ongoing constitutional debate as part of the normal legislative process because most policy decisions have constitutional implications for how the scope, sphere, style and subjects of politics are defined. Consequently,

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explicit and major constitutional reforms are rare and invariably partial. Precisely for this reason, though, it is implausible to justify constitutions as the products of a special 'moment' of popular precommitment. Instead, a people continuously reconstitutes itself and democracy through normal politics.

Popular Constitutionalism This view of constitutional politics as normal politics needs to be distinguished from popular constitutionalism. Recent commentators on the US constitution have revealed the assumption that the Supreme Court is the authoritative interpreter of the constitution to be relatively new (Tushnet, 1999, esp. ch. 8; Kramer, 2004). Although conservative federalists promoted the Court's primacy from early on as a means for defending the rights of property and implementing a Union-wide free trade zone, democrats from Jefferson onwards had challenged this viewoften successfully. They argued that, at best, the judiciary had equal status with the legislature and the executive, with each depattment having the right to decide its prerogatives and powers under the constitution for itself. When they clashed, then the ultimate m·biter was not the Court but (in Madison's words) 'the people themselves' (Kramer, 2004, pp. 105-14). Such popular control was exercised not simply in exceptional moments and via special expedients, such as the amendment process. Elections, petitions and non-violent protest were all seen as proper mechanisms for the people to express their view - either forcing the president or Congress to back down in any confrontation with the Comt, or empowering them to instigate measmes to force them to give way by imposing new responsibilities designed to make their lives miserable (as Jefferson did), ignoring or frustrating the Court's judgement (as Jackson and Lincoln did), threatening to slash its budget or strip it of jurisdiction (as the Reconstruction Congress did), or pack it with new members (as the Reconstruction Congress did and Roosevelt threatened to do) (ibid., p. 231). This argument, which largely prevailed for the first 150 yem·s of US history, was succinctly summed up by Roosevelt in his Address on Constitution Day, 17 September 1937: ... for one hundred and fifty years we have had an unending struggle between those who would preserve this original broad concept of the Constitution as a layman's instrument of govermnent and those who would shrivel the Constitution into a lawyer's contract ... Unlike some lawyers, [the lay rank and file] have respected as sacred all branches of their government. They have seen nothing as more sacred about one branch than about either of the others. They have considered as most sacred the concrete welfare of the generation of the day ... [They] can take cheer from the historic fact that every effort to construe the Constitution as a lawyer's contract rather than a layman's charter has ultimately failed. Whenever legalistic interpretation has clashed with contemporary sense on broad national policy, ultimately the people and Congress have had their way. (F.D. Roosevelt, cited in Kramer, 2004, p. 217)

Roosevelt was right. By and large, the Court has followed the polls when it comes to decisions supported by sustained, national majorities (see Dahl, Chapter 6, this volume). Nevertheless, having found only two federal laws unconstitutional prior to the Civil War, it struck down 20 between 1865 and 1900, a process that had steadily grown by the 1990s to 30 laws in that decade alone (Kramer, 2004, p. 213). Given that judicial activism had been mainly aimed against the labour movement up to the 1930s, the main opponents had been the progressives. That changed following Roosevelt's successful challenge to judicial opposition to the New Deal. As a liberal Court supported the civil rights movement, it was the conservatives' turn to

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fulminate against judicial legislation. However, the debate had subtly changed. By the 1980s few questioned the Court's standing as the final arbiter on the constitution (ibid., pp. 221, 233). Conservatives merely argued that the judge's role should be restricted to the 'intentions' of the framers or to a strict interpretation of the constitution. One person's legitimate interpretation is another's illegitimate judicial legislation. Focus moved from opposing the people's view to that of the Court to simply packing the Court. There are two difficulties with populist constitutionalism. The first difficulty is illustrated by its gradual marginalization within the United States: it simply faces an unequal battle with any constitutional court. Particularly within a federal system, there is a natural trend towards a gradual accretion of power by a central court (see Shapiro, 1999, esp. pp. 321-27). The reason is simple - such a court offers an obvious mechanism for resolving boundary disputes and ensuring that all abide by a relatively standard interpretation of the rules. While each state may prefer to interpret them for themselves, they accept that for all to do so would be worse for everyone. Though closely associated with the federal system, and so likely to support the government in any jurisdictional battle, the court is independent from it and can maintain the fiction that its authority comes simply from applying 'the law'. Judicial discretion is conveniently passed over. A written constitution gives this court an especial advantage. Unlike statutes, constitutions tend to be very general and flexible. And whereas a legislature can overcome a judicial interpretation of a statute that it does not like by rewriting the law, constitutions are usually much harder to amend. Likewise, taking on the court proves equally hazardous, without overwhelming popular support. Being in office for comparatively smaller periods, governments have to pick their fights well and only enter those likely to have an immediate electoral pay-off. Very often, large policy implications lurk in decisions of low political salience that are then absorbed into the court's case law only to resurface much later as a precedent. To this extent, Ackerman is right- democratic stand-offs with the court over constitutional interpretation are rare because exceptionally difficult. Only extreme judicial provocation, such as Roosevelt encountered with the New Deal, are likely to cause governments to risk it. As a result, courts slowly turn the constitution into a body of constitutional case law and incrementally extend their sway over ever more areas. Legislatures also happily allow the court to take electorally difficult decisions for them. All these factors favour judicial review over popular constitutionalism. The second difficulty follows on from this last issue and concerns the relationship between populism to democracy. As I noted earlier, the US constitution pre-dates the era of mass, party politics. Populism tends to denote an appeal to a 'public opinion' that has been somehow ignored by formal political channels or established politicians, with populist leaders typically claiming to articulate the concerns of a 'silent majority' .It is undoubtedly true that the prevailing channels of political communication often do block - either directly or indirectly - particular voices. However, there's a significant difference between political movements, such as those seeking reform of the suffrage to include workers and women, and populist movements. The former seek inclusion within the normal political process. Such inclusion alters the constitution of politics thereafter- by recognizing the voice of women, for example, the view of the publicprivate divide with regard to the family, say, and notions of equality and discrimination have also been changed in important ways. However, women's perspectives also become an aspect of more general political programmes, supplementing, but also at times in competition with and giving way to, other concerns. In sum, they become part of the general system of politics

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and are oriented towards improving its overall effectiveness and fairness (Bellamy, 2001, pp. 1920). By contrast, populism tends to be anti-system- a straight appeal against it- and, as such, it frequently proves anti-political and produces either ephemeral or radical, and anti-democratic, change. These qualities make populism a crude source of constitutional control, far inferior to popular control via the ongoing system of democratic politics. It should be noted that similar difficulties beset Habermas's aforementioned reliance on social movements as the source of democratic input into the constitutional system (Habermas, 1996, pp. 304, 486). These tend to focus on single issues and, like populism, have little incentive to relate their demands to those of others within the political community or even to have much of an interest in ensuring the fairness and equity of the system as such. Their overriding concern is with attaining certain specific ends. Once again, this placing of constitutional politics outside the normal political realm fails to take account of how it is precisely through viewing one's political claims as part of a normal political process that gives them a genuinely constitutional colour. It is only then that people begin to place their concerns in the context of a system that seeks to give adequate consideration to the concerns of all. If the 'people themselves' are to be the final arbiters of the constitution, therefore, ordinary legislation within the legislature has to be the sphere of constitutional politics. After all, as I have noted, this was how workers and women obtained the vote during the nineteenth and early twentieth century in most Western countries. More recently, New Zealand has introduced a form of proportional representation, as has Britain for certain local and European elections. What of the danger of being judge in one's own case? Against this worry there is the equally important epistemic principle that decisions are best made by those with a sufficient stake in the matter to decide responsibly (Waldron, 1999, pp. 296-98). Since all citizens are affected by any change in the rules, they should all have a say in how they are changed. The judicial obstruction of the labour movement throughout the so-called Lochner era arguably originated not so much, or only, from the ideological convictions of the judiciary, as from their lack of appreciation of the conditions under which ordinary men and women lived and worked. They simply lacked sufficient interest in the legislation to appreciate the stakes involved. It might be objected that this solution risks being viciously circular. If the democratic system is imperfect, then surely any decision will be tainted by this imperfection. To a degree, it will be- though flawed democracies can and do improve themselves. Indeed, in such circumstances the judiciary will share this taint - for it, too, belongs to that system. If minorities are underrepresented in the legislature, they almost certainly will be underrepresented in the judiciary as well. More importantly, though, will those who want reform have to appeal to a resultsbased view to justify their argument? Yes and no. As with any democratic decision, people can distinguish between acceptance of the legitimacy of the democratic procedure and agreement with the policy that emerges from that procedure. Just as I can prefer politician A to politician B, but still regard a majority vote as the legitimate way of choosing between them even if I know most people will opt forB, so I can believe that proportional representation is better than the current plurality system yet acknowledge that the only legitimate way of instituting proportional representation would be by means of the prevailing system. My preference for proportional representation will be a substantive, results-based view, but I can still acknowledge there are valid arguments against such a system. As a matter of practical politics, therefore, it will be necessary to defer to some procedure to decide the issue, and, as a democrat, I can reasonably prefer an imperfect democratic procedure through which citizens have some chance

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of having their say to one that has fewer democratic credentials while sharing those self-same imperfections. Meanwhile, since citizens could use a proportional representation system to opt for a plurality system as well as vice versa, there is no necessary circularity in using a democratic procedure to reform democratic procedures. Whatever the inevitable f1aws of any system, it retains an authority and legitimacy that is independent from the right or wrongness of the policies it is employed to decide - including those about democracy itself. Thus, democracy proves self-constituting, with the only effective and valid constitution being the ongoing and continually constitutive processes of democratic politics itself.

Constitutionalism and Democracy Beyond the Nation-state All the arguments considered thus far assume that the main context for discussing the relationship between constitutionalism and democracy is within a largely self-contained nation-state. The essays in Part V ask whether globalization undermines such arrangements and whether a global democracy and constitutionalism is necessary to preserve rights and democratic accountability. Many commentators believe that there are major difficulties in establishing democracy on a global scale. The sheer size of the electorate and the absence of either a global demos or public sphere, occasioned, for example, by multilingualism that even within states has led to ever greater calls for democratic devolution on linguistic lines, all suggest that democratizing international political organizations such as the UN and the EU pose intractable problems (see Dahl, 1999). The distance between the electorate and their representatives will become ever greater, their capacity to inf1uence their decisions through holding them accountable that much less. Some believe that this circumstance makes a constitutional framework for politics all the more essential in a global age. Consequently, they advocate a global constitution capable of upholding universal norms of human rights. Indeed, some theorists- most notably David Held (2002) and Jiirgen Habermas (2001, ch. 4)- have seen the development of international law as moving us beyond both state and popular sovereignty towards a new model of post-sovereign constitutional politics. In other words, they regard a global constitutionalism as establishing the basis for a global democracy. However, this scenario is basically an extension of the substantive argument to the international sphere. If, as I have argued, that case fails at the domestic level, then its failings will be even more manifest in the international context deepening, rather than compensating for, the growing domestic democratic deficit. Jim Tully's essay (Chapter 17) sets the scene, arguing that globalization threatens to undermine the ways in which he believes constitutionalism and democracy interrelate, with each providing the justification for, and a necessary check on, the other. In Chapter 18 Bill Scheuerman notes, in particular, how economic globalization potentially undermines the rule of law by substituting a market logic for one driven by legal norms. James Bohman (Chapter 19) suggests that republican, if not strictly democratic, arrangements may nonetheless be possible to prevent a concentration of power in any one group or set of institutions which might be used to oppress or dominate others. Indeed, intergovernmental arrangements potentially offer something of the pluralism that animates democracy at the domestic level and force negotiation between different interests and concerns in ways which help ensure that all are treated with equal concern and respect.

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The next five essays explore the relationship between constitutionalism and democracy in the EU- probably the best developed instance of international governance and law. In Chapter 20 Dieter Grimm asks whether there can be a European constitution without a European people -appealing implicitly to the populist constitutionalism examined above. In Chapter 21 Jiirgen Habermas seeks to articulate his middle way, asserting that sufficient elements of commonality exist among Europeans for an EU constitution to constitute a European people. By contrast, J.H.H. Weiler (Chapter 23) suggests that such a move would undermine the EU's main contribution to constitutionalism- namely, a quasi-common law framework built on the mutual recognition of diverse constitutional traditions. Finally, I develop Weiler's argument to suggest that it is a neo-republican balance of power between the member states and their constitutional courts that offers the best proxy for pluralist democracy in securing the equitable framing and application of law at the international level. In sum, globalization exacerbates the tensions between constitutionalism and democracy. Just as we have to recognize and develop the constitutional potential of democratic politics, so we have to acknowledge that the true force of international law comes from agreements between democratic states rather than international courts. It is the democratizing of states that produces a democratic world order, not an inevitably sham global democratic order.

Conclusion Even in their own terms, none of the four arguments surveyed in this Introduction works. Throughout this critique of legal constitutionalism, I have maintained that the true protection of rights, the rule of law and even democracy comes from democracy- the power of individual citizens to claim and frame their rights and demand that they be treated on equal terms with others. In fact, as I observed and Ely noted, the bulle of most constitutions deal with the operations of the political system. This forms the political constitution of the body politic. There is an urgent need, therefore, to address the constitutional role of normal democratic politics in order to see, for example, how it is not the separation of powers but the alternation between government and opposition that provides the best defence of our rights; and, indeed, that it is the fundamental right of citizens to be treated as equals that grounds their claims to democratically frame and control the ongoing constitution of their politics. 32 How far this can be possible at the international level sets democratic limits to the globalization of law and politics. If, as I have suggested, there are severe obstacles in the way of a global democracy, then international cooperation and peace may best be fostered through intergovernmental arrangements between democratic states than by attempts to impose a global constitutional settlement.

Notes

2 3

This introduction draws on Bellamy and Castiglione ( 1997). I am grateful to Daria for letting me use this material here, and for comments on this much revised and expanded version. See Wolin (1989, p. 8); cf. also the various studies in Elster and Slags tad (1988). On the restriction of scope that constitutionalism imposes on democracy, see Weale (1989); and Ruffilli (1991). Even supporters of constitutionalism against democracy have regarded too rigid a constitution as problematic; see, for instance, A. de Tocqueville, who argued in favour of making the procedures

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12

13 14 15 16 17

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for change easy, in Recollections: The French Revolution of 1848, quoted in Elster (1993, p. 23, n. 15). Indeed, the US constitution is somewhat anomalous among democratic constitutions. Dahl (2002, ch. 3). See Smith and Wales (2000, pp. 51-65), who note, at p. 60, the importance of political efficacy in promoting the beneficial effects associated with deliberation, such as attitudinal change. The origins of this line of argument go back to Griswold v. Connecticut, 381 US 113 ( 1973 ). This aspect is particularly evident in Lectures 6 and 8 of Political Liberalism (Rawls, 1993), for example at pp. 231-40 and 340--63, where he gives detailed accounts of the US Supreme Court's function and discusses certain test cases with regard to free speech and equal opportunities. The locus classicus for this argument is probably Burke (1993, for example, pp. 33-35). This criticism is developed more fully in Bellamy (1999, pp. 52-60). For a path-breaking, if occasionally overstated, analysis of this phenomenon among British judges, see Griffith (1981). Parallel observations, so far as American courts are concerned, have fuelled the Critical Legal Studies movement; see, for example, Tushnet (1988). A number of commentators (for example, Tushnet, this volume, p. 204; Tribe, this volume, pp. 22425) have disputed this reading ofthe Bill of Rights, arguing that seeing the criminal justice provisions or rights to property as rights to political participation is far-fetched. I think they probably can be seen in these terms, After all, the possession of property was often a precondition of the vote, and the rationale for that criterion - namely, that it gave the voter a stake in the country and also a certain independence in making judgements - might be said to still operate in defending the institution of private property as an important factor in maintaining democracy and a stake being a good reason to deny the franchise to transient residents. Such arguments might also buttress viewing social and economic rights as linked to democratic citizenship. Whether this is all there is to such rights, or whether this offers the best characterisation of them, is a different matter. Robert Dahl's A Preface to Democratic Theory (1956) was criticized by Ely for overlooking the limits of pluralism politics (see, for example, Ely, 1980, pp. 80, 135). Dahl seems to have taken these criticisms to heart and in Democracy and its Critics (1989, pp. 191 and 359, n. 9 concurs with Ely's view that 'a court whose authority to declare laws unconstitutional was restricted to rights and interests integral to the democratic process would be fully compatible with the democratic process'. See also Dahl (2002, pp. 152-54 and 189, n. 4). Others who generally privilege democracy over judges likewise endorse his approach; see, for example, Sunstein ( 1996, pp. 179 and 209, n. 11) who approvingly cites Ely for his view that 'the most promising approaches to constitutional interpretation call for an aggressive judicial role when there are defects in purportedly democratic processes'. Buckley v. Valeo, 424 US 1 (1976). For example, in 2002, out of 435 contested Congressional seats, only four incumbents lost to challengers. See BBC News, 8 October 2004 at: http://news.bbc.co.uk/l/hi/world/americas/ 3724372.stm. Lani Guinier failed to be confirmed as assistant attorney general for civil rights because of her views. See Gomillion v. Lightfoot, 364 US 339, 347 (1960) for the Supreme Court's decision. Note that Ely (1980, pp. 170--72) does not want to rule out 'positive' 'we-they' discrimination, such as affirmative action programmes, even if he acknowledges that such polices may be unfair to particular individuals. He argues that these are allowable because there is no danger of a white majority, say, discriminating against whites because of racial prejudice. However, many of those excluded by such programmes claim this is precisely what has happened. Here, Ely has elided means and ends. The point is not that a white majority cannot make what many of them believe to be an unjustifiably discriminatory policy even with regard to its own, but that those who feel aggrieved have a better chance than certain minorities of overturning that decision through the political process. Bush v. Gore, 531 US 98 (2000). 531 US 98, at 128-29 (Stevens J). For example, Shapiro (2003, p. 64) sees it in these terms. As Larry Kramer has shown, deference to the Court on this issue indicates a shift in attitudes towards it over the past 50 years or so. In the past, its decision would almost certainly have provoked far more political and popular opposition than it did. See Kramer (2004, pp. 231-32).

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23

24

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Constitutionalism and Democracy 60 US (19 How.) 393 (1857). Dred Scott was a slave who had travelled with his owner to both a free state and a free territory that prohibited slavery. On his owner's death, following his return to the slave state of Missouri, he brought a suit against his owner's widow claiming he had effectively been emancipated by his previous residence in free regions of the Union. Although the state court held for him, the Missouri Supreme Court overruled the decision. He then brought a new proceeding before the federal court following the transfer of control over him to his owner's widow's brother, John Sanford. The court ruled that he was still a slave, and Scott appealed to the Supreme Court which found in Sandford's (sic) favour, ruling that slaves were not citizens under the constitution and could not sue before federal courts, that the relevant state courts had jurisdiction on the substantive issue in their jurisdiction and that Congress had lacked the authority to prohibit slavery in the territories. Brown v. Board of Education, 347 US 483 (1954) and Brown v. Board of Education II, 349 US 294 (1955). This landmark decision overturned the Court's previous holding that racially segregated public education could be 'separate but equal' and hence compatible with the Fourteenth Amendment to the constitution. As Burt rightly notes, the least convincing in this respect are the contortions of the 'originalists', such as Bark, to square Brown with their view- an exercise that, in so far as it requires an 'updating' of the founders' views to meet problems that they did not anticipate, effectively undermines their position. See Burt (1992, pp. 12-13). But this was no less imposed, with an unprecedented two-thirds Senate majority being used to squash an overwhelmingly Southern filibuster in the Senate to pass the 1964 Civil Rights Act. On Burt's reading, such a one-sided democratic majority ought to be as tyrannous as a Court majority Roe v. Wade, 410 US 113 (1973) and commentary by Burt (1992, pp. 344-52) and Shapiro- who also cites Ginsburg- (2003, pp. 67-73). Shapiro (2003, pp. 70-73), commenting on Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992). As Shapiro (2003, pp. 71-72) notes, Justice Scalia in his dissent pointed out 'that the idea of undue burden involves philosophical choices about which justices will continue to differ'. See, for example, Stenberg v. Carhart, 530 US 914 (2000). Habermas's main example of this position is Michelman (1989, pp. 291-319). For a comparison of the two thinkers, which notes how Habermas himself to a degree 'savours' this very circularity, see Michelman (Chapter 13, this volume). See, for example, my analyses of the Conventions that drew up the EU Charter of Rights and Draft Constitution in Bellamy and Schi:inlau (Chapter 16, this volume; 2004, pp. 57-71). I seek to do so in Bellamy (forthcoming, esp. in Part 2).

References Ackerman, B. (1991), We the People: Foundations, Cambridge, MA: Harvard University Press. Amy, D.J. (1993), Real Choices/New Voices: The Case for Proportional Representation Elections in the United States, New York: Columbia University Press. Bellamy, R. (1999), Liberalism and Pluralism: Towards a Politics of Compromise, London: Routledge. Bellamy, R. (2001), 'Constitutive Citizenship versus Constitutional Rights: Republican Reflections on the EU Charter and the Human Rights Act', in T. Campbell, K.D. Ewing and A. Tomkins (eds ), Sceptical Essays on Human Rights, Oxford: Oxford University Press, pp. 15-39. Bellamy, R. (forthcoming), Political Constitutionalism, Cambridge: Cambridge University Press. Bellamy, R. and Castiglione, D. (1997), 'Review Article: Constitutionalism and Democracy- Political Theory and the American Constitution', British Journal of Political Science, 27, pp. 595-618. Bellamy, R. and Schi:inlau, J. (2004), 'The Good, the Bad and the Ugly: The Need for Constitutional Compromise and the Drafting of the EU Constitution', in Lynn Dobson and Andreas F0llesdal (eds), Political Theory and the European Constitution, London: Routledge, pp. 57-71. Burke, E. (1993), Reflections on the Revolution in France, Oxford: Oxford University Press. Burt, R.A. (1992), The Constitution in Conflict, Cambridge, MA: Harvard University Press.

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Cohen, J. (1996), 'Deliberation and Democratic Legitimacy', in S. Benhabib (ed.), Democracy and Difference: Contesting the Boundaries of the Political, Princeton, NJ: Princeton University Press. Dahl, R.A. (1956), A Preface to Democratic Theory, Chicago: Chicago University Press. Dahl, R.A. (1985), A Preface to Economic Democracy, Cambridge: Polity Press. Dahl, R.A. (1989), Democracy and its Critics, New Haven, CT: Yale University Press. Dahl, R.A. (1999), 'Can International Organizations be Democratic? A Skeptic's View', in I. Shapiro and C. Hacker-Cordon (eds), Democracy's Edges, Cambridge: Cambridge University Press, pp. 19-36. Dahl, R.A. (2002), How Democratic is the American Constitution?, New Haven, CT: Yale University Press. Dworkin, R. (1985), A Matter of Principle, Cambridge, MA: Harvard University Press. Dworkin, R. (1986), Law's Empire, London: Fontana. Dworkin, R. (1995), Life's Dominion: An Argument about Abortion and Euthanasia, London: HarperCollins. Dworkin, R. (1996), 'Introduction: The Moral Reading and the Majoritarian Premise', Freedom's Law: The Moral Reading of the American Constitution, Oxford: Oxford University Press. Elster, J. (1993), Argomentare e negoziare, Milano: Anabasi. Elster, J. and Slagstad, R. (eds) (1988), Constitutionalism and Democracy, Cambridge: Cambridge University Press. Ely, J.H. (1980), Democracy and Distrust: A Theory of Judicial Review, Cambridge, MA: Harvard University Press. Gauthier, D. (1993), 'Constituting Democracy', in D. Copp, J. Hampton and J. Roemer (eds), The Idea of Democracy, Cambridge: Cambridge University Press, pp. 314-34. Glendon, M.A. (1991), Rights Talk: The Impoverishment of Political Discourse, New York: Free Press. Griffith, J.G.A. (1981), The Politics of the Judiciary, Glasgow: Fontana. Grimes, A. (1978), Democracy and the Amendments to the Constitution, Lexington, MA: Lexington Books. Guinier, L. (1994), The Tvranny of the Majority: Fundamental Fairness in Representative Democracy, New York: Free Press. Habermas, J. (1995), 'Reconciliation Through the Public Use of Reason: Remarks on John Rawls's Political Liberalism' ,Journal of Philosophy, 92, pp. 109-31. Habermas, J. (1996), Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. W. Rehg, Cambridge: Polity Press. Habermas, J. (2001), The Postnational Constellation, Cambridge: Polity Press. Held, D. (2002), 'Law of States, Law of Peoples', Legal Theory, 8, pp. 1-44. Holmes, S. (1988), 'Precommitment and the Paradox of Democracy', in J. Elster and R. Slagstad (eds), Constitutionalism and Democracy, Cambridge: Cambridge University Press, pp. 202-5. Jefferson, T. (1975a), Letter to Samuel Kercheval, 12 July 1816, in The Portable Thomas Jefferson, ed. M.D. Peterson, New York: Viking Press, p. 560. Jefferson, T. (1975b), Letter to James Madison, 6 September 1789, in The Portable Thomas Jefferson, ed. M.D. Peterson, New York: Viking Press, pp. 444-51. King, A. (1997), Running Scared, New York: Free Press. Klarman, M. (1994), 'Brown, Racial Change and the Civil Rights Movement', Virginia Law Review, 80, pp. 7-150. Kramer, L. (2004), The People Themselves: Popular Constitutionalism and Judicial Review, New York: Oxford University Press. McKeever, R.J. (1995), Raw Judicial Power? The Supreme Court and American Socie~v (2nd edn), Manchester: Manchester University Press. McKeever, R.J. (1999), 'Race and Representation in the United States: The Constitutional Validity of Majority-Minority Congressional Districts', Journal of American Studies, 33, pp. 491-507. Madison, J. (1981), Letter toT. Jefferson, 4 February 1790, in The Mind of the Founder: Sources of the Political Thought ofJames Madison, ed. M. Meyers, Hanover, PA: Brandeis University Press, pp. 176-9. Michelman, F. (1989), 'Conceptions of Democracy in American Constitutional Argument: Voting Rights', Florida Law Review, 410, pp. 291-319. Rawls, J. (1971), A Theory of Justice, Oxford: Clarendon Press.

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Rawls, J. (1993), Political Liberalism, Chicago: Chicago University Press. Riker, W.H. and Weingast, B.W. (1988), 'Constitutional Regulation of Legislative Choice: The Political Consequences of Judicial Deference to Legislatures', Virginia Law Review, 74, pp. 373-401. Ruffilli, R. (1991), 'Riforma delle istituzioni e trasformazione della politica', in Istituzioni Societa Stato, vol. III, Bologna: Il Mulino, pp. 707-21. Shapiro, I. (2003), The State of Democratic Theory, Princeton, NJ: Princeton University Press. Shapiro, M. (1999), 'The European Court of Justice', in P. Craig and G. de Burca (eds), The Evolution of EU Law, Oxford: Oxford University Press. Smith, G. and Wales, C. (2000), 'Citizen Juries and Deliberative Democracy', Political Studies, 48, pp. 5165. Statement of Law Professors for the Rule of Law, New York Times, 13 January 2001. Sunstein, C.R. (1996), Legal Reasoning and Political Conflict, Oxford: Oxford University Press. Tully, J. (1999), 'The Agonic Freedom of Citizens', Economy and Society, 28, pp. 161-82. Tushnet, M. (1988), Red, White and Blue: A Critical Analysis of Constitutional Law, Cambridge, MA: Harvard University Press. Tushnet, M. (1999), Taking the Constitution Away from the Courts, Princeton, NJ: Princeton University Press. Waldron, J. (1999), Law and Disagreement, Oxford: Clarendon Press. Waldron, J. (2002), 'Is the Rule of Law an Essentially Contested Concept (In Florida)?', Law and Philosophy, 21, pp. 137-64. Weale,A. (1989), 'The Limits of Democracy', inA. HamlinandP. Pettit (eds), The Good Polity: Normative Analysis of the State, Oxford: Basil Blackwell. Wolin, S.S. (1989), 'Collective Identity and Constitutional Power', in The Presence of the Past: Essays on the State and the Constitution, Baltimore, MD: The John Hopkins University Press.

Part I Constitutional Democracy: Substantive Views

[1] Constitutionalism and Democracy1 Ronald Dworkin 1. Introduction Professor Habermas was kind enough to send me an advance copy of his paper. 2 I thought it might be best, in the interests of a concentrated discussion, to address some of the same themes as he does, though, as you will see, my perspective is a different one. So I shall discuss connections between law and jurisprudence, on the one hand, and moral and political theory on the other. By 'constitutionalism' I mean a system that establishes individual legal rights that the dominant legislature does not have the power to override or compromise. Constitutionalism, so understood, is an increasingly popular political phenomenon. It has become increasingly common to suppose that a respectable legal system must include constitutional protection of individual rights. That is the assumption not only of the European Convention of Human Rights, but of almost all the Member States of that convention, in their domestic law. (Even in Britain, which is an exception, the pressure for an embedded constitution is growing.) Perhaps the most remarkable example, however, is South Africa. Even when the ANC legal committee was in exile, drafting a constitution against the day in which a black majority would be permitted to govern, it was never doubted that a South African Constitution should protect minorities against majority power. But nevertheless a strong objection has been pressed against constitutionalism: that it subverts or compromises democracy, because if a constitution forbids the legislation to pass a law limiting freedom of speech, for example, that diminishes the democratic right of the majority to have the law it wants. If we respect constitutionalism, but also democracy, what should we do? What is the proper accommodation between the two ideals? I believe that the conflict just described is illusory, because it is based on an inaccurate understanding of what democracy is. We should begin by noticing a distinction between democracy and majority rule. Democracy means legitimate majority rule, which means that mere majoritarianism does not constitute democracy unless further conditions are met. It is controversial just what these conditions are. But some kind of constitutional structure that a majority cannot change is certainly a prerequisite to democracy. There must be embedded constitutional rules stipulating that a majority cannot abolish future elections, for example, or disenfranchise a minority. Let us distinguish, then, between enabling constitutional rules, which construct majority government by stipulating who may vote, when elections are

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to be held, how representative officials are assigned to electoral districts, what powers each group of representative officials has, and so forth, and disabling constitutional rules, which restrict the powers of the representative officals that the enabling rules have defined. We cannot say that only enabling rules are prerequisites of democracy, because some constitutional rules that might seem, on the surface, to be disabling rules are plainly essential to democracy. A majority would destroy democracy just as effectively by forbidding a minority the right to free expression as it would by denying that minority the vote, for example. It is nevertheless controversial which disabling rules are essential to constructing democracy and so cannot be regarded as compromising or subverting it. Is it essential to democracy that minorities are guaranteed freedom from private discrimination in schools and employment, for example? Is it essential that women are guaranteed the right to an abortion if they wish, or that homosexuals are guaranteed sexual freedom? Is it essential that people are guaranteed a decent level of health care or housing or nutrition or education? These various rights are not so evidently connected to fair political procedures as is the right to free speech, and it may therefore seem plausible that embedding any of these rights in a constitution that cannot be amended by the majority is a compromise of democracy, a constraint on a majority's legitimate right to govern. That issue is, however, more complex than it might first appear, and we must look again.

2. Two Concepts of Collective Action

Democracy, like ahnost any other form of government, involves collective action. We say that in a democracy government is by the people: we mean that the people collectively do things- elect leaders, for example- that no individual does or can do alone. There are two kinds of collective action, however statistical and communal - and our conception of the essential pre-conditions of democracy will tum on which kind of collective action we take democratic government to require. Collective action is statistical when what the group does is only a matter of some function, rough or specific, of what the individual members of the group do on their own, that is, with no sense of doing something as a group. We might say: the German people want a more aggressive foreign policy. We describe a kind of collective action: no one German can act in such a way that he has made it true that the German people think anything in particular. But the reference to the German people is nevertheless only and simply a figure of speech. Our remark only makes a rough statistical judgment of some sort about what (say) most Germans who think about the subject think, or something of that sort. Or we might say that yesterday the foreign exchange market drove up the price of the Mark. Once again, we are describing collective action: only a large group of bankers and dealers can affect the foreign currency

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market in any substantial way. But once again our reference to a collective entity, the currency market, does not point to any actual entity. We could, without changing our meaning, make an overtly statistical claim instead: that the combined effects of individual currency transactions were responsible for the higher price of the Mark at the latest trade. Collective action is communal, on the other hand, when it cannot be reduced just to some statistical function of individual action, because it is collective in the deeper sense that requires individuals to assume the existence of the group as a separate entity or phenomenon. The familiar but very powerful example of collective guilt provides a good example. Many Germans (including those born after 1945) feel responsible for what Germany did, not just for what other Germans did; their sense of responsibility assumes that they are themselves connected to the Nazi terror in some way, that they belong to the nation that committed those crimes. Here is a less unpleasant example. An orchestra can play a symphony, though no single musician can, but this is not a case of statistical collective action because it is essential to an orchestral performance not just that a specified function of musicians each plays some appropriate score, but that the musicians play as an orchestra, each intending to make a contribution to the performance of the group, and not just as isolated individual recitations. The distinction between statistical and communal action allows us two conceptions of democracy as collective action. The first is a statistical conception: that in a democracy political decisions are made in accordance with some function - a majority or plurality - of the votes or decisions or wishes of individual citizens. The second is a communal conception: that in a democracy political decisions are taken by a distinct entity- the people as such- rather than any set of individuals one by one. Rousseau's idea of government by general will is an example of a communal rather than a statistical conception of democracy. Our sense of which constitutional rights are essential preconditions of democracy will depend on which of these conceptions of democracy- these two conceptions of collective action -we accept. I suspect that most of you are drawn to a statistical conception, which is certainly more familiar in our political theory, if not our political rhetoric, than a communal conception. You may think the communal conception metaphysical and mysterious. You may also think it dangerously totalitarian, and my reference to Rousseau would not have allayed that suspicion. So I will proceed, first, on that assumption, though we shall later find reason to consider how the matter would look if we adopted a communal conception (which I myself prefer). If we adopt a statistical conception of democracy, then we must think about the pre-conditions of democracy in the following way. The bare fact that a majority or plurality of people favour one decision rather than another does not, just in itself, provide more legitimacy - it does not provide an appealing moral case justifying the coercion of the minority, who may have been seriously disadvantaged by the decision. We must consider what further facts would confer moral legitimacy on such a decision. We have already noticed some of

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these: a constitutional structure must be in place protecting the right of every adult to vote and to participate in political decisions. What other rights or conditions must be guaranteed? This is a question of political morality that different people would answer differently. But two further conditions might seem necessary. A majority vote does not achieve the needed legitimacy unless, first, all citizens have the moral independence necessary to participate in the political decision as free moral agents, and unless, second, the political process is such as to treat all citizens with equal concern. If that is right, then the preconditions of democracy include some rights - which ones is a matter for debate - tending to secure these conditions. It must include freedom of conscience and religion as well as freedom of political speech, and it must guarantee that political decisions do not reflect prejudice against any group, or disdain for or indifference towards its needs.

3. Does Constitutionalism Undermine Equality? So the case seems compelling, on the statistical conception of collective action, that constitutional rights do not subvert democracy but, on the contrary, are an essential precondition of it. But now we must take account of arguments to the contrary. I assumed, just now, that the bare fact of a statistical majority or plurality does not provide moral legitimacy. But some of you might object to that quick conclusion. You might think that, even if a majoritarian vote does not provide full legitimacy, it has some moral consequence, just in itself, so that curtailing majoritarianism by accepting constitutionalism, even if overall justified, does involve a moral cost. If that were true, then it would give sense to the popular idea that constitutionalism involves some compromise in democracy. So I must now consider arguments to that effect. It might be said that constitutionalism compromises political equality because it gives enormous power to a group of judges who are not elected or politically responsible. That might sound right, at first blush, but it is actually hard to defend in any troubling form. In the first place, as I have tried to explain at length elsewhere, we cannot define political equality as a function of political power. If we define power as impact, the goal of equal power is unattainable in a representative democracy; if we define it as influence, the goal is undesirable as well as unattainable. Political equality must be defined as a matter of status not power, and many constitutional rights, like the right of free speech, therefore contribute to rather than derogate from political equality. Second, many other officials who are appointed rather than elected- cabinet officers, for examplewield even greater power than judges. An American secretary of state may bring the country into war. In any case, however, we should distinguish between two forms of power: legislative power and adjudicative or interpretive power. The argument that constitutionalism subverts political equality generally assumes that constitutional interpretation is actually legislation. That is an important fact

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for us to notice, because it shows the impact of both legal theory and moral philosophy on this political issue. The important constitutional disabling provisions are usually ·drafted in very abstract language. The American constitution, for example, requires 'due process of law' and 'equal protection of the laws', and forbids punishments that are 'cruel'. Judges must decide how to apply these to concrete cases and, of course, judges disagree. They disagree, moreover, in ways that suggest the impact of any judge's convictions about political morality - about the relative moral importance of particular freedoms, for example - on that judge's opinion about what the constitution really means. There are two connected doctrines that argue, from these facts, that judges are not interpreting the law, but inventing new law. According to these doctrines, judges' interpretations are actually pieces of fundamental legislation that, once enacted by a judicial decision at the highest level, cannot be changed by a majoritarian parliament. The two connected doctrines are a legal theory - legal positivism - and a philosophical thesis - Archimedean moral scepticism. Legal positivism (in its strictest form) holds that law consists in the decisions of officials or other people who have been given law-creating powers by the social conventions of the community in question. If positivism is sound, as a general theory of law, then constitutional adjudication must be constitutional legislation in disguise, because no official or anyone else with conventional law-creating powers has ever decided whether, for example, the equal protection clause forbids paying women lower wages for the same work or the due process clause forbids making abortion a crime. But legal positivism is an inadequate interpretation of legal practice, not just in constitutional cases, but generally. It ignores the fact that we treat as law, not only what the proper officials have declared, but the principles underlying what they have declared, whether they recognized those principles or intended to enact them or not. Law is a matter of integrity not just fiat. So legal positivism cannot support the claim that constitutionalism is undemocratic, because legal positivism is a bad theory of law. 4. Moral Scepticism Archimedean scepticism, which argues, on philosophical grounds, that there cannot be a sing~•} right answer to a controversial moral question, poses a greater challenge, if only because of the great popularity of such scepticism in our cultures now. The question whether outlawing abortion offends the due process clause plainly involves issues of political morality: it requires judges to decide, as one justice put it, which freedoms are basic to the very idea of 'ordered liberty'. If moral convictions are only expressions or projections of emotions or sentiments, as Archimedean sceptics insist, then it cannot be accurate to say that judges interpret the constitution hoping to discover its right or true meaning. We must say that they project their own emotions onto the constitution, which means that they are legislating a new one.

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I called this form of scepticism 'Archimedean' to distinguish it from ordinary, or internal, scepticism, of the kind that you and I ourselves share, I assume, about some parts of conventional morality. Internal scepticism rejects morality on internal, moral grounds. If we are sceptical about conventional sexual morality, it is because we think that morality is a matter of people's interests, and we don't think that voluntary sexual choices, however unusual, are harmful. If we think that moral duty can be generated only by the command of a supernatural being, and we think there is no God, we will be sceptical for that reason. This form of scepticism, however global, is rooted in a moral sense, in a set of deep beliefs that, when made explicit, count as a positive moral assertion, a claim about what the only true ground of morality could be. That is why, as J. Stem put it, the three most important moral sceptics of the 19th century, Freud, Marx and Nietzsche, were all profound moralists. Archimedean (or external) scepticism, on the contrary, is supposedly independent of and neutral among all value claims: it is a philosophical position, based on epistemological or ontological or semantic considerations, not a moral one. The difference is very important in the present context. Since internal scepticism is itself grounded in a moral sense, it can be global but not universal: it cannot be scepticism all the way down. It cannot claim that there is not truth in the neighbourhood of the moral. External scepticism, on the contrary, is Archimedean because it is supposedly rooted not in some deep moral sense but in a realm outside morality altogether: a special philosophical platform from which a philosopher might look down on morality and pass judgment about it on the whole. An internal sceptic about sexual morality answers the charge that homosexuality is wrong with an opposite moral claim: that it is not wrong. An Archimedean critic answers that it is neither true nor false that homosexuality is wrong, or that its wrongness or rightness is not out there in reality but in here, in our breasts. Archimedean sceptics are sceptical (we might say) not about the content but about the status of moral claims. They oppose not particular opinions about how we should behave, what we should value, and so on, but what we might call the 'face value' view of these opinions. That is the view you and I have about many of our moral opinions. We think that genocide in Bosnia is wrong, immoral, wicked, odious. We think that these opinions are true- we might be sufficiently confident, in this case at least, to say that we know that genocide is wrong and the people who do not agree with us in these opinions are making a bad mistake. That is the view of morality, indeed of value in general, that the Archimedean sceptics wish to oppose or defeat. According to them, the facevalue view is not itself a moral view. It is a second-order view about moral views, and, in their opinion, a mistaken one. But this distinction between the first-order moral convictions which Archimedean scepticism accepts and the second-order face-value view which it rejects is itself a mistake. For the face-value view of morality is itself a piece of morality: it cannot be understood any other way. To say that it is true that abortion is wicked is, for our purposes, just to say that abortion is wicked. To say

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it is objectively wicked is just to say that it is wicked everywhere and at all times. To say that the wickedness of morality is 'out there' or 'part of the furniture of the universe', if this means anything at all, is just to say that abortion would still be wicked even if no-one thought it was, which is a further moral claim. We cannot assign any sense to these various redundant or metaphorical or odd beliefs that the Archimedeans think the rest of us have, about the 'status' of our moral convictions, that does not make these into redundant or further moral convictions. (If we try, we tum them into preposterous convictions that no-one actually holds, like the view that the wrongness of abortion is a weird physical fact or that the wrongness of abortion enters into the causal explanation of why people think it is wrong.) But if so, then Archimedean or external scepticism is based on a plainly mistaken idea: that an ordinary, internal moral conviction can somehow be undermined by a morally neutral, external claim. In fact, the only thing that can undermine a moral position either is or presupposes a moral or evaluative commitment of some kind. You will be amazed that I propose so quickly to dispose of a philosophical tradition that has exercised such great influence since Hume. But I do think that that is all there is to it. Any genuine form of scepticism about morality (or art or law or ethics) must be internal to those domains. We can (and !.hope we will) pursue the point in discussion. But if it is correct, then we must understand what might be regarded as meta-ethical theories of different sorts as substantive ethical theories instead. Consider the dialogic theory that Professor Habermas has defended so powerfully: the only form of truth in morals, he suggests, is a kind of convergence under ideal conditions. This is unpersuasive, for the reasons I suggested, when viewed as an external, philosophical analysis of truth. But it is more attractive as a substantive account of morality - as a substantive moral claim that hypothetical convergence is a substantively appropriate test of a moral or a political view. One way (there are others) to put the claim would then be this: we must reject any moral position, at least as a basis for government, unless it is likely (or plausible, or possible) that it would be the object of convergence under circumstances we would think suitable. (Compare Thomas Scanlon's 'contractarian' view that no principle is morally sound if it could be reasonably rejected by anyone, under appropriate circumstances.) I should say that I am, so far, not fully persuaded by Habermas' view even in this substantive form. I have more confidence that racial prejudice is wrong than I do that people would converge on that view under any circumstances. In fact, I doubt that we will find a satisfying overall, general substantive account of moral truth. In any case, I reject the idea that any form of Archimedean scepticism shows us, in advance, that constitutional interpretation must be constitutional legislation. Even though judges disagree about the best interpretation of abstract constitutional clauses, like the due process clause, it does not follow that they are legislating new constitutional law rather than doing their best to discover what the existing constitutional law really is. It remains possible to argue, on internal grounds, that there is no right answer to some legal question, like the

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question, for example, whether the due process clause forbids states to make abortion a crime. But of course the possibility that some such argument might succeed as to some issues gives us no reason to claim, as a general matter, that there is never a right answer to a controversial constitutional issue.

5. Does Constitutionalism Deny Freedom? It is sometimes said that though constitutionalism may protect negative liberty,

or the liberty of the modems, it does so at the cost of positive liberty, or the liberty of the ancients, or the Kantian power of people to legislate their own laws. The distinction I made earlier, between a statistical and a communal concept of collective action, is important in trying to understand this charge. If we conceive of democracy as statistical, then the charge seems simply a flat mistake. Democracy does not protect any individual's power to control his own destiny: in a large state, of many million people, no-one' s positive freedom is greater, in any but the thinnest, most academic sense, if he has a vote than if he does not. In order to reveal the force of the claim about positive liberty, we must take up the communal conception of democracy. Then it might seem a powerful point that constitutionalism limits the power of 'the people', now conceived as an entity rather than only statistically, to govern its own affairs. But if we adopt a communal conception of democracy, then we must answer a qustion parallel to the question I asked with respect to the statistical conception earlier. What are the pre-conditions for a collection of people counting as a genuine community, such that it is then morally significant what the community does? I will suggest that three conditions are necessary in order that a political community count as a moral community. The structure of the political community must be such that individual citizens have a part in the collective, a stake in it, and independence from it. First, in a democracy understood as communal government by equals, each person must be offered the chance to play a role that could make a difference to the character of political decisions, and the force of her role - the magnitude of the difference she can make - must not be structurally fixed or limited by assumptions about her worth or talent or ability, or the soundness of her convictions or tastes. Second, collective decisions must reflect equal concern for the interests of all members. Membership in a collective unit of responsibility involves reciprocity: a person is not a member of a collective unit sharing success and failure unless he is treated as a member by others, and treating him as a member means accepting that the impact of collective action on his life and interests is as important to the overall success of the action as the impact on the life and interests of any other member. Though even Germans who actively opposed Hitler feel a measure of collective responsibility for his crimes, it would be absurd, even perverse, for German Jews to feel any such sense. So the communal conception of democracy explains an intuition many of us share: that

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a society in which the majority deliberately distributes resources unfairly is undemocratic as well as unjust. Third, if a community is to have moral significance, so that its decisions give legitimacy to coercion of dissenters, then it must be a community of moral agents. Citizens must be encouraged to see moral and ethical judgment as their own responsibility rather than the responsibility of the collective unit; otherwise they will form not a democracy but a monolithic tyranny. A communal democratic government must not dictate what its citizens think about matters of political or moral or ethical judgment, but must, on the contrary, provide circumstances that encourage citizens to arrive at beliefs on these matters through their own reflective and finally individual conviction.

6. Democracy and Mistakes So constitutionalism does not threaten positive liberty, because constitutionalism is essential to creating a democratic community - to constituting 'the people' and there can be no communal, collective freedom without it. I mean, of course, that constitutionalism does not compromise positive liberty in principle. It may do so if the constitution contains the wrong principles, or if judges make the wrong decisions interpreting it. But that is hardly surprising. Democracy cart go wrong in many ways, and this is only one of them. But the point does remind us of an important further question. Suppose we accept that constitutionalism, as I defined it, is a necessary precondition of democracy. How should a society decide what its constitution should be, and -what may come to the same thing in practice - how should it apply its constitution to particular controversial issues? There seems only one way in which a society that aspires to be a democracy should decide what abstract principles or rights to declare in its constitution. It should do so by popular referendum. But how should the constitution be interpreted? I favour (perhaps unsurprisingly) the American method: we assign adjudicative responsibility to judges, whose decision is final, barring a constitutional amendment, until it is changed by a later judicial decision. Of course that does give great power to a few men and women. Even if we agree that interpretation is not invention, and that judges can sensibly take themselves to be attempting to find the best interpretation of the constitution they have rather than to write a new one, the fact that their views will be final gives them exceptional power. That power is limited in various ways- there are typically several judges in a constitutional court, and new appointments, reflecting popular judgments, are fairly frequent. And judges can be impeached if they behave outrageously. But it is still exceptional power, and the arrangement needs a justification. I would offer a negative and a positive argument on its behalf. First, democracy requires that the power of elected officials be checked by individual rights, as we have seen, and the responsibility to decide when those rights have

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been infringed is not one that can sensibly be assigned to the officials whose power is supposed to be limited. Second, asking judges to interpret and enforce those rights provides the best available forum for viewing the question of their interpretation as a mor?l rather than a political one. The public participates in the discussion - as it has in the United States, for example, about abortion, school prayer and many other issues- but it does so not in the ordinary way, by pressuring officials who need their votes or their campaign contributions, but by expressing convictions about matters of principle. In that sense, even the terrible debate in the United States about the Supreme Court's abortion decision, Roe v. . Wade, has been beneficial. There is, of course, a good deal of idealization in my description. Judges are not trained as political philosophers, and are not necessarily impressive at it though the decisions of the Supreme Court do contain some marvellously lucid and effective arguments of principle. The constitutional debate in the newspapers, on television, and in political campaigns rarely reaches the sophistication of a seminar. But I believe that adding to a political system a process that is institutionally structured as a debate over principle rather. than a contest over power is nevertheless desirable, and that counts as a strong reason for allowing judicial interpretation of a fundamental constitution. Ronald Dworkin New York University Law School and University College, Oxford

NOTES 1 I prepared this paper not to read at the symposium held at the Zentrum fiir interdisziplinii.re Forschung, Bielefeld, but to give Professor Habermas an advance idea of what I would discuss there. I agreed to its publication here, but did not have an opportunity to revise it for that purpose. 2 J. Habermas, 'On the Internal Relation between the Role of Law and Democracy', this volume, pp. 12-20.

[2] EQUALITY, DEMOCRACY, AND CONSTITUTION: WE THE PEOPLE IN COURT RONALD DWORKIN"

Commentators have seen the disabling provisions found in the American and Canadian constitutions as undemocrasic because they restrict majority powers. Building upon the work ofJohn Han Ely, this paper puts forward a conception ofdemocracy which nourishes both collective responsibility and individual judgment. The author distinguishes between ''statistical'' and '• communal'' conceptions ofdemocracy. Traditional theories, such as Ely's, have relied on the statistical notion which conceives ofindividuals in a democracy acting each on their own. In the communal conception, decisions are made by the ''people '' acting as a distinct and co/leerive unit of responsibility. The author then elaborates on the communal conception by identifying two variations of it, "integrated" and "monolithic" forms of collective action. In the laster, both the unit of responsibility and the unit of judgment are collective, while in the former the unit ofjudgment resides in the individual. If democracy is understood in the integrated communal sense, then many of the disabling provisions in the American and Canadian constitutions can be seen to enhance democracy rather than contradict it.

Certains commenrateurs estiment que les dispositions abrogatoires des constitutions americaine et canadienne sont anridemocratiql«'5 en ce qu 'elles limitent les pouvoirs de Ia majorire. En invoquant les travaux de John Hart Ely, cet article propose une conception de Ia democratie qui entretient ala fois Ia notion de responsabilite collective et cel/e de jugement individuel. L 'auteur fait Ia distinction entre les notions ''staristique '' et "collective" de Ia democratie. Les theories traditionnelles semblab/es il celles d 'Ely, reposenr sur Ia notion statistique selon laquelle, dans une democratie, chaque individu agit independamment. D 'apres Ia conception collective, /es decisionssont prises par le "peuple "en tanr qu 'unite responsable distincte et collective. L 'auteur developpe cette notion plus avant pour en proposer deux variantes- Lesformes ''inregree '' et ''monolithique '' d'action collective. Dans Ia secondeforme, /'unite de responsabilite et cel/e de jugemenr sont routes deux collectives alors que, pour Ia premiere, /'unite de jugement reside chez l'individu. Si l'on conroit Ia democratic au sens collectifintegre, bon nombre de dispositions abrogatoires conrenues dans /es constitutions americaine et canadienne seront perrues comme fovorables a Ia democratie plutot que jouant contre elle.

TABLE OF CONTENTS L ll. ill. N.

THE PROBLEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FAMILIAR RESPONSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CONCEPTIONS OF DEMOCRACY . . . . . . . . . . . . . . . . . . . . . . . EQUALITY OF POWER ................................. A. VERTICAL AND HISTORICAL DIMENSIONS . . . . . . . . . . . B. IMPACT AND INFLUENCE . .. .. . . .. . . . . . . . . . . . . .. . .. . C. SHOULD INFLUENCE BE EQUAL? . . . . . . . . . . . . . . . . . . . V. COMMUNAL COLLECTIVE ACTION . . . . . . . . . . . . . . . . . . . . . VL DEMOCRACY AS INTEGRATION . .. . . .. . . .. . .. . . . .. . . . . . A. THE PRINCIPLE OF PARTICIPATION . . . . . . . . . . . . . . . . . . B. THE PRINCIPLE OF STAKE . . . .. .. .. .. . . .. . . .. . .. . . . . C. THE PRINCIPLE OF INDEPENDENCE . . . . . . . . . . . . . . . . . VII. COMMUNITY AND CONSTITUTION . . . . . . . . . . . . . . . . . . . . . A. THE PLAIN PROVISIONS . .. . .. . . . . . .. . . . . .. . .. .. .. .. B. JUDICIAL INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . .

*

325 326 328 331 332 332 333 335 337 337 339 340 342 343 344

Professor of Jurisprudence, Oxford University and Professor of Law, New York University. A version of this paper was delivered as the inaugural McDonald Constitutional Lecture, sponsored by the Centre for Constitutional Studies, and delivered at the Law Centre, University of Alberta on March 13, 1989.

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I. THE PROBLEM

I shall talk about the snake in the garden, the nasty problem supposed to be at the center of constitutional law. 1 Is judicial review undemocratic? In Canada and in America- and at an increasing rate throughout the democratic world- judges declare laws unconstitutional that were enacted by lawmakers who were elected by a majority or plurality of the voters. Judges declare these laws unconstitutional even though the constitutional requirements they are said to violate are not specific and detailed or self-enforcing but are written in abstract language about whose actual meaning reasonable and reasonably trained people violently disagree. It is no wonder that this form of judicial review is widely thought undemocratic. Democracy means rule by the people and this seems to be rule by the judges instead. In fact there are two respects in which a constitution might seem undemocratic, and that quick summary catches only one of them. Judges on the highest courts are appointed rather than elected, and barring extraordinary misconduct they setve for life. So a system that gives such judges great political power seems offensive to the principle that in a democracy officials are chosen by and answerable to the people. But that is not the whole story. We do not think it seriously undemocratic that other powerful officials are not elected. Secretaries of State or Defense or Treasury are not elected, and they can do more damage in a week than any single judge can in his or her judicial lifetime. American Presidents are elected, of course. But once they are in place they can wield their promethian powers almost unaccountable for at least four years, in which time they can easily destroy the world. The real threat a constitution poses to democracy is deeper, and has nothing to do with the fact that judges are not elected. We know that in a complex, representative democracy the majority's will cannot always govern. But for the most part we accept that in any democracy the majority should govern; we think that though institutional structures that insulate officials from popular opinion are necessary in practice, they are undesirable in principle. But when constitutions declare limits on the majority's power, this democratic assumption is displaced: decisions are not supposed to reflect the will of the majority then. Every official swears loyalty to the constitution, and therefore has a responsibility to defy popular will when the constitution's guarantees are in play. But that responsibility is most vivid when judges are asked to test legislation that has already been enacted, and so tacitly certified as constitutional, by other officials. Judges then claim a right and a duty to stand in the way of what the majority's representatives think proper and in the interests of the community as a whole. So judicial review is not just undemocratic exceptionally or when it is working badly, as other institutions are, but undemocratic steadily and when it is working well. Or so most commentators and scholars think. Many of them, though not all, believe that judicial review is a just and wise institution; many, though not all, think America and now Canada are better political communities just because they are I. This paper is one of a series of essays I have written on the idea of equality. See Dworkin, ''What is Equality? Part 1: Equality of Welfare" (1981) 30 Phil. & Pub. Affairs 185; Dworkin, "What is Equality? Part 2: Equality of Resources" (1981) 10 Phil. & Pub. Affairs 263; Dworkin, "What is Equality? Part 3: The Place of Liberty" (1987) 73 Iowa Law Review I; Dworkin, "What is Equality? Part 4: Political Equality" (1987) 22 Univ. of San Fran. L. Rev. I; Dworkin, "Liberal Community" (1989) 77 Cal. L. Rev. 479; Dworkin, "Foundations of Liberal Equality", 1989 Tanner Foundation Lectures forthcoming from University of Utah Press.

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not perfect democracies. But almost everyone concedes that judicial review compromises democratic principles. Lawyers who think this a very serious fault in their constitution are anxious that the constitution be interpreted narrowly, to minimize that flaw. Those who think the fault less serious, and so support a more generous interpretation, nevertheless agree that it is a fault; they support the constitution, on balance, in spite of that weakness. It is important to notice what will seem obvious, however: no one could sensibly think that every section of a typical national constitution is necessarily undemocratic. Most contemporary written constitutions have both expressly structural and expressly disabling provisions. The plainly structural provisions are those that construct and define powers, instruments, and agencies of government: they provide when elections take place and who may vote and for how long various elected officials serve. These provisions may of course be undemocratic: they might limit suffrage to only a small part of the population, for example. But structural provisions are not undemocratic just because they cannot be changed by mere majority vote. If the institutions the structural provisions create are democratic ones - if they provide for near universal suffrage among competent adults and for officials who are reasonably responsible to the electorate - then it enhances democracy that a contemporary majority cannot change the constitution whenever it wishes to solidify its power and prevent different majorities from forming in the future. The disabling provisions are of course a different matter, because these set limits to the power a majority has under the explicit structural arrangements. In the American Constitution, the disabling provisions are mainly set out in the Bill of Rights: the first ten amendments and those added after the American Civil War. These provisions, among other things, fotbid either the national or any state government from abridging freedom of speech or taking life or liberty or property without due process of law or denying anyone the equal protection of the law, or changing certain established criminal procedures, and so forth. It is these disabling provisions that lawyers have in mind when they claim or concede that the Constitution is inherently undemocratic. They assume that the structural provisions create a genuine democracy, and therefore that any limit the Constitution places on the power of a majority of electors to do· what they think right or best is undemocratic. ll. FAMILIAR RESPONSES American constitutional lawyers have responded to what they believe to be the problem of democracy in a variety of ways we might now notice. One group, conceding that the Constitution is undemocratic, replies defiantly. They say that democracy isn't everything, and that protecting individual rights when these are threatened is more important than·giving effect to the majority's will. They·want the .disabling provisions of the Constitution interpreted in that generous spirit; they invite the Supreme Court to give full and unembarrassed force to·the moral principles they believe should hedge democracy. I have some sympathy-with this reaction to the problem. But it encounters tw.oJamiliar objections it must ·answer. First, we believe that only in a democrac,y.does government treat people as equals. How can it then be justified to compromise democracy on any occasion? Second, ·democracy is not just one right among others, but a theory about how a community should decide what other f!ghts to respect. So if we prefer a Supreme Court

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Justice's opinions about what counts as free speech and how free speech should be protected to the opinions of a democratic majority, we are contradicting our most basic assumptions about how a community's values ought to be chosen. The true contrast, we might say, is not between democracy and other values, but between democratic and elitist methods of~ deciding what other values to recognize. The other familiar responses I shall describe all accept that democracy must be paramount, and that a constitutional system of disabilities should therefore be interpreted and applied so as to ameliorate its anti -democratic character as far as possible. The historicist response insists that this can besl'be done by allowing constitutional provisions to disable majorities only to the degree actually and concretely intended by past majorities- the super-majorities who enacted the provisions in the first place. So historicists study reconls of constitutional conventions and debates to discover evidence of what the statesmen of long ago, deemed to be reflecting the views of the people they represented, thought they were preventing future majorities from doing. After all, even though disabling proViSions may prevent contemporary majorities from doing what they wish, the assault on democratic values is not so great if that disability is imposed by an earlier, larger majority rather than by judges elected by and representing no one. The historicist response produces an extremely conservative, even antiquated, constitution which favors established political and economic arrangements. Indeed, that is undoubtedly part of its appeal for many people, and helps to explain why it has continued to be influential in spite of its almost self-evident philosophical inadequacies and confusions. 2 In the United States, at least, .historicism is on a collision course with itself, however, because the historical evidence is impressive that the founding statesmen did not intend their own views on matters of political morality to be decisive in interpreting the Constitution. They intended the document to be interpreted in accoi:dance with the soundest understanding of political morality, not just the understanding they themselves had reached when they wrote it. Historicism should be distinguished from a quite different response, passivism, which also produces constitutional .interpretations congenial to the status quo. Passivism rescues democracy from constitutional constraint by insisting on interpretations that, so far as possible, read the disabling provisions out of the Constitution altogether by supposing them to give the majority power to do anything not patently irrational. The great American judge, Learned Hand, came as close to a pure view of passivism as anyone bas: it led him to doubt the soundness even of the Supreme Court's most famous decision: Brown v. Board of Education, 3 which declared that majority-imposed racial segregation in public schools offends the Constitution's guaranty of equal protection of the law. 4 Other famous lawyers and judges, including Justice Felix Frankfurters and Professor Alexander Bickel, 6 endorsed strong though less unc01p.promising versions. of the view. Passivism

2. See Dworkin, Law's Empire (Cambridge, Mass: The Belknap Press of Harvard University, 1986) Chapter 10. 3. (1954), 347 u.s. 483. 4. See Hand, The Bill of Rights (Cambridge; Mass.: Harvard Univef!!ity Press, 1958) at 54-5. 5. See, for example. Mr. Justice Frankfurter's concurring opinion in"American Federation of lAbor v. American Sash & Door Cq. (1948); 335.'U.S. 538 at 542ff. 6. See. for example, Bickel, 17re Least Dangerous Branch, 2nd ed. (New Haven& London: Yale University Press, 1986) at 237-39.

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suffers from many jurisprudential defects, however, and its basic strategy, which is to try to read the disabling provisions as if they did not exist, is difficult to reconcile with the idea that the Constitution is part of a community's law. The most interesting response to the problem of democracy, however, is the discriminating approach presented in its most elegant fonn by John Hart Ely. 7 Ely pointed out that some constitutional provisions that are expressly disabling are also, understood functionally, structuml: that these disabling provisions so far from compromising democracy are necessary to create it. Consider, for example, the common constitutional constmint that forbids parliaments from abridging free speech. Since democratic elections demonstrate the will of the people only when the public is fully infonned, preventing officials from censoring speech protects rather than subverts democracy, even when the majority wants the censorship. So a constitutional right offree speech counts as functionally structural as well as disabling in our catalogue. Ely applied the same analysis to other expressly disabling constitutional provisions. He said that the requirement that the majority not discriminate on racial grounds by segregating public schools, for example, improves rather than impairs democracy because political power is not equal when systematic discrimination and lack of education cheats one group of the political influence and self-awareness other groups have. But he tried to draw a fairly sharp line between those disabling provisions that could sensibly be regarded as functionally structuml in that way and those that could not. It would not follow from his view, he said, that a constitutional rule forbidding the majority to declare homosexual acts or abortion criminal would be democratic, for example. That constitutional constraint is not necessary to insure that homosexuals or women who want abortions have the same political power as other people; if they lose in a political battle it is not because they are uneducated or have less voting power, one by one, than their opponents. It is because their views are too unpopular and their numbers are too few to win in a fair electoral fight, and that is what democracy is about. 8 So Ely's approach, at least in his view, would not justify an expansive interpretation of the very abstract clauses of the American constitution. Indeed it does not rescue even some of the plain and direct clauses of that Constitution from the charge that they are undemocratic. The First Amendment's guaranty of free exercise of religion, and its provision disabling majorities from establishing a particular church, do not seem functionally structural. Nor do the clauses of the Bill of Rights that regulate criminal process and procedure or deny the majority the power to impose punishments that are cruel and unusual. So Ely's rescue of democracy from the Constitution is only, as he concedes, a partial success. III. CONCEPTIONS OF DEMOCRACY I shall propose a different response. It challenges the assumption these familiar responses share, that the problem of democracy is genuine and intractable. I believe

7. John Han Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard University Press, 1986), c. 4 & 5. 8. John Hart Ely, "The Wages of Crying Wolf: A Comment on Roev. Wade" (1973) 82 Yale L.J. 920 at 923.

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the problem has been misunderstood and exaggerated because constitutional lawyers have concentrated too much on what the Constitution does and says, and how it should be interpreted, and not enough on what democracy really is. I begin with a benign but important observation: that democracy, like almost any other form of government, involves collective action. I mean only that in describing any complex form of government we must recognize units of action in which the actor is some group rather than any individual on his or her own. We say that in a democracy government is by the people. We mean that the people collectively do things- elect leaders, for example- that no individual does or can do alone. There are two kinds of collective action, however- statistical and communal - and our conception of democracy will tum on which kind of collective action we take democratic government to require. Collective action is statistical when what the group does is only a matter of some function, rough or specific, of what the individual members of the group do on their own, that is, with no sense of doing something as a group. We might say: the Canadian people want a more aggressive and interventionist economic policy. We describe a kind of collective action: no one Canadian can act in such a way that he has made it true that the Canadian people think anything in particular. But the reference to the Canadian people is nevertheless only and simply a figure of speech: we do not think there really is a super-person cartoon figure, called the Canadian People, which has opinions of its own. Our remark only makes a rough statistical judgment of some sort about what (say) most Canadians think, or what most Canadians who think about the subject think, or something of that sort. Or we might say that yesterday the foreign exchange market drove up the price of the yen. Once again, we are describing collective action: only a large group of bankers and dealers can affect the foreign currency market in any substantial way. But once again our reference to a collective entity, the currency market, is not intended to point to any actual entity. We could, without in any way changing the meaning of what we say, make an overtly statistical claim instead: that the combined effects of the very large number of individual currency transactions was responsible for the higher price of the yen at the latest trade. Collective action is communal, on the other hand, when it cannot be reduced just to some statistical function of individual action, because it is collective in the deeper sense that does require individuals to assume the existence of the group as a separate entity or phenomenon. The familiar but very powerful example of collective guilt provides a good example. Germans feel responsible for what Germany did, not just for what other Gennans did; their sense of responsibility assumes that they are themselves connected to the Nazi terror in some way, that they belong to the nation that committed those crimes. I borrow and adapt another example from John Rawls. An orchestra can play a symphony, though no single musician can, but this is not a case of statistical collective action because it is essential to an orchestral performance not just that a specified function of musicians each plays some appropriate score, but that the musicians play as an orchestra, each intending to make a contribution to the performance of the group, and not just as isolated individual recitations. 9 The distinction between statistical and communal action allows us two different readings of the platitude that democracy involves collective action, two different

9. J. Rawls, A Theory of Justice (Cambridge, Mass: Harvard Univ. Press, !971) at 523-4 n.4

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readings of Lincoln's promise that democracy .is government of the people and by the peopJe and for the people. The first is a~statistical reading of those ideas: that in a democracy political decisions are made in· accordance with some function of the votes or decisions or wishes of the individual citizens one by one. On this reading democracy is different from other forms of go~Vernment because in a democracy the function in play is majoritarian, or at least phlrality, whereas in other forms of government different statistical functions are specified. The second is a communal reading: that in a democracy political decisions are taken by a distinct entity- the people as such - rather than any set of individuals one by one. That formulation is intended to remind you of Rousseau :s ··general will, which I am inclined to understand as pointing ,to a communal• lrather than statistical conception of democracy. Our response to the supposed conflict between democracy and a constitution will depend on which conception of democracy we accept, because the two conceptions draw the line differently between functionally structural and disabling provisions. On the statistical reading, structural provisions are mainly limited to those that are expressly structural- thosethat define wholmay vote, how members of parliamentor congress are elected, what proportion of them it takes to enact legislation, and so forth. They,may also include, following,Ply, certain disabling provisions necessary so that the expressly structural provisions can in fact achieve some equality of political power; like provisions protecting.{reedom of speech and the press. But on the communal conception of democracy•structural provisions need not be limited to those matters of procedure and organiZation. Further reflection might show, forexample,-that communal collective.action is possible only if the members of the community share certain ideals;. if so, the maintenance of those ideals through constraints on· majority decision would itself be a matter of structuring democracy rather than qualifying or undermining it. I expect that onlyilie.statistical reading now ·seems plausible or acceptable. Most think that the communal reading is at best a matter of Hegelian mystification; and at worst an invitation to totalitarian oppressiongtistified on the ground that the state is more importantthlm the individual. I understand these fears and believe that philosophers are in p~rt responsible for them;• by failing to identify the important features of familiar kinds of collective action, like that of an orchestra for example, which are neither mysterious or threatening. Rousseau illustrates both the appeal of a better account of collective political: action, and the confusion, into which he fell: in neglecting the distinction between what I shall call integrated communal collective action, which insists on the· importance of the individual, and monolithic communal· collective action, which denies it. Most will have gathered by now that I shall'tt!y,;to defend the idea that the best account of democracy, for us, is given by the communal conception of collective action in its integrated: rather than monolithic,fotm. I have two reasons. First, the communal account is, I believe, more attractive than the statistical as a matter of political morality!·Second, the communal aecount offers a better interpretation of the Canadian and American political communities, which include both democracy and constitutional constraints on majority wilt:.. Since the second of these claims . in part depends on the .first, however, I shall.concentrate on the first in this essay, and I shall begin my argument by pointing_9ut.severe internal defects and inadequacies in the popular statistical reading 9f democracy.

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IV. EQUAliTY OF POWER

If democracy is a matter of political decisions representing some function of the individual decisions of members ofthe community, then this must be, as I said, a majoritarian function, or at least some function that does not allow that a political decision might be taken even though it commands less support among the electorate than a different decision would. 10 It is that feature of the statistical conception that seems so obviously incompatible with most constitutional constraints on majority will. We must therefore ask what political value a statistical conception of democracy, interpreted as requiring a majoritarian function, serves. Why should we want a form of government in which collective decisions are all and only those that are supported by most people? We should notice, but only to set aside, an epistemological answer to that question: that the majority is more likely to be right about which political decision the community should take than any other group is. That argument might very well be persuasive, at least in principle, about preference-sensitive political decisions: when the character and distribution of people's preferences in part determines which decision is the right one. 11 If the question arises whether the community should use designated funds to build a baseball stadium or an ice hockey rink, and we believe that decision ought to depend on which would be used more, a majoritarian political process seems the best way to discover the answer. But we have no general reason to think that the majority is more likely to be right than any other group about preference-insensitive issues, that is;·when facts about the mix of preferences or opinions are substantively irrelevant. The fact that a majority of citizens approves capital punishment, for example, is in itself no argument that capital punishment is right. Since the question whether individuals have moral rights the majority should respect is plainly preference-insensitive- it would be absurd to suppose that individual citizens have these rights only if the majority thinks they do- the epistemolo'g~cal argument cannot justify the claim that the statistical conception of democracy. is the right one. Any plausible general justification of statistical democracy must be based on fairness and eqllfllity, in other words, not·on the soundness of the answers a majority is likely to reach. Consider the following argument. Political equality- treating people as equals in the distribution of political power- means making people equal in their political power, and that can·be achieved only by statistical majority rule. If this argument is sound, then one of the most fundamental political ideals, that a political organization must treat its members as equals, has a dilemma at its core. One part of equality - the input, procedural part - recommends a political system in which a majority is free to deprive minorities of the other part of what equality requires, which is an equal stake as well· as an equal part in government. So the question whether treating people as equals does mean making political power equal is

I0. I ptescind, throughout this essay, from the celebrated difficulties in a statistical conception of a democracy stemming from Arrow's impossibility theorem, which are technical difficulties rarely of practical importance. I concentrate on defeCts in the statistical conception which show it to be undesirable rather than simply unattainable in full. 11. I explain the difference between preference-sensitive and preference-insensitive political decisions, and offer further examples, in a recent article, part of which I summarize in this section. See Dworkin, "What is Equality? Part 4: Political Equality" (1987) 22 Univ. of San Fran. L. Rev. 1. I also draw, in this section, on an article on equalitY I prepared for the lllllian Encyclopedia.

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a question of general importance for political philosophy. We should begin trying to answer it by asking what equality of political power really is. In fact equality of power admits of different interpretations or readings, and separating these is essential to understanding why they are all misconceived. A. VERTICAL AND HORIZONTAL DIMENSIONS How is political power to be measured? Under what circumstances is it equal? Any adequate answer must compare political power along two dimensions: not only horizontally, by comparing the power of different private citizens or groups of citizens, but also vertically, by comparing the power of private citizens with that of individual officials. If political equality is a matter of equal political power, both dimensions must figure in the accounting. Horizontal equality of power is hardly enough to provide anything we would recognize as a genuine democracy. In totalitarian dictatorships private citizens have equal political power: none. Cynical pretend-democracies with a single political party are usually scrupulous in providing each citizen with one and only one vote for that party. So the vertical dimension must come into play. It seems incredible, however, that any genuine vertical equality of power could exist in representative democracies like Canada or the United States. How could American political structures and practices be revised, for example, short ofdestroying representative government altogether, so as to give every American citizen of voting age the same power over national affairs as a junior congressman, let alone as the President? So a conception of political equality that demands equality of political power might seem caught in a dilemma at the start.lf it insists on horizontal equality only, equality among the governed, its most stringent requirements might be satisfied by plainly undemocratic tyrannies. If it demands vertical equality as well, then it is wholly unrealistic. B. IMPACT AND INFLUENCE We must bear that threatened dilemma in mind when we consider what equality of power might mean. We should distinguish two interpretations: equality of impact and equality of influence. The intuitive difference is this: someone's impact in politics is the difference he can make, just on his own, by voting for or choosing one decision rather than another. Someone' s influence, on the other hand, is the difference he can make not just on his own but also by leading or inducing others to believe or vote or choose as he does. The distinction between political impact and political influence suggests an escape from the dilemma I described. Obviously, vertical equality of political power is impossible if that means equality of political impact. A representative structure is necessarily one in which impact is vertically sharply different. But it does make sense to call for vertical equality, as an ideal, if the equality in question is equality of influence. We can even describe a fully representational system in which equality of influence holds, at least to the degree of precision to which it can be measured anyway. Suppose that officials accept that they have a duty to vote as a majority of those they represent wish them to vote. Suppose that elections are held sufficiently frequently, communication between officials and constituents is good

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enough, and recall mechanisms sufficiently efficient and inexpensive, so that offi.cials do in fact hold to that duty. In those circumstances rough vertical equality of influence is realized. Since Senator X will vote for tax reduction when but only when he believes that a majority ofhis constituents favor it, the infonnation that he himself would prefer a reduction does not increase the subjective probability that he will vote for it any more than the information that any other of his constituents would prefer it increases that probability. From the horizontal perspective, too, it would be implausible to understand equality of power as equality of impact, but now for the opposite reason. Equality of impact is not too demanding a goal but one not demanding enough. Equal impact does require that each competent citizen have a vote and the same vote, and it also requires one-person-one-vote districting. But it does nothing to justify a central assumption we make about democracy, which is that democracy requires not only widespread suffrage but freedom of speech and association, and other political rights and liberties, as well. My impact in politics is no less than yours when censorship denies me the right to present my views to the public but allows you to do so. Or when you are rich enough to control a newspaper but I am too poor to buy even one copy. We need to reach beyond the idea ofequal impactto the idea of equal influence and to begin to explain why censoring the views of some denies equality of political power. C. SHOULD INFLUENCE BE EQUAL? But is equality of influence really an attractive ideal? Would we not hesitate to improve vertical equality of influence in the way in which we just saw this to be possible: by insisting that officials always act in whatever way a majority of their constituents wished, and adopting electoral devices that would punish those who do not? Do we want to come even as close as we can to making sure of their obedience? Do we not rather want our officials to lead rather than follow our views, at least on preference-insensitive issues? . Equality of influence on the horizontal dimension may seem a much more attractive ideal than it does on the vertical dimension, however. But that appearance is deceptive. The main appeal of horizontal equality of influence lies in the conviction that it is unfair that some private citizens have much more influence in politics than others just because they are much richer. But we can explain that intuition in two ways. We can, indeed, explain it as resting on the assumption that any great lapse from equality of influence among private citizens is a serious lapse in political equality. Or we can explain it in a way that does not appeal to equality of influence, as a general ideal, at all. We can say, for example, that it is unjust that some people have as much money as a Rockefeller because that violates the distributive principles of equality, and then add that the disproportionate political influence their wealth gives them is a particularly deplorable consequence of the injustice because it allows them, among other things, to perpetuate and multiply their other unfair advantages. These two ways of objecting to a Rockefeller's political influence are, of course, very different. The first is insensitive to the sour~e of his disproportionate influence; it supposes that aggregate influence, from all sources, must be equal. The second makes no assumptions about aggregate influence; it condemns a Rockefeller's

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influence only because of the particular source of that influence. We can contrast the two objections by imagining a world in which the first would hold but the second would not. Suppose the distributional goals of economic equality were met reaspnably well, but some people still had more influence in politics than others. They might have more influence for a variety of reasons, but I shall assume reasons unobjectionable in themselves, because we are considering whether we should object to unequal influence as such. They might have decided to spend more of their initially equal wealth on political campaigns, for example, than other people have. Or they might have invested more in study and training which made other people more likely to consult them or listen to their advice. Or they might have led lives of such conspicuous achievement or virtue that others trust them more, or are more ready to follow them. The first form of objection to a Rockefeller's influence would nevertheless apply to them. We would regard the greater influence of politically motivated or experienced or charismatic people as a defect in political organization, and take whatever steps we could to eliminate or reduce it. But the second form of the objection would lapse unless we had some other reason, quite independent of any assumption that political influence should be equal, for objecting to a situation in which some people are more politically motivated or trained or charismatic than others. Consider the common, and wholly justified, complaint that women have too little power of all kinds in most societies. Someone who takes that view might think that social organization is defective unless the average woman has the same influence over affairs (measured in some specified way) as the average man does. But someone else who makes the same complaint might mean something very different: not that men and women should, as a matter of right or ideal, have the same influence on average, but that the smaller influence women now have is the result of a combination of economic injustice, stereotype, and other forms of Qppression and prejudice, some of which, perhaps, are so fundamental as to be carried in the community's culture. The difference between the~e two positions emerges dearly, once again, if we try to imagine a society in· which economic, social and cultural discrimination against women has been removed. If the average power of men and women is unequal in such a society -as it might be, in either direction - would that fact, just in itself, count as a defect in.social organization? Once we realize that our most serious wonies about inequality of political power can be explained without appealing .to equality of influence as an ideal, we are free to considerwhether.we have any reason, other than wanting to explain these worries, for accepting that ideal. In my view, we do not. An attractive political community wishes its citizens to engage in politics out of a shared and intense concern for the justice and rightness of the results. It encourages citizens to take pride or shame in the community's success or failure as if it were their own; it aims at that communal goal of political activity. The ideal of equal influence defies that ambition, however. When people are fastidious not to have too much influence, or jealous that they do not have enough, their collective concern is only a matter of show; they continue to think of political power as a discrete resource rather than a collective responsibility. An attractive society also cherishes a further goal for political activity: that citizens should have as much scope for extending their moral life and experience

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into politics as possible. But people who accept equality of influence as a political constraint cannot treat their political lives as moral agency, because that constraint corrupts the cardinal premise of moral conviction: that only truth counts. Political campaigning under some self-imposed limit of influence would not be moral agency but only a pointless minuet of deference. So the ideal of equality of influence, even if it could be achieved, would be attractive only within a community in which politics was part of economic activity, yet another theater in which each person struggled only to achieve the best life for himself, his family and associates. That ideal is foreign to a genuinely republican form of politics, in which citizens each struggle for the community as a whole. V. COMMUNAL COLLECTIVE ACTION

So the idea that seems so natural to many philosophers, the ideal of equality of p.olitical power, is both implausible and artificial. Its defects, fortunately, are also 'blu~prints for an alternative conception of democracy based on a communal rather than a statistical understanding of collective action. But building that conception must start further back, by confronting the problem I acknowledged earlier: that the communal conception seems metaphysically too luxuriant and politically too dangerous to play that role. We must see whether and how we can make sense of genuine communal action without adding dubious collective entities to the furniture of the universe, and whether and how democracy conceived as communal action can be liberal rather than totalitarian. In fact we can pursue both projects together by exploring the following suggestion: communal action depends not on the ontological priority of community over individual, but on a certain kind of shared attitudes among individuals. Which attitudes? The answer is complex, and requires a set of distinctions. Whenever we act self-consciously, with a sense that what we do is important and can be done well or badly, we implicitly make two assumptions about the unit of action in play. We assume, first, a particular unit of responsibility, by which I mean the person or group to whose credit or discredit, achievement or failure, the action redounds, and, second, a particular unit ofjudgment, by which I mean the person or group whose convictions about what is right or wrong are the appropriate ones for us to use in making that assessment. Most of the time the unit of responsibility each person assumes is himself or herself acting as an individual. That remains true in cases of statistical collective action. The American people have poisoned the atmosphere, but most of us each takes responsibility only for his own acts. We have already noticed cases, however, in which this is not so. Many Germans who were not born until after World War II nevertheless feel collective responsibility for what their country did before and during it. The actions were not theirs as individuals, but they believe themselves in some complex way to share in the responsibility for them. Musicians in a flourishing orchestra think of the orchestra's performance in parallel terms: they count themselves to have succeeded only when the orchestra as a whole has. Members of a healthy baseball team take the same attitude towards the success or failure of the team as a whole: each player feels in some way to have failed when his or her team has. In these cases the attitudes of individuals create and presuppose a new unit of

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responsibility: the group. The group, we might say, is the unit that does well or badly, and individuals share in its responsibility derivatively, because they are members of it. Again, at least in our culture, the nonnal or usual unit ofjudgment foi: all actions is the individual. It is necessary for my self-respect, I think, that I make my own judgments about what kind of life to lead and how to treat others and what counts as good or bad work at my job. I do not mean that I must (or can) make these judgments wholly in private, with no consultation with or influence from other people or my culture as a whole, but rather that I must be satisfied that I am in the end acting on convictions I have formed myself and not just bowing to what others think right forme. But some people, at least sometimes, reject the view that they act as individual units of judgment. They treat themselves as members of a group whose province it is to make moral and ethical judgments on behalf of its members. They believe not just that their own judgments on these matters will inevitably be influenced by their culture, but that they should be, that justice and ethics are at bottom constituted by culture. A German in the nineteen-thirties who accepted a collective unit of judgment could not feel shame for Nazi atrocities, because his nation had endorsed these atrocities as historic triumphs. We may use these distinctions to restate and expand our ideas about collective action. We distinguish statistical from communal collective action in this way. In statistical collective action, individual actors treat the pertinent unit of agency as individual. When currency traders drive up the price of yen, each acts for himself or herself, and each attends to his own success or failure not that of the group of currency dealers as a whole. In the case of communal collective action, however, individual actors share attitudes that make the pertinent unit of responsibility collective as well as individual. Musicians treat the orchestm as a separate and distinct unit of responsibility - they say the orchestra played well or badly. They share in collective responsibility through what it does, and they are therefore vulnerable to success or failure collectively quite apart from their individual performances. Communal collective action is not a matter of metaphysical but (as we might say) of ethical priority. 12 We are now in a position to distinguish two forms of communal collective action: integrated and monolithic. In the case of integrated collective action, while the shared attitudes of participants create a collective unit of responsibility, they do not create a collective unit of judgment: the unit of judgment remains thoroughly individual. In the case of monolithic action, on the contrary, both the unit of responsibility and the unit of judgment become collective. Once again, this is a matter of shared attitudes. Compare a good orchestra with a theocratic despotism. In the former, musicians are expected to develop and retain their own sense of musical achievement: their pride in what the orchestra has done is based on their own, self-consciously individual, judgments of musical merit. In a theocratic despotism, on the other hand, anyone who claimed an independent platform of conviction would be a revolutionary, even if his independent convictions endorsed the theocracy. Such a community judges itself.

12. For a more extended account of ethical priority, see my article, "Liberal Community" (1989) 77 Calif. L. Rev. 479.

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So once we reject the majoritarian thesis that democracy is collective action only in the statistical sense, we must choose between two alternative readings of the idea that it is collective in the communal sense. We can treat democracy as a matter of either integrated or monolithic collective action. Of course we must choose the former, and I describe the choice only to show the difference. In the rest of this essay, I shall try to construct an account of democracy as government by the people, understood in the integrated, communal sense, as equals. VI. DEMOCRACY AS INTEGRATION In a genuine democracy, the people govern not statistically but communally. They treat their nation as a collective unit of responsibility, which means that they, as citizens, share derivative responsibility for whatever their government, acting officially, does. But though the people form a distinct unit of responsibility, they do not fonn a collective unit of judgment. In a communal democracy, each citizen insists that his political convictions are in every important sense his business, that it is his independent responsibility to decide what is required of the nation to do well, and whether or how far it has succeeded. As I suggested earlier, the structural constitution of a democracy conceived in those terms must be different, and more complex, than the structure of a statistical democracy. We construct a statistical democracy by choosing some arrangement of power and function among citizens, officials and institutions that allows political decisions roughly to match the will of the majority. We need more than that for a communal democracy: we need background institutions and assumptions that elicit and nourish the needed pair of democratic attitudes: collective responsibility and individual judgment. Which institutions and assumptions do create and promote democracy on that conception? Studying other forms of integrated communal action can be helpful, in answering that question, only to a point, because few of these will be examples of democracies. (Though an orchestra, for example, can be organized democratically, few are and good ones are not. Democratically organized football teams would be ineffectual, and probably suicidal.) We do better to reach the political case directly, and I shall use the following interpretive strategy. We begin with a number of pre-interpretive assumptions about what good democracy is like in practice: that the vote is widely dispersed according to the formula one-person one-vote, that freedoms of speech and assembly and demonstration and religion and conscience are recognized and protected as valuable, that no group of citizens is excluded from participating in the community's economy, and so forth. We must see how far these familiar institutions and assumptions can be justified on structural assumptions: that they create and maintain an integrated communal agent, the people, in which individual citizens figure as equal members. I shall organize the discussion around the three main contributions familiar political institutions might be thought to make to that end. They give individual citizens a part in the collective, a stake in it, and independence from it. A. THE PRINCIPLE OF PARTICIPATION In a democracy understood as communal government by equals, each person must be offered a role that allows him to make a difference to the character of

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political decisions, and the force of his role- the magnitude of the difference he can make- must not be structumlly fixed or limited by assumptions about his worth or talent or ability. The first part of this principle- that everyone must have a role -holds for any collective unit of agency: no one counts as part of a collective agent unless he is in a position to make a difference to what the collective agent does. I cannot sanely treat myself as a member of the Berlin Orchestra even if the members of that orchestra were willing to call me a member, so long as I continue to have no role in its performances. The principle of participation is democratic only in virtue of its second part, which insists that each member have a role to play consistent with the assumption that he is an equal member. This part of the principle explains why an orchestra is not a democracy, in the ordinary case. The conductor is not chosen by the members; he is imposed on them, and the power he exerts over them, to define and dictate the collective agent's performance, is assigned from outside the community on the justification that he has special talents ordinary members do not. Democracy cannot be like that. The participation principle is sufficient to explain why we associate democracy· with universal or near universal suffrage and single-vote-fo:r-each voting schemes, and with structures of representation that make political offices open in principle to everyone. A scheme of that sort satisfies the principle and no substantial deviation from it would. History, which attaches meanings to structures, plays a part in that judgment. Since electoral schemes that were not based on equal suffrage usually reflected the view that rich people are more worthy to govern than poor ones, or that some races lack the rights or capacities of others, or that one sex is and ought to be subordinate to the other, any contemporary variation from one-person-one-vote must be suspected of bearing a parallel meaning equally offensive to the participation principle. But that is not invariably so, and sometimes history protects rather than condemns an institution that deviates from one-person one-vote. History explains the composition of the United States Senate, for example, in a noninvidious way. At least in principle other lapses in one-person one-vote might be justified as in-offensive to the participation principle, including, for example, districting arrangements that allow special voting power to groups that have special needs. The participation principle also explains why the political liberties, like freedom of speech and protest, are part of the idea of democracy. If each citizen is to be given a role in politics that amounts to a genuine chance to make a difference, then, particularly in a large political community, he must be allowed voice as well as vote. A voting scheme that limited the participation of most citizens to an up-or-down vote when the debate was over would neither encourage nor justify the democratic attitude. And selective content-based censorship would violate the second part of the participation principle, which stipulates that people's political power cannot be reduced by regulations that violate equal respect. But I have not fallen back on the idea of equality of influence that I rejected earlier. Democracy, on the communal understanding, requires that individual citizens each be in a position to make a difference, and it also requires that their power to make that difference not be limited, vis a vis the power of others, by structures or regulations that themselves deny equal respect. Those stipulations do not together make up a positive requirement that each citizen either actually have, or even be in a position to have, as much influence over the collective decision as any other, however. They do not aim at

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a state of affairs in which someone will not be able to achieve more influence over his fellow citizens in virtue of the appeal of his cause or personality or arguments or convictions. B. THE PRINCIPLE OF STAKE In a democmcy understood as communal, collective decisions must reflect equal concern for the interests of all members. Once again, this principle of stake reflects our understanding of the root idea of communal agency. Membership in a collective unit of responsibility involves reciprocity: a person is not a member of a collective unit sharing success and failure unless he is treated as a member by others, and treating him as a member means accepting that the impact of collective action on his life and interests is as important to the ovemll success of the action as the impact on the life and interests of any other member. Though even Gennans who actively opposed Hitler feel a measure of collective responsibility for his crimes, it would be absurd, even perverse, forGemtan Jews to feel any such sense. So the communal conception of democracy explains an intuition many of us share: that a society in which the majority distributes resources unfairly is undemocratic as well as unjust. The communal conception unites proceduml and substantive justice by insisting that democracy means government both by and for the people; under that conception the diStinction between those two departments of justice is only superficial. How the community treats its members is part of what decides whether they are members of it, and therefore whether political decisions are made by a collective agent that includes them. Does the principle of stake make democracy a black hole into which all other political virtues collapse? Statistical conceptions of democmcy at least have the merit that they explain our sense that democmcy is only one among political ideals, that it is not the same thing as justice, and that a democratic political system can therefore produce unjust results. The communal conception of democracy, just because it dissolves the line between proceduml and substantive justice, seems to threaten that apparently valid and useful distinction. We can check the threat, however, and produce a more successful analysis of communal democracy, if we take the principle of stake to require not that a community must have achieved the best or the right understanding of what equal concern actually requires in order to count as a democracy, but only that it must accept the idea of equal concern as an abstract requirement. Its economic, social and legal armngements must be such as could in the main be justified by some good faith interpretation of what equal concern requires. Suppose you and I think that utilitarianism is an unsatisfactory account of equal concern, and that utilitarian political decisions are often unjust. We will nevertheless think that a community satisfies the principle of stake if its political decisions match a utilitarian understanding of equal concern, and this understanding is widely held to be the right one by its members, even though we believe many of its actual decisions unjust. In this way we retain the idea that democracy is only one among the political virtues. Nevertheless, there will be a limit to the degree to which a genuine democmcy can be unjust. A political system with equal suffrage, in which the majority distributes everything to itself with no concern whatever for the fate of some mcial or other minority, will not count as an unjust democracy on the

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communal conception, but as no democracy at all. That is not, I think, an embarrassment to the communal conception, because our pre-interpretive assumptions reject the idea that outcomes are never relevant in deciding whether a regime is democratic. C. THE PRINCIPLE OF INDEPENDENCE The principle of stake distinguishes communal from merely statistical democracy. A majoritarian tyranny, in which minorities are systematically cheated of their fair share, may nevertheless be a perfect statistical democracy. When we insist that a genuine democracy must treat everyone with equal concern, we take a decisive step towards a deeper form of collective action in which ''we the people'' is understood to comprise not a majority but everyone acting communally. The third principle - the principle of independence - is necessary to a further distinction: in order that democracy be understood as communal in an integrated rather than a monolithic sense. Citizens of an integrated community must be encouraged to see moral and ethical judgment as their own responsibility rather than the responsibility of the collective unit; otherwise they will form not a democracy but a monolithic tyranny. The principle of independence therefore insists that a democratic government must not dictate what its citizens think about matters of political or moral or ethical judgment, but must, on the contrary, provide circumstances that encourage citizens to arrive at beliefs on these matters through their reflective and finally individual conviction. 13 As I said earlier, it is undeniable that peoples' personalities are influenced by -at some abstract level they are limited to- what is available in their culture by way of practice, example and vocabulary. And of course we all do and should take an interest in the value of lives that fellow citizens- not just our children and relatives and friends -lead. And of course we should think and reason about morality and the good life together, in conversation rather than in solitary monastic confinement. The principle of independence denies or fotbids none of this. Nor does it forbid the community from attempting to change individual citizen's minds through persuasion, that is, through means that enhance rather than corrupt cognitive ability. But the principle declares that democracy, on the right conception, is subverted when the community adopts coercive or hidden or indirect means to shape the

13. In any integrated communal agency, some line must be drawn between the private and the collective, between those matters that are properly matters of collective responsibility and those that must be left for distinct individual decision. In a healthy orchestra, that line is drawn between performance and judgment, as I said. Musicians accept that the orchestra collectively. through its director or conductor, will decide how each should play a particular symphony, and they accept collective responsibility for its performance even when they disagree with the conductor's decisions. Each may think that it, and therefore they, has failed because his taste was bad or his decisions were wrong. But they cannot accept that it is part of the communal life of the on:hestra to decide not only how they should play but what they should think of the decision to play that way. If they did, then the orchestra would no longer be an integrated form of a communal agent: it would have become monolithic. Of course the line between an integrated community's collective life and the separate lives ofits members reflects other features of its organization, and in every case separate lives will include much more than judgment. It is no part of an· orchestra's collective life to decide who its members must marry, for example. But the idea I am emphasizing, that in an integrated community the collective life. cannot include moulding the judgments of its individual members as distinct from what they do, has a distinct, near definitional importance, because it sets minimal conditions for any community, of any kind, that aspires to integration rather than to monolith.

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convictions of its citizens. Any collective ambition to dictate individual conviction would undennine communal democracy in one of two ways.lf the collective ambition is general and embraces the whole range of individual beliefs and opinions, as it does in a theocratic despotism, then its very existence as an ambition denies the integrated character of the community: it aims at a wholly monolithic community. If the collective ambition is selective and discriminatory - if it aims only to eliminate certain beliefs collectively judged wrong or degrading- then it destroys integration for those citizens who are the objects of reform, because it excludes them from the community altogether. Independence of judgment, that is, is a structurai condition of membership in an integrated community. Just as it is preposterous for a German Jew to accept collective responsibility for Nazi atrocities, it is preposterous that I should think of myself as sharing integrated collective responsibility within a group that denies my capacity to judge for myself. The principle of independence has crucial consequences for the analysis of democracy. It adds, f1rst, to the case we developed under the principle of participation for treating the political liberties as themselves structural to democracy. It insists on a structural place for constitutional guarantees of freedom of speech, association and religion, all of which are necessary to allow and encourage individuals to take responsibility for their own personalities and convictions. The principle of independence has a further consequence that will strike many as more surprising, moreover. It makes some form of liberal tolerance of unpopular sexual and personal morality part of the very conditions of democracy. I must be careful not to suggest that this principle - or indeed any one political principle - is sufficient to dispose of all the issues raised by the question of enforcing morality. A great variety of arguments have been made for illiberal constraints on people's freedom of choice about personal morality and ethics, and liberal counter-arguments must be tailored to the argument they are required to meet. 14 My present point, once again, is limited but crucial: not that liberal tolerance is in all circumstances a condition of justice, but that in some form it is a condition of democracy on the communal conception. Someone might object that the principle of independence has nothing to do with liberal tolerance of sexual and other behavior, because the principle protects freedom of judgment not freedom of action. It is true that laws prohibiting homosexuality, for example, are aimed at conduct not thought. But that distinction is too crude when the individual actor's stake in his own behavior is very much greater than its consequences for others. In other kinds of cases, when a person's conduct does have important effects on other people, an integrated community must distinguish between belief and conduct: it prohibits what it judges to be harmful behavior, but it leaves the actor free to believe and to argue that its decision was wrong and should be reversed. But when the putative harm is mainly to the ethical value of the actor's own life, then the distinction between conduct and judgment loses its point. Having ethical commitments, like having religious beliefs, includes living in their light: a community violates the principle of independence as much by making an individual's personal convictions irrelevant to how he actually leads his life as by forbidding him to have those convictions. That is why

14. For a more geneml discussion of the complexity of issues raised by the question of libeml tolerance, see Dworkin, "Liberal Community", supra, note 11, and Foundations ofliberal Equality, 1989 Tanner Foundation Lectures forthcoming from University of Utah Press.

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people who object to moralistic legislation say that they want to "make up their own minds,'' not have the majority do it for them, even when the legislation leaves them free to think what they like so long as they do what it says. These observations might also help to explain why. constitutional lawyers use the concept of privacy in explaining why moralism is wrong. They perceive, not that decisions of personal commitments are private in the sense that they are taken while alone and unobserved, but that they are private in the sense opposed to public: that in these areas decisions are too closely fused to judgment to pennit them to be matters within the collective life of a communal democracy. Even those who are drawn to liberalism may distrust the suggestion that it is actually part of the meaning of democracy; it seems illegitimate to decide a fundamental debate in political morality by appealing to a definition. But that is the wrong way to understand this part of my argument. Even ifl am right that a communal intetpretation of democracy makes liberal tolerance part of what democracy is, people who reject liberalism can reject the communal intetpretation in favor of the statistical one. If democracy is statistical- government by a majority- then liberal tolerance must be defended not as part of the meaning democracy but as a matter of justice. So my argument should be construed, not as trying to settle an important issue by the fiat of a definition, but as trying to locate that issue within a larger one by showing how the old debate about enforcing morals connects to a more general debate about how we should understand democratic government. It might seem paradoxical that an explicitly collectivist conception of democracy yields a fonn of liberalism that has always been thought individualistic. But that sense of paradox itself reflects an inadequate understanding of the varieties and complexity of collectivist understandings of political action.·~ VII. COMMUNITY AND CONSTITUTION

Suppose we now accept that the communal conception is the best intetpretive account of democracy, particularly in a political community whose constitution restricts majority powers. We can then return to the question with which I began. Do disabling constitutional provisions limit or compromise or offend democracy understood in that way? I have already suggested that once we understand democracy as communal rather than statistical, the approach Ely used to defend some constitutional constraints as democratic can be generalized to defend many others. Ely said (you will remember) that certain expressly disabling constitutional constraints, like restrictions on the power of the majority to abridge free speech, are also functionally structural. They do not limit democracy but are necessary to create it. Ely had the statistical conception of democracy in mind, and he therefore denied that many disabling provisions, including, for example, the due process clause if it were understood to grant homosexuals a right of privacy, could be regarded as structural. He thought that all the disabling constitutional constraints except those

IS. We should notice the historical associations between democracy and liberal attitudes about enforcing personal morality. Freedom of conscience was claimed as a defense against the tyranny of monarchs and bishops, and so was part of the initial impulse toward democracy. Self-government of the individual was associated with self-government of the people. John Stuart Mill was an ardent democrat, but he distinguished demx:mcy from mob rule, just as we have been distinguishing communal from monolithic collective action.

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that directly or indirectly improve the ability of politics to reveal majority will are anti-democmtic. But suppose we substitute the communal account of demo(,!mcy for the statistical account Ely assumed. Then many more disabling provisions are at least candidates for the status of structuml. I do not mean that once we switch to a communal intetpretation of democmcy every provision of the Canadian Charter or the United States Constitution, as intetpreted by the two Supreme Courts, can be shown to create and protect rather than compromise democmcy. The framers of a constitution may aim at limiting as well as creating a communal democmcy, and even when they aim only at creating one, they or the Courts who intetpret them may misunderstand what a communal democmcy requires. I intend not the absurd claim that every constmint on majoritarian power improves democracy, but only that the mnge of constraints that do improve it is much larger and more varied once we recognize that government by the people is communal not statistical. A. THE PLAIN PROVISIONS

We noticed that Ely's analysis would not rescue some of the most prominent parts of the Bill of Rights. These include the First Amendment's guaranty of the free exercise of religion and prohibition of an established church, the provisions of the Fourth and Fifth Amendments which stipulate procedures protecting those accused of crimes, the Eighth Amendment, which forbids cruel and unusual punishments, and the mysterious Ninth Amendment, which holds out the possibility that citizens have other rights government must respect beyond those specifically described in the other amendments. These and other provisions plainly restrict what a majority of voters can achieve, but they do not seem amenable to a structuml translation on the statistical conception of democmcy, as Ely recognized. But disabling provisions like these might well seem structural on the communal conception of democracy. Freedom of religion is plainly required by the principle of independence, for example. Criminal procedure is much more complicated, but some constraints on what the majority may do to a criminal suspect act to protect people's membership in a community of responsibility as long as possible. The presumption of innocence, from which many of the familiarproceduml constmints derive, is a presumption of continued membership. And the Ninth Amendment can be understood as a recognition that individuals have whatever rights are otherwise necessary to protect their position as equal members of an integrated communal agency of government. Even the disabling provisions Ely recognized as functionally structural are more plausibly understood that way on the communal conception. The statistical model emphasizes the benefits of free speech to the audience, for example, because elections are more likely to indicate the true majority will when people in geneml are better informed. The communal model allows us also to regard the speaker side of free speech as structural, because that aspect of free speech protects the principle of independence. (It is, after all, the speaker's right to speak not the audience's right to hear that the First Amendment protects directly.) The case for constitutional guarantees against racial discrimination, as a structuml requirement of democmcy, is even more evidently improved by switching from a statistical to a communal conception. We can imagine systematic mcial discrimination that did not affect the political capacities of members of the minority; their relatively poor position as a

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group might be caused not by any lack of education or power or political awareness but entirely because they are outvoted by a majority that self-consciously excludes them from its concern. The communal conception, by making the principle of stake part of democracy, offers a more direct and persuasive account of why systematic discrimination would be undemocratic even in those circumstances. B. JUDICIAL INTERPRETATION My main concern, however, is not with the plain or uncontroversial disabling provisions of a constitution, but with more abstract disabling clauses, like the due process and equal protection clauses of the American Constitution. The great debate whether a constitution is consistent with democracy focuses on those clauses, because different answers produce different views about how the Supreme Court should decide particular cases, as we noticed near the beginning. How is that debate affected when we understand democracy as communal rather than statistical? Any legal interpretation should aim at a coherent account of the legal order as a whole. 16 So any interpretation of constitutional law in a democracy must take the fact of democracy into account. We should prefer an interpretation of the due process or equal protection clause that is consistent with democratic principles, as lawyers who urge conservative constitutional decisions insist. But that coin has another side. Since our n~tions have constitutions with disabling provisions, any interpretation of our democracy must be consistent with the fact that we have rejected unconstrained majoritarianism. So long as we see democracy as statistical, and therefore as unrelentingly majoritarian, these two demands on a successful interpretation of our law cannot both be met. We must settle for awkward compromises, like defiance or historicism or passivism, that deny our legal system integrity at the most fundamental level. When we change to a communal conception of democracy, however, then integrity is once again available. For that interpretation of our democracy permits us to understand disabling constitutional provisions not as compromising democracy but as an important part of the democratic story. We make the best of the legal order as a whole, subordinating neither of its central structuring features to the other, by interpreting disabling clauses as edicts of political and moral principle protecting democracy, not the residue of historical politics or embarrassments to be ignored so far as possible. I cannot hope to show the implications of this idea for constitutional adjudication in any detail here. I can only suggest, in a general way, how the leading principles of a communal conception of democracy make interpretive democratic sense of a variety of disabling provisions. We have already noticed how the principle of participation supports political liberties. Constitutional guarantees of free speech, for example, are indispensable to allowing people to regard political activity as an extension of moral agency. 17 The principle of stake shows the good sense in the general approach the American Supreme Court has developed in interpreting the abstract Equal Protection clause. The Court's distinctions between relaxed and strict scrutiny, and between the rational relationship test and the compelling interest test, though awkward and open to improvement, are a response to the requirement that

16. See my book, Law's Empire, supra, note 2. 17. Reference to Part 4, herein.

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the principle of stake imposes on constitutional interpretation. 18 That principle requires a court to distinguish cases in which majoritarian government has made a good faith attempt to show equal concern for all citizens, a decision no court should disturb, from cases in which a government's decision reflects prejudice or partisanship rather than equal concern, when the courts must protect democracy by protecting those against whom the prejudice runs. The principle of independence suggests a strategy for assessing the Supreme Court's privacy jurisprudence. Consider the problem that now occupies a large part ofthe constitutional stage in both Canada and the United States: abortion. Does a woman have a constitutional right to a fair opportunity to tenninate her pregnancy if she wishes? The principle of independence comes into play only after another question has been answered. Many people believe that a fetus, from the moment of conception, is a constitutional person, that is, a person entitled to the equal protection of the law stipulated by the Fourteenth Amendment of the American Constitution. If they are right, then women cannot have an unconstrained right to an opportunity for an abortion: if a nation or state must show as much concern for a fetus as for a mother, then it is plainly entitled to deny her an abortion for her own convenience when she knew and accepted the risk that sexual intercourse would make her pregnant. (Indeed there is a strong argument that a state must deny her an opportunity for abortion in such circumstances. 19) So it is a crucial threshold question whether, on the best interpretation of the law as a whole, a fetus is a constitutional person. That is a very different matter from the metaphysical question which theologians and philosophers have debated for many centuries: whether the fetus is a person at all. Perhaps the soundest philosophical theory shows that certain animals are persons. But even so it would not follow- and it seems improbable - that the best interpretation of the American or Canadian constitutions would recognize these animals as constitutional persons, entitled to as much concern as ordinary human beings. My own view is that a fetus is not a person under American constitutional law from the moment of conception. Nor, I believe, is a fetus a person under the Canadian Charter. But that is not the end of the question whether a woman has a constitutional right to a chance for an abortion, because the community is allowed to protect the existence of beings and things that are not persons entitled to equal concern. Two arguments will be pressed why, even if a fetus is not a constitutional person, a political community is entitled to forbid abortion. The first appeals to the community's interest in the survival and well-being of potential life. If a community is allowed to protect future persons through a conservation policy, for example, why should it not be entitled to protect entities already in existence which, if a natural process is allowed to continue, will almost certainly become human beings within nine months? The second argument recognizes what is undeniable: that a woman's decision about abortion is a profound, personality -shaping decision. The 18. See Laurence H. Tribe, American Constituliona/ Law, 2nd ed. (Mineola, N.Y.: The Foundation Press, Inc., 1988) 1451-66 (relaxed and strict scrutiny) and 1439-51 {rational relationship and compelling interest tests). 19. In two articles in the New York Review of Books, I argue these claims, and expand on the other arguments of this section, in the context of the Supreme Court's recent decision in Webster v. Reproductive Services. See "The Great Abortion Case", New York Review ofBooks (June 24, 1989), vol. 36, no. II at 49, and "The Future of Abortion", New York Review of Books (September 28, 1989), vol. 36, no. 14 at 47.

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argument appeals to a community's supposed right to insist that certain moral and ethical standards be met by all its citizens, so that the community can collectively decide what kind of community it is. But in a democracy understood as communal, the first argument - about the community's common interest in protecting a fetus -must confront the principle of stake. Though a communal democracy may pursue a variety of policies benefiting those who are not its members, it must do so in a way that does not burden some of its members so disproportionately as to deny them its equal concern. An antiabortion law that operates from conception has savage consequences for women, particularly for poor and poorly educated ones, and such laws are genuine and serious obstacles to financial and social equality for women. The principle of independence is engaged by the second argument, because any supposition that a community has a right to set moral standards for all its citizens flatly contradicts that principle. In a genuine communal democracy, government by the people means government that leaves each person responsible for the development of his or her own ethical and moral personality. It is hardly an argument for the community's itself taking over a particular ethical decision that the issue then involved is a peculiarly grave or deep one; that circumstance would make any violation of the principle of independence more not less serious. I do not mean these brief and pethaps opaque comments about abortion to constitute a full argument about the constitutionality of anti -abortion statutes and regulations. I mean them only as a contemporary example to help focus our sense of the difference between the two conceptions of democracy I have been discussing. Constitutional lawyers regard the abortion question as an obvious example of the supposed conflict between democratic values and constitutional constraint. Even some lawyers who believe anti-abortion laws to be deeply unfair to women nevertheless believe that it would be undemocratic for a constitution to remove the abortion issue from ordinary politics. They criticize, on that ground, the Supreme Court's 1973 decision in Roe v. Wade, which held that American states lack the power to forbid abortion, except to protect the mother's health, before the third trimester of pregnancy. Their view is plausible on the statistical conception of democracy. It is much less plausible on the communal conception. We must then decide how far a flat prohibition of abortion undermines women's equal stake and independence as members of a genuine democratic community. Of course even if we decide that flat anti-abortion laws are inconsistent with a communal democracy, for the reasons I tried to suggest or for other reasons, it does not follow that such laws are unconstitutional, because much else beyond political morality is pertinent to constitutional judgments. But considerations of democracy, if they were relevant at all, would then argue for rather than against the Supreme Court's decision in Roe v. Wade. On the communal conception, democracy and constitutional constraint are not antagonists but partners in principle.

[3] The Idea of Public Reason Revisited JohnRawlst

INTRODUCTION

The idea of public reason, as I understand it, 1 belongs to a conception of a well ordered constitutional democratic society. The form and content of this reason-the way it is understood by citizens and how it interprets their political relationship-is part of the idea of democracy itself. This is because a basic feature of democracy is the fact of reasonable pluralism-the fact that a

t Emeritus Professor of Philosophy, Harvard University. This essay is a revision of a lecture given at The University of Chicago Law School in November 1993. I should like to thank Joshua Cohen, Erin Kelly, Percy Lehning, Michael Perry, Margaret Rawls, and T.M. Scanlon for their great help and advice in writing this paper. Throughout they have given me numerous suggestions, which I have gladly accepted. Above all, to Burton Dreben I am especially indebted: as so often before, he has been generous beyond measure in his efforts; in evecy section he has helped me reorganize and reshape the text, giving it a clarity and simplicity it would not otherwise have had. Without their constant advice and encouragement, and that of others mentioned below, I never could have completed the revisions of my original lecture. ' See John Rawls, Political Liberalism, lecture VI, § 8.5 (Columbia paperback ed 1996). References to Political Liberalism are given by lecture and section; page numbers are also provided unless the reference refers to an entire lecture, section, or subsection. Note that the 1996 paperback edition of Political Liberalism contains a new second introduction which, among other things, tries to make clearer certain aspects of political liberalism. Section 5 of this introduction, id at 1-lvii, discusses the idea of public reason and sketches several changes I now make in affirming this idea. These are all followed and elaborated in what is presented here and are important to a complete understanding of the argument. Note also that the pagination of the paperback edition is the same as the original.

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plurality of conflicting reasonable comprehensive doctrines, 2 religious, philosophical, and moral, is the normal result of its culture of free institutions. 3 Citizens realize that they cannot reach agreement or even approach mutual understanding on the basis of their irreconcilable comprehensive doctrines. In view of this, they need to consider what kinds of reasons they may reasonably give one another when fundamental political questions are at stake. I propose that in public reason comprehensive doctrines of truth or right be replaced by an idea of the politically reasonable addressed to citizens as citizens.4 Central to the idea of public reason is that it neither criticizes nor attacks any comprehensive doctrine, religious or nonreligious, except insofar as that doctrine is incompatible with the essentials of public reason and a democratic polity. The basic requirement is that a reasonable doctrine accepts a constitutional democratic regime and its companion idea of legitimate law. While democratic societies will differ in the specific doctrines that are influential and active within them-as they differ in the western democracies of Europe and the United States, Israel, and India-finding a suitable idea of public reason is a concern that faces them all. § 1: THE IDEA OF PuBLIC REAsON 1. The idea of public reason specifies at the deepest level the basic moral and political values that are to determine a constitutional democratic government's relation to its citizens and their relation to one another. In short, it concerns how the political relation is to be understood. Those who reject constitutional democracy with its criterion of reciprocityS will of course reject the very idea of public reason. For them the political relation may be that of friend or foe, to those of a particular religious or secular community or those who are not; or it may be a relentless struggle to win the world for the whole truth. Political liberalism does • I shall use the term doctrine for comprehensive views of all kinds and the term conception for a political conception and its component parts, such as the conception of the person as citizen. The term idea is used as a general term and may refer to either as the context determines. • Of course, every society also contains numerous unreasonable doctrines. Yet in this essay I am concerned with an ideal normative conception of democratic government, that is, with the conduct of its reasonable citizens and the principles they follow, assuming them to be dominant and controlling. How far unreasonable doctrines are active and tolerated is to be determined by the principles of justice and the kinds of actions they permit. See§ 7.2. • See§ 6.2. • See§ 1.2.

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not engage those who think this way. The zeal to embody the whole truth in politics is incompatible with an idea of public reason that belongs with democratic citizenship. The idea of public reason has a definite structure, and if one or more of its aspects are ignored it can seem implausible, as it does when applied to the background culture.8 It has five different aspects: (1) the fundamental political questions to which it applies; (2) the persons to whom it applies (government officials and candidates for public office); (3) its content as given by a family of reasonable political conceptions of justice; (4) the application of these conceptions in discussions of coercive norms to be enacted in the form oflegitimate law for a democratic people; and (5) citizens' checking that the principles derived from their conceptions of justice satisfy the criterion of reciprocity. Moreover, such reason is public in three ways: as the reason of free and equal citizens, it is the reason of the public; its subject is the public good concerning questions of fundamental political justice, which questions are of two kinds, constitutional essentials and matters of basic justice;7 and its nature and content are public, being expressed in public reasoning by a family of reasonable conceptions of political justice reasonably thought to satisfy the criterion of reciprocity. It is imperative to realize that the idea of public reason does not apply to all political discussions of fundamental questions, but only to discussions of those questions in what I refer to as the public political forum. 8 This forum may be divided into three parts: the discourse ofjudges in their decisions, and especially of the judges of a supreme court; the discourse of government officials, especially chief executives and legislators; and finally, the discourse of candidates for public office and their campaign managers, especially in their public oratory, party platforms, and political statements.9 We need this three-part division because, as I note later, the idea of public reason does not apply in the same • See text accompanying notes 12-15. • These questions are described in Rawls, Political Liberalism, lecture VI, § 5 at 22730 (cited in note 1). Constitutional essentials concern questions about what political rights and liberties, say, may reasonably be included in a written constitution, when assuming the constitution may be interpreted by a supreme court, or some similar body. Matters of basic justice relate to the basic structure of society and so would concern questions ofbasic economic and social justice and other things not covered by a constitution. • There is no settled meaning of this term. The one I use is not I think peculiar. • Here we face the question of where to draw the line between candidates and those who manage their campmgns and other politically engaged citizens generally. We settle this matter by making candidates and those who run their campaigns responsible for what is smd and done on the candidates' behalf.

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way in these three cases and elsewhere. 10 In discussing what I call the wide view of public political culture,11 we shall see that the idea of public reason applies more strictly to judges than to others, but that the requirements of public justification for that reason are always the same. Distinct and separate from this three-part public political forum is what I call the background culture. 12 This is the culture of civil society. In a democracy, this culture is not, of course, guided by any one central idea or principle, whether political or religious. Its many and diverse agencies and associations with their internal life reside within a framework of law that ensures the familiar liberties of thought and speech, and the right of free association.13 The idea of public reason does not apply to the background culture with its many forms of nonpublic reason nor to media of any kind. 14 Sometimes those who appear to reject the idea of public reason actually mean to assert the need for full and open discussion in the background culture. 16 With this political liberalism fully agrees. Finally, distinct from the idea of public reason, as set out by the five features above, is the ideal of public reason. This ideal is realized, or satisfied, whenever judges, legislators, chief execu10 Often writers on this topic use terms that do not distinguish the parts of public discussion, for example, such terms as "the public square," "the public forum," and the like. I follow Kent Greenawalt in thinking a finer division is necessary. See Kent Greenawalt, Religious Convictions and Political Choice 226-27 (Oxford 1988) (describing, for example, the differences between a religious leader's preaching or promoting a pro-life organization and leading a major political movement or running for political office). "See§4. " Rawls, Political Liberalism, lecture I, § 2.3 at 14 (cited in note 1). 13 The background culture includes, then, the culture of churches and associations of all kinds, and institUtions oflearning at all levels, especially universities and professional schools, scientific and other societies. In addition, the nonpublic political culture mediates between the public political culture and the background culture. This comprises mediaproperly so named-of all kinds: newspapers, reviews and magazines, TV and radio, and much else. Compare these divisions with Habermas's account of the public sphere. See Rawls, Political Liberalism, lecture IX, § 1.3 at 382 n 13 (cited in note 1). " See id, lecture VI, § 3 at 220-22. ,.. See David Hollenbach, S.J., Civil Society: Beyond the Public-Private Dichotomy, 5 The Responsive Community 15 (Winter 1994/95). For example, he says: Conversation and argument about the common good will not occur initially in the legislature or in the political sphere (narrowly conceived as the domain in which interests and power are adjudicated). Rather it will develop freely in those components of civil society that are the primary bearers of cultural meaning and valueuniversities, religious communities, the world of the arts, and serious journalism. It can occur wherever thoughtful men and women bring their beliefs on the meaning of the good life into intelligent and critical encounter with understandings of this good held by other peoples with other traditions. In short, it occurs wherever education about and serious inquiry into the meaning of the good life takes place. Idat22.

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tives, and other government officials, as well as candidates for public office, act from and follow the idea of public reason and explain to other citizens their reasons for supporting fundamental political positions in terms of the political conception of justice they regard as the most reasonable. In. this way they fulfill what I shall call their duty of civility to one another and to other citizens. Hence, whether judges, legislators, and chief executives act from and follow public reason is continually shown in their speech and conduct on a daily basis. How though is the ideal of public reason realized by citizens who are not government officials? In a representative government citizens vote for representatives-chief executives, legislators, and the like-and not for particular laws (except at a state or local level when they may vote directly on referenda questions, which are rarely fundamental questions). To answer this question, we say that ideally citizens are to think of themselves as if they were legislators and ask themselves what statutes, supported by what reasons satisfying the criterion of reciprocity, they would think it most reasonable to enact.16 When firm and widespread, the disposition of citizens to view themselves as ideal legislators, and to repudiate government officials and candidates for public office who violate public reason, is one of the political and social roots of democracy, and is vital to its enduring strength and vigor. 17 Thus citizens fulfill their duty of civility and support the idea of public reason by doing what they can to hold government officials to it. This duty, like other political rights and duties, is an intrinsically moral duty. I emphasize that it is not a legal duty, for in that case it would be incompatible with freedom of speech. 2. I now turn to a discussion of what I have labeled the third, fourth, and fifth aspects of public reason. The idea of public reason arises from a conception of democratic citizenship in a constitutional democracy. This fundamental political relation of citizenship has two special features: first, it is a relation of citizens within the basic structure of society, a structure we enter only by birth and exit only by death; 18 and second, it is a relation of free •• There is some resemblance between this criterion and Kant's principle of the original contract. See Immanuel Kant, The Metaphysics of Morals: Metaphysical First Principles of the Doctrine of Right §§ 47-49 at 92-95 (AK 6:315-18) (Cambridge 1996) (Mary Gregor, trans and ed); Immanuel Kant, On the Common Saying: 'This May be True in Theory, but it does not Apply in Practice,' Part II, in Kant: Political Writings 73-87 (AK 8: 289-306) (Cambridge 2d ed 1991) (Hans Reiss, ed, H.B. Nisbet, trans). 17 See also § 4.2. •• Rawls, Political Liberalism, lecture I, § 2.1 at 12 (cited in note 1). For concerns about exiting only by death, see id, lecture IV, § 1.2 at 136 n 4.

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and equal citizens who exercise ultimate political power as a collective body. These two features immediately give rise to the question of how, when constitutional essentials and matters of basic justice are at stake, citizens so related can be bound to honor the structure of their constitutional democratic regime and abide by the statutes and laws enacted under it. The fact of reasonable pluralism raises this question all the more sharply, since it means that the differences between citizens arising from their comprehensive doctrines, religious and nonreligious, may be irreconcilable. By what ideals and principles, then, are citizens who share equally in ultimate political power to exercise that power so that each can reasonably justify his or her political decisions to everyone? To answer this question we say: Citizens are reasonable when, viewing one another as free and equal in a system of social cooperation over generations, they are prepared to offer one another fair terms of cooperation according to what they consider the most reasonable conception of political justice; and when they agree to act on those terms, even at the cost of their own interests in particular situations, provided that other citizens also accept those terms. The criterion of reciprocity requires that when those terms are proposed as the most reasonable terms of fair cooperation, those proposing them must also think it at least reasonable for others to accept them, as free and equal citizens, and not as dominated or manipulated, or under the pressure of an inferior political or social position. 19 Citizens will of course differ as to which conceptions of political justice they think the most reasonable, but they will agree that all are reasonable, even if barely so. Thus when, on a constitutional essential or matter of basic justice, all appropriate government officials act from and follow public reason, and when all reasonable citizens think of themselves ideally as if they were legislators following public reason, the legal enactment expressing the opinion of the majority is legitimate law. It may not be thought the most reasonable, or the most appropriate, by each, but it is politically (morally) binding on him or her as a citizen and is to be accepted as such. Each thinks that all have spoken and voted at least reasonably, and 19 The idea of reciprocity has an important place in Amy Gutmann and Dennis Thompson, Democracy and Disagreement cbs 1-2 and passim (Belknap 1996). However, the meaning and setting of our views are not the same. Public reason in political liberalism is purely political, although political values are intrinsically moral, whereas Gutmann and Thompson's account is more general and seems to work from a comprehensive doctrine.

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therefore all have followed public reason and honored their duty of civility. Hence the idea of political legitimacy based on the criterion of reciprocity says: Our exercise of political power is proper only when we sincerely believe that the reasons we would offer for our political actions-were we to state them as government officials-are sufficient, and we also reasonably think that other citizens might also reasonably accept those reasons. This criterion applies on two levels: one is to the constitutional structure itself, the other is to particular statutes and laws enacted in accordance with that structure. To be reasonable, political conceptions must justify only constitutions that satisfY this principle. To make more explicit the role of the criterion of reciprocity as expressed in public reason, note that its role is to specifY the nature of the political relation in a constitutional democratic regime as one of civic friendship. For this criterion, when government officers act from it in their public reasoning and other citizens support it, shapes the form of their fundamental institutions. For example-I cite an easy case-if we argue that the religious liberty of some citizens is to be denied, we must give them reasons they can not only understand-as Servetus could understand why Calvin wanted to burn him at the stake-but reasons we might reasonably expect that they, as free and equal citizens, might reasonably also accept. The criterion of reciprocity is normally violated whenever basic liberties are denied. For what reasons can both satisfy the criterion of reciprocity and justifY denying to some persons religious liberty, holding others as slaves, imposing a property qualification on the right to vote, or denying the right of suffrage to women? Since the idea of public reason specifies at the deepest level the basic political values and specifies how the political relation is to be understood, those who believe that fundamental political questions should be decided by what they regard as the best reasons according to their own idea of the whole truth-including their religious or secular comprehensive doctrine-and not by reasons that might be shared by all citizens as free and equal, will of course reject the idea of public reason. Political liberalism views this insistence on the whole truth in politics as incompatible with democratic citizenship and the idea of legitimate law. 3. Democracy has a long history, from its beginning in classical Greece down to the present day, and there are many different ideas of democracy. 20 Here I am concerned only with a well or"' For a useful historical survey see David Held, Models of Democracy (Stanford 2d ed

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dered constitutional democracy-a term I used at the outsetunderstood also as a deliberative democracy. The definitive idea for deliberative democracy is the idea of deliberation itself. When citizens deliberate, they exchange views and debate their supporting reasons concerning public political questions. They suppose that their political opinions may be revised by discussion with other citizens; and therefore these opinions are not simply a fixed outcome of their existing private or nonpolitical interests. It is at this point that public reason is crucial, for it characterizes such citizens' reasoning concerning constitutional essentials and matters of basic justice. While I cannot fully discuss the nature of deliberative democracy here, I note a few key points to indicate the wider place and role of public reason. There are three essential elements of deliberative democracy. One is an idea of public reason,21 although not all such ideas are the same. A second is a framework of constitutional democratic institutions that specifies the setting for deliberative legislative bodies. The third is the knowledge and desire on the part of citizens generally to follow public reason and to realize its ideal in their political conduct. Immediate implications of these essentials are the public financing of elections, and the providing for public occasions of orderly and serious discussion of fundamental questions and issues of public policy. Public deliberation must be made possible, recognized as a basic feature of democracy, and set free from the curse ofmoney. 22 Otherwise politics is dominated by corporate and other organized interests who

1997). Held's numerous models cover the period from the ancient polis to the present time and he concludes by asking what democracy should mean today. In between he considers the several forms of classical republicanism and classical liberalism, as well as Schumpeter's conception of competitive elite democracy. Some figures discussed include Plato and Aristotle; Marsilius of Padua and Machiavelli; Hobbes and Madison; Bentham, James Mill and J. S. Mill; Marx with socialism and communism. These are paired with schematized models of the characteristic institutions and their roles. 21 Deliberative democracy limits the reasons citizens may give in supporting their political opinions to reasons consistent with their seeing other citizens as equals. See Joshua Cohen, Deliberation and Democratic Legitimacy, in Alan Hamlin and Philip Petit, eds, The Good Polity: Normative Analysis of the State 17, 21, 24 (Basil Blackwell1989); Review Symposium on Democracy and Its Critics, 53 J Pol 215, 223-24 (1991) (comments of Joshua Cohen); Joshua Cohen, Democracy and Liberty 13-17 (manuscript on file with U Chi L Rev), in Jon Elster, ed, Deliberative Democracy (forthcoming 1997). 22 Ronald Dworkin, The Curse of American Politics, NY Rev Books 19 (Oct 17, 1996) (describing why "money is the biggest threat to the democratic process"). Dworkin also argues forcefully against the grave error of the Supreme Court in Buckley v Valeo, 424 US 1 (1976). Dworkin, NY Rev Books at 21-24. See also Rawls, Political Liberalism, lecture VIII, § 12 at 359-63 (cited in note 1) (Buckley is "dismaying" and raises the risk of "repeating the mistake of the Lochner era.").

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through large contributions to campaigns distort if not preclude public discussion and deliberation. Deliberative democracy also recognizes that without widespread education in the basic aspects of constitutional democratic government for all citizens, and without a public informed about pressing problems, crucial political and social decisions simply cannot be made. Even should farsighted political leaders wish to make sound changes and reforms, they cannot convince a misinformed and cynical public to accept and follow them. For example, there are sensible proposals for what should be done regarding the alleged coming crisis in Social Security: slow down the growth of benefits levels, gradually raise the retirement age, impose limits on expensive terminal medical care that prolongs life for only a few weeks or days, and finally, raise taxes now, rather than face large increases later.23 But as things are, those who follow the "great game of politics" know that none of these sensible proposals will be accepted. The same story can be told about the importance of support for international institutions (such as the United Nations), foreign aid properly spent, and concern for human rights at home and abroad. In constant pursuit of money to finance campaigns, the political system is simply unable to function. Its deliberative powers are paralyzed. § 2: THE CONTENT OF PuBLIC REASON

1. A citizen engages in public reason, then, when he or she deliberates within a framework of what he or she sincerely regards as the most reasonable political conception of justice, a conception that expresses political values that others, as free and equal citizens might also reasonably be expected reasonably to endorse. Each of us must have principles and guidelines to which we appeal in such a way that this criterion is satisfied. I have proposed that one way to identify those political principles and guidelines is to show that they would be agreed to in what in Political Liberalism is called the original position.24 Others will think that different ways to identify these principles are more reasonable. Thus, the content of public reason is given by a family of political conceptions of justice, and not by a single one. There are "' Paul Krugman, Demographics and Destiny, NY Times Book Rev 12 (Oct 20, 1996), reviewing and describing proposals in Peter G. Peterson, Will America Grow Up Before It Grows Old? How the Coming SocW.l Security Crisis Threatens You, Your Family, and Your Country (Random House 1996), and Charles R. Morris, The AARP: America's Most Powerful Lobby and the Clash of Generations (Times Books 1996). 24 Rawls, Political Liberalism, lecture I, § 4 at 22-28 (cited in note 1).

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many liberalisms and related views, and therefore many forms of public reason specified by a family of reasonable political conceptions. Of these, justice as fairness, whatever its merits, is but one. The limiting feature of these forms is the criterion of reciprocity, viewed as applied between free and equal citizens, themselves seen as reasonable and rational. Three main features characterize these conceptions: First, a list of certain basic rights, liberties, and opportunities (such as those familiar from constitutional regimes); Second, an assignment of special priority to those rights, liberties, and opportunities, especially with respect to the claims of the general good and perfectionist values; and Third, measures ensuring for all citizens adequate allpurpose means to make effective use of their freedoms. 25 Each of these liberalisms endorses the underlying ideas of citizens as free and equal persons and of society as a fair system of cooperation over time. Yet since these ideas can be interpreted in various ways, we get different formulations of the principles of justice and different contents of public reason. Political conceptions differ also in how they order, or balance, political principles and values even when they specify the same ones. I assume also that these liberalisms contain substantive principles of justice, and hence cover more than procedural justice. They are required to specify the religious liberties and freedoms of artistic expression of equal citizens, as well as substantive ideas of fairness involving fair opportunity and ensuring adequate all-purpose means, and much else.26 Political liberalism, then, does not try to fix public reason once and for all in the form of one favored political conception of justice.27 That would not be a sensible approach. For instance, political liberalism also admits Habermas's discourse conception ,. Here I follow the definition in Rawls, Political Liberalism, lecture I, § 1.2 at 6, lec-

ture IV, § 5.3 at 156-57 (cited in note 1).

26 Some may think the fact of reasonable pluralism means the only forms of fair acljudication between comprehensive doctrines must be only procedural and not substantive. This view is forcefully argued by Stuart Hampshire in Innocence and Experience (Harvard 1989). In the text above, however, I assume the several forms of liberalism are each substantive conceptions. For a thorough treatment of these issues, see the discussion in Joshua Cohen, Pluralism and Proceduralism, 69 Chi Kent L Rev 589 (1994). z I do think that justice as fairness has a certain special place in the family of political conceptions, as I suggest in Rawls, Political Liberalism, lecture IV, § 7.4 (cited in note 1). But this opinion of mine is not basic to the ideas of political liberalism and public reason.

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of legitimacy (sometimes said to be radically democratic rather than liberal),28 as well as Catholic views of the common good and solidarity when they are expressed in terms of political values. 29 Even if relatively few conceptions come to dominate over time, and one conception even appears to have a special central place, the forms of permissible public reason are always several. Moreover, new variations may be proposed from time to time and older ones may cease to be represented. It is important that this be so; otherwise the claims of groups or interests arising from social change might be repressed and fail to gain their appropriate political voice. 30 2. We must distinguish public reason from what is sometimes referred to as secular reason and secular values. These are not the same as public reason. For I define secular reason as reasoning in terms of comprehensive nonreligious doctrines. Such doctrines and values are much too broad to serve the purposes of public reason. Political values are not moral doctrines,31 however available or accessible these may be to our reason and common sense reflection. Moral doctrines are on a level with religion and ., See Jiirgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 107-09 (MIT 1996) (William Rehg, trans) (defining the discourse principle). Seyla Benhabib in her discussion of models of public space in Situating the Self: Gender, Community and Postmodemism in Contemporary Ethics (Routledge 1992), says that: "The discourse model is the only one which is compatible both with the general social trends of our societies and with the emancipatory aspirations of new social movements like the women's movement." Id at 113.' She has previously considered Arendt's agonistic conception, as Benhabib calls it, and that of political liberalism. But I find it hard to distinguish her view from that of a form of political liberalism and public reason, since it turns out that she means by the public sphere what Habermas does, namely what Political Liberalism calls the background culture of civil society in which the ideal of public reason does not apply. Hence political liberalism is not limiting in the way she thinks. Also, Benhabib does not try to show, so far as I can see, that certain principles of right and justice belonging to the content of public reason could not be interpreted to deal with the problems raised by the women's movement. I doubt that this can be done. The same holds for Benhabib's earlier remarks in Seyla Benhabib, Liberal Dialogue Versus a Critical Theory of Discursive Legitimation, in Nancy L. Rosenblum, ed, Liberalism and the Moral Life 143, 154-56 (Harvard 1989), in which the problems of the women's movement were discussed in a similar way. "" Deriving from Aristotle and St. Thomas, the idea of the common good is essential to much of Catholic moral and political thought. See, for example, John Finnis, Natural Law and Natural Rights 153-56, 160 (Clarendon 1980); Jacques Maritain, Man and the State 108-14 (Chicago 1951). Finnis is especially clear, while Aquinas is occasionally ambiguous. ~' Thus, Jeremy Waldron's criticism of political liberalism as not allowing new and changing conceptions of political justice is incorrect. See Jeremy Waldron, Religious Contributions in Public Deliberation, 30 San Diego L Rev 817, 837-38 (1993). See the reply to Waldron's criticisms in Lawrence B. Solum, Novel Public Reasons, 29 Loyola LA L Rev 1459, 1460 (1996) ("[G]eneral acceptance of a liberal ideal of public reason would permit the robust evolution of political discourse."). 31 See note 2 for my definition of doctrine.

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first philosophy. By contrast, liberal political principles and values, although intrinsically moral values, are specified by liberal political conceptions of justice and fall under the category of the political. These political conceptions have three features: First, their principles apply to basic political and social institutions (the basic structure of society); Second, they can be presented independently from comprehensive doctrines of any kind (although they may, of course, be supported by a reasonable overlapping consensus of such doctrines); and Finally, they can be worked out from fundamental ideas seen as implicit in the public political culture of a constitutional regime, such as the conceptions of citizens as free and equal persons, and of society as a fair system of cooperation. Thus, the content of public reason is given by the principles and values of the family of liberal political conceptions of justice meeting these conditions. To engage in public reason is to appeal to one of these political conceptions-to their ideals and principles, standards and values-when debating fundamental political questions. This requirement still allows us to introduce into political discussion at any time our comprehensive doctrine, religious or nonreligious, provided that, in due course, we give properly public reasons to support the principles and policies our comprehensive doctrine is said to support. I refer to this requirement as the proviso, and consider it in detail below.32 A feature of public reasoning, then, is that it proceeds entirely within a political conception of justice. Examples of political values include those mentioned in the preamble to the United States Constitution: a more perfect union, justice, domestic tranquillity, the common defense, the general welfare, and the blessings of liberty for ourselves and our posterity. These include under them other values: so, for example, under justice we also have equal basic liberties, equality of opportunity, ideals concerning the distribution of income and taxation, and much else. The political values of public reason are distinct from other values in that they are realized in and characterize political institutions. This does not mean that analogous values cannot characterize other social forms. The values of effectiveness and efficiency may characterize the social organization of teams and clubs, as well as the political institutions of the basic structure of 32

See§ 4.

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society. But a value is properly political only when the social form is itself political: when it is realized, say, in parts of the basic structure and its political and social institutions. It follows that many political conceptions are nonliberal, including those of aristocracy and corporate oligarchy, and of autocracy and dictatorship. All of these fall within the category of the political.33 We, however, are concerned only with those political conceptions that are reasonable for a constitutional democratic regime, and as the preceding paragraphs make clear, these are the ideals and principles expressed by reasonable liberal political conceptions. 3. Another essential feature of public reason is that its political conceptions should be complete. This means that each conception should express principles, standards, and ideals, along with guidelines of inquiry, such that the values specified by it can be suitably ordered or otherwise united so that those values alone give a reasonable answer to all, or to nearly all, questions involving constitutional essentials and matters of basic justice. Here the ordering of values is made in the light of their structure and features within the political conception itself, and not primarily from how they occur within citizens' comprehensive doctrines. Political values are not to be ordered by viewing them separately and detached from one another or from any definite context. They are not puppets manipulated from behind the scenes by comprehensive doctrines.34 The ordering is not distorted by those doctrines provided that public reason sees the ordering as reasonable. And public reason can indeed see an ordering of political values as reasonable (or unreasonable), since institutional structures are open to view and mistakes and gaps within the political ordering will become exposed. Thus, we may be confident that the ordering of political values is not distorted by particular reasonable comprehensive doctrines. (I emphasize that the only criterion of distortion is that the ordering of political values be itself unreasonable.) The significance of completeness lies in the fact that unless a political conception is complete, it is not an adequate framework of thought in the light of which the discussion of fundamental political questions can be carried out.35 What we cannot do in "" Here see Rawls, Political Liberalism, lecture IX, § 1.1 at 374-75 (cited in note 1). "' This thought I owe to Peter de Marneffe. "' Note here that different political conceptions of justice will represent different interpretations of the constitutional essentials and matters of basic justice. There are also different interpretations of the same conception, since its concepts and values may be taken in different ways. There is not, then, a sharp line between where a political conception ends and its interpretation begins, nor need there be. All the same, a conception greatly limits its possible interpretations, otherwise discussion and argument could not

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public reason is to proceed directly from our comprehensive doctrine, or a part thereof, to one or several political principles and values, and the particular institutions they support. Instead, we are required first to work to the basic ideas of a complete political conception and from there to elaborate its principles and ideals, and to use the arguments they provide. Otherwise public reason allows arguments that are too immediate and fragmentary. 4. I now note several examples of political principles and values to illustrate the more specific content of public reason, and particularly the various ways in which the criterion of reciprocity is both applicable and subject to violation. (a) As a first example, consider the value of autonomy. It may take two forms: one is political autonomy, the legal independence and assured integrity of citizens and their sharing equally with others in the exercise of political power; the other is purely moral and characterizes a certain way of life and reflection, critically examining our deepest ends and ideals, as in :M:ill.'s ideal ofindividuality.36 Whatever we may think of autonomy as a purely moral value, it fails to satisfy, given reasonable pluralism, the constraint of reciprocity, as many citizens, for example, those holding certain religious doctrines, may reject it. Thus moral autonomy is not a political value, whereas political autonomy is. (b) As a second example, consider the familiar story of the Good Samaritan. Are the values appealed to properly political values and not simply religious or philosophical values? While the wide view of public political culture allows us, in making a proposal, to introduce the Gospel story, public reason requires us to justify our proposal in terms of proper political values. 37 (c) As a third example, consider appeals to desert in discussing the fair distribution of income: people are wont to say proceed. For example, a constitution declaring the freedom of religion, including the freedom to affirm no religion, along with the separation of church and state, may appear to leave open the question whether church schools may receive public funds, and if so, in what way. The difference here might be seen as how to interpret the same political conception, one interpretation allowing public funds, the other not; or alternatively, as the difference between two political conceptions. In the absence of particulars, it does not matter which we call it. The important point is that since the content of public reason is a family of political conceptions, that content admits the interpretations we may need. It is not as if we were stuck with a fixed conception, much less with one interpretation of it. This is a comment on Kent Greenawalt, Private Consciences and Public Reasons 113-20 (Oxford 1995), where Political Liberalism is said to have difficulty dealing with the problem of determining the interpretation of political conceptions. '" John Stuart Mill, On Liberty ch 3 'll'll1-9 (1859), in 18 Collected Works of John Stuart Mill 260-75 (Toronto 1977) (John M. Robson, ed). "' See § 4.1 on the proviso and the example of citing the Gospel story. For a detailed consideration of the wide view of public political culture, see generally§ 4.

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that ideally distribution should be in accordance with desert. What sense of desert do they have in mind? Do they mean that persons in various offices should have the requisite qualifications-judges must be qualified to judge-and all should have a fair opportunity to qualify themselves for favored positions? That is indeed a political value. But distribution in accordance with moral desert, where this means the moral worth of character, all things considered, and including comprehensive doctrines, is not. It is not a feasible political and social aim. (d) Finally, consider the state's interest in the family and human life. How should the political value invoked be specified correctly? Traditionally it has been specified very broadly. But in a democratic regime the government's legitimate interest is that public law and policy should support and regulate, in an ordered way, the institutions needed to reproduce political society over time. These include the family (in a form that is just), arrangements for rearing and educating children, and institutions of public health generally. This ordered support and regulation rests on political principles and values, since political society is regarded as existing in perpetuity and so as maintaining itself and its institutions and culture over generations. Given this interest, the government would appear to have no interest in the particular form of family life, or of relations among the sexes, except insofar as that form or those relations in some way affect the orderly reproduction of society over time. Thus, appeals to monogamy as such, or against same-sex marriages, as within the government's legitimate interest in the family, would reflect religious or comprehensive moral doctrines. Accordingly, that interest would appear improperly specified. Of course, there may be other political values in the light of which such a specification would pass muster: for example, if monogamy were necessary for the equality of women, or same-sex marriages destructive to the raising and educating of children.38 5. The four examples bring out a contrast to what I have above called secular reason. 39 A view often expressed is that while religious reasons and sectarian doctrines should not be invoked to justify legislation in a democratic society, sound secular arguments may be. 40 But what is a secular argument? Some "' Of course, I don't here attempt to decide the question, since we are concerned only with the kinds of reasons and considerations that public reasoning involves. "See§ 2.2. "" See Robert Audi, The Place of Religious Argument in a Free and Democratic Society, 30 San Diego L Rev 677 (1993). Here Audi defines a secular reason as follows: "A secular reason is roughly one whose normative force does not evidentially depend on the

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think of any argument that is reflective and critical, publicly intelligible and rational, as a secular argument; and they discuss various such arguments for considering, say, homosexual relations unworthy or degrading.41 Of course, some of these arguments may be reflective and rational secular ones (as so defined). Nevertheless, a central feature of political liberalism is that it views all such arguments the same way it views religious ones, and therefore these secular philosophical doctrines do not provide public reasons. Secular concepts and reasoning of this kind belong to first philosophy and moral doctrine, and fall outside of the domain of the political. Thus, in considering whether to make homosexual relations between citizens criminal offenses, the question is not whether those relations are precluded by a worthy idea of full human good as characterized by a sound philosophical and nonreligious view, nor whether those of religious faith regard it as sin, but primarily whether legislative statutes forbidding those relations infringe the civil rights of free and equal democratic citizens.42 This question calls for a reasonable political conception of justice specifying those civil rights, which are always a matter of constitutional essentials. § 3: RELIGION AND PuBLIC REASON IN DEMOCRACY

1. Before examining the idea of the wide view of public political culture, we ask: How is it possible for those holding religious doctrines, some based on religious authority, for example, the Church or the Bible, to hold at the same time a reasonable political conception that supports a reasonable constitutional democratic regime? Can these doctrines still be compatible for the right reasons with a liberal political conception? To attain this compatibility, it is not sufficient that these doctrines accept a democratic government merely as a modus vivendi. Referring to citizens holding religious doctrines as citizens of faith we ask: existence of God or on theological considerations, or on the pronouncements of a person or institution qua religious authority." Id at 692. This definition is ambiguous between secular reasons in the sense of a nonreligious comprehensive doctrine and in the sense of a purely political conception within the content of public reason. Depending on which is meant, Audi's view that secular reasons must also be given along with religious reasons might have a role similar to what I call the proviso in § 4.1. " See the discussion by Michael Perry of John Finnis's argument, which denies that such relations are compatible with human good. Religion in Politics: Constitutional and Moral Perspectives ch 3 at 85-86 (Oxford 1997). "'Here I follow T.M. Scaulon's view in The DifficUlty of Tolerance, in David Heyd, ed, Toleration: An Elusive Virtue 226 (Princeton 1996). While the whole is instructive, § 3 at 230-33 is especially relevant here.

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How is it possible for citizens of faith to be wholehearted members of a democratic society who endorse society's intrinsic political ideals and values and do not simply acquiesce in the balance of political and social forces? Expressed more sharply: How is it possible-or is it-for those of faith, as well as the nonreligious (secular), to endorse a constitutional regime even when their comprehensive doctrines may not prosper under it, and indeed may decline? This last question brings out anew the significance of the idea of legitimacy and public reason's role in determining legitimate law. To clarify the question, consider two examples. The first is that of Catholics and Protestants in the sixteenth and seventeenth centuries when the principle of toleration was honored only as a modus vivendi.43 This meant that should either party fully gain its way it would impose its own religious doctrine as the sole admissible faith. A society in which many faiths all share this attitude and assume that for the indefinite future their relative numbers will stay roughly the same might well have a constitution resembling that of the United States, fully protecting the religious liberties of sharply divided religions more or less equal in political power. The constitution is, as it were, honored as a pact to maintain civil peace.44 In this society political issues might be discussed in terms of political ideas and values so as not to open religious conflict and arouse sectarian hostility. The role of public reason here serves merely to quiet divisiveness and encourage social stability. However, in this case we do not have stability for the right reasons, that is, as secured by a firm allegiance to a democratic society's political (moral) ideals and values. Nor again do we have stability for the right reasons in the second example-a democratic society where citizens accept as political (moral) principles the substantive constitutional clauses that ensure religious, political, and civil liberties, when their allegiance to these constitutional principles is so limited that none is willing to see his or her religious or nonreligious doctrine losing ground in influence and numbers, and such citizens are prepared to resist or to disobey laws that they think undermine their positions. And they do this even though the full range of religious and other liberties is always maintained and the doctrine

"' See Rawls, Political Liberalism, lecture IV, § 3.4 at 148 (cited in note 1). " See Kent Greenawalt's example of the society of Diverse Fervent Believers in Greenawalt, Private Consciences and Public Reasons at 16-18, 21·22 (cited in note 35).

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in question is completely secure. Here again democracy is accepted conditionally and not for the right reasons. What these examples have in common is that society is divided into separate groups, each of which has its own fundamental interest distinct from and opposed to the interests of the other groups and for which it is prepared to resist or to violate legitimate democratic law. In the first example, it is the interest of a religion in establishing its hegemony, while in the second, it is the doctrine's fundamental interest in maintaining a certain degree of success and influence for its own view, either religious or nonreligious. While a constitutional regime can fully ensure rights and liberties for all permissible doctrines, and therefore protect our freedom and security, a democracy necessarily requires that, as one equal citizen among others, each of us accept the obligations of legitimate law. 45 While no one is expected to put his or her religious or nonreligious doctrine in danger, we must each give up forever the hope of changing the constitution so as to establish our religion's hegemony, or of qualifying our obligations so as to ensure its influence and success. To retain such hopes and aims would be inconsistent with the idea of equal basic liberties for all free and equal citizens. 2. To expand on what we asked earlier: How is it possibleor is it-for those of faith, as well as the nonreligious (secular), to endorse a constitutional regime even when their comprehensive doctrines may not prosper under it, and indeed may decline? Here the answer lies in the religious or nonreligious doctrine's understanding and accepting that, except by endorsing a reasonable constitutional democracy, there is no other way fairly to ensure the liberty of its adherents consistent with the equal liberties of other reasonable free and equal citizens. In endorsing a constitutional democratic regime, a religious doctrine may say that such are the limits God sets to our liberty; a nonreligious doctrine will express itself otherwise.46 But in either case, these ., See Rawls, Political Liberalism, lecture V, § 6 at 195-200 (cited in note 1). 46 An example of how a religion may do this is the following. Abdullahi Ahmed AnNa'im, in his book Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law 52-57 (Syracuse 1990), introduces the idea of reconsidering the traditional interpretation ofShari'a, which for Muslims is divine law. For his interpretation to be accepted by Muslims, it must be presented as the correct and superior interpretation ofShari'a. The basic idea of An-Na'im's interpretation, following the late Sudanese author Ustadh Mahmoud Mohamed Taha, is that the traditional understanding of Shari'a has been based on the teachings of the later Medina period of Muhammad, whereas the teachings of the earlier Mecca period of Muhammad are the eternal and fundamental message of !slam. An-Na'im claims that the superior Mecca teachings and principles were rejected in favor of the more realistic and practical (in a seventh-century historical context) Medina teachings because society was not yet ready for their implementation. Now

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doctrines formulate in different ways how liberty of conscience and the principle of toleration can cohere with equal justice for all citizens in a reasonable democratic society. Thus, the principles of toleration and liberty of conscience must have an essential place in any constitutional democratic conception. They lay down the fundamental basis to be accepted by all citizens as fair and regulative of the rivalry between doctrines. Observe here that there are two ideas of toleration. One is purely political, being expressed in terms of the rights and duties protecting religious liberty in accordance with a reasonable political conception of justice. The other is not purely political but expressed from within a religious or a nonreligious doctrine, as when, for example, it was said above that such are the limits God sets on our liberty. Saying this offers an example of what I call reasoning from conjecture. 47 In this case we reason from what we believe, or conjecture, may be other people's basic doctrines, religious or philosophical, and seek to show them that, despite what they might think, they can still endorse a reasonable political conception of justice. We are not ourselves asserting that ground of toleration but offering it as one they could assert consistent with their comprehensive doctrines. § 4: THE WIDE VIEW OF PUBLIC POLITICAL CULTURE

1. Now we consider what I call the wide view of public political culture and discuss two aspects of it. The first is that reasonable comprehensive doctrines, religious or nonreligious, may be that historical conditions have changed, An-Na'im believes that Muslims should follow the earlier Mecca period in interpreting Shari'a. So interpreted, he says that Shari'a supports constitutional democracy. Id at 69-100. In particular, the earlier Mecca interpretation of Shari'a supports equality of men and women, and complete freedom of choice in matters of faith and religion, both of which are in accordance with the constitutional principle of equality before the law. An-Na'im writes: The Qur'an does not mention constitutionalism, but human rational thinking and experience have shown that constitutionalism is necessary for realizing the just and good society prescribed by the Qur'an. An Islamic justification and support for constitutionalism is important and relevant for Muslims. Non-Muslims may have their own secular or other justifications. AB long as all are agreed on the principle and specific rules of constitutionalism, including complete equality and non-discrimination on grounds of gender or religion, each may have his or her own reasons for coming to that agreement. Id at 100. (This is a perfect example of overlapping consensus.) I thank Akeel Bilgrami for informing me of An-Na'im's work. I also owe thanks to Roy Mottahedeh for valuable discussion. "See§ 4.3.

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introduced in public political discussion at any time, provided that in due course proper political reasons-and not reasons given solely by comprehensive doctrines-are presented that are sufficient to support whatever the comprehensive doctrines introduced are said to support. This injunction to present proper political reasons I refer to as the proviso, and it specifies public political culture as distinct from the background culture.48 The second aspect I consider is that there may be positive reasons for introducing comprehensive doctrines into public political discussion. I take up these two aspects in turn. Obviously, many questions may be raised about how to satisfy the proviso.49 One is: when does it need to be satisfied? On the same day or some later day? Also, on whom does the obligation to honor it fall? It is important that it be clear and established that the proviso is to be appropriately satisfied in good faith. Yet the details about how to satisfy this proviso must be worked out in practice and cannot feasibly be governed by a clear family of rules given in advance. How they work out is determined by the nature of the public political culture and calls for good sense and understanding. It is important also to observe that the introduction into public political culture of religious and secular doctrines, provided the proviso is met, does not change the nature and content of justification in public reason itself. This justification is still given in terms of a family of reasonable political conceptions of justice. However, there are no restrictions or requirements on how religious or secular doctrines are themselves to be expressed; these doctrines need not, for example, be by some standards logically correct, or open to rational appraisal, or evidentially supportable.5° Whether they are or not is a matter to be decided by those presenting them, and how they want what they say to be taken. They will normally have practical reasons for wanting to make their views acceptable to a broader audience. 2. Citizens' mutual knowledge of one another's religious and nonreligious doctrines expressed in the wide view of public political culture51 recognizes that the roots of democratic citizens' allegiance to their political conceptions lie in their respective com'" Rawls, Political Liberalism, lecture I, § 2.3 at 13-14 (cited in note 1) (contrasting public political culture with background culture). .. I am indebted here to valuable discussion with Dennis Thompson. 60 Greenawalt discusses Franklin Gamwell and Michael Peny, who do evidently impose such constraints on how religion is to be presented. See Greenawalt, Private Con· sciences and Public Reasons at 85-95 (cited in note 35). " Again, as always, in distinction from the background culture, where I emphasize there are no restrictions.

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prehensive doctrines, both religious and nonreligious. In this way citizens' allegiance to the democratic ideal of public reason is strengthened for the right reasons. We may think of the reasonable comprehensive doctrines that support society's reasonable political conceptions as those conceptions' vital social basis, giving them enduring strength and vigor. When these doctrines accept the proviso and only then come into political debate, the commitment to constitutional democracy is publicly manifested.52 Made aware of this commitment, government officials and citizens are more willing to honor the duty of civility, and their following the ideal of public reason helps foster the kind of society that ideal exemplifies. These benefits of the mutual knowledge of citizens' recognizing one another's reasonable comprehensive doctrines bring out a positive ground for introducing such doctrines, which is not merely a defensive ground, as if their intrusion into public discussion were inevitable in any case. Consider, for example, a highly contested political issue-the issue of public support for church schools.53 Those on different sides are likely to come to doubt one another's allegiance to basic constitutional and political values. It is wise, then, for all sides to introduce their comprehensive doctrines, whether religious or secular, so as to open the way for them to explain to one another how their views do indeed support those basic political values. Consider also the Abolitionists and those in the Civil Rights Movement.54 The proviso was fulfilled in their cases, however "' Political liberalism is sometimes criticized for not itself developing accounts of these social roots of democracy and setting out the formation of its religious and other supports. Yet political liberalism does recogni2e these social roots and stresses their importance. Obviously the political conceptions of toleration and freedom of religion would be impossible in a society in which religious freedom were not honored and cherished. Thus, political liberalism agrees with David Hollenbach, S.J., when he writes: Not the least important of [the transformations brought about by Aquinas] was his insistence that the political life of a people is not the highest realization of the good of which they are capable-an insight that lies at the root of constitutional theories oflimited government. And though the Church resisted the liberal discovery of modem freedoms through much of the modem period, liberalism has been transforming Catholicism once again through the last half of our own century. The memory of these events in social and intellectual history as well as the experience of the Catholic Church since the Second Vatican Council leads me to hope that communities holding different visions of the good life can get somewhere if they are willing to risk conversation and argument about these visions. David Hollenbach, S.J., Contexts of the Political Role of Religion: Civil Society and Cu.ltu.re, 30 San Diego L Rev 877, 891 (1993). While a conception of public reason must recognize the significance of these social roots of constitutional democracy and note how they strengthen its vital institutions, it need not itself undertake a study of these matters. For the need to consider this point I am indebted to Paul Weithman. "" See Rawls, Political Liberalism, lecture VI, § 8.2 at 248-49 (cited in note 1). "' See id, lecture VI, § 8.3 at 249-51. I do not know whether the Abolitionists and King

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much they emphasized the religious roots of their doctrines, because these doctrines supported basic constitutional values-as they themselves asserted-and so supported reasonable conceptions of political justice. 3. Public reasoning aims for public justification. We appeal to political conceptions of justice, and to ascertainable evidence and facts open to public view, in order to reach conclusions about what we think are the most reasonable political institutions and policies. Public justification is not simply valid reasoning, but argument addressed to others: it proceeds correctly from premises we accept and think others could reasonably accept to conclusions we think they could also reasonably accept. This meets the duty of civility, since in due course the proviso is satisfied. There are two other forms of discourse that may also be mentioned, though neither expresses a form of public reasoning. One is declaration: here we each declare our own comprehensive doctrine, religious or nonreligious. This we do not expect others to share. Rather, each of us shows how, from our own doctrines, we can and do endorse a reasonable public political conception of justice with its principles and ideals. The aim of doing this is to declare to others who affirm different comprehensive doctrines that we also each endorse a reasonable political conception belonging to the family of reasonable such conceptions. On the wide view, citizens of faith who cite the Gospel parable of the Good Samaritan do not stop there, but go on to give a public justification for this parable's conclusions in terms of political values. 55 In this way citizens who hold different doctrines are reassured, and this strengthens the ties of civic friendship. 56 The second form is conjecture, defined thus: we argue from what we believe, or conjecture, are other people's basic doctrines, religious or secular, and try to show them that, despite what they might think, they can still endorse a reasonable political conception that can provide a basis for public reasons. The ideal of pubthought of themselves as fulfilling the purpose of the proviso. But whether they did or not, they could have. And had they known and accepted the idea of public reason, they would have. I thank Paul Weithman for this point. ""Luke 10:29-37. It is easy to see how the Gospel story could be used to support the imperfect moral duty of mutual aid, as found, say, in Kant's fourth example in the Grundlegung. See Immanuel Kant, Groundwork for the Metaphysics of Morals AK 4:423, in Mary Gregor, trans, Practical Philosophy (Cambridge 1996). To formulate a suitable example in terms of political values only, consider a variant of the difference principle or of some other analogous idea. The principle could be seen as giving a special concern for the poor, as in the Catholic social doctrine. See John Rawls, A Theory of Justice § 13 (Belknap 1971) {defining the difference principle)• .. For the relevance of this form of discourse I am indebted to discussion with Charles Larmore.

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lie reason is thereby strengthened. However, it is important that conjecture be sincere and not manipulative. We must openly explain our intentions and state that we do not assert the premises from which we argue, but that we proceed as we do to clear up what we take to be a misunderstanding on others' part, and perhaps equally on ours.57 § 5: ON THE FAMILY AS PART OF THE BASIC STRUCTURE

1. To illustrate further the use and scope of public reason, I shall now consider a range of questions about a single institution, the family. 58 I do this by using a particular political conception of justice and looking at the role that it assigns to the family in the basic structure of society. Since the content of public reason is determined by all the reasonable political conceptions that satisfy the criterion of reciprocity, the range of questions about the family covered by this political conception will indicate the ample space for debate and argument comprehended by public reason as a whole. •• I will mention another form of discourse that I call witnessing: it typically occurs in an ideal, politically well ordered, and fully just society in which all votes are the result of citizens' voting in accordance with their most reasonable conception of political justice. Nevertheless, it may happen that some citizens feel they must express their principled dissent from existing institutions, policies, or enacted legislation. I assume that Quakers accept constitutional democracy and abide by its legitimate law, yet at the same time may reasonably express the religious basis of their pacifism. (The parallel case of Catholic opposition to abortion is mentioned in§ 6.1.) Yet witnessing differs from civil disobedience in that it does not appeal to principles and values of a Oiberal) political conception of justice. While on the whole these citizens endorse reasonable political conceptions of justice supporting a constitutional democratic society, in this case they nevertheless feel they must not only let other citizens know the deep basis of their strong opposition but must also bear witness to their faith by doing so. At the same time, those bearing witness accept the idea of public reason. While they may think the outcome of a vote on which all reasonable citizens have conscientiously followed public reason to be incorrect or not true, they nevertheless recognize it as legitimate law and accept the obligation not to violate it. In such a society there is strictly speaking no case for civil disobedience and conscientious refusal. The latter requires what I have called a nearly just, but not fully just, society. See Rawls, A Theory of Justice § 55 (cited in note 55). " I have thought that J.S. Mill's landmark The Subjection of Women (1869), in 21 Collected Works of John Stuart Mill 259 (cited in note 36), made clear that a decent liberal conception of justice (including what I called justice as fairness) implied equal justice for women as well as men. Admittedly, A Theory of Justice should have been more explicit about this, but that was a fault of mine and not of political liberalism itself. I have been encouraged to think that a liberal account of equal justice for women is viable by Susan Moller Okin, Justice, Gender, and the Family (Basic Books 1989); Linda C. McClain, "Atomistic Man" Revisited: Liberalism, Connection, and Feminist Jurisprudence, 65 S Cal L Rev 1171 (1992); Martha Nussbaum, Sex and Social Justice (Oxford forthcoming 1998) (a collection of her essays from 1990 to 1996, including The Feminist Critique of Liberalism, her Oxford Amnesty Lecture for 1996); and Sharon A. Lloyd, Situating a Feminist Criticism of John Rawls's Political Liberalism, 28 Loyola LA L Rev 1319 (1995). I have gained greatly from their writings.

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The family is part of the basic structure, since one of its main roles is to be the basis of the orderly production and reproduction of society and its culture from one generation to the next. Political society is always regarded as a scheme of social cooperation over time indefinitely; the idea of a future time when its affairs are to be concluded and society disbanded is foreign to the conception of political society. Thus, reproductive labor is socially necessary labor. Accepting this, a central role of the family is to arrange in a reasonable and effective way the raising of and caring for children, ensuring their moral development and education into the wider culture. 59 Citizens must have a sense of justice and the political virtues that support political and social institutions. The family must ensure the nurturing and development of such citizens in appropriate numbers to maintain an enduring society.60 These requirements limit all arrangements of the basic structure, including efforts to achieve equality of opportunity. The family imposes constraints on ways in which this goal can be achieved, and the principles of justice are stated to try to take these constraints into account. I cannot pursue these complexities here, but assume that as children we grow up in a small intimate group in which elders (normally parents) have a certain moral and social authority. 2. In order for public reason to apply to the family, it must be seen, in part at least, as a matter for political justice. It may be thought that this is not so, that the principles of justice do not apply to the family and hence those principles do not secure equal justice for women and their children. 61 This is a misconception. It may arise as follows: the primary subject of political justice is the basic structure of society understood as the arrangement of society's main institutions into a unified system of social cooperation over time. The principles of political justice are to apply directly to this structure, but are not to apply directly to the internal life of the many associations within it, the family among them. Thus, some may think that if those principles do 159 Rawls, A Theory of Justice §§ 70-76 (cited in note 55) (discussing the stages of moral development and their relevance to justice as fairness). "' However, no particular form of the family (monogamous, heterosexual, or otherwise) is required by a political conception of justice so long as the family is arranged to fulfill these tasks effectively and doesn't run afoul of other political values. Note that this observation sets the way in which justice as fairness deals with the question of gay and lesbian rights and duties, and how they irl'fect the family. If these rights and duties are consistent with orderly family life and the education of children, they are, ceteris paribus, fully admissible. •• See Okin, Justice, Gender, and the Family at 90-93 (cited in note 58).

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not apply directly to the internal life of families, they cannot ensure equal justice for wives along with their husbands. Much the same question arises in regard to all associations, whether they be churches or universities, professional or scienti:fic associations, business firms or labor unions. The family is not peculiar in this respect. To illustrate: it is clear that liberal principles of political justice do not require ecclesiastical governance to be democratic. Bishops and cardinals need not be elected; nor need the benefits attached to a church's hierarchy of offices satisfy a speci:fied distributive principle, certainly not the difference principle. 62 This shows how the principles of political justice do not apply to the internal life of a church, nor is it desirable, or consistent with liberty of conscience or freedom of association, that they should. On the other hand, the principles of political justice do impose certain essential constraints that bear on ecclesiastical governance. Churches cannot practice effective intolerance, since, as the principles of justice require, public law does not recognize heresy and apostasy as crimes, and members of churches are always at liberty to leave their faith. Thus, although the principles of justice do not apply directly to the internal life of churches, they do protect the rights and liberties of their members by the constraints to which all churches and associations are subject. This is not to deny that there are appropriate conceptions of justice that do apply directly to most if not all associations and groups, as well as to various kinds of relationships among individuals. Yet these conceptions of justice are not political conceptions. In each case, what is the appropriate conception is a separate and additional question, to be considered anew in each particular instance, given the nature and role of the relevant association, group, or relation. Now consider the family. Here the idea is the same: political principles do not apply directly to its internal life, but they do impose essential constraints on the family as an institution and so guarantee the basic rights and liberties, and the freedom and opportunities, of all its members. This they do, as I have said, by specifying the basic rights of equal citizens who are the members of families. The family as part of the basic structure cannot violate these freedoms. Since wives are equally citizens with their husbands, they have all the same basic rights, liberties, and opportunities as their husbands; and this, together with the correct 62

55).

The difference principle is defined in Rawls, A Theory of Justice § 13 (cited in note

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application of the other principles of justice, suffices to secure their equality and independence. To put the case another way, we distinguish between the point of view of people as citizens and their point of view as members of families and of other associations. 63 As citizens we have reasons to impose the constraints specified by the political principles of justice on associations; while as members of associations we have reasons for limiting those constraints so that they leave room for a free and flourishing internal life appropriate to the association in question. Here again we see the need for the division of labor between different kinds of principles. We wouldn't want political principles of justice-including principles of distributive justice-to apply directly to the internal life of the family. These principles do not inform us how to raise our children, and we are not required to treat our children in accordance with political principles. Here those principles are out of place. Surely parents must follow some conception of justice (or fairness) and due respect with regard to their children, but, within certain limits, this is not for political principles to prescribe. Clearly the prohibition of abuse and neglect of children, and much else, will, as constraints, be a vital part of family law. But at some point society has to rely on the natural affection and goodwill of the mature family members. 64 Just as the principles of justice require that wives have all the rights of citizens, the principles of justice impose constraints on the family on behalf of children who as society's future citizens have basic rights as such. A long and historic injustice to women is that they have borne, and continue to bear, an unjust share of the task of raising, nurturing, and caring for their children. When they are even further disadvantaged by the laws regulating divorce, this burden makes them highly vulnerable. These injustices bear harshly not only on women but also on their children; and they tend to undermine children's capacity to acquire the political virtues required of future citizens in a viable democratic society. Mill held that the family in his day was a school for male despotism: it inculcated habits of thought and ways of feeling and conduct incompatible with democracy. 65 If so, .. I borrow tbis thought from Joshua Cohen, Okin on Justice, Gender, and Family, 22 Can J Phil 263, 278 (1992). " Michael Sandel supposes the two principles of justice as fairness to hold generally for associations, including families. See Michael J. Sandel, Liberalism and the Limits of Justice 30-34 (Cambridge 1982). 65 Mill, Subjection of Women ch 2 at 283-98 (cited in note 58).

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the principles of justice enjoining a reasonable constitutional democratic society can plainly be invoked to reform the family. 3. More generally, when political liberalism distinguishes between political justice that applies to the basic structure and other conceptions of justice that apply to the various associations within that structure, it does not regard the political and the nonpolitical domains as two separate, disconnected spaces, each governed solely by its own distinct principles. Even if the basic structure alone is the primary subject of justice, the principles of justice still put essential restrictions on the family and all other associations. The adult members of families and other associations are equal citizens first: that is their basic position. No institution or association in which they are involved can violate their rights as citizens. A domain so-called, or a sphere of life, is not, then, something already given apart from political conceptions of justice. A domain is not a kind of space, or place, but rather is simply the result, or upshot, of how the principles of political justice are applied, directly to the basic structure and indirectly to the associations within it. The principles defining the equal basic liberties and opportunities of citizens always hold in and through all socalled domains. The equal rights of women and the basic rights of their children as future citizens are inalienable and protect them wherever they are. Gender distinctions limiting those rights and liberties are excluded. 66 So the spheres of the political and the public, of the nonpublic and the private, fall out from the content and application of the conception of justice and its principles. If the so-called private sphere is alleged to be a space exempt from justice, then there is no such thing. The basic structure is a single social system, each part of which may influence the rest. Its basic principles of political justice specify all its main parts and its basic rights reach throughout. The family is only one part (though a major part) of the system that produces a social division of labor based on gender over time. Some have argued that discrimination against women in the marketplace is the key to the historical gendered division of labor in the family. The resulting wage differences between the genders make it economically sensible that mothers spend more time with their children than fathers do. On the other hand, some believe that the family itself is the linchpin67 of gender in"' Rawls, A Theory of Justice § 16 at 99 (cited in note 55). "This is Okin's term. See Okin, Justice, Gender, and the Family at 6, 14, 170 (cited in note 58).

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justice. However, a liberal conception of justice may have to allow for some traditional gendered division of labor within familiesassume, say, that this division is based on religion-provided it is fully voluntary and does not result from or lead to injustice. To say that this division of labor is in this case fully voluntary means that it is adopted by people on the basis of their religion, which from a political point of view is voluntary, 68 and not because various other forms of discrimination elsewhere in the social system make it rational and less costly for husband and wife to follow a gendered division of labor in the family. Some want a society in which division of labor by gender is reduced to a minimum. But for political liberalism, this cannot mean that such division is forbidden. One cannot propose that equal division of labor in the family be simply mandated, or its absence in some way penalized at law for those who do not adopt it. This is ruled out because the division of labor in question is connected with basic liberties, including the freedom of religion. Thus, to try to minimize gendered division of labor means, in political liberalism, to try to reach a social condition in which the remaining division of labor is voluntary. This allows in principle that considerable gendered division of labor may persist. It is only involuntary division of labor that is to be reduced to zero. Hence the family is a crucial case for seeing whether the single system-the basic structure-affords equal justice to both men and women. If the gendered division of labor in the family is indeed fully voluntary, then there is reason to think that the single system realizes fair equality of opportunity for both genders. 4. Since a democracy aims for full equality for all its citizens, and so of women, it must include arrangements to achieve it. If a basic, if not the main, cause of women's inequality is their greater share in the bearing, nurturing, and caring for children in the traditional division of labor within the family, steps need to be taken either to equalize their share, or to compensate them "' On this point, see Rawls, Political Liberalism, lecture VI, § 3.2 at 221-22 (cited in note 1). Whether it is properly voluntary, and if so, under what conditions, is a disputed question. Briefly, the question involves the distinction between the reasonable and the rational explained thus: an action is voluntary in one sense, but it may not be voluntary in another. It may be voluntary in the sense of rational: doing the rational thing in the circumstances even when these involve unfair conditions; or an action may be voluntary in the sense of reasonable: doing the rational thing when all the surrounding conditions are also fair. Clearly the text interprets "voluntary" in the second sense: affirming one's religion is voluntary when all of the surrounding conditions are reasonable, or fair. In these remarks I have assumed that the subjective conditions of voluntariness (whatever they may be) are present and have only noted the objective ones. A full discussion would lead us far afield.

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for it. 69 How best to do this in particular historical conditions is not for political philosophy to decide. But a now common proposal is that as a norm or guideline, the law should count a wife's work in raising children (when she bears that burden as is still common) as entitling her to an equal share in the income that her husband earns during their marriage. Should there be a divorce, she should have an equal share in the increased value of the family's assets during that time. Any departure from this norm would require a special and clear justification. It seems intolerably unjust that a husband may depart the family taking his earning power with him and leaving his wife and children far less advantaged than before. Forced to fend for themselves, their economic position is often precarious. A society that permits this does not care about women, much less about their equality, or even about their children, who are its future. The crucial question may be what precisely is covered by gender-structured institutions. How are their lines drawn? If we say the gender system includes whatever social arrangements adversely affect the equal basic liberties and opportunities of women, as well as those of their children as future citizens, then surely that system is subject to critique by the principles of justice. The question then becomes whether the fulfillment of these principles suffices to remedy the gender system's faults. The remedy depends in part on social theory and human psychology, and much else. It cannot be settled by a conception of justice alone. In concluding these remarks on the family, I should say that I have not tried to argue fully for particular conclusions. Rather, to repeat, I have simply wanted to illustrate how a political conception of justice and its ordering of political values apply to a single institution of the basic structure and can cover many (if not all) of its various aspects. As I have said, these values are given an order within the particular political conception to which they are attached.70 Among these values are the freedom and equality of women, the equality of children as future citizens, the freedom of religion, and finally, the value of the family in securing the orderly production and reproduction of society and of its culture from one generation to the next. These values provide

See Victor R. Fuchs, Women's Quest for Economic Equality (Harvard 1988). Chapters 3 and 4 summarize the evidence for saying the main cause is not, as it is often said, employer discrimination, while chapters 7 and 8 propose what is to be done. •• See§ 2.3.

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public reasons for all citizens. So much is claimed not only for justice as fairness but for any reasonable political conception. § 6: QUESTIONS ABOUT PuBLIC REASON

I now turn to various questions and doubts about the idea of public reason and try to allay them. 1. First, it may be objected that the idea of public reason would unreasonably limit the topics and considerations available for political argument and debate, and that we should adopt instead what we may call the open view with no constraints. I now discuss two examples to rebut this objection. (a) One reason for thinking public reason is too restrictive is to suppose that it mistakenly tries to settle political questions in advance. To explain this objection, let's consider the question of school prayer. It might be thought that a liberal position on this question would deny its admissibility in public schools. But why so? We have to consider all the political values that can be invoked to settle this question and on which side the decisive reasons fall. The famous debate in 1784-1785 between Patrick Henry and James Madison over the establishment of the Anglican Church in Virginia and involving religion in the schools was argued almost entirely by reference to political values alone. Henry's argument for establishment was based on the view that: Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society, which cannot be effected without a competent provision for learned teachers ....71 Henry did not seem to argue for Christian knowledge as good in itself but rather as an effective way to achieve basic political values, namely, the good and peaceable conduct of citizens. Thus, I take him to mean by "vices," at least in part, those actions contrary to the political virtues found in political liberalism,72 and expressed by other conceptions of democracy. Leaving aside the obvious difficulty of whether prayers can be composed that satisfy all the needed restrictions of political " See Thomas J. Curry, The First Freedoms: Church and State in America to the Pas· sage of the First Amendment 139-48 (Oxford 1986). The quoted language, which appears in id at 140, is from the preamble to the proposed "Bill Establishing a Provision for Teachers of the Christian Religion" (1784). Note that the popular Patrick Henry also provided the most serious opposition to Jefferson's "Bill for Establishing Religious Freedom" (1779), which won out when reintroduced in the Virginia Assembly in 1786. Curry, The First Freedoms at 146. " For a discussion of these virtues, see Rawls, Political Liberalism, lecture V, § 5.4 at 194-95 (cited in note 1).

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justice, Madison's objections to Henry's bill turned largely on whether religious establishment was necessary to support orderly civil society. He concluded it was not. Madison's objections depended also on the historical effects of establishment both on society and on the integrity of religion itself. He was acquainted with the prosperity of colonies that had no establishment, notably Pennsylvania; he cited the strength of early Christianity in opposition to the hostile Roman Empire, and the corruption of past establishments. 73 With some care, many if not all of these arguments can be expressed in terms of the political values of public reason. Of special interest in the example of school prayer is that it brings out that the idea of public reason is not a view about specific political institutions or policies. Rather, it is a view about the kind of reasons on which citizens are to rest their political cases in making their political justifications to one another when they support laws and policies that invoke the coercive powers of government concerning fundamental political questions. Also of special interest in this example is that it serves to emphasize that the principles that support the separation of church and state should be such that they can be affirmed by all free and equal citizens, given the fact of reasonable pluralism. The reasons for the separation of church and state are these, among others: It protects religion from the state and the state from religion; it protects citizens from their churches74 and citizens from one another. It is a mistake to say that political liberalism is an individualist political conception, since its aim is the protection of the various interests in liberty, both associational and individual. And it is also a grave error to think that the separation of church and state is primarily for the protection of secular culture; of course it does protect that culture, but no more so than it protects all religions. The vitality and wide acceptance 73 See James Madison, Memorial and Remonstrance (1785), in The Mind of the Foun· der 8-16 (Bobbs-Merrill 1973) (Marvin Meyers, ed). Paragraph 6 refers to the vigor of early Christianity in opposition to the empire, while paragraphs 7 and 11 refer to the mutually corrupting influence of past establishments on both state and religion. In the correspondence between Madison and William Bradford of Pennsylvania, whom he met at Princeton (College ofNew Jersey), the freedom and prosperity of Pennsylvania without an establishment is praised and celebrated. See 1 The Papers of James Madison (Chicago 1962) (William T. Hutchinson and William M.E. Rachal, eds). See especially Madison's letters ofl December 1773, id at 100-01; 24 January 1774, id at 104-06; and 1 April1774, id at 111-13. A letter of Bradford's to Madison, 4 March 1774, refers to liberty as the genius of Pennsylvania. Id at 109. Madison's arguments were similar to those of Tocqueville I mention below. See also Curry, The First Freedoms at 142-48 (cited in note 71). " It does this by protecting the freedom to change one's faith. Heresy and apostasy are not crimes.

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of religion in America is often commented upon, as if it were a sign of the peculiar virtue of the American people. Perhaps so, but it may also be connected with the fact that in this country the various religions have been protected by the First Amendment from the state, and none has been able to dominate and suppress the other religions by the capture and use of state power.75 While some have no doubt entertained that aim since the early days of the Republic, it has not been seriously tried. Indeed, Tocqueville thought that among the main causes of the strength of democracy in this country was the separation of church and state. 76 Po"' What I refer to here is the fact that from the early days of the Emperor Constantine in the fourth century Christianity punished heresy and tried to stamp out by persecution and religious wars what it regarded as false doctrine (for example, the crusade against the Albigenses led by Innocent ill in the 13th century). To do this required the coercive powers of the state. Instituted by Pope Gregory IX, the Inquisition was active throughout the Wars of Religion in the 16th and 17th centuries. While most of the American Colonies had known establishments of some kind (Congregationalist in New England, Episcopalian in the South), the United States, thanks to the plurality of its religious sects and the First Amendment which they endorsed, never did. A persecuting zeal has been the great curse of the Christian religion. It was shared by Luther and Calvin and the Protestant Reformers, and it was not radically changed in the Catholic Church until Vatican II. In the Council's Declaration on Religious Freedom-Dignitatis Humanae-the Catholic Church committed itself to the principle of religious freedom as found in a constitutional democratic regime. It declared the ethical doctrine of religious freedom resting on the dignity of the human person; a political doctrine with respect to the limits of government in religious matters; a theological doctrine of the freedom of the Church in its relations to the political and social world. All persons, whatever their faith, have the right of religious liberty on the same terms. Declaration on Religious Freedom (Dignitatis Humanae): On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious (1965), in Walter Abbott, S.J., ed, The Documents of Vatican II 675, 692-96 (Geoffrey Chapman 1966). As John Courtney Murray, S.J., said: "A long-standing ambiguity had finally been cleared up. The Church does not deal with the secular order in terms of a double standard-freedom for the Church when Catholics are in the minority, privilege for the Church and intolerance for others when Catholics are a majority." John Courtney Murray, S.J., Religious Freedom, in Abbott, ed, Documents of Vatican II at 672, 673. See also the instructive discussion by Paul E. Sigmund, Catholicism and Liberal Democracy, in R. Bruce Douglas and David Hollenbach, S.J., eds, Catholicism and Liberalism: Contributions to American Public Philosophy (Cambridge 1994). See especially id at 233-39. 10 Alexis de Tocqueville, 1 Democracy in America 294-301 (Perennial Library 1988) (J.P. Mayer, ed, George Lawrence, trans). In discussing "The Main Causes That Make Religion Powerful in America," Tocqueville says the Catholic priests "all thought that the main reason for the quiet sway of religion over their country was the complete separation of church and state. I have no hesitation in stating that throughout my stay in America I met nobody, lay or cleric, who did not agree about that." Id at 295. He continues: There have been religions intimately linked to earthly governments, dominating men's souls both by terror and by faith; but when a religion makes such an alliance, I am not afraid to say that it makes the same mistake as any man might; it sacrifices the future for the present, and by gaining a power to which it has no claim, it risks its legitimate authority.... Hence religion cannot share the material strength of the rulers without being burdened with some of the animosity roused against them. Id at 297. He remarks that these observations apply all the more to a democratic country,

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liticalliberalism agrees with many other liberal views in accepting this proposition. 77 Some citizens of faith have felt that this separation is hostile to religion and have sought to change it. In doing this I believe they fail to grasp a main cause of the strength of religion in this country and, as Tocqueville says, seem ready to jeopardize it for temporary gains in political power. (b) Others may think that public reason is too restrictive because it may lead to a stand-o:ffl8 and fail to bring about decisions on disputed issues. A stand-off in some sense may indeed happen, not only in moral and political reasoning but in all forms of reasoning, including science and common sense. Nevertheless, this is irrelevant. The relevant comparison is to those situations in which legislators enacting laws and judges deciding cases must make decisions. Here some political rule of action must be laid down and all must be able reasonably to endorse the process by which a decision is reached. Recall that public reason sees the office of citizen with its duty of civility as analogous to that of judge with its duty of deciding cases. Just as judges are to decide cases by legal grounds of precedent, recognized canons of statutory interpretation, and other relevant grounds, so citizens are to reason by public reason and to be guided by the criterion of reciprocity, whenever constitutional essentials and matters of basic justice are at stake. Thus, when there seems to be a stand-off, that is, when legal arguments seem evenly balanced on both sides, judges cannot resolve the case simply by appealing to their own political views. To do that is for judges to violate their duty. The same holds with public reason: if, when stand-offs occur, citizens simply invoke grounding reasons of their comprehensive views,79 the principle of reciprocity is violated. From the point of view of public reason, citizens must vote for the ordering of political values they sincerely think the most reasonable. Otherwise they fail to exercise political power in ways that satisfy the criterion of reciprocity. for in that case when religion seeks political power it will attach itself to a particular party and be burdened by hostility to it. Id at 298. Referring to the cause of the decline of religion in Europe, he concludes, "' am profoundly convinced that this accidental and particular cause is the close union of politics and religion.••. European Christianity has allowed itself to be intimately united with the powers of this world." Id at 300-01. Political liberalism accepts Tocqueville's view and sees it as explaining, so far as possible, the basis of peace among comprehensive doctrines both religious and secular. 71 In this it agrees with Locke, Montesquieu, and Constant; Kant, Hegel, and Mill. '" I take the term from Philip Quinn. The idea appears in Rawls, Political Liberalism, lecture VI, § 7.1-2 at 240-41 (cited in note 1). 19 I use the term "grounding reasons" since many who might appeal to these reasons view them as the proper grounds, or the true basis-religious, philosophical, or moral-of the ideals and principles of public reasons and political conceptions ofjustice.

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In particular, when hotly disputed questions, such as that of abortion, arise which may lead to a stand-off between different political conceptions, citizens must vote on the question according to their complete ordering of political values. 80 Indeed, this is a normal case: unanimity of views is not to be expected. Reasonable political conceptions of justice do not always lead to the same conclusion;81 nor do citizens holding the same conception always agree on particular issues. Yet the outcome of the vote, as I said before, is to be seen as legitimate provided all government officials, supported by other reasonable citizens, of a reasonably just constitutional regime sincerely vote in accordance with the idea of public reason. This doesn't mean the outcome is true or correct, but that it is reasonable and legitimate law, binding on citizens by the majority principle. Some may, of course, reject a legitimate decision, as Roman Catholics may reject a decision to grant a right to abortion. They may present an argument in public reason for denying it and fail to win a majority.82 But they need not themselves exercise the 00 Some have quite naturally read the footnote in Rawls, Political Liberalism, lecture VI,§ 7.2 at 243-44 (cited in note 1), as an argument for the right to abortion in the first trimester. I do not intend it to be one. at does express my opinion, but my opinion is not an argument.) I was in error in leaving it in doubt whether the aim of the footnote was only to illustrate and confirm the following statement in the text to which the footnote is attached: "The only comprehensive doctrines that run afoul of public reason are those that cannot support a reasonable balance [or ordering] of political values [on the issue]." To try to explain what I meant, I used three political values (of course, there are more) for the troubled issue of the right to abortion to which it might seem improbable that political values could apply at all. I believe a more detailed interpretation of those values may, when properly developed in public reason, yield a reasonable argument. I don't say the most reasonable or decisive argument; I don't know what that would be, or even if it exists. (For an example of such a more detailed interpretation, see Judith Jarvis Thomson, Abortion, 20 Boston Rev 11 (Summer 1995), though I would want to add several addenda to it.} Suppose now, for purposes of illustration, that there is a reasonable argument in public reason for the right to abortion but there is no equally reasonable balance, or ordering, of the political values in public reason that argues for the denial of that right. Then in this kind of case, but only in this kind of case, does a comprehensive doctrine denying the right to abortion run afoul of public reason. However, if it can satisfy the proviso of the wide public reason better, or at least as well as other views, it has made its case in public reason. Of course, a comprehensive doctrine can be unreasonable on one or several issues without being simply unreasonable. 81 Rawls, Political Liberalism, lecture VI, § 7.1 at 240-41 (cited in note 1}. 82 For such an argument, see Cardinal Joseph Bernardin, The Consistent Ethic: What Sort of Framework?, 16 Origins 345, 347-50 (Oct 30, 1986). The idea of public order the Cardinal presents includes these three political values: public peace, essential protections ofhuman rights, and the commonly accepted standards of moral behavior in a community oflaw. Further, he grants that not all moral imperatives are to be translated into prohibitive civil statutes and thinks it essential to the political and social order to protect human life and basic human rights. The denial of the right to abortion he hopes to justify on the basis of those three values. I don't of course assess his argument here, except to say it is clearly cast in some form of public reason. Whether it is itself reasonable or not, or more

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right to abortion. They can recognize the right as belonging to legitimate law enacted in accordance with legitimate political institutions and public reason, and therefore not resist it with force. Forceful resistance is unreasonable: it would mean attempting to impose by force their own comprehensive doctrine that a majority of other citizens who follow public reason, not unreasonably, do not accept. Certainly Catholics may, in line with public reason, continue to argue against the right to abortion. Reasoning is not closed once and for all in public reason any more than it is closed in any form of reasoning. Moreover, that the Catholic Church's nonpublic reason requires its members to follow its doctrine is perfectly consistent with their also honoring public reason. 83 I do not discuss the question of abortion in itself since my concern is not with that question but rather to stress that political liberalism does not hold that the ideal of public reason should always lead to a general agreement of views, nor is it a fault that it does not. Citizens learn and profit from debate and argument, and when their arguments follow public reason, they instruct society's political culture and deepen their understanding of one another even when agreement cannot be reached. 2. Some of the considerations underlying the stand-off objection lead to a more general objection to public reason, namely, that the content of the family of reasonable political conceptions of justice on which it is based is itself much too narrow. This objection insists that we should always present what we think are true or grounding reasons for our views. That is, the objection insists, we are bound to express the true, or the right, as seen from our comprehensive doctrines. However, as I said in the Introduction, in public reason ideas of truth or right based on comprehensive doctrines are replaced by an idea of the politically reasonable addressed to citizens as citizens. This step is necessary to establish a basis of political reasoning that all can share as free and equal citizens. Since we are seeking public justifications for political and social institutions-for the basic structure of a political and social world-we reasonable than the arguments on the other side, is another matter. As with any form of reasoning in public reason, the reasoning may be fallacious or mistaken. 83 As far as I can see, this view is similar to Father John Courtney Murray's position about the stand the Church should take in regard to contraception in We Hold These Truths: Cathalic Reflections on the American Proposition 157-58 (Sheed and Ward 1960). See also Mario Cuomo's lecture on abortion in his Notre Dame Lecture of 1984, in More Than Words: The Speeches of Mario Cuomo 32-51 (St Martin's 1993). I am indebted to Leslie Griffin and Paul Weithman for discussion and clarification about points involved in this and the preceding footnote and for acquainting me with Father Murray's view.

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think of persons as citizens. This assigns to each person the same basic political position. In giving reasons to all citizens we don't view persons as socially situated or otherwise rooted, that is, as being in this or that social class, or in this or that property and income group, or as having this or that comprehensive doctrine. Nor are we appealing to each person's or each group's interests, though at some point we must take these interests into account. Rather, we think of persons as reasonable and rational, as free and equal citizens, with the two moral powers84 and having, at any given moment, a determinate conception of the good, which may change over time. These features of citizens are implicit in their taking part in a fair system of social cooperation and seeking and presenting public justifications for their judgments on fundamental political questions. I emphasize that this idea of public reason is fully compatible with the many forms of nonpublic reason. 85 These belong to the internal life of the many associations in civil society and they are not of course all the same; different nonpublic reasons of different religious associations shared by their members are not those of scientific societies. Since we seek a shareable public basis of justification for all citizens in society, giving justifications to particular persons and groups here and there until all are covered fails to do this. To speak of all persons in society is still too broad, unless we suppose that they are in their nature basically the same. In political philosophy one role of ideas about our nature has been to think of people in a standard, or canonical, fashion so that they might all accept the same kind of reasons. 86 In political liberalism, however, we try to avoid natural or psychological views of this kind, as well as theological or secular doctrines. Accounts of human nature we put aside and rely on a political conception of persons as citizens instead. 3. As I have stressed throughout, it is central to political liberalism that free and equal citizens affirm both a comprehensive doctrine and a political conception. However, the relation be"' These two powers, the capacity for a conception of justice and the capacity for a conception of the good, are discussed in Rawls, Political Liberalism (cited in note 1). See especially id, lecture I, § 3.2 at 19, lecture II, § 7.1 at 81, lecture m, § 3.3 at 103-04, lecture m, § 4.1 at 108. "' Id, lecture VI, § 4 at 223-27. 06 Sometimes the term "normalize" is used in this connection. For example, persons have certain fundamental interests of a religious or philosophical kind; or else certain basic needs of a natural kind. Again, they may have a certain typical pattern of self.. realization. A Thomist will say that we always desire above all else, even if unknown to ourselves, the V~io Dei; a Platonist will say we strive for a vision of the good; a Marxist will say we aim for self-realization as species-beings.

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tween a comprehensive doctrine and its accompanying political conception is easily misunderstood. When political liberalism speaks of a reasonable overlapping consensus of comprehensive doctrines,87 it means that all of these doctrines, both religious and nonreligious, support a political conception of justice underwriting a constitutional democratic society whose principles, ideals, and standards satisfy the criterion of reciprocity. Thus, all reasonable doctrines affirm such a society with its corresponding political institutions: equal basic rights and liberties for all citizens, including liberty of conscience and the freedom of religion.58 On the other hand, comprehensive doctrines that cannot support such a democratic society are not reasonable. Their principles and ideals do not satisfy the criterion of reciprocity, and in various ways they fail to establish the equal basic liberties. As examples, consider the many fundamentalist religious doctrines, the doctrine of the divine right of monarchs and the various forms of aristocracy, and, not to be overlooked, the many instances of autocracy and dictatorship. Moreover, a true judgment in a reasonable comprehensive doctrine never conflicts with a reasonable judgment in its related political conception. A reasonable judgment of the political conception must still be confirmed as true, or right, by the comprehensive doctrine. It is, of course, up to citizens themselves to affirm, revise, or change their comprehensive doctrines. Their doctrines may override or count for naught the political values of a constitutional democratic society. But then the citizens cannot claim that such doctrines are reasonable. Since the criterion of reciprocity is an essential ingredient specifying public reason and its content, political liberalism rejects as unreasonable all such doctrines. In a reasonable comprehensive doctrine, in particular a religious one, the ranking of values may not be what we might expect. Thus, suppose we call transcendent such values as salvation and eternal life-the Visio Dei. This value, let's say, is higher, or superior to, the reasonable political values of a constitutional democratic society. These are worldly values and therefore on a different, and as it were lower, plane than those transcendent values. It doesn't follow, however, that these lower yet reasonable values are overridden by the transcendent values of the religious doctrine. In fact, a reasonable comprehensive doctrine is "' The idea of such a consensus is discussed at various places in Rawls, Political Liberalism (cited in note 1). See especially id, lecture IV, and consult the index. "' See id at xvili (paperback edition).

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one in which they are not overridden; it is the unreasonable doctrines in which reasonable political values are overridden. This is a consequence of the idea of the politically reasonable as set out in political liberalism. Recall that it was said: In endorsing a constitutional democratic regime, a religious doctrine may say that such are the limits God sets to our liberty.89 A further misunderstanding alleges that an argument in public reason could not side with Lincoln against Douglas in their debates of 1858.90 But why not? Certainly they were debating fundamental political principles about the rights and wrongs of slavery. Since the rejection of slavery is a clear case of securing the constitutional essential of the equal basic liberties, surely Lincoln's view was reasonable (even if not the most reasonable), while Douglas's was not. Therefore, Lincoln's view is supported by any reasonable comprehensive doctrine. It is no surprise, then, that his view is in line with the religious doctrines of the Abolitionists and the Civil Rights Movement. What could be a better example to illustrate the force of public reason in political life?91 4. A third general objection is that the idea of public reason is unnecessary and serves no purpose in a well established constitutional democracy. Its limits and constraints are useful primarily when a society is sharply divided and contains many hostile religious associations and secular groups, each striving to become the controlling political force. In the political societies of the European democracies and the United States these worries, so the objection goes, are idle.

'" See § 3.2. It is sometimes asked why political liberalism puts such a high value on political values, as if one could only do that by assessing those values in comparison with transcendent values. But this comparison political liberalism does not make, nor does it need to make, as is observed in the text. 00 On this, see Michael J. Sandel, Reuiew of Political Liberalism, 107 Harv L Rev 1765, 1778-82 (1994), and more recently Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy 21-23 (Belknap 1996). •• Perhaps some think that a political conception is not a matter of (moral) right and wrong. If so, that is a mistake and is simply false. Political conceptions of justice are themselves intrinsically moral ideas, as I have stressed from the outset. As such they are a kind of normative value. On the other hand, some may think that the relevant political conceptions are determined by how a people actually establish their existing institutions-the political given, as it were, by politics. Viewed in this light, the prevalence of slavery in 1858 implies that Lincoln's criticisms of it were moral, a matter of right and wrong, and certainly not a matter of politics. To say that the political is determined by a people's politics may be a possible use of the term political. But then it ceases to be a normative idea and it is no longer part of public reason. We must hold fast to the idea of the political as a fundamental category and covering political conceptions ofjustice as intrinsic moral values.

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However, this objection is incorrect and sociologically faulty. For without citizens' allegiance to public reason and their honoring the duty of civility, divisions and hostilities between doctrines are bound in time to assert themselves, should they not already exist. Harmony and concord among doctrines and a people's affirming public reason are unhappily not a permanent condition of social life. Rather, harmony and concord depend on the vitality of the public political culture and on citizens' being devoted to and realizing the ideal of public reason. Citizens could easily fall into bitterness and resentment, once they no longer see the point of affirming an ideal of public reason and come to ignore it. To return to where we began in this Section: I do not know how to prove that public reason is not too restrictive, or whether its forms are properly described. I suspect it cannot be done. Yet this is not a serious problem if, as I believe, the large majority of cases fit the framework of public reason, and the cases that do not fit all have special features that both enable us to understand why they should cause difficulty and show us how to cope with them as they arise. This prompts the general questions of whether there are examples of important cases of constitutional essentials and basic justice that do not fit the framework of public reason, and if so, why they cause difficulty. In this paper I do not pursue these questions. § 7: CONCLUSION

1. Throughout, I have been concerned with a torturing question in the contemporary world, namely: Can democracy and comprehensive doctrines, religious or nonreligious, be compatible? And if so, how? At the moment a number of conflicts between religion and democracy raise this question. To answer it political liberalism makes the distinction between a self-standing political conception of justice and a comprehensive doctrine. A religious doctrine resting on the authority of the Church or the Bible is not, of course, a liberal comprehensive doctrine: its leading religious and moral values are not those, say, of Kant or Mill. Nevertheless, it may endorse a constitutional democratic society and recognize its public reason. Here it is basic that public reason is a political idea and belongs to the category of the political. Its content is given by the family of (liberal) political conceptions of justice satisfying the criterion of reciprocity. It does not trespass upon religious beliefs and injunctions insofar as these are consistent with the essential constitutional liberties, including the freedom of religion and liberty of conscience. There

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is, or need be, no war between religion and democracy. In this respect political liberalism is sharply different from and rejects Enlightenment Liberalism, which historically attacked orthodox Christianity. The conflicts between democracy and reasonable religious doctrines and among reasonable religious doctrines themselves are greatly mitigated and contained within the bounds of reasonable principles of justice in a constitutional democratic society. This mitigation is due to the idea of toleration, and I have distinguished between two such ideas. 92 One is purely political, being expressed in terms of the rights and duties protecting religious liberty in accordance with a reasonable political conception of justice.93 The other is not purely political but expressed from within a religious or a nonreligious doctrine. However, a reasonable judgment of the political conception must still be confirmed as true, or right, by a reasonable comprehensive doctrine. 94 I assume, then, that a reasonable comprehensive doctrine accepts some form of the political argument for toleration. Of course, citizens may think that the grounding reasons for toleration and for the other elements of a constitutional democratic society are not political but rather are to be found in their religious or nonreligious doctrines. And these reasons, they may well say, are the true or the right reasons; and they may see the political reasons as superficial, the grounding ones as deep. Yet there is no conflict here, but simply concordant judgments made within political conceptions of justice on the one hand, and within comprehensive doctrines on the other. There are limits, however, to reconciliation by public reason. Three main kinds of conflicts set citizens at odds: those deriving from irreconcilable comprehensive doctrines; those deriving from differences in status, class position, or occupation, or from differences in ethnicity, gender, or race; and finally, those deriving

See§3.2. See Rawls, Political Liberalism, lecture II, § 3.2-4 at 60-62 {cited in note 1). The main points can be set out in summary fashion as follows: (1) Reasonable persons do not all affirm the same comprehensive doctrine. This is said to be a consequence of the burdens of judgment. See note 95. (2) Many reasonable doctrines are affirmed, not all of which can be true or right (as judged from within a comprehensive doctrine). (3) It is not unreasonable to affirm any one of the reasonable comprehensive doctrines. (4) Others who affirm reasonable doctrines different from ours are, we grant, reasonable also, and certainly not for that reason unreasonable. (5) In going beyond recognizing the reasonableness of a doctrine and affirming our belief in it, we are not being unreasonable. (6) Reasonable persons think it unreasonable to use political power, should they possess it, to repress other doctrines that are reasonable yet different from their own. "'See§ 6.3. 92

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from the burdens of judgment.95 Political liberalism concerns primarily the first kind of conflict. It holds that even though our comprehensive doctrines are irreconcilable and cannot be compromised, nevertheless citizens who affirm reasonable doctrines may share reasons of another kind, namely, public reasons given in terms of political conceptions of justice. I also believe that such a society can resolve the second kind of conflict, which deals with conflicts between citizens' fundamental interests-political, economic, and social. For once we accept reasonable principles of justice and recognize them to be reasonable (even if not the most reasonable), and know, or reasonably believe, that our political and social institutions satisfy them, the second kind of conflict need not arise, or arise so forcefully. Political liberalism does not explicitly consider these conflicts but leaves them to be considered by justice as fairness, or by some other reasonable conception of political justice. Finally, conflicts arising from the burdens of judgment always exist and limit the extent of possible agreement. 2. Reasonable comprehensive doctrines do not reject the essentials of a constitutional democratic polity. 96 Moreover, reasonable persons are characterized in two ways: First, they stand ready to offer fair terms of social cooperation between equals, and they abide by these terms if others do also, even should it be to their advantage not to;97 second, reasonable persons recognize and accept the consequences of the burdens of judgment, which leads to the idea of reasonable toleration in a democratic society.98 Finally we come to the idea of legitimate law, which reasonable citizens understand to apply to the general structure of political authority. 99 They know that in political life unanimity can rarely if ever be expected, so a reasonable democratic constitution must include majority or other plurality voting procedures in order to reach decisions. 100 The idea of the politically reasonable is sufficient unto itself for the purposes of public reason when basic political questions are at stake. Of course, fundamentalist religious doctrines and •• These burdens are discussed in Rawls, Political Liberalism, lecture II, § 2 (cited in note 1). Roughly, they are sources or causes of reasonable disagreement between reasonable and rational persons. They involve balancing the weight of different kinds of evidence and kinds of values, and the like, and they affect both theoretical and practical judgments. w Id at xviii. 01 Id, lecture II, § 1.1 at 49-50. •• ld, lecture II, §§ 2-3.4 at 54-62. .. ld, lecture IV,§ 1.2-3 at 135-37. '"'Id, lecture IX, § 2.1 at 393.

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autocratic and dictatorial rulers will reject the ideas of public reason and deliberative democracy. They will say that democracy leads to a culture contrary to their religion, or denies the values that only autocratic or dictatorial rule can secure. 101 They assert that the religiously true, or the philosophically true, overrides the politically reasonable. We simply say that such a doctrine is politically unreasonable. Within political liberalism nothing more need be said. I noted in the beginningl02 the fact that every actual society, however dominant and controlling its reasonable citizens may be, will normally contain numerous unreasonable doctrines that are not compatible with a democratic society-either certain religious doctrines, such as fundamentalist religions, or certain nonreligious (secular) doctrines, such as those of autocracy and dictatorship, of which our century offers hideous examples. How far unreasonable doctrines may be active and are to be tolerated in a constitutional democratic regime does not present a new and different question, despite the fact that in this account of public reason we have focused on the idea of the reasonable and the role of reasonable citizens. There is not one account of toleration for reasonable doctrines and another for unreasonable ones. Both cases are settled by the appropriate political principles of justice and the conduct those principles permit. 103 Unreasonable doctrines are a threat to democratic institutions, since it is impossible for them to abide by a constitutional regime except as a modus uiuendi. Their existence sets a limit to the aim of fully realizing a reasonable democratic society with its ideal of public reason and the idea of legitimate law. This fact is not a defect or failure of the idea of public reason, but rather it indicates that there are limits to what public reason can accomplish. It does not diminish the great value and importance of attempting to realize that ideal to the fullest extent possible. 3. I end by pointing out the fundamental difference between A Theory of Justice and Political Liberalism. The first explicitly attempts to develop from the idea of the social contract, represented by Locke, Rousseau, and Kant, a theory of justice that is no longer open to objections often thought fatal to it, and that proves superior to the long dominant tradition of utilitarianism. A Theory of Justice hopes to present the structural features of 101 Observe that neither the religious objection to democracy nor the autocratic one could be made by public reasoning. 102 See note 3. 103 See Rawls, A Theory of Justice § 35 (cited in note 55) (on toleration of the intolerant); Rawls, Political Liberalism, lecture V, § 6.2 at 197-99 (cited in note 1).

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such a theory so as to make it the best approximation to our considered judgments of justice and hence to give the most appropriate moral basis for a democratic society. Furthermore, justice as fairness is presented there as a comprehensive liberal doctrine (although the term "comprehensive doctrine" is not used in the book) in which all the members of its well ordered society affirm that same doctrine. This kind of well ordered society contradicts the fact of reasonable pluralism and hence Political Liberalism regards that society as impossible. Thus, Political Liberalism considers a different question, namely: How is it possible for those affirming a comprehensive doctrine, religious or nonreligious, and in particular doctrines based on religious authority, such as the Church or the Bible, also to hold a reasonable political conception of justice that supports a constitutional democratic society? The political conceptions are seen as both liberal and self-standing and not as comprehensive, whereas the religious doctrines may be comprehensive but not liberal. The two books are asymmetrical, though both have an idea of public reason. In the first, public reason is given by a comprehensive liberal doctrine, while in the second, public reason is a way of reasoning about political values shared by free and equal citizens that does not trespass on citizens' comprehensive doctrines so long as those doctrines are consistent with a democratic polity. Thus, the well ordered constitutional democratic society of Political Liberalism is one in which the dominant and controlling citizens affirm and act from irreconcilable yet reasonable comprehensive doctrines. These doctrines in turn support reasonable political conceptions-although not necessarily the most reasonable-which specify the basic rights, liberties, and opportunities of citizens in society's basic structure.

[4] A Right-Based Critique of Constitutional Rightst JEREMY WALDRON*

1 Introduction 'Individuals have rights, and there are things no person or group may do to them (without violating their rights).' 1 'Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. •2 'There would be no point in the boast that we respect individual rights unless that involved some sacrifice, and the sacrifice in question must be that we give up whatever marginal benefits our country would receive from overriding these rights when they prove inconvenient. ' 3 These are familiar propositions of political philosophy. What do they imply about institutions? Should we embody our rights in legalistic formulae and proclaim them in a formal Bill of Rights? Or should we leave them to evolve informally in dialogue among citizens, representatives and officials? How are we to stop rights from being violated? Should we rely on a general spirit of watchfulness in the community, attempting to raise what Mill called 'a strong barrier of moral conviction' to protect our liberty?4 Or should we also entrust some specific branch of government-the courts, for example-with the task of detecting violations and with the authority to overrule any other agency that commits them? The advantages of this last approach continue to attract proponents of constitutional reform in the United Kingdom. Ronald Dworkin, for example, t This paper is a development of themes I first explored in 'Rights and Majorities: Rousseau Revisited', in John W. Chapman and Alan Wertheimer (eds) Nomos XXXII: Majorities and Minorizi'es (New York: New York University Press, 1990), 44--75. Early versions of the present article were presented at a public lectul'e sponsored by the Program in Ethics and the Professions and the Departments of Government and Philosophy at Hartrard, at a Law Faculty Seminar in the University of Otago, New Zealand, and at a workshop at the University of California at Santa Cruz. I wish to thank Dennis Thompson, Stephen Macedo, Peter Skegg and Jeremy Elkins for those invitations and the participants for their suggestions and criticisms. I am particularly grateful to Susan Christopherson, Ronald Dworkin, Amy Gutmann, Sanford Kadish, John Kleinig, Robert Meister, Frank Micbelman, Richard Musgrave, Geoffrey Palmer, Robert Post, Eric Rakowski, John Rawls, Carol Sanger, Heney Sbue, Richard Wasserstrom and Kenneth Winston for their comments. • Professor of Law, Jurisprudence and Social Policy Program, School of Law (Boalt Hall), University of California, Berkeley. 1

2 3

4

Robert Nozick, Anardty, State and Utopia (Oxford: Basil Blackwell, 1974), ix. John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971), 3. Ronald Dworkin, Taking Rights Seriously, New Impression (London: Duckworth, 1977), 193. John Stuart Mill, On Liberry, ch 1, para 15 (Indianapolis: Bobbs-Merrill, 1955), 18.

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has argued that it would forge a decisive link between rights and legality, giving the former much greater prominence in public life. By throwing the authority of the courts behind the idea of rights, the legal system would begin to play 'a different, more valuable role in society'. Lawyers and judges might take on roles more akin to those of their counterparts in the United States: The courts, charged with the responsibility of creating ..• a distinctly British scheme of human rights and liberty, might think more in terms of principle and less in terms of narrow precedent.... Different men and women might then be tempted to the law as a career, and from their ranks a more committed and idealistic generation of judges might emerge, encouraging a further cycle in the renaissance of liberty.'

If these judges used their new powers well, Dworkin concludes, governments would no longer be free, as they are now, to treat liberty as a commodity of convenience or 'to ignore rights that the nation has a solemn obligation to respect'. 6 What should a political philosopher say about these proposals? In discussions of constitutional reform, I find it commonly assumed that the aims of Charter 88 and similar groups are shared by philosophers whose normative theories of politics are organized around the idea of rights. Surely, it is said, anyone who believes in rights will welcome a proposal to institutionalize a Bill of Rights and give the courts power to strike down legislation that encroaches on basic liberties.7 In this paper, I shall question that assumption. I want to develop four main lines of argument. The first is a negative case: I shall show that there is no necessary inference from a right-based position in political philosophy to a commitment to a Bill of Rights as a political institution along with an Americanstyle practice of judicial review. Secondly, I shall argue that political philosophers should be more aware than other proponents of constitutional reform of the difficulty, complexity, and controversy attending the idea of basic rights. I shall argue that they have reason-grounded in professional humility-to be more than usually hesitant about the enactment of any canonical list of rights, particularly if the aim is to put that canon beyond the scope of political debate and revision. Thirdly, I shall argue that philosophers who talk about rights should pay much more attention than they do to the processes by which decisions are taken in a community under circumstances of disagreement. Theories of rights need to be complemented by theories of authority, whose function it is to determine how decisions are to be taken when the members of a community disagree about what decision is right. Since we are to assume a context of moral disagreement, a principle such as 'Let the right decision be made' cannot form part of an Ronald Dworkin, A Bill of Rights/or Britain (London: Chatto and Windus, 1990), 23. Ibid, 12 and 21. For example, Bruce Ackerman in a recent article suggests that scholars who have a philosophical commitment to fundamental rights-'rights foundationalists', as he calls them-take it for granted that democracy is to be constrained by this commitment. See Bruce Ackerman, 'Constitutional Politics/Constitutional Law', (1989) 99 Yale Law Journa/465-71. 5 6

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adequate principle of authority. It follows from this that, if people disagree about basic rights (and they do), an adequate theory of authority can neither include nor be qualified by a conception of rights as 'trumps' over majoritarian forms of decision-making. Finally, I shall argue that, in a constitutional regime of the sort envisaged by proponents of Charter 88, the courts will inevitably become the main forum for the revision and adaptation of basic rights in the face of changing circumstances and social controversies. (This of course is an extrapolation from the experience of constitutional politics in the United States.) I shall argue that a theorist of rights should have grave misgivings about this prospect. Some of us think that people have a right to participate in the democratic governance of their community, and that this right is quite deeply connected to the values of autonomy and responsibility that are celebrated in our commitment to other basic liberties. We think moreover that the right to democracy is a right to participate on equal terms in social decisions on issues of high principle and that it is not to be confined to interstitial matters of social and economic policy. I shall argue that our respect for such democratic rights is called seriously into question when proposals are made to shift decisions about the conception and revision of basic rights from the legislature to the courtroom, from the people and their admittedly imperfect representative institutions to a handful of men and women, supposedly of wisdom, learning, virtue and high principle who, it is thought, alone can be trusted to take seriously the great issues that they raise?8

2 Right-Based Theories My first aim is to show that there is no necessary inference from the premises of a right-based moral theory to the desirability of constitutional rights as a particular political arrangement. What is meant by 'right-based' theory? The terminology is adapted from Dworkin's discussion in Taking Rights Seriously, proposing 'a tentative initial classification of political theories' into right-based, duty-based and goal-based types. 9 The idea is that in any but the most intuitionistic theory, it is possible to distinguish between judgments that are more or less basic, in the sense that the less basic judgments are derivable from or supported by the more basic ones. 10 8 My conception of this as an issue of respect is inspired by Aristotle, who confronted the prospect of tyrannical or unjust action by a majority under a democratic constitution in the following terms. 'If the poor, for example, because they are more in number, divide among themselves the property of the rich-is not this unjust? No, by heaven (will be the reply), for the supreme authority justly willed it. But if this is not extreme injustice, what is? ••. Then ought the good to rule and have supreme power? But in that case everybody else, being excluded from power, will be dishonoured. For the offices of a state are posts of honour; and if one set of men always hold them, the rest must be deprived.' Aristotle, The Politics, Bk III, ch 10, 1281a29-32, translated by Benjamin Jowett, in the new Stephen Everson edition (Cambridge: Cambridge University Press, 1988), 15 (65-6). 9 See Dworkin, Taking Rights Seriously, 90-6. For further discussion of this typology, see J. L. Mackie, 'Can There be a Right-Based Moral Theory?' in Jeremy Waldron (ed), Theories of Rights (Oxford: Oxford University Press, 1984). 10 Joseph Raz stresses that the relation is one of support not logical entailment. If we think for different reasons that there should be (i) a right to free political speech, and (ii) a right to free commercial speech, we may sum that up by saying there should be (iii) a right to free speech generally. But although (iii) entails (i), it does not support it on this account of our reasoning. See Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 169.

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Sometimes we may reach a level of 'basic-ness' below which it is impossible to go-a set of judgments which support other judgments in the theory but which are not themselves supported in a similar way. These will be the fundamental propositions of the theory or3 as Dworkin has called them elsewhere, its 'constitutive' positions. 11 Utilitarians pride themselves on the fact that their moral theory is organized explicitly in this way, and Dworkin's typology assumes that a structure of that kind can be discerned in many non-utilitarian theories as wel1. 12 For the purposes of this article3 nothing much hangs on the precise distinction between right-, duty- and goal-based theories. So I shall not go into the detail of Dworkin's classification. 13 What I want to work with is the idea that a concern for individual rights may lie in the foundations of a theory, leaving it an open question what those foundations entail at the level of political and constitutional construction. Opinions differ as to whether the concerns at the basis of a theory of rights are exclusively concerns about freedom, exclusively concerns about independence, exclusively concerns about equality, or whether other material interests and needs may also be accorded basic importance in their own right. I hope to avoid that issue here as well (though it is one of the controversies whose significance I shall discuss later in the article).14 Different theories will identify different individual rights-to freedom, independence3 dignity, etc-as having fundamental and abiding importance, and they will regard a sense of that importance as a general basis for normativity within the theory. As premises, these concerns are liable to be fairly abstract in character. 15 One would not expect to find propositions like the Fourth Amendment to the US Constitution in the foundations of a theory of rights. A right to the protection of one's home against unreasonable searches is likely to be based on the importance accorded to a deeper individual interest such as privacy. A right to privacy may in tum be based on even deeper premises about the importance of autonomy and self-governance. Derivative conclusions will then be generated by working out what, in the circumstances of modem society, is required if the deepest interests in this series are to be respected. That is what normative argument amounts to in right-based political philosophy. See Ronald Dworkin, 'Liberalism', in A Matter of Principle, 186 ff. Does this commit Dworkin or those who use his typology to 'foundationalism' in moral and political theory? The term has a wider and a narrower meaning. In its wider {and weaker) meaning, 'foundationalism' refers simply to the linear mode of organization that I have intimated: that there is some non-circular structure of support and justification within a theory, organized roughly on the model of an axiomatized theory in mathematics. The alternative to foundationalism in this sense is 'holism', where theorems are considered to he supported as much by what they imply as by what more general principles imply them. There is no doubt that a classification into rightbased, duty-based, and goal-based types presupposes that the theories being classified are 'foundationalist' in this sense. When foundationalism is criticized, however, people often have in mind a stronger position than this. It is that the truth or assertibility of the 'basic propositions' or 'axioms' of such a theory can be immediately apprehended or intuited, and that the linear strucrure transmits this fundamental justifiability throughout the theory. The classification I have in mind in this article is not committed to this epistemology, and it does not presuppose any such commitment on the part of the theories being classified. 13 For an unnecessarily protracted discussion, see Jeremy Waldton, The Right to Privace Property (Oxford: Clarendon Press, 1988), 64-105. 14 See section 5, below. IS See n n, above. 11

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Sometimes in the development of such an argument, we may reach intermediate conclusions which enable us to say that some relatively concrete interest must be regarded as important if some deeper interest is to be properly respected. This is where familiar propositions about rights will figure in a wellthought-out political theory. As we move from deep abstract premises to particular concrete recommendations, we may :find ourselves saying things like 'People have a right to free speech' or 'Everyone has a right to elementary education' or 'Suspects in police custody have a right not to be tortured'. Though these propositions indicate important individual interests, their importance is explained by their deeper connection to other, more abstract interests whose importance is ultimate in the theory .16 However, right-based theories are not always articulated in a linear structure of this kind, moving from abstract rights through a series of derivative rights, each one supported by and more concrete than the last. Sometimes the implications of abstract premises are teased out in a different structure. John Rawls's discussion of justice is an example. It seems plausible to say, as Dworkin has argued, that Rawls's theory is premised on some very deep assumption 'that individuals have a right to equal concern and respect in the design and administration of the institutions that govern them'. 17 But in trying to see the concrete implications of that premise, Rawls develops his model-theoretic device of the 'original position' leading to the choice of two lexically ordered principles to govern the basic structure of a society. At least one of these (the 'Difference Principle') is not formulated in terms of rights at all. 18 Maybe the further process of inferring policy recommendations from the Difference Principle will involve some re-introduction of the language of rights. 19 But there is nothing inevitable about that: everything depends on how the deep concerns of the theory are best articulated in the concrete circumstances in which they are applied. The fact that there are rights in the foundations does not mean that there must be rights, so to speak, all the way up. The point is a general one and can be applied to other types of theory as well. Utilitarianism has, in or near its foundations, a sense that the basic aim of morality is the maximization of utility. Whenever there is a choice of actions, it is better, from the theory's point of view, that that action be chosen which secures the greatest balance of utility, all things considered. But though we find this 'actutilitarian' formula in the foundations of the theory, it does not follow that the theory's practical recommendation for men and women in the real world is to adopt an act-utilitarian decision-procedure. 'Indirect' utilitarianism suggests that the basic aim may be better served if individuals follow certain rules which See the excellent discussion in Raz, Morality of Freedom, 168-70. Dworkin, Taking Rights Seriously, 180. Indeed it is important for Rawls that the principle governing economic inequalities will nor be seen as a principle of particular entitlement. See Rawls, Theory ofJustice, 64 and 88. 19 I have in mind the argumentS intimated in Rawls, Theory ofJustice, chapter V. See also Rex Martin, Rawls and Righrs (Lawrence: University Press of Kansas, 1985) and Thomas Pogge, Realizing Rawls (Ithaca: Cornell University Press, 1989). 16

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they treat more or less as absolute requirements in most of the circumstances they face. 20 Indeed, if a goal-based utilitarianism is articulated realistically, it may involve a commitment to rights at the surface even though rights do not figure at all in its deeper premises.21 This example shows that we cannot infer much about the practical recommendations of a normative theory from the character of its fundamental premises.22

3 From Moral Rights to Legal Rights So far we have considered only the relation between basic and derivative positions within a normative theory. The fact that, in a given theory, the basic premises (or even the intermediate theorems) are best formulated as rights does not show that the derivative recommendations of the theory are best formulated as rights. But suppose, for the sake of argument, that the normative recommendations of a right-based theory are formulated as rights. Can we say anything about the relation between those recommendations and the actions that they call for in the real world? If someone believes in moral rights, does that mean she is to be taken as demanding legal rights? Jeremy Bentham, for one, thought the answer was 'Yes'. Or rather, he thought this was the best we could make of what was really an oxymoron-the idea of a moral, ie non-legal, right.23 Maybe, he thought, we can reinterpret natural rights claims as normative claims about the legal rights that ought to be established: 'In proportion to the want of happiness resulting from the want of rights, a reason exists for wishing that there were such things as rights!24 However, even Bentham's most sympathetic commentators have been bewildered by this insistence that the noun 'right' must necessarily refer (either descriptively or normatively) to legal rights. He did not take that view of 'duty', 'obligation', or 'right' (the adjective), each of which (he was prepared to say) had a normative meaning established by the principle of utility that was quite independent of the idea of positive Iaw. 25 One objection to Bentham's approach is that sometimes we talk of moral rights when we have no intention of saying anything about what the law ought to be. SeeR. M. Hare. Moral Thinking: Its Levels, Method and Poinr (O:r.ford: Clarendon Press, 1981), chs 2-3 and 9. See the various discussions in R. G. Frey (ed), Utility and Rights (Oxford: Basil Blackwell, 1984). However, for doubts about the utilitarian defence of rights, see David Lyons, 'Utility and Rights', in Waldron (ed), Theories of Rights. 22 In addition to 'indirect' utilitarianism, there are also the complications discussed by Don Regan in his book, Utilitarianism and Co-operation (Oxford: Clarendon Press, 1980). Regan suggests that the fundamental aims of a utilitarian theory are best met by adopting a decision-procedure that bears very little affinity to traditional formulas of act-utilitarianism. 23 Jeremy Bentham, 'Supply without Burthem, or Escheat flice Taxation', in Jeremy Waldron (ed), Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man (London: Methuen, 1987), 73: 'Right and law are correlative terms: as much so as son and father. Right is with me the child of law: from different operations oflaw result different sorts of rights. A narural right is a son that never had a father.' 24 Jeremy Bentham, 'Anarchical Fallacies', in Waldron (ed), Nonsense Upon Stilts, 53. The passage continues: 'But reasons for wishing there were such things as rights, are not rights;-a reason for wishing that a certain right were established, is not that right-want is not supply-hunger is not bread.' 25 There is an excellent discussion in H. L. A. Hart, Essays on Bentham: Jurisprudence and Polin"cal Theory (Oxford: Clarendon Press, 1982), 85 ff. 20

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When my mother asks if I intend to remarry and adds 'I have a right to be told the truth', she is not saying anything about the law. She is saying I ought to tell her the truth and giving me some indication that I owe that duty to her in virtue of some interest she has at stake. However, let us put those cases aside; suppose we accept H. L. A. Hart's suggestion that usually, when talk of rights is in the air, there is an implicit suggestion that the use of force (and thus the mechanisms of law) would not be inappropriate to secure what is required. 26 Even so, it does not follow that the normative claim (1) P has a (moral) right to X

entails (2) P (morally) ought to have a legal right to X. If (1) entails anything about the law, it presumably entails (3) The law ought to be such that P gets X. There may be all sorts of ways in which X may be secured legally for P, without her having a legal right to it.27 Here, of course, a lot will depend on exactly how one defines 'legal right'. Maybe, on a very broad definition of the term, any legal procedure by which X is secured for P amounts to the existence of P's legal right to X. I do not want to rule out such a broad definition, except to indicate that it will not advance the argument of this article one way or the other. Most jurists, however, think that the phrase 'legal right' has quite a narrow meaning. To say that P has a legal right is to indicate the existence of an articulated legal rule or principle entitling P to X. It indicates that P has standing to claim X and to bring suit for it in a court of law. And for most jurists, it indicates that officials have very limited discretion in determining who gets X and who does not. We distinguish, in other words, between (a) legal situations in which X is P's by right and she may peremptorily demand it and the law is such that her demand must be met unless there are extraordinary circumstances, and (b) legal situations in which some official has been vested with discretion to determine on a case by case basis how best to distribute a limited stock of resources like X to applicants like P. Students of public administration argue back and forth about whether it is better to have systems of rights in welfare law, for example; and these arguments presuppose H. L. A. Hart, 'Are There Any Natural Rights?' in Waldron (ed), Theories of Rights, 79-80. rr A similar point is made by Henry Shue, in his book Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (Princeton: Princeton University Press, 1980), 16: '[A] right has not been fulfilled until arrangements are in fact in place for people to enjoy whatever it is to which they have the right. Usually, perhaps, the arrangements will take the form of law, making the rights legal ones as well as moral ones. But in other cases, well-entrenched customs, backed by taboos, may serve better than laws-cettainly better than unenforced laws.' 26

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that the existence of a legal right is a highly specific type of institutional arrangement along the lines of (a). As far as I can see, nothing that institutionally specific is entailed by a claim like (1) above. I can imagine an advocate for the homeless saying, 'The homeless have a (moral) right to shelter', and certainly meaning that something legal should be done about it, but leaving it an open question whether that would be best achieved by a legal arrangement of type (a) or a legal arrangement of type (b). For suppose the following facts are known. There are many homeless people and, as things stand on any given night, only a limited stock of public housing, hotel rooms, and places in shelters that can be allocated to them. The circumstances of homeless individuals vary: some are with families, some are alone; some are sick, some are healthy; some have been homeless for months, others have just become homeless; some have the strength and morale to apply for a place, others wander helplessly in the streets. It is possible that an advocate who believes they all have a moral right to shelter will want to set up a rule whereby anyone who can prove she is homeless is assigned a place by a responsible official immediately, without further ado (until the available places run out). That would be clearly describable as a legal right to shelter. But it is equally possible that the homeless advocate will urge a more flexible arrangement than that-an arrangement that allows officials to match accommodation to need, to make quick judgments about who is sick and desperate and who is not, to hold some places in reserve for hapless folks found wandering in the rain late at night, and so on. And one can imagine that choice being made on right-based grounds: on the ground that, in the circumstances, this arrangement will better serve the moral principle that the homeless have a right to shelter. To put the point strongly: a moral claim that people have the right to shelter is a claim about the importance of their getting shelter. It is not a claim about the importance of their being assigned shelter in accordance with a specific type of legal or bureaucratic procedure.

4 From Legal Rights To Constitutional Rights Suppose everything I have said so far is wrong. Suppose the assertion of a moral right is always a moral demand for a legal right. Should we take the further step of saying that anyone who assents to (2), above, should also be committed to (4) P (morally) ought to have a constitutional right to X if her support for (2) is wholehearted? Does a person who is in favour of a legal right always have a reason to demand that extra level of protection? Not necessarily. There are practical reasons and reasons of principle to make her hesitate. To secure constitutional protection, the proponent of the right will either have to agitate for constitutional reform or, if there is already a Bill of Rights, persuade those entrusted with the task of interpreting it to recognize the

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new right under the heading of some existing provision. Either way, the political difficulties are considerable. The proponent of the right may well think that the process of securing constitutional protection would take too long or be too difficult, and that it may distract people from the more important task of actually making the legal provision that is called for.28 Those are strategic reasons for resisting the inference from (2) to (4). But suppose a political opportunity for constitutionalization has in fact arisen? What reasons of principle are there for hesitating in the face of that opportunity? One point which is not quite as pragmatic as those already mentioned has to do with apprehensions about verbal rigidity. A legal right that finds protection in a Bill of Rights finds it under the auspices of some canonical form of words in which the provisions of the charter are enunciated. One lesson of American constitutional experience is that the words of each provision in the Bill of Rights tend to take on a life of their own, becoming the obsessive catch-phrase for expressing everything one might want to say about the right in question. For example, First Amendment doctrine in America is concerned to the point of scholasticism with the question of whether some problematic form of behaviour that the State has an interest in regulating is to be regarded as 'speech' or not. ('Is pornography speech?' 'Is burning a flag speech?' 'Is topless dancing speech?' 'Is pan-handling speech?' 'Is racial abuse speech?' and so on.) Yet surely this is not the way to argue about rights. Rights are principles of deep and pervasive concern. We may use the phrase 'freedom of speech' to pick out the sort of concerns we have in mind in invoking a particular right; but that is not the same as saying that the word 'speech' (as opposed to 'expression' or 'communication' etc) is the key to our concerns in the area. The same is true for other formulae of American constitutional doctrine: 'cruel and unusual punishment', 'free exercise' of religion', 'due process of law', etc.29 Of course, even statutory language will make use of some phraseology. The difference is that statutory language can readily be amended to meet our evolving sense of how best to get at the real issues at stake. If we think that one of the crucial tests for scrutinizing punishments is 'unusual-ness', we can write that into our statute. If later we see the merits of encouraging innovation in sentencing, we may want to express the proper constraints in some other way, and amend our criminal justice legislation accordingly. And of course this process of evolving phraseology is even easier if we are talking about legal recognition in the form of common law principles and precedents, and easier still if rights take the form of 'conventional' understandings subscribed to in the political community at large, as they have in Britain for many years. With that less articulate, less formulaic heritage of right-based concern, people can discuss issues of rights and limited government, issues of abortion, discrimination, 28 The story of the Equal Rights Amendment in the United States would have been a sorrier one if all legislative initiatives against sex discrimination had rested on the success of this particular constitutional campaign. See Jane Mansbridge, Why We Lost the ERA (Chicago: University of Chicago Press, 1986). 19 I have discussed this a little more in Jeremy Waldron, The Low (London: Routledge, 1990), 83-4, and in Nonsense Upon Stilts, 177-81.

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punishment and toleration in whatever terms seem appropriate to them, free from obsession with the verbalism of a particular written charter. For these reasons, then, the proponent of a given right may be hesitant about embodying it in a constitutionally entrenched Bill of Rights. She may figure that the gain, in terms of an immunity against wrongful legislative abrogation, is more than offset by the loss in our ability to evolve a free and flexible discourse. But the deepest reasons of liberal principle have yet to be addressed. When a principle is entrenched in a constitutional document, the claim-right (to liberty or provision) that it lays down is compounded with an immunity against legislative change. Those who possess the right now get the additional advantage of its being made difficult or impossible to alter their legal position. That can sound attractive; but as W. N. Hohfeld emphasized, we should always look at both sides of any legal advantage.30 The term correlative to the claim-right is of course the duty incumbent upon officials and others to respect and uphold the right. And the term correlative to the constitutional immunity is what Hohfeld would call a disability: in effect, a disabling of the legislature from its normal functions of revision, reform and innovation in the law. To think that a constitutional immunity is called for is to think oneself justified in disabling legislators in this respect (and thus, indirectly, in disabling the citizens whom they represent). It is, I think, worth pondering the attitudes that lie behind the enthusiasm for imposing such disabilities. To embody a right in an entrenched constitutional document is to adopt a certain attitude towards one's fellow citizens. That attitude is best summed up as a combination of self-assurance and mistrust: self-assurance in the proponent's conviction that what she is putting forward really is a matter of fundamental right and that she has captured it adequately in the particular formulation she is propounding; and mistrust, implicit in her view that any alternative conception that might be concocted by elected legislators next year or the year after is so likely to be wrong-headed or ill-motivated that her own formulation is to be elevated immediately beyond the reach of ordinary legislative revision. This attitude of mistrust of one's fellow citizens does not sit particularly well with the aura of respect for their autonomy and responsibility that is conveyed by the substance of the rights which are being entrenched in this way. The substantive importance of a given right may well be based on a view of the individual person as essentially a thinking agent, endowed with an ability to deliberate morally and to transcend a preoccupation with her own particular or sectional interests. For example, an argument for freedom of speech may depend on a view of people as 'political animals' in Aristotle's sense, capable of evolving a shared and reliable sense of right and wrong, justice and injustice, in their conversations with one another.31 If this is why one thinks free speech important, one cannot simply tum round and announce that the products of any deliberative process are to be mistrusted. 30 31

Wesley N. Hohfeld, Fundammral Legal Conceprions (New Haven: Yale University Press, 1923). See Aristotle, Politics, Bk I, ch 2, 1253al-18 (3).

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If, on the other hand, the desire for entrenchment is motivated by a predatory view of human nature and of what people will do to one another when let loose in the arena of democratic politics, it will be difficult to explain how or why people are to be viewed as essentially bearers of rights. For in order to develop a theory of rights, we need some basis for distinguishing those interests which are characteristic of human dignity from those which are relatively unimportant in a person's activity and desires. If our only image of man is that of a self-seeking animal who is not to be trusted with a concern for the interests of others, we lack the conception of dignified moral autonomy on which such discriminations of interest might be based. These are not intended as knock-down arguments against constitutionalization. All I have tried to show so far is that there is nothing obvious about combining a respect for rights with a profound mistrust of people in their democratic and representative capacities. Accordingly there is nothing perverse in saying: 'The reasons which make me think of the human individual as a bearer of rights are the very reasons that allow me to trust her as the bearer of political responsibilities. It is precisely because I see each person as a potential moral agent, endowed with dignity and autonomy, that I am willing to entrust the people en masse with the burden of self-government.' Once we see this as an intelligible set of attitudes, we might be more hesitant in expressing our enthusiasm for rights in terms of the disabling of representative institutions.

5 Doing Philosophy The attitudes we take towards our fellow citizens will depend in part on how easy we think it is to come up with an adequate conception of the rights that deserve protection. If someone has developed such a conception and if, moreover, she thinks it a relatively easy task, she will tend to distrust anyone who comes up with a conception of rights that differs from her own. She, after all, thinks of herself as acting in good faith and since the task presents no special difficulties, it is likely that her good faith will have yielded good results. The only explanation, then, of other people's contrary results is that they must have been acting for some ulterior motive. To put it another way, if we hold the truths that we have come up with to be 'self-evident', our only explanation of the contrary results arrived at by other people is that they are either simpletons or rogues. Either way, we have reason (on this conception of the task) to embody our self-evident conclusions in immutable form as soon as possible in order to insulate them from the folly and chicanery of misguided revision or reformulation. If, on the other hand, we take the view that the whole business of thinking about rights is fraught with difficulty and that it is something on which, with the best will in the world, people of good faith may differ, we will not evince the same distrust of our opponents' suggestions nor indeed the same dogmatic confidence in our own. Those who think it possible that they are mistaken should be less inclined to cast their conclusions in stone, and more open to the possibility that

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debate among their fellow citizens will from time to time produce conclusions that are better than theirs. Which of these views of our task is correct? A theorist of rights has to work out what rights people have, how they are to be formulated, and how important they are in relation to other moral and political considerations. Is this an easy task or a difficult one? There is some pressure to insist on its facility. Talk of individual rights is often supposed to be a way of registering fairly basic objections to the arcane computations of the utilitarian calculus. It is the utilitarian who is supposed to be telling us that everything is all very complicated, and that whether we allow horrible things like torture, censorship, or the execution of the innocent depends on all the circumstances, long-run calculations of probability, etc. The theorist of rights, by contrast, is supposed to be the one who can produce the trump card, the peremptory argument-stopper: •Thou shalt not kill.' The idea of rights has often been seized on precisely as a way of avoiding the casuistry of trade-offs and complex moral calculations-a way of insisting that certain basics are to be secured and certain atrocities prohibited, come what may. But if rights themselves are morally complicated, the spectre of casuistry reappears. Complicated problems presumably require complicated solutions; but it was the simplicity of right-based constraints that was supposed to be their main advantage over other more recondite and precarious modes of moral reasoning.32 The sad fact is, however, that this simplicity and moral certainty is simply unavailable. No one now believes that the truth about rights is self-evident or that, if two people disagree about rights, one of them at least must be either corrupt or morally blind. In the thirty years or so of the modem revival of the philosophical study of rights, there has been a proliferation of rival theories and conceptions.33 Each of these has occasioned an outpouring of essays, articles and symposia discussing, elaborating and criticizing their accounts.~ In addition there are hundreds of articles devoted to particular rights or making particular points about the idea of rights,35 as well as a number of important books attacking the idea of rights and the individualist presuppositions of that idea. 36 in Jeremy Waldron, 'Rights in Confiict', Ethics, 99 (1989), 508. As well as the works by Robert Nozick. John Rawls and Ronald Dworkin cited at the beginning of the article (see above, nn 1-3), one might mention the following major contributions: Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale Universicy Press, 1980); John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980); David Gauthier, Morals by Agreement (Oxford: Clarendon Press, 1986); Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago: Universicy of Chicago Press, 1982); and Raz, Morality of Freedom, op cit, n 10. This list is by no means complete. :w See, for example, the following collections of essays: Marshall Cohen (ed), Ronald Dworkin and Contemporary Jurisprudence (Totowa: Rowman and Allenheld, 1983); Norman Daniels (ed), Reading Rawls: Critical Studies on Rawls 'A Theory of Justice', Second Edition (Stanford: Stanford Universicy Press, 1989); Jeffrey Paul, Reading Nozick: Essays on 'Anarchy, State and Utopia' (Oxford: Basil Blackwell, 1982); Edward Regis, Gewirth's Erhical Rationalism: Critical Essays (Chicago: Universicy of Chicago Press, 1984); Symposium on the work ofJoseph Raz, (1989) 62 Southern California Law Review, numbers 3 & 4. 35 Two recent anthologies (with bibliographies) are David Lyons (ed), Rights (Belmont: Wadsworth, 1979) and Waldron (ed), Theories of Rights, op cit, n 9. 36 See, for example, Alasdair Macincyre, After Virtue: A Study in Moral Theory (London: Duckworth, 1981); Michael Sandel, Lioeralism and the Limits of Justice (Cambridge: Cambridge Universicy Press, 1982); and Maty Ann Glendon, Rights Talk: The Imp011erishment of Political Discourse (New York: Free Press, 1991). For a critical discussion of some of this literature, see Waldron, Nonsense Upon Stilts, op cit, n 23, 166--209. ~2 I have discussed these points further

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To. believe in rights is to believe that certain key interests of individuals, in liberty and well-being, deserve special protection, and that they should not be sacrificed for the sake of greater efficiency or prosperity or for any aggregate of lesser interests under the heading of the public good. Now some people think this whole idea is misguided; but even those who propound it in political philosophy recognize its difficulty. Any theory of rights will face disagreements about the interests it identifies as rights, and the terms in which it identifies them. Those disagreements will in turn be vehicles for controversies about the proper balance to be struck between some individual interest and some countervailing social consideration. For example, in articulating and defending a right to free speech, we need to think through the congestion of values and principles that we find in crowded theatres that are not on fire, in public libraries where 'Silence• is enjoined, and in university lectures where racist hypotheses are being entertained. In addition, theories of rights have to face up to controversies about the forms of priority that they establish: lexical priorities, weighted priorities, agent-relative side constraints, agent-relative prerogatives and so on. Our experience with these issues in moral philosophy indicates that their prominence in the literature is directly proportional to both their difficulty and their importance. Finally, theories of rights must develop accounts of who they take to be right-bearers: they must develop theories of the person, and articulate those into an account of the rights (or whatever) of foetuses, infants, the elderly, the comatose, the mentally ill, and so on. So even within the terms of a given theory of rights, its development and articulation is a complex and difficult task. How should a philosopher approach these difficulties? The first and most obvious point is that, in her own work, she should recognize the possibility that she is mistaken. Robert Nozick noted in the preface to Anarchy, State and Utopia that each individual author tends to write as though mankind has been struggling for aeons with some philosophical or ethical problem, but 'he finally, thank God, has found the truth and built an impregnable fortress around it• .3? In fact each of us is familiar with the business of argumentation, objections, answers to objections, rejoinders, and revisions. Indeed, we often use that apparatus to structure the way we write: here is my preliminary thesis; here is my account of the main objections; here are the answers to all but one of the objections; and here are the revisions that are needed to accommodate the unanswerable objection. That mode of presentation and the ethic of fallibility it evinces are the life-blood of the philosophical community. Of course everyone thinks her own current position is correct; otherwise she would not be putting it forward. In the area of rights, where it is precisely questions of relative urgency and moral priority that are at stake, everyone will think that she has got the priorities right and that alternative views are wrong. Though each should think it possible she is mistaken, it is not necessarily a good idea for her to incorporate that misgiving into the substance of her theory. There 37

Roben Nozick, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974), xii.

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is a difference between being modest about one's conclusion and modifying the conclusion to take account of that modesty. Modifying the conclusion may well diminish, rather than enhance, the proponent's conviction that it is correct. Still, though one may be convinced now that this, rather than some more modest formulation, is the correct one, it is part of philosophical maturity to be able to combine that conviction with a recollection of past occasions where similar beliefs have had to be abandoned in the face of philosophical difficulty, and with an openness to counter-argument and refutation in the future. 38 Such fallibilism can be taken in a purely Cartesian spirit: a solitary thinker's openness to her own revisions, self-criticisms and reformulations. For most of us, however, it is an aspect of the way we do philosophy together, as members of a community of thinkers and critics. We accept and embrace the circumstance of a plurality of views and the trenchant disagreements they give rise to. Again, the discipline thrives on this. The interplay of arguments is expected to produce better theories that will form the basis for an even more vigorous debate, and so on. In these debates, each of us has a responsibility to take the perspective of the philosophical community as well as the perspective of the particular view she is defending. From the latter perspective, one is a passionate partisan of a particular theory. From the former perspective, however, one knows that it is wrong to expect any particular theory, no matter how attractive or well argued, to survive the process of debate unscathed. One recognizes that the debate has a point: to use collective interaction as a way of reaching towards complicated truth. Simple truths, self-evident truths may form in single minds, but complicated truths (in which category I include all propositions about individual rights) emerge, in Mill's words, only 'by the rough process of a struggle between combatants fighting under hostile banners'. 39

6 Disagreement and Authority Politics, as Hannah Arendt once remarked, starts from the fact that not one man, but men, inhabit the earth.40 One of the great problems of political philosophy is to explain how there can be a society, ordering and governing itself, taking initiatives and functioning as an agent, in the face of the plurality of its members and the disagreements they have with one another on the question of what is to be done. Recent political philosophy with its emphasis on rights and justice has tended to neglect this topic. We have recognized (quite rightly) the importance of justice, and the importance of thinking hard about what justice requires in the 38 The classic defence of such fallibilism is Mill, On Liberty, ch 2. See also Karl Popper, Conjectures and Refutations: The Growth of Scientific Knowledge (London: Routledge and Kegan Paul, 1969), esp chs 16-20. Yl J. S. Mill, On Liberty, cb. 2, para 36 (:58). The whole sentence reads: 'Truth in the great practical concerns of life, is so much a question of the reconciling and combining of opposites that very few have minds sufficiently capacious and impartial to make the adjustment with an approach to correctness, and it has to be made by the rough process of a struggle between combatants fighting under hostile banners.' 4D Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 19:58), 234.

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way of distributions, structures, and respect for individuals and groups. However, given the inevitability of disagreement about all that, a theory of justice and rights needs to be complemented by a theory of authority. Since people disagree about what justice requires and what rights we have, we must ask: who is to have the power to make decisions, or by what processes are decisions to be taken, on the practical issues that the competing theories of justice and rights purport to address? Majoritarian democracy is the theory of authority with which most of us are familiar, but others include 'Toss a coin', 'Let the king decide', and 'Leave it to the judges'. There are a few points to notice immediately about the problem of authority, before we consider how a right-based theorist should try to answer it. First, the need is for us to complement our theory of rights with a theory of authority, not to replace the former with the latter. The issue of what counts as a good decision does not disappear the moment we answer the question 'Who decides?'. On the contrary, the function of a theory of justice and rights is to offer advice to whoever has been identified (by the theory of authority) as the person to take the decision. If there are competing theories of justice and rights, then the authority is offered competing advice, each theory putting itself forward as the best product available. Secondly, an answer to the question of authority must really settle the issue. It is no good saying, for example, that when people disagree about rights, the person who should prevail is the person who offers the best conception of rights. Each person regards her own view as better than any of the others; so this rule for settling on a social choice in the face of a disagreement is going to reproduce exactly the disagreement that called for the rule in the first place. The theory of authority must identify some view as the one to prevail, on criteria other than those which are the source of the original disagreement.41 It is important to notice how this point applies to disputes about rights. All of us want to see an end to injustice, oppression and the violation of human rights; none of us is happy with political procedures that allow such violations to take place. This enthusiasm sometimes leads people to qualify their views about authority with a rider to protect individual rights. For example, someone may say, 'If people in society disagree about anything, then a decision should be taken by majority voting, provided individual rights are not violated thereby.' But the emphasized rider will not work in a theory of authority, at least for a society in which rights themselves are a subject of political disagreement. People who disagree inter alia about rights will disagree about what that theory of authority requires, and that latter disagreement will be nothing but a reproduction of the problem about rights which evoked the need for a theory of authority in the first place. 41 This point is due to Thomas Hobbes. Any theory thst makes the authority of the sovereign depend on the moral goodness of his commands is self-defeating, for it is precisely because men disagree about good and evil thst they need a sovereign. See Hobbes, Leviathan, (ed) C. B. Macpherson (Harmondsworth: Penguin .Books, 1968), ch 18 and Hobbes, De Give: The English Version, (ed) H. Warrender (Oxford: Clarendon Press, 1983), VI. 6.

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Similarly, we cannot say, with Ronald Dworkin, that the whole point of rights is to 'trump' or override majority decisions.42 For rights may be the very thing that the members of the society are disagreeing about, the very issue that they are using majority voting to settle. If we say, in a context where people disagree about rights, that rights may 'trump' a majority decision, it is incumbent on us to say which of the competing conceptions of rights is to do the trumping, and how that is to be determined. Thirdly, it follows from what has been said that there will sometimes be a dissonance between what one takes to be the just choice and what one takes to be the authoritative choice in political decision-making. A person who holds a complete political theory-one that includes a theory of authority as well as a theory of justice and rights-may find herself committed to the view that an unjust decision should prevail. Her theory of justice may condemn policy B and prefer policy A on right-based grounds, but her theory of authority may mandate a decision procedure (designed to yield a social choice even in the face of disagreement about the justice or injustice of A and B) which, when followed, requires that B be adopted. Given the second point that I made, this prospect is simply unavoidable. In a famous article, Richard Wollheim called it 'a paradox in the theory of democracy'. He imagined citizens feeding their individual evaluations of policies into a democratic machine which would always choose the policy with the greatest number of supporters. The paradox arises from the fact that each citizen, if she is a democrat, will have an allegiance to the machine and its output, as well as to the evaluation which counts as her own whole-hearted individual input. It is the paradox that allows 'one and the same citizen to assert that A ought to be enacted, where A is the policy of his choice, and B ought to be enacted, where B is the policy chosen by the democratic machine'.43 But Wollheim is wrong to describe this as a paradox of democracy. It is a general paradox in the theory of authority-a paradox which affects any political theory that complements its account of what ought to be done with an account of how decisions ought to be taken when there is disagreement about what ought to be done. That point is important in the present context. American-style judicial review is often defended by pointing to the possibility that democratic majoritarian procedures may yield unjust or tyrannical outcomes. And so they may. But so may any procedure that purports to solve the problem of social choice in the face of disagreements about what counts as injustice or what counts as tyranny. The rule that the Supreme Court should make the final decision (by majority voting among its members)44 on issues of fundamental rights is just such a procedural Dworkin, Taking Rights Seriously, 199-200. Richard Wollheim, 'A Paradox in the Theory of Democracy', in P. Laslett & W. Runciman (eds), Philosophy, Politics and Society, Second Series (Oxford: Basil Blackwell, 1969), 84. 44 So it is a little misleading to describe the democratic objection to judicial review in the US as 'the countermajoritarian difficulty'-cf Alexander Bickel, The Least Dangerous Branch: the Supreme Court at the Bar ofPolir•"cs (New Haven: Yale University Press, 1962), 16. The US Supreme Court is amajoritarian institution; the problem is the very small number of participants in its majoritarian decision-making. 41 43

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rule. It too may (and sometimes has) yielded egregiously unjust decisions.45 Anyone whose theory of authority gives the Supreme Court power to make decisions must-as much as any democrat-face up to the paradox that the option she thinks is just may not be the option which, according to her theory of authority, should be followed. Of course, as Wollheim argued at the end of his essay, the paradox does not really involve a contradiction. A person who believes that A is the right decision, but B the decision that should be implemented, is offering answers to two different, though complementary questions. That B should be implemented is her answer to the question, 'What are we to do, given that we disagree about whether A or B is just.' That A is the right decision is her contribution to the disagreement that calls forth that question.46 One final point. That we need a theory of authority to settle disagreements is in no way a concession to moral subjectivism or conventionalism or relativism. One can recognize the existence of disagreement in society, including disagreement on matters of rights and justice, and one can acknowledge that some disagreements are, for practical purposes, irresolvable, without staking the metaethical claim that there is no fact of the matter about the issue that the participants are disputing.47 Earlier I argued that 'Choose the right answer' is not a useful rule for action in the face of disagreements. The rejection of that rule is not to be seen as a move away from moral realism towards some more relativist meta-ethic. It is simply a response to what must be for a realist the unhappy fact that people disagree implacably about what the objectively right answer is. 48

7 Philosophical Debate and Political Participation Philosophers disagree among themselves and citizens disagree among themselves about issues of rights and justice. They disagree about welfare and taxation, about free speech and the rule of law, about equal opportunity and substantive equality. How should the philosophers regard the disagreements and discussions that take place among the citizens? I suggested in the previous section that the philosophers have a responsibility to think about the issue of authority: how is society to act when its members disagree? I now want to suggest that when we do so, we should think of the various people taking part in the social disagreement as being in many respects just like us when we disagree in a seminar or a journal. Or rather they are just like us with this one proviso: we have the luxury of not having to make a decision; they have to engage not only in hard thinking about what is 4s

For an uncontroversial example of an egregiously unjust decision, see the 'Dred Scort' decision, Scorr v

Sandford 60 US (19 How) 393 (1857).

See also the discussion in Kim Scheppele and Jeremy Waldron, 'Contractarian Methods in Political and Legal Evaluation', (1991) 3 Yale Journal of Law and the Humaniri~ 195, esp 227-30. 47 For the contrary view, see Benjamin Barber, Strong Denrocracy: Participarory Politics for a New Age (Berkeley: University of California Press, 1984), 129: 'Where there is cenain knowledge, uue science, or absolute right, there is no conflict that cannot be resolved by reference to the unity of uuth, and thus there is no necessity for politics.' 48 I have discussed this much more extensively in Jeremy Waldron, 'The Irrelevance of Moral Objectivity', in R. George (ed), Natural Law (Oxford: Clarendon Press, 1992). 46

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just and what rights people have, but also in what we in the academy may too easily dismiss as the sordid and distasteful business of actual collective decisionmaking in the absence of moral consensus. We pride ourselves, of course, that our thinking in books, articles and seminars is more reasoned and more profound than the thinking engaged in by working politicians and their constituents. And so it should be: in the social division of labour, it is our task to take time and energy to think these things through as carefully as it is possible to think them. But it is a mistake, I think, to regard our thought as different in kind from that of a citizen-participant in politics. Political philosophy is simply conscientious civic discussion without a deadline. 49 To think that theoretical discussions are different in kind is not just an error of arrogance; it is a substantial philosophical mistake. At least since the seventeenth century, our conception of argument in political philosophy has been guided by the idea that social, political and legal institutions are to be, in principle, explicable and justifiable to all those who have to live under them. We have rejected the esoteric in political theory; we have rejected the idea of arcana imperii. 50 The model-theoretic ideas of consent and social contract, and the corresponding constraints of publicity and transparency, commit us to producing arguments that purport to be intelligible to anyone whose interests they affect, and that-in spirit, if not in idiom-are consonant with the arguments that they would find persuasive in their conversations with one another. There is, as I have argued elsewhere, an important connection between liberal argumentation and the Enlightenment conviction that everything real can in principle be explained, and everything right can in principle be justified, to everyone.51 Modern philosophy evinces a commitment to the idea that theoretical argument aims not merely to justify laws or political proposals, but to justify them to the ordinary men and women whom they will affect. For present purposes, the implication of this democratic model of political theory is that each of us should think of her conception of rights as a particularly well-worked out opinion or position which, in outline, might be held by any citizen. Similarly, we should think of the theoretical disagreements we have among ourselves as particularly civil, thoughtful and protracted versions of the disagreements that take place among citizens in the public realm. Conversely, when we come across a citizen or party of citizens holding a view about rights that differs from our own, we should think of that along the lines that we think of a colleague's contrary conception: something to be disagreed with but respected, treated as a good faith contribution to a debate in which nothing is self-evident. These considerations should be sufficient to make us pause before adopting some of the more disrespectful images of democratic decision-making that one finds in constitutionalist writings. Cynics sometimes say that legislative and 49 For a contrary view, see Hegel's Preface to the Philosophy of Right, trans T. M. Knox (Oxford: Oxford University Press, 1967), 5 ff. ~ Cf Peter Donaldson, Machiavelli and Mystel)l of State (Cambridge: Cambridge University Press, 1988). 51 See Jeremy Waldron, 'Theoretical Foundations of Liberalism', (1987) 37 Philosophical Quarterly 127, esp

134ff.

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electoral politics is entirely a matter of self-interest~ and that representatives and voters never raise their minds above the sordid question, 'What's in it for me?' This of course is an empirical issue, but I believe the cynicism is exaggerated.52 Certainly the idiom of self-interest is not the idiom in which citizens' views about rights are normally expressed. Consider the debate about abortion. The pro-life and pro-choice factions cannot both be correct on the issues of whether foetuses have rights and whether women have the right to choose abortion, but it seems clear that both sides are engaged in good faith on exactly those general and difficult questions of ethics. Each group appears to be arguing for a particular view about what rights there are, and what sort of beings have them. We might, to sustain our cynicism, insist that these philosophical convictions are really only a cover for self-interest, in some less high-minded sense, so that the political debate should be discredited on that account. But then it will be hard to limit this cynicism. Why not say that about the opinions of judges? (Many people do.) Why not say it about constitution-framers? Why not say it about anyone who purports to think or write on such an issue. On the other hand, if we are willing, as most of us in our vanity are, to say that at least when philosophers write about abortion in professional journals they are not motivated by covert self-interest, why are we not prepared to say this about ordinary citizens~ who certainly look and sound as earnest and high-minded as we do, when they disagree with one another?

8 The Right to Participate Fortunately perhaps, our respect for the political thinking of ordinary citizens does not stem solely from our willingness to see similarities between what they are doing in political debate and what we are doing in our seminars. It stems also from our democratic principles, and from our conviction that self-government and participation in politics by ordinary men and women, on equal terms, is itself a matter of fundamental right. I suppose one could imagine a theory of rights that accorded no great importance to the exercise of powers of political deliberation. It would be a rather Whiggish Lockean theory of the Augustan Age, emphasizing only rights to life, property and civil liberty, and regarding political participation in elections and so on as strictly one instrument among others to secure those ends. If it turned out that basic material interests could be secured better by nonparticipatory institutions, then the erstwhile electors would gratefully abjure politics forever and return to commerce or agriculture.. Some say this Lockean position is distinctive of modem 'liberalism' and that one has to be a civic republican to deny it.53 I think that is false, but it does not matter. The point is that all interesting modem theories of individual rights do emphasize rights to political participation. These range from rights to political See further Waldron, 'Rights and Majorities', op cit, n (t) (p 18), 58-60. See Mark Tushnet, Red, White and Blue: A Critical Analysis of Constirutional Law (Cambridge: Harvard University Press, 1988), 4-17. 52 53

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liberty-free speech, assembly, association, and the formation of parties-all the way through to what we may call the Hohfeldian powers of representative government-the right to stand for office and the right to have one's vote counted. More abstractly, they amount to the freedom to contribute to public deliberations and the power to have one's voice taken seriously in public decision-making. These have been the very stuff of rights, at least since 1789.54 Why do we demand respect for these rights? One answer is that we think of people as political animals on the Aristotelian model, and we believe that participation in the public realm is a necessary part of a fulfilling human life.55 To deny people the opportunity for such participation is to deny part of their essence. Yet few would want to leave the matter there, saying that participation is important simply for the performance values associated with each person's contribution, as though the content of the participation did not matter.56 Participation is valued also as a mode of self-protection: each individual acts, to some extent, as a voice for those of her own interests that ought to be taken seriously in politics. We need not think of this in a crude utilitarian way, as though votes were inputs and the process were the institutional embodiment of a social welfare function. The heart of any theory of right is the insistence that certain individual interests are of paramount importance, and that their importance is to be appreciated at least in part from the point of view of those whose interests they are. More than anyone else, a rights-theorist should be uneasy about political arrangements that tend to silence such voices or that evince distaste for their clamour in a democratic forum. Then there are arguments about the quality of public deliberation. The recognition of participatory rights is not just a grudging concession by those who have knowledge to the childish enthusiasms of those who do not. As my earlier remarks about philosophical debate indicated, the participation of the many acts as a useful corrective to the blinkered self-confidence with which one individual may hold her view. 57 Participation by all is valuable because of the importance of assembling diverse perspectives and experiences when public decisions are being taken; and it is valuable also because the sheer experience of arguing in circumstances of human plurality helps us develop more interesting and probably more valid opinions than we could manufacture on our own.58 In addition, there are points to be made about dignity, autonomy and selfgovernment. I noted earlier that modem theories of rights are usually predicated on a view of the individual as essentially a thinking agent, endowed with the Sf See the French National Assembly's Declaration of the Righu of Man and the Citizen, 1789, Article 6: 'Legislation is the expression of the general will. All citizens have a right to participate in shaping it either in person, or through their representatives.' 55 Aristotle, Politics, Bk I, ch 2, 1253a9 ff: 'Nature, as we say, does nothing without some purpose; and for the purpose of making man a political animal, she has endowed him with the power of reasoned speech.' (This is from the translation by T. A. Sinclair (Harmondsworth: Penguin Books, 1962), 28.) 56 Hannah Arendt comes close to this, in On Revolution (Penguin Books, 1973), 119, and is roundly criticized by 1. Elster, Sour Grapes: Studies in the Subvmion of Rationality (Cambridge: Cambridge University Press, 1985), 98. 57 See section 5, above. 58 This theme can be traced from Aristotle's doctrine of 'the wisdom of the multitude' in Politics, Bk III, ch 11 through to Mill, On Liberty, ch 2, esp para 36 (57 ff).

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ability to deliberate morally and to govern her life autonomously. Connected with that is the view that the obligations that consort most deeply with our autonomy are those that are, in some sense, self-imposed. Pushed in one direction, this Kantian allegiance to autonomy leads to anarchy. 59 But if we take our situation in social life seriously, we may say with Rousseau that the only thing that 'self-imposed' can mean in a community is participation on equal terms with others in the framing of laws.60 Or we can say at least what John Stuart Mill emphasized, that those who are to be required to comply with a decision are surely entitled to some sort of voice in that decision: 'If he is compelled to pay, if he may be compelled to fight, if he is required implicitly to obey, he should be legally entitled to be told what for; to have his consent asked, and his opinion counted at its worth.... ' 61 These paragraphs do not amount to a full theory of democracy but they are, I hope, enough to indicate the depth of the connection between the idea of civic participation and the ideas that lie at the heart of modern conceptions of rights. Both ideas represent people as essentially agents and choosers, with interests of their own to protect and, in their dignity and autonomy, as beings who flourish best in conditions that they can understand as self-government. The modem theory of democracy represents individuals not only as blind pursuers of selfinterest, but as having the capacity to engage in thought and principled dialogue about the conditions under which everyone's interests may be served. An exactly similar moral optimism can be inferred from theories of rights. Each person's rights are matched by duties that she bears correlative to the rights of others: the rights that I have are universalizable and the principles they embody apply equally to all. This universality is at least partly determinative of their content: what my right is a right to depends partly on what can be guaranteed on equal terms, without mutual interference, to everyone. Since claiming and asserting a right is necessarily a self-conscious business, it follows that each right-bearer is already familiar with the idea of the common good at least in the sense of a universalized, mutually respectful and reciprocal system of rights. The rights of others are matters she already takes into account in working out the content of the rights she claims as her own. Above all, the appearance of democratic participation on the list of rights that we value is a concession to human plurality. It is the recognition, in behalf of each person, that she too has a vision of how a human community may be organized, and that her vision is entitled not only to be respected in the sense of 'not suppressed', but also to count in whatever political decision-making goes on in the society in which she lives. See Robert Paul Wolff, In Defense of Anarchism (New York: Harper, 1976). Jean-Jacques Rousseau, The Social Contract, edited by Maurice Cranston (Harmondsworth: Penguin Books, 1968), Bk I, ch 6: '"How to find a fonn of association which will defend the person and goods of each member with the collective force of all, and under which each individual, while uniting himself with the others obeys no-one but himself and remains as free as before." This is the fundamental problem to which the social or of state representative bodies. 16 That the subject in all these cases is procedure, however, is not to say that the meaning and purpose of the Constitution's prescriptions on each such subject are themselves merely procedural. There is no reason to suppose that "constitutive" rules-rules defining the basic structure of political and legal relations-can or should be essentially neutral on matters of substantive value. The very dichotomy just drawn-between adjudicative and representative process-would prove incoherent without a substantive theory. How do we decide which form of participation the complaining individual may claim: the right to be heard as a litigant, or the right to be counted as a voter? The question whether individuals may insist on being heard by rulemakers, for whom they have already (directly or indirectly) voted, has bedeviled administrative law since the turn of the centuryP How the government chooses to deal with individuals-as individuals or en masse-cannot be dispositive. For, at least sometimes, government action that purports to deal with groups is unconstitutional precisely because it does not deal with individuals as such: the conclusive presumption decisions18 and the mandatory death penalty cases,19 however opaque they might otherwise be, establish this much, as does Justice Powell's opinion in Regents of the University of California v. Bakke. 2° Conversely, in at least some circumstances, there is 14. See, e.g., U.S. CaNST., art. I, §§ 2, 3. 15. See, e.g., id., art. II, § 1. 16. See, e.g., Reynolds "· Sims, 377 U.S. 533, 568 (1964) (equal protection clause requires apportionment of state legislative seats by population). 17. See, e.g., Bi-Metallic Im·. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915) (no hearing necessa1·y before assessments of all taxable property uniformly increased); Londoner v. City of Denver, 210 U.S. 373 (1908) (hearing- required before costs of local im· provements are assessed to property owners on the basis of relative benefit). 18. See, e.g., Cle\·eland Bd. of Educ. v. LaFleur, 414 U.S. 632, 645 (1974) (mandatory maternity-leave rules creating an irrebuttable presumption violate due process clause in failing to recognize individual differences); Stanley v. Illinois, 405 U.S. 645, 656-57 (1972) (statute containing irrebuttable presumption that all unmarried fathers arc incompetent to raise children is unconstitutionally overbroad). For a discussion of these and related cases, see L. TRIBE, suPra note 9, at 1092-97. 19. See, e.g., Lockett v. Ohio, 438 U.S. 586, 605 (1978) (Eighth and Fourteenth Amend. ments require death penalty statutes to permit indh·idualized consideration of mitigating factors for each defendant); Woodson \'. North Carolina, 428 U.S. 280, 304 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (process must treat offenders on individualized basis in capital cases): Gregg "· Georgia, 428 U.S. 153, 197-98 (1976) (death penalty beld constitutional when statute is drafted to ensure jury consideration of individual cir· cumstances of crime and offender). 20. 438 U.S. 265, 320 (1978) (Powell, J., announcing judgment of the Court) (relying on "personal rights" theory of equal protection clause to invalidate racial quotas in medical scllool admissions); see Tribe, PersPectives on Bakke: Equal Protection, Procedural Fairness, or Stmctural Justice?, 92 HARV. L. REv. 864, 867 (1979).

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Process-Based Theories no constitutional infirmity in relying only on representative, or even directly democratic, processes to deal with individuated grievances: individual zoning variances may be made the subject of local referendum;:n and unions, as delegatees of federal power, 22 may bind members of bargaining units to the terms of wage bargains or, indeed, of individual gTievance negotiations, even though the unions do not act as representatives of individuals as individuals. 23 The question of whether adjudicative or representative process is required in a given context simply cannot be analyzed in terms of how fairly and accurately various participatory processes reflect the interests and inputs of those governed by them. Deciding what kind of participation the Constitution demands requires analysis not only of the efficacy of alternative processes but also of the character and importance of the interest at stake-its role in the life of the individual as an individual. That analysis, in turn, requires a theory of values and rights as plainly substantive as, and seemingly of a piece with, the theories of values and rights that underlie the Constitution's provisions addressing religion, slavery, and property. Once one has decided whether the Constitution requires adjudicative or representative process in a particular setting, one must again rely on substantive values in elaborating the requirements of either procedural form. Consider first the problem of adjudicative process. Certainly the Fifth Amendment's self-incrimination and double jeopardy clauses embody concerns for protecting individual dignity in the criminal process. 24 A substantive concern for individual "privacy" necessarily underpins the Fourth Amendment. 25 Other superficially procedural 21. See, e.g., City of Eastlake Y. Forest City Enterprises, Inc., 426 U.S. 668, 676-77 (1976). But see L. TRIBE, suPra note 9, at 493-95. 22. See Steele v. Louisville&: N.R.R., 323 U.S. 192, 202 (1944). 23. See, e.g., Hines v. Anchor Motor F1·eight, Inc., 424 U.S. 554, 563-64 (1976); Vaca v. Sipes, 386 U.S. 171, 182 (1967). 24. See, e.g., Miranda v. Arizona, 384 U.S. 436, 457-58 (1966) ("incommunicado interrogation" is "destructive of human dignity" and conflicts witll privilege against selfincrimination); Green v. United States, 355 U.S. 184, 187 (1957) ("underlying idea" behind guarantee against double jeopardy "is that the State ... should not be allowed to make repeated attempts to com·ict an individual for an alleged offense, tllereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity"). 25. Payton v. New York, 48 U.S.L.W. 4375, 4380, 4383 (U.S. April 15, 1980) (No. 78-5420) (absent exigent circumstances, Fourtll Amendment requires warrant to arrest pe1·son in home even with probable cause); Griswold Y. Connecticut, 381 U.S. 479, 485 (1965) (Fourth Amendment implies "right to privacy"); Boyd v. United States, 116 U.S. 616, 630 (1886) (Fourth Amendment applies to all government invasions of "the sanctity of a man's home and the privacies of life"). That privacy alone cannot account for tile Fourth Amendment, see ELY, suPra note 4, at 96, 172, obviously does not show that procedural concerns alone-such as limiting official discretion--can suffice to explain it. But see id. at 97.

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provisions of the Constitution, such as the rights to counsel, confrontation, bail, and jury trial, echo similar themes; they function, often at some cost to the efficiency and accuracy of fact-finding, 2 a to prevent the government from treating individuals in the criminal process as though they were objects,27 Even outside the criminal context, elaborating rights of adjudicative process requires recourse to a substantive theory. Procedural due process rights are not simply means of protecting whatever "entitlements" happen to be conferred by legislation or administrative regulation. Otherwise, the drafters of an entitlement could frame it in the procedural terms of their choice, and the constitutional guarantee would be reduced to a right to receive whatever process the drafters had defined as due.28 But that view has been repeatedly rejected by the Supreme Court, which has never fully embraced a purely positivist theory of procedural due process.21l The only alternative theories, however, are ones that posit a right to individual dignity, or some similarly substantive norm, as the base on which conceptions of procedural fairness are constructed.ao If process is constitutionally valued, therefore, it must be valued not only as a means to some independent end, but for its intrinsic characteristics: being heard is part of what it means to be a person.31 Pro26. See generally Packer, Two Models of the Criminal Process, 113 U. PA. L. REv. I, 6-23 (1964) (tension in criminal process between crime control model, seeking efficient, C.X· peditious and reliable screening and disposition of persons suspected of crimes, and due process model, seeking maintenance of dignity and autonomy of individual). 27. See generally C. FRIED, AN ANATOMY OF VALUES 125-32 (1970) (criminal procedure has "expressive aspects" and implicitly e\·idences societal ends). 28. One difficulty with a positivist theory of entitlements is that, if the Constitution requires government to deliver only what it promises, government is likely to respond by promising little. The present confusion in the law of procedural due process is strikingly illustrated by the Supreme Court's failure to require even the government to honor its procedural commitments. See, e.g., United States ''· Caceres, 440 U.S. 741 (1979) (evidence obtained by method contrary to agency regulations not excluded under exclusionary rule). 29. See, e.g., Vitek v. Jones, 100 S. Ct. 1254, 1261-62 (1980); Carey v. Piphus, 435 U.S. 247, 266 (1978); Arnett v. Kennedy, 416 U.S. 134 (1974). 30. See, e.g., Michelman, Formal and Associational Aims in Procedural Due Process, in DUE PROCESS: NoMOS XVIII 126, 127 (J. Pennock&: J. Chapman eds. 1977) (due process vindicates substanti\"e nlues of "participation" and "revelation"); Saphire, SPecif)•i11g Due Process Values: Toward a More ResPonsive APProach to Procedural Protection, 127 U. PA. L. REv. 111, 117-25 (1978) (due process standard should measure whether conduct in question comports with basic notions of fairness and dignity). Values like accuracy do not by themselves justify a constitutional right to procedural due process. "Accuracy" is inevitably an instrumental concept. To give it content, to decide which procedures a concern for accuracy requires, we must look to the entitlement in question. The legislature, in dt-afting the statute conferring the entitlement, may deliberately define it in ambiguous terms. If the entitlement is not precisely defined, a concern for accuracy presumably would not result in elaborate procedure. Thus an instrumentalist approach lea\·es an opening for positivism. 31. What process is due depends upon what is at stake in a given case. The interest at

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Process-Based Theories cess itself, therefore, becomes substantive. There is a curious irony here. One who holds that constitutional law should aim chiefly to perfect process is apparently unable to treat process as itself valuable. For, to see why process would itself be valuable-intrinsically so-is to see why the Constitution is inevitably substantive. Instead, the processperfecter must treat process as ultimately instrumental, as but a means to other ends, and thus must regard as secondary what he would at the same time celebrate as primary.32 The process theorist is similarly confounded by questions about the right to vote-the quintessential procedural right in the realm of politics. Voting-rights issues commonly take one of two forms. One set of issues concerns who votes. Is the electorate to include racial minorities, women, District of Columbia residents, eighteen-year-olds?33 Is it to include only property owners, only property owners and parents, only residents, only citizens?34 What of the disenfranchisement of children?3 G Who votes, it turns out, is a profoundly substantive question.30 For who participates-who counts-in the electoral process is a question that must precede any inquiry into the fairness of the process itself. The issue goes not to fairness procedurally, but to our sense of who constitutes a political community, and of which relations in society must be horizontal rather than vertical, fraternal rather than hierarchical. And if any question is plainly substantive, that question is fundamentally so.s7 The second set of issues concerns how voting power is to be allocated among those who are included within an electoral constituency. Sometimes, in this context, the Supreme Court looks to whether the election stake is pertinent to what procedures, in a gh·en circumstance, are consistent with individual dignity. See, e.g., Cafeteria &: Restaurant Workers Local 473 v. McElroy, 367 U.S. 886, 895 (1961) (consideration of what procedures due process may require under any given set of circumstances must begin with determination of private interest affected); Note, SPecifying the Procedures Required by Due Process: Toward Limits on the Use of Interest Balancing, 88 HARV. L. REv. 1510, 1528-30 (1975) (process due depends on interest at stake). 32. See ELY, suPra note 4, at 95-96. 33. See U.S. CONST. amends. XV, XIX, XXIII, XXVi. 34. Sec City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) (franchise cannot be limited to property owners); Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969) (franchise in school board election cannot be limited to property owners and parents); Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) (nonresidents can be denied vote even in jurisdiction that taxes and regulates them); Rosberg, Aliens and Equal Protection: JVh;v Not the Right to Vote?, 75 MICH. L. REV. 1092 (1977). 35. See Developments in the Law-The Constitution and the Family, 98 HARv. L REv. 1156, 1201-02, 1221-42, 1350-83 (1980) [hereinafter cited as Developments]. 36. Conventionally, it is treated as if it were a matter of procedure. See, e.g., ELY, SllPra note 4, at 98-99. 37. Consider the question whether fetuses are persons with rights, a question raised by the right-to-life critique of Roe v. Wade, 410 U.S. 113 (1973). See L. TRIBE, supra note 9, at 926-29.

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is one that chooses representatives or one that resolves a one-shot issue,38 or whether voters are voting as individuals or as, say, property owners.89 But generally, the Court has enforced the famous rule announced in the reapportionment cases: one person, one vote.40 The obvious substantive underpinnings of this rule-its role as an expression of the equal respect in which we as a society aspire to hold each individual41-all of this the theorists of perfecting process must ignore. They can defend the rule only hesitantly, claiming, for example, that it is merely a matter of administrative convenience. 42 Again we observe the irony already revealed in the adjudicative process cases: because embracing process for its own sake means embracing process as substance-as an expression of the value in which we would hold individuals-theorists who ·would defend constitutional law as ultimately reducible to the quest for perfection of process cannot themselves treat process as primary.43 Again the puzzle deepens: as the next section will show, theorists of perfecting process are not only undercut by their inability affirmatively to advocate process as such, but their negative critique of obstructed process is stunted as well. III. The Quandary of Whom to Protect For those who would fill the gaps left by the Constitution's ambiguities and silences with representation-reinforcing principles, perhaps the core "process value" is the value of protecting certain minorities from perennial defeat in the political arena. The theme was anticipated by John Marshall; 44 it assumed a central role for Harlan Fiske Stone; 4G 38. See Town of Lockport v. Citizens for Community Action at the Local Level, Inc., 430 U.S. 259 (1977) (sustaining constitutionality of electoral procedures requiring concurrent majorities for restructuring constituent political units). 39.. See Salyer Land Co.. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973) (sustaining rule tantamount to "one acre, one vote" in composition of special water districts). 40.. See, e . g., Reynolds v. Sims, 377 U . S. 533, 567-68 (1964). 41. See R.. DWORKIN, TAKING RIGHTS SERIOUSLY 273 (197'/). 42.. See, e . g .. , ELY, suPra note 4, at 124. 43. Nor can such theorists rest with a Yiew tl1at accepts a purely instrumental role for procedural norms and defends the constitutional plan as an indirect scheme for implementing substantive values that are not authoritatively established by tile Constitution itself. For if the realization of such substantive \o.lues is the Constitution's aim, then tlleir elaboration is appropriately the task of all who would interpret the Constitution. 44. See McCulloch v. Maryland, 17 U.S. (4 Wheat. ) 316, 435-36 (1819) (state has no power to tax federal instrumentality because it would tllereby act on national popula· tion, not represented in its legislature) . 45. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n..4 (1938) (strict judicial review for statutes that are directed against "discrete and insular minorities"); South Carolina State Highway Dep't v.. Barnwell Bros., 303 U . S. 177, 184 n.2 (1938) (commerce clause may prohibit legislation burdening political outsiders) .

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Process-Based Theories it signally motivated Earl Warren; 46 and it has been elaborated by numerous scholars,47 most powerfully in the work of John Ely.4s The idea seems as simple as it sounds reasonable: governmental action that burdens groups effectively excluded from the political process is constitutionally suspect. In its most sophisticated fonn, the resulting judicial scrutiny is seen as a way of invalidating governmental classifications and distributions that tum out to have been motivated either by prejudiced hostility or by self-serving stereotypes.4D It all sounds pretty good-until we ask how we are supposed to distinguish such "prejudice" from principled, if "wrong," disapproval. Which groups are to count as "discrete and insular minorities"? Which are instead to be deemed appropriate losers in the ongoing struggle for political acceptance and ascendancy? To begin with, of course, the theory must clearly distinguish itself from its reductio ad absurdum: "whichever group happens to lose the political struggle or fails to command the attention of the legislature • . . is-by that fact alone-a discrete and insular minority." 50 How about focusing on immutability, discreteness, insularity? For the process theorist, all such features might seem helpful in suggesting why a legislature would regard some groups as "different" and thus fall prey to cruel or self-servingly careless stereotyping. Or such features may signal why other groups would fail to interact with a group considered "different," or to engage in the usual protective logrolling. But features like immutability are neither sufficient51 nor necessary. a:l 46. See Ely, The Chief, 88 HARV. L. REv. 11, 12 (1974) (Warren sought to ensure that machinery of democratic process does not become self-serving organ of privileged class). 47. See, e.g., L. LusKY, suPm note 3, at 11-12; L. TRIBE, supra note 9, Passim. 48. See ELY, suPra note 4, at 135-79. 49. See id. at 153-70. 50. Fiss, The Supreme Com·l, 1978 Term-Foreword: The Forms of ]uslice, 93 HARV. L. Rr;v. 1, 8 (1979); see Sugarman v. Dougall, 413 U.S. 634, 657 (1973) (Rehnquist, J., dissenting) (no "extraordinary ingenuity" needed for lawyers to "find 'insular and discrete' minorities at every turn in the road"). 51. Immutability by itself is plainly not sufficient. Intelligence, height, and strength are all immutable for a particular individual, but legislation that distinguishes on the basis of these criteria is not genemlly thought to be constitutionally suspect. Discreteness and insularity are also insufficient: chiropractors may be a discrete and insular minority, but legislation that singles them out would not be subject to strict scrutiny on that basis alone. E\·en all three factors in combination may not be sufficient. Old age is an immutable characteristic, and the elderly may well be a discrete and insular minority. However, age is not per se a suspect criterion of classification. See Massaclmsetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam). For background discussion, see L TamE, suPra note 9, at 1077-82. 52. Alienage is properly treated as a classification at least partially suspect, despite its mutable character. See, e.g., Nyquist v. Mauclet, 432 U.S. 1 (1977) (denying state scholar-

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For in looking at social attitudes toward groups, one cannot simply play Linnaeus and engage in taxonomy. One cannot speak of "gToups" as though society were objectively subdivided along lines that are just there to be discerned.:; 3 Instead, people draw lines, attribute differences, as a way of ordering social existence-of deciding who may occupy what place, play what role, engage in what activity. Thus, in order to justify the role of chattel that blacks initially played in our society, we may have differentiated that role by describing it in terms of the most obvious distinguishing feature of the people who played it, thus equating race and role.a-1 This equation, and thus the "group,'' survived the Civil War and the Thirteenth Amendment. It did so not simply by reason of confusion or inertia, but because the role that society allowed blacks remained partly unchanged; thus the need to justify the role by differentiating it, by seeing not the role but the group-"inferior" blacks capable of nothing better anyway-persisted.n;; The temptation to think of groups as simply given is exacerbated by the complex interaction between social attitudes and those identified as group members. Individuals who find themselves so identified may indeed see themselves as group members; because they approve of the options that society leaves them and want to protect those options, they identify the options with themselves, the differentiated "group."uo Alternatively, assertion of group status may be a form of internal exile, a way of repudiating the limited possibilities for action that the larger social structure would allow, a choice of "exit" rather than "voice."GT ship aid to resident aliens who choose to remain noncitizens violates equal protection). And even if race or gender became readily mutable by biomedical means, I 'vould sup· pose that laws burdening those who choose to remain black or female would properly remain constitutionally suspect. 53. This point is neatly illustratecl by a passage quoted by Foucault, in which Borges cites a Chinese enqclopedia's assertion that "animals arc divided into: (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f) fabulous, (S) stray dogs, (h) included in the present classification, (i) frenzied, (i) innumerable, (k) drawn with a very fine camelhair brush, (I) et cetera, (m) just having broken the water pitcher, (n) that from a long way off look like flies." l\1. FOUCAULT, THE ORDER OF THINGS XV (1970). 54. See W. jORDAN, WHITE OVER BLACK (1968). 55. See C. V. WoODWARD, THE STRANGE CAREER OF ]11\f CROW (2d ed. 1966). 56. Individuals who disapprove of the options that society presents them may never· theless accept their treatment as a differentiated group, and accept as natural or inevitable their inferior status. Even individuals with options more favorable than those of most group members may accept the social characterization of the group in order to differ· entiate themselves from the group. See Castaneda v. Partida, 430 U.S. 482, 503 (1977) (Marshall, J., concurring); cf. G. WEINBERG, SocJEn' ,\ND THE HEALTHY HOMOSEXUAL 74·82 (1972) (homosexual self-loathing, contempt, and prejudice parallel societal attitudes). 57. Thus, some blacks may differentiate themselves as a way of rejecting, or of ex· pressing a critical judgment about, the options with which society at large leaves them.

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Process-Based Theories This way of thinking about groups, I believe, captures not only much of the dynamics of race, but also much of the social significance of religion, alienage, gender, sexual preference, legitimacy, wealthtraits we as a society commonly use in separating out groups.G 8 Views about the "differentness" of groups generally, therefore, may reflect an interacting set of judgments about activities or options or roles, expressed sometimes harmoniously and sometimes dialectically by both "we" and "they." 60 If so, the conclusion that a legislative classification reveals prejudicial stereotypes must, at bottom, spring from a disagreement with the judgments that lie behind the stereotype: judgments about the propriety of the options left to individuals or the burdens imposed on them. Consider several illustrations. Burglars are subject to widespread hostility: indeed, the activity that defines the group is everywhere legislatively prohibited. Are burglars therefore a "suspect class"? Of course not. Suspect status is unthinkable-but only because of the substantive value we attach to personal security, and the importance for us of the system of private property and its rules of transfer, which the burglary prohibition preserves. 60 If we speak of burglars as a class, we do so as a way of giving form to our view that burglary is a "different" activity, different not so much because burglars visibly define a group as because we disapprove of the activity, deny it any claim to protection as a right. Homosexuals, too, are subject to widespread hostility; legislation penalizing homosexuals and homosexual practices is common.01 Homosexuals often do not identify themselves by sexual preference when acting politically, and generally do not "come out of the closet" to refute the traditional stereotypes. 02 But even if they did, legislation might be unaltered. Coming out of the closet could dispel ignorance, but it may not alter belief. Legislators may see homosexuals as "difCf. A. HIRSCH~IAN, EXIT, VoiCE, AND LOYALTY 108-12 (19'70) (American black power movement advocates co11ective program for blacks as group and rejects traditional pattern of upward social mobility for individual, selected blacks). 58. See Fiss, suPra note 3, at 124-33; cf. G. 1\IYRDAL, AN AMERICAN DILEMMA 2'7·30 (1944). 59. See Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REv. 723, 732 (19'74). 60. See ELY, suPra note 4, at 154. 61. See Rivera, Our Straight-Laced judges: The Legal Position of Homosexual Persons in the United States, 30 HASTINGS L.J. 799 (1979). 62. See ELY, suPra note 4, at 163 ("serious social costs" of encountering prejudice upon admission); C. REICH, THE SORCERER OF BOLINAS REEF 71-73 (19'76) (fear of societal oppro· brium caused repression of homose.xuality). Brtt see L. HUMPHREYS, OUT OF TilE CLosETs (1972) (chronicling recent organizational activism, political action, and violence by homosexuals in response to oppression).

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ferent" not out of ignorance, but on principle-on the basis of a morality that treats certain sexual practices as repugnant to a particular view of humanity, and thus regards people who engage in those practices as "other." 63 Such legislation can be rejected only on the basis of a principle that is equally substantive: a view of what it means to be a person, and to have a sexual identity. 6 ~ Process and prejudice thus seem profoundly beside the point. Any constitutional distinction between laws burdening homosexuals and laws burdening exhibitionists, betw·een laws burdening Catholics and laws burdening pickpockets, must depend on a substantive theory of which groups are exercising fundamental rights and which are not. 6 ~ Indeed, even laws putting blacks and women "in their place"banning racial intermarriage, say, or excluding women from combatare likely to reflect neither simple hostility nor self-serving blindness but a substantive vision of proper conduct-a vision that no amount of attention to flaws in the political process could condemn or correct. Accordingly, the idea of blacks or women as properly segregated beings can be rejected only by finding a constitutional basis for concluding that, in our society, such hierarchical visions are substantively out of bounds, at least as a justification for government action. 66 And such a finding would in turn entail a theory of unenumerated substantive rights, rights at best suggested by constitutional text and history, rights whose necessarily controversial elaboration the process theorists seek to eschew. 67 63. See, e.g., Doe v. Commonwealth's Attorney for City of Richmond, 403 F. Supp. 1199, 1202 (E.D. Va. 1975), aff'd mem., 425 U.S. 901 (1976) ("ancestry" of state statute prohibiting sodomy goes back to Judaic and Christian law); Barrett, Legal HomoPhobia and tile Christian Clmrcll, 30 HAsriNGS L.J. 1019 (1979) (arguing that Christian morality is responsible for legal homophobia). 64. See Karst, The Freedom of bllimate Association, 89 YALE L.J. 624, 633·35 (1980). 65. See Developments, suPra note 35, at 1176 n.ll9. 66. See, e.g., Craig v. Boren, 429 U.S. 190, 210 n.23 (1976) (dictum) (disappro\·ing earlier decision that upheld occupational exclusions of women); Loving v. Virginia, 388 U.S. I (1967) (invalidating ban on racial intermarriage). If, as some suggest, see, e.g., ELY, supra note 4, at 256 n.92, a gO\·ernmental decision to impose a burden could be defended simply by showing that the decision reflects "a bona fide feeling that [the burdened choice] is immoral," id., then e\'en racial segregation would be sustainable. 67. Even assuming that laws burdening groups such as women are founded on no moral com·ictions, a process-based analysis is still fatally inadequate. Although legislation discriminating against women does not, at least superficially, reflect hostility toward women, and despite the fact that women are not a minority, there is nonetheless reason, a process theorist might argue, for strict judicial scrutiny of such legislation. Male legislators no doubt frequently regard women as "they" rather than "we." See ELY, supra note 4, at 164. In process terms, however, this is a weak case. Arguably, all that keeps women from full participation is the fact that many women (as well as men) accept a view of society in which women are subject to men or are othenvise inappro· priate participants in public life. But that view of society is increasingly controversial. To

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Process-Based Theories The crux of any determination that a law unjustly discriminates against a group-blacks, or women, or even men68-is not that the law emerges from a flawed process, or that the burden it imposes affects an independently fundamental right, 69 but that the law is part of a pattern that denies those subject to it a meaningful opportunity to realize their humanity. Necessarily, such an approach must look beyond process to identify and proclaim fundamental substantive rights. Whatever difficulties this may entail, it seems plain that important aspects of constitutional law, including the determination of which groups deserve special protection, can be given significant content in no other way. Thus it is puzzling indeed that process-based approaches-designed to deny the need for, and legitimacy o£, any such substantive theoryshould nonetheless continue to find such articulate proponents and persist in attracting such perceptive adherents. IV.

The Closed Circle of Political Openness

If protecting minorities requires a theory of substantive rights, might another value, that of "political openness"-of clearing the channels for change through speech and voting-be salvaged as a unifying theme for the process-minded?7° First Amendment theorists such as Alexander Meiklejohn have pursued this general line, with varying degrees of success.71 But there are at least three fundamental difficulties with any effort to reduce substantive rights to mere mechanisms for channelclearing. The first problem is the inherently incomplete nature of channel-clearing as an aim. Why should politics be open to equal conclude today that women are an "excluded" group is simply to challenge the support of many women and men for contemporary legislation. Thus only sexist laws enacted long enough ago may be struck down as mere expressions of prejudicial stereotypes. See id. at 166-67. Disputes over the place of women, however, arc hardly a recent development. See E. PAGELS, TH£ GNOSTIC GosPElS 59-63 (1979) (tracing Gnostic treatment of women as equals); A. KELLY, ELEANOR OF AQUITAINE AND THE FOUR KINGS 163·64 (1950) (women of late 12th· century Poitcvin court sat in judgment upon points of courtly love). The fact of contemporary dispute is thus not necessarily a sign of progress. But if the idea of equal rights for women is a perpetually contested concept, then the constitutionality of legislation that treats men and women differently cannot turn, as process theorists might argue, on whether such legislation preceded or followed dispute about the status of women. 68. See, e.g., Orr v. Orr, 440 U.S. 268 (1979) (state statutory scheme cannot exempt women from alimony obligations imposed on men). 69. Neither drinking age, see Craig v. Boren, 429 U.S. 190 (1976), nor age of expiration of parental support obligations, see Stanton v. Stanton, 421 U.S. 7 (1975), im·olve independently fundamental rights-but in both areas the Supreme Court has invalidated gender-based lines that lock the sexes into their traditional roles. 70. See ELY, supra note 4, at 105-34. 71. See A. MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 27 (1948).

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participation by all? Doesn't that norm itself presuppose some sub· stantive vision of human rights? Why wouldn't a vision rich enough to support a reasonably complete theory of political openness also suffice to generate a theory of which substantive claims individuals may make against the majority? The second problem is the absence of any plausible stopping point for channel-clearing theories. If the system must be open to change through peaceful persuasion, how do we distinguish between example and advocacy or between demonstration and assertion as forms of persuasion? If we do not draw some such distinction, life-style choices that seek to convince by demonstration-communal living arrangements or homosexual marriage, for example-are entitled to constitutionally protected status. Surely that is not what process theorists have in mind! Efforts to draw the necessary distinctions, however, are inevitably unsatisfactory. To accord special protection to advocacy alone is to censor those messages that can be conveyed only by example. Moreover, dichotomies such as speech and conduct, expression and action, or persuasion and instruction, do not in truth separate.72 If the acts of individuals may be demonstrations, and hence forms of persuasion, may not the same be said of the acts of government?73 The actions of government define expectations, confer legitimacy, establish a status quo, and thus necessarily shape the nature and distribution of interests and attitudes in society itself. The state shapes society almost as much as society shapes the state: this is the third problem that any channel-clearing theory must confront-but cannot surmount without losing its "procedural" status. Government subsidies to "major" political parties, for example, or the failure of state governments to provide funds to compensate school districts lacking "rich" property tax bases, are government actions that affirm some aspects of the status quo as desirable, and others as inevitable. Such government actions are at present constitutional,74 as are governmental decisions that inculcate the young with the standard public virtues and defeat the self-defining, value-forming, and poweramassing efforts of all but the more standard social groupings. 7G Unable 72. See, e.g., L TRIBE, supra note 9, at 598·601; ELY, supra note 4, at 113 n.•. 73. See Yudof, When Governments Speak: Toward A Theory of Government ExPression and the First Amendment, 57 TEx. L. REv. 863 (1979). 74. See Buckley v. Valeo, 424 U.S. I (1976); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. I (1973). B~tt see Serrano v. Priest, 5 Cal. !ld 584, 487 P.2d 1241, 96 Cal. Rptr. 601 (1971) (interpreting state constitution as creating a cause of action for \'iolation of equal protection in suit to imalidate property tax funding of public schools). 75. ComPare, e.g., Moore v. City of East Cleveland, 4!11 U.S. 494 (1977) (protecting ex· tended families} with Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) (households of

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Process-Based Theories to support a challenge to such exercises of power, a truly procedural channel-clearing theory seems doomed to irrelevance, for without such challenge government may well be able to shape the "will" of the governed in the image of those who govern, 76 reducing consent and representation to all but empty ideals. This should not seem too surprising: that domination can appear in the guise of democracy is hardly a novel observation in the late twentieth century. The puzzle is that the failure of process-based theories even to speak to this danger should be so readily and persistently excused or overlooked. V. A Broader Role for Constitutional Theory One final and closely related puzzle-a puzzle that may follow from the very aspiration of process-based theories to purge constitutional discourse of inevitably controversial claims about substantive rights and values-is the willingness of so many to embrace process-based theories in the face of their virtually total incapacity to inform the content of public discussion, debate, and decision. One can perhaps understand the appeal to judges of a theory purporting to instruct them that they are to construe the Constitution so as to reinforce representation, that is, fill in the blanks so as to perfect democracy. But what can be the appeal of such a theory to an elected representative-especially one who regards the Constitution as addressed to all who govern, 77 and who accordingly wonders whether some of the "interests" of his constituents ought, as a constitutional matter, to be resisted rather than represented? 78 And what can be the appeal of such a theory to a citizen who regards the Constitution as addressed to the people at large, and who, accordingly, asks which of his preferences-for exploiting the poor, perhaps, or for denigrating ethnic minorities-the citizen ought to suppress or even change? unrelated individuals not protected); comPare NAACP v. Button, 371 U.S. 415 (1963) (group legal services protected) with Garcia v. Texas State Bd. of Medical Examiners, 384 F. Supp, 434 (W.D. Tex. 1974), aff'd mem., 421 U.S. 995 (1975) (group health plans not). 76. Ely notes this phenomenon in connection with his discussion of the idea of progress as an organizing basis for constitutional law: "[T]oday's judicial decision (no matter what its source of judgment) will inevitably have an important influence on the values of tomorrow's majority." ELY, suPra note 4, at 70. Cf. id. at 165 (societal stereotypes accepted by the stereotyped). He does not, however, generalize this insight to government action generally. 77. See Linde, "Clear and Present Danger" Reexamined: Dissonance in the Brandenburg Concerto, 22 STAN. L. REv. 1163 (1970); Linde, Due Process of Lawmaking, 55 NEB. L. REv. 197 (1976). 78. See H. PITKIN, THE CoNCEPT OF R.El'IIESENTATION (1967).

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Perhaps the impoverished relevance of the Constitution for everyone except judges under a process-based theory is to be offset in some way by the theory's supposed ability to improve constitutional argument, analysis, and adjudication in the judicial branch. But are we really to believe that the way judges decide cases will be powerfully and beneficially affected by theories linking the judiciary's constitutional role to the supposed failures of political process? Might not the care and humility that we are entitled to expect of judges be undermined if judges were indeed persuaded that much judicial activism is simply a corollary of democracy? Most process-based theorists and their followers evidently have seen little point in analyzing what the general acceptance· of their views would be likely to do to the actual course of constitutional argument and decision. 79 The views they espouse apparently strike chords so responsive, accord with beliefs so deep, that inquiry into probable effects-like close attention to counter-examples and logical gapsseems beside the point. But if this is so, then we are left with a final puzzle, one to be explored in a later essay: what does it say about our situation, and about the prospect for constitutional theory, that views so deeply problematic continue to exert so powerful a grip upon our thought? 79. But see ELY, sttPra note 4, at 102 n. • (concern over effect of theory on protection of civil liberties).

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Part III Constitutionalist Democracy: Reconciling Substance and Procedures

[10] WHAT WAS WRONG WITH DRED SCOTT, WHAT'S RIGHT ABOUT BROWNt ROBERT

A. BURT*

No Supreme Court decision has been more consistently reviled than Dred Scott v. Sandford. 1 Other decisions have been attacked, even virulently, by both contemporary and later critics; other decisions have been overruled by constitutional amendment or by subsequent Court majorities. But of all the repudiated decisions, Dred Scott carries the deepest stigma. If a proper criterion for evaluating a judicial decision is its success in achieving peaceable resolution of a social dispute, Dred Scott was a palpable failure; indeed, its critics then and now have plausibly claimed that the decision played a significant role in precipitating the Civil War. 2 If a proper criterion is its consistency with high ethical values, Dred Scott fails even more clearly. Chief Justice Taney's opinion for the Court recited the most explicit racist dogma that appears anywhere, before or since his opinion, in the pages of the United States Reports. In explaining why no black person, whether slave or free, could ever become a citizen of the United States, Taney relied on blacks' historic status "as beings of an inferior order. .. altogether unfit to associate with the white race ... ; and so far inferior, that they had no rights which the white man was bound to respect." 3 Taney did mention the Declaration of Independence whose resounding proclamation of human equality has been a recurrent source of moral tension t Copyright 1984, by Robert A. Burt. • Southmayd Professor of Law, Yale University. l. 60 U.S. (19 How.) 393 (1857). 2. See, e.g., R. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY 327 (1949); D. POTTER, THE IMPENDING CRJSlS 1848-1861, 291-93 {1976); S. KUTLER, THE Dred Scott DECISION: LAW OR POLITICS xvii (1967). 3. 60 u.s. at 407.

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for white Americans regarding blacks; but Taney invoked the Declaration only to assert that "it is too clear for dispute, that the enslaved African race were not intended to be included. " 4 His reasoning is almost comical: [I]f the language, as understood in that day, would embrace [blacks], the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation. Yet the men who framed this declaration were great men-high in literary acquirements-high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. 5 Thus Taney reads an unambiguous racism into the Declaration of Independence in order to acquit the Founding Fathers of the immorality of inconsistency. As a matter of historic fact, the founders were inconsistent, were aware of their inconsistency and admitted it. 6 Thomas Jefferson, the draftsman of the Declaration, was explicit in this-and not simply in his private journals but in his widely circulated book, Notes on Virginia, which he wrote while Governor of Virginia and published while Minister to France. 7 Taney's account of the framers' state of mind was thus wrong; it was, if you will, too black and white. Taney's account was, however, an accurate depiction of a belief about black status that was widely held and openly avowed among his contemporaries. By J857, when Taney wrote, the conviction of blacks' innate inferiority and subhuman status had become an article of faith throughout the South. It was the premise on which the dominant apologists argued that black slavery was an inevitable, permanent institution and was, moreover, a "positive good." 8 Until around 1830 no reputable Southerner had been prepared to make this kind of public avowal. Before that time when slavery was publicly justified, it was only as a "necessary evil," always with the implication that sometime, somehow, the institution would be abolished. 9 There was deep hypocrisy in this stance since no political institution was working even remotely toward this prospect (though there were occasional schemes for gradual emancipation and for African colonization that were 4. Id. at 410. S. Id. 6. B. BAJLYN,

235-46 (1967); 1770-1823, 273-84 (1975).

THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION

D.B. DAVIS, THE PROBLEM OF SLAVERY IN THE AGE OF REVOLUTION

7. Referring to slavery, Jefferson wrote: (C]an the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with wrath? Indeed, I tremble for my country when I reflect that God is just: That his justice cannot sleep forever .... T. J.aFFERSON, NOTES ON THE STATE OF VIRGINIA 163 (1800). 8. G. FREDERICKSON, THE BLACK IMAGE IN THE WHITE MIND 43-90 (1971). 9. W. L. N. Ross, SLAVERY AND FREEDOM 22-27 (1982).

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privately advanced and even publicly debated in Southern legislatures as late as 1832). 10 But by Taney's time this hypocrisy was ended in the South. And in the North, though there were active abolitionists demanding an immediate end to slavery, popular conviction of blacks' innate inferiority was also widespread. 11 Indeed, de Tocqueville pungently observed in 1835 that emancipated blacks were regarded with greater aversion and subjected to more overt indignities by Northern whites than black slaves were treated in the South; everywhere in America, he noted, blacks were "hardly recognized as sharing the common features of humanity." 12 Thus a plausible case can be made that though Taney misconstrued the attitudes of the Founding Fathers, and though his views of blacks' status is morally repugnant today, nonetheless he aptly characterized the dominant valuation of blacks in his time-and as a matter of national signification, not simply as a regional spokesman. I want to emphasize this proposition because I believe that, unless we are prepared to admit its force, we cannot adequately evaluate what the Supreme Court did in the Dred Scott case. No matter how fervently we now believe that Dred &ott was wrongly decided, no matter how firmly the retrospective judgment of history condemns the decision, this condemnation has no adequate jurisprudential force unless we can specify how and why Taney and his fellow judges at that time should have reached a different decision in the case. If there is a constitutional law jurisprudence worthy of the designation, is must consist of more than inviting judges to toss dice toward the prospect of historic vindication. We now condemn Dred Scott; but how precisely should Chief Justice Taney have known this beforehand, so that he could have shaped his judicial conduct accordingly? I do not intend to justify the Dred Scott decision. I believe the case was wrongly decided but not because it rested on a view of black people that I find morally repugnant (though it did so rest, and I do so find). The decision was wrong because it followed from an incorrect view of the judicial role in our society, a view that itself is morally untenable. But let me be plain. I am not setting out a hierarchy of immorality by which the degradations inflicted on blacks in our society become somehow less significant than judges' errors in comprehending their proper constitutional role. I mean only to suggest for constitutional lawyers that it is more important to identify standards that can reliably guide the conduct of judges looking toward an uncertain future than to issue general condemnations of the racist attitudes prevalent among earlier judges and the society of which they were part. Put another way, I am content to say that no future judge should act on the racist premises that Taney embraced. But his principle alone is insufficient 10. R. McCOLLEY, SLAVERY AND JEFFERSONIAN VIRGINIA 114-140 {2d ed. 1973); see L. BAKER, JOHN MARSHALL: A LIFE IN LAW 723-24 {1974) (describing Virginia legislative debate in 1832). 11. L. LITWACK, NORTH OF SLAVERY: THE NEGRO IN THE FREE STATES 1790-1860, 15·29, 223-230 (1961); E. FONER, FREE SoiL, FREE LABOR, FREE MEN: THE !nEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 261-300 (1970). 12. A. DETOCQUEVILLE, DEMOCRACY IN AMERICA 314 (J. Mayer & M. Lerner, eds., 1966).

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to form a satisfactory guide for future judicial conduct by indicating what precisely was wrong in the Supreme Court's decision in the Dred Scott case. To attain this, it is first necessary to explore the Court's decision in some detail-in effect, to build the strongest possible case for it. If, for this purpose, we step back from instinctive revulsion at the Court's effort to uphold black slavery, I believe we will see how comfortably the Court's opinion satisfies widely held current-day norms of constitutional interpretation, both in application of substantive doctrine and in judicial role conceptions. But-I repeat-! mean to bury Dred Scott, not to praise it. When we have seen how readily the decision fits contemporary jurisprudential standards, then we will also see how (and how extensively) these standards must be reworked in order to carry out a successful interment. I.

In 1834, John Emerson, a United States Army surgeon, was transferred from Missouri to Illinois. 13 He took along his slave, Dred Scott, notwithstanding that Illinois law prohibited slavery. Two years later Emerson was again transferred into what was then the Wisconsin Territory (and is now the state of Minnesota); Emerson again took Scott, though by the Missouri Compromise of 1820, Congress had forbidden slavery there. After several years Emerson sent Scott back to Missouri, a slave state. In 1846, Scott brought suit in a Missouri state court against Emerson's widow, claiming that his residence first in a free state and then in a free territory had effected his emancipation. Missouri legal precedent firmly supported Scott's contention and a state jury held for him. Mrs. Emerson appealed, however, and in 1852 the Missouri Supreme Court (by a two-to-one vote) overruled its precedent and refused to give comity to the Illinois or federal law. The majority explained their repudiation of precedent thus: Times are not as they were when the former decisions on this subject were made. Since then not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures, whose inevitable consequence must be the overthrow and destruction of our government. Under such circumstances it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. 14 The spectre of heightened sectional conflict thus appeared on the very face of the record in the Dred Scott case. Scott did not, however, directly appeal this state ruling to the Supreme Court-an appeal that would almost certainly have been fruitless in light of its recent decision mandating deference to state court choice of law rulings in such disputes.IS Scott's attorneys decided instead to initiate, in effect, a 13. The factual background of the Dred Scott case is related in PoTTER, supra note 2, at 267-69. 14. Scott v. Emerson, 15 Mo. Rep. 576, 586 (1852). 15. Strader v. Graham, 51 U.S. (10 How.) 82 (1851).

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new proceeding in federal court. This jurisdictional move had become plausible because Mrs. Emerson had by then moved from Missouri and had transformed control of Scott to her brother, John Sanford, who lived in New York; Scott could thus sue Sanford in federal court under the diversity of citizenship clause in article III. In 1854 the federal court agreed that it had jurisdiction because of the parties' diverse citizenship, but ruled on the merits that Scott was still a slave; 16 Scott appealed to the Supreme Court. (One indisputable error committed by the Supreme Court in the case was its misspelling of Sanford's name in the United States Reports; 17 whatever the subsequent reception of Dred Scott v. Sandford in our jurisprudence, this error at least has been habitually repeated.) If the Supreme Court had been intent on avoiding a broad or novel ruling in the case, there were many ways to do so. One particularly plausible route for this purpose would have been to rely on the relationship between the initial state court ruling and the subsequent federal court proceeding, and simply to apply the Supreme Court's prior holding requiring deference to the state court choice of law. This was indeed the initial impulse of a majority of the Justices; an opinion was prepared by Justice Nelson holding to this ground. 18 Ultimately, however, the other Justices abandoned this narrow ruling; when the case was finally decided on March 6, 1857, Justice Nelson filed this opinion but only for himself. 19 The others reached the momentous issues for which the case became notorious. Every Justice on the Court wrote in the case-a fact that itself starkly symbolized the heightened fractiousness since the days when John Marshall had been regularly able to muster unanimity at least among his btethrcn if not in the country at large. Chief Justice Taney's opinion was styled the opinion of the Court though he spoke for a clear majority of six Justices only in holding (over two dissents) that Congress lacked constitutional authority to enact the Missouri Compromise of 1820 prohibiting slavery in the territories. 20 Taney also ruled that Scott could not sue in federal court because blacks, whether slave or free, were not citizens under the Constitution. Only four other Justices addressed this issue, two concurring with Taney and two dissenting; thus on this ground the Court's vote was three to two. 21 Nonetheless, Taney's opinion was popularly viewed as dispositive on the questions both of Scott's citizenship and of the constitutionality of the Missouri Compromise, and it is his opinion that most rewards close scrutiny. First, the citizenship question. Historians examining the precedents have concluded that Taney was wrong and that Justice Curtis's dissent was an 16. See 60 U.S. at 400-01. 17. Kt.rTLER, supra note 2, at xi n.3. 18. PoTTER, supra note 2, at 272-73. 19. 60 U.S. at 457. 20. The six Justices in the majority were Taney, Wayne, Daniel, Grier, Catron and Campbell; the dissenters were McLean and Curtis. See the careful tally set out by George Ticknor Curtis, Justice Curtis' younger brother, reprinted in KUTLER, supra note 2, at 101-03. 21. The three were Taney, Wayne and Daniel, with McLean and Curtis dissenting. 22. POTTER, supra note 2, at 275; D. FEHRENBACHER, SlAVERY, LAW. AND POLITICS: THE Dred Scott CASE IN HISTORICAL PERSPECTIVE 191-99 (1981).

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accurate and devastating rebuttal of Taney's claim that blacks generally were excluded from citizenship when the Constitution was framed. 22 The historical record is indeed clear that blacks had then been fully enfranchised citizens in some Northern states. But this rebuttal misses the central thrust of Taney's argument-an argument that he tried to buttress with a patently erroneous historical gloss (a shoddy rhetorical technique that he was neither the first nor the last Supreme Court Justice to invoke). 23 Taney's central point was that, notwithstanding the apparent assumption in the Constitution that state and federal citizenship were the same, there was nonetheless a difference between the two statuses, and that state citizenship did not necessarily carry federal citizenship with it. Taney's explicit concern was that if state and federal citizenship were unitary, then a Northern state's action in giving citizenship to a black person would override legislative restrictions that Southern states had imposed on all blacks coming within their territorial jurisdiction. Thus, Taney observed, how could a Southern state enforce its laws against public speech or assembly by all blacks, slave or free, if Northern blacks could freely enter the South cloaked in the constitutional protection of federal citizenship? 24 This argument presupposed that the Constitution directly vested in individuals, as citizens of the United States, specific rights against the states. The Supreme Court had not previously held this. The Court had ruled in 1833 that the Bill of Rights only restricted Congress, not the states; 25 but there was prior support, most notably in an 1823 circuit opinion by Justice Washington, for Taney's premise that the privileges and immunities clause in article IV, section 2, created federal citizenship rights that could be asserted against states. 26 The fourteenth amendment did not overrule Taney's opinion on this score. The first sentence of section 1 did reject Taney's claim that blacks were not citizens of the United States; but the second sentence endorsed his premise that this citizenship as such implied fundamental rights for individuals, specific "privileges and immunities of citizens of the United State," that could be enforced against statesY The sponsors of the amendment did not credit Taney for this premise, though they repeatedly asserted in the congressional debates that they were not creating a novel constitutional doctrine in this provision but were instead simply reiterating Justice Washington's earlier construction of the privileges and immunities clause in article IV.2s This continuity in constitutional interpretation between Taney and the framers of the fourteenth amendment indicates that Taney's construction of 23. See Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REv. 119, 122 (criticizing "law-office" history in Supreme Court opinions). 24. 60 U.S. at 422-25. 25. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). 26. Corfield v. Coryell, 4 Wash. CC., Fed. Case No. 3,230 (Cir. Ct. E.D. Pa. 1823). 27. U.S. CONST. amend. XIV, § I. 28. See Cong. Globe, 39th Cong., 1st Sess. 2765 (1866) (statement of Senator Howard); id. at I034, 2642 (statement of Representative Bingham); see also Burt, Miranda and Title II: A Morganatic Marriage, 1969 SuP. CT. REv. 81, 85-86, 90-91.

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federal citizenship rights would not appear fanciful to his contemporaries and, because it was not fanciful, this construction could threaten precisely the Southern laws that Taney identified in his opinion-if, that is, blacks were considered citizens of the United States for purposes of article IV. Of course this construction of article IV was not directly at stake in Dred Scott; the immediate question was whether Scott and Sanford were "Citizens of different States" for purposes of article III federal court jurisdiction. Taney could have held that blacks were citizens for this purpose without necessarily foreclosing a later, different construction of federal citizenship under article IV. Taney was not, however, writing a narrow opinion in Dred Scott. for this purpose Justice Nelson's opinion would have sufficed: but not for Taney; not for five other Justices; not in 1857. Taney and his concurring brethren were writing to save the Union from the "dark and fell spirit in relation to slavery" that palpably threatened, as the Missouri Supreme Court had put it, "the overthrow and destruction of our government."29 Taney meant to reassure the South that its continued adherence to the Union would not mean that it was disabled from protecting its institution of slavery. 30 Whatever the historic inaccuracies of Taney's claim that blacks were not considered citizens when the Constitution was written, he was on solid ground in claiming that the framers did not expect the Constitution to interfere with Southern states' formal authority or practical capacity to protect slavery. 31 The framers did not clearly anticipate the draconian measures that the South would later find necessary. The predominant view in 1787, among most of the delegates (South and North) at the Constitutional Convention, was that state policies toward slavery were becoming less restrictive; generous manumission statutes were becoming the norm throughout the South and hope seemed at least plausible for complete emancipation at some distant time, perhaps assisted by a national prohibition of slave importation that would fall within Congress's powers after 1808. 32 This benign expectation proved false. Beginning in the 1820s and gathering force thereafter-partly in response to increased stridency among Northern abolitionists after 1830-Southern states enacted the prohibitions on speech and assembly that Taney cited as well as rigid restrictions on manumission and laws virtually forcing free blacks to leave the South. 33 Well 29. Emerson, 15 Mo. Rep. at 586. 30. FEHRENBACHER, supra note 22, at 287-88 (Taney's wish to reassure South). 31. D. ROBINSON, SLAVERY IN THE STRUCTURE OF AMERICAN POLITICS 207-47 (1979 ed.). 32. See NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787 REPORTED BY JAMES MADISON 503-05 (1969 ed., Norton Library) (remarks of various delegates to the Constitutional Convention) {hereinafter Cited as NOTES OF DEBATES). In his NoTES ON THE STATE OF VIR.OINIA, Jefferson had observed: I think a change already perceptible, since the origin of the present revolution. The spirit of the master is abating, that of the slave rising from the dust, his condition mollifying, the way I hope preparing ... for a total emancipation ... with the consent of the masters .... JEFFERSON, supra note 7, at 163; see also RoBINSON, supra note 31, at 225-28. 33. E. FONER, Potmcs AND IDEOLOGY IN THE AGE OF THE CIVIL WAR 40-42 (1980); ROSE. supra note 9, at 26-27.

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before 1857, the South was racked by conjunctive fears of slave revolts, Northern abolitionist assault, and increasing electoral vulnerability in national political institutions. 34 The context of sectional relations had dramatically changed between 1787 and 1857. Thus, when Taney set out to interpret the word "citizen" in the constitutional document, it was not at all implausible for him to conclude that the framers in 1787 had not asked themselves whether blacks would be included in that word-and certainly had not asked with regard to the unanticipated context of 1857. Given the care the framers took generally in the Constitution to protect Southern slavery from any potentially hostile exercise of national power, it was more than plausible to conclude, as Taney did, that the framers would have withheld federal citizenship from all blacks if the consequence of that bestowal would be to invalidate laws the South viewed as necessary to the preservation of black slavery. Justice Curtis's dissenting argument, based on the state citizenship status of blacks in 1787, was a mechanistic use of history without an adequate appreciation for full context which can make old words truly intelligible to new readers. Taney's second major argument in his opinion, that Congress had no constitutional authority to prohibit slavery in the territories, was more vulnerable to historical refutation. Unlike the black citizenship question, successive Congresses from the first days of the Republic had construed the Constitution to provide precisely the authority that Taney denied. Indeed, the Continental Congress, acting under the Articles of Confederation, had banned slavery from the Northwest Territory in 1787, at the very moment when the Constitution was being drafted in Philadelphia; 35 and congressional authority for this action was repeatedly affirmed, from the reenactment of the Northwest Ordinance by the first Congress in 1789. 36 Thus it is difficult, as a matter of historical exegesis, to exclude authority to ban territorial slavery from the words of article IV, section 3: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States .... " 37 Nonetheless, Taney struggled forward. His argument had three steps. The first seems strained almost to the point of silliness: that the general language of article IV was intended only to apply to territories actually or imminently belonging to the federal government when the Constitution was ratified and not to any later-acquired property. 38 Taney could cite no contemporary witness among the draftsmen or ratifying conventions for this penurious construction; his only support is the semantic difference between the congressional authority given by article I, section 8, to "exercise exclusive Legislation in all Cases whatsoever" for the District of Columbia as the seat 34. POTTER, supra note 2, at 451-55; Davis, The Emergence of Immediatism in British and American Antislavery Thought, in ANTEBELLUM REFORM 150-51 (D.B. Davis, ed., 1967). 35. ROBINSON, supra note 31, at 378-82; seeS. LYND, CLASS CONFLICT, SLAVERY AND THE UNITED STATES CONSTITUTION 185-213 (1967) (slavery prohibition in 1787 Ordinance part of compromise with South in framing Constitution). 36. PoTTER, supra note 2, at 54-55. 37. U.S. CONST. art. IV, § 3, cl. 2. 38. 60 U.S. at 436.

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of government, and the supposedly less expansive power for the Territories, to "make all needful Rules and Regulations. " 39 This semantic argument was only the first step, however. Taney's second step is more interesting. He argued that congressional authority regarding territorial slavery must be limited because Congress was not authorized to create permanent "colonies ... to be ruled and governed at its own pleasure;" the Constitution instead intended that all territories would ultimately become states, and all new states must enter the Union "upon an equal footing with the other States. " 40 This meant for Taney that each new state must have unrestricted authority, as the old states had, to decide for itself whether to accept or prohibit slavery within its jurisdiction. But here Taney saw a dilemma. If Congress could forbid territorial slavery, then the die would be irrevocably cast for the new state ultimately arising from that territory; no one holding slaves would have settled there, all the settlers would have a vested interest in excluding slave labor, and they would move at once to embed this policy in the new state constitution or laws. 41 Thus, Taney reasoned, in order to ensure that new states would be free to decide the slavery issue for themselves, Congress must be barred from deciding the issue for the territories. This is the underlying rationale that justified for Taney his strained construction of the congressional power in article IV to "make ali needful rules and regulations" for the territories. He was arguing, in effect, that the question whether new states would permit or forbid slavery had assumed such overwhelming significance for the nation that the question could not be controlled by these spare words of article IV, written in a different era when the draftsmen could not see how the entire success of their nationalizing enterprise might hinge on the interpretation of these words. Taney thus restricted the application of these words to the special circumstances regarding territorial slavery as the draftsmen would have known them in 1787restricted them, as he put it, to "a known and particular Territory, and to meet a present emergency" that the framers had directly before them. 42 If Taney's verbal gyrations to this end seem unconvincing, his underlying conception of his interpretative enterprise seems nonetheless in the spirit of his immediate predecessor's much-cited dictum, "we must never forget that it is a constitution we are expounding. " 43 There was, however, a further conceptual problem with the underlying sense of Taney's position; he addressed this problem with the third step of his argument. The problem was this: Granted that congressional exclusion of slavery from the territories would ensure that the new states would also forbid slavery, nonetheless permitting territorial slavery was not a neutral position. Permitting territorial slavery could effectively guarantee that a slave 39. 40. 41. 42. 43.

Id. at 440. ld. at 446-47. FoNER, supra note 11, at 28. 60 U.S. at 432. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

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state would ultimately emerge; many Northerners at least so believed. 44 This belief was based on a conviction that slave labor had an unfair advantage over free labor and that the former would inevitably drive out the latter; admitting any slaves to a territory would thus necessarily exclude free labor and the territory would become a slave state. This was the ground on which the politically more potent "free soil" advocates of the North in effect joined with abolitionists to amass the numerical force that brought Lincoln to the Presidency. 45 The free soil advocates did not oppose slavery where it had already taken hold but opposed the extension of slavery in the territories which, so the argument went, would inevitably destroy free labor everywhere. Taney, in effect, addressed this problem with the third step of his argument: that if a choice must inevitably be made between giving preference to the system of free labor or slave labor, then slavery must prevail because of its specially protected status under the Constitution. As offensive as this proposition now appears, and as galling as it was to many of Taney's contemporaries, there was some plausibility to this argument. Taney rested it on two textual grounds: the fifth amendment, restricting Congress' authority toward deprivations of property, and the fugitive slave clause in article IV, section 2, recognizing-as Taney put it-"the right of property of the master in a slave. " 46 Indeed, Taney continued, the fugitive slave clause did more than recognize this right; this recognition was "coupled with the duty of guarding and protecting the owner in his rights" to slave property. 47 Thus did slavery have a specially protected status in the Constitution-a status which not only barred Congress but, Taney elaborated, also barred the territorial governments from prohibiting slavery since they had only derivative powers from Congress. 48 This last step in Taney's argument exposes the weakness of all of it; but that weakness is not so much in the force of his logic or in the coherence and plausibility of his use of constitutional text. The flaw is in the role that Taney saw for his Court in resolving the question of constitutional principle presented by the Dred Scott case. In this last step, holding that the Constitution regarded slaves as property and committed Congress to protect masters' property rights as such, Taney gave a definitive answer to a question that the framers did not resolve. Taney's error was not that the framers gave a different answer so that the document contradicted him. It was instead that the document contradicted itself on this question. Taney is clearly correct that the fugitive slave

44. 45. attitudes victory). 46. 47. 48.

FoNER, supra note 11, at 55-62. See id. at 103-225 (identifying varying "radical," "moderate" and "conservative" toward slavery among Northern electorate that ultimately coalesced in Lincoln's 60 U.S. at 451. Id. at 452. ld. at 451.

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clause recognized masters' property rights to slaves. And yet the Constitution nowhere says this explicitly. Indeed, the word "slave" never appears as such in the document. This omission was not a casual oversight. It was a calculated choice by the framers. There were many provisions in the Constitution that dealt with an obviously protected the institution of slavery. 49 But the word was never used because, as James Madison stated in the convention debates, it would be "wrong to admit in the Constitution the idea that there could be property in men." 50 Taney was thus wrong, though at the same time he was also right, that the Constitution acknowledged property rights in slaves. As in his initial discussion of the citizenship status of blacks and the meaning of equality in the Declaration of Independence, Taney had grabbed hold of an inconsistency, and not a small one-a contradiction at the moral center of the American enterprise. And, as with the black citizenship issue, Taney opted for one side of the contradiction to forge an answer to the question that the framers were not able to answer for themselves. We cannot deduce from this proposition that the two dissenting Justices in Dred Scott were correct and that Taney and his majority were wrong, that the Constitution vested federal citizenship in blacks and authority in Congress to prohibit territorial slavery. All we can say is that both Taney and the dissenters were wrong, and that the Constitution properly understood did not answer the question, at least in the context in which that question presented itself in 1857. This conclusion does not mean that either Taney or the dissenters were necessarily wrong in answering this question. This conclusion does mean, however, that any answer to the constitutional question would necessarily be constructed from bits and pieces, from shards of the vessel. On this score, Taney's interpretive effort seems plausible, coherent, and even ingenious-certainly when measured against constitutional interpretations proffered by the most highly regarded Supreme Court Justices before and since. The jurisprudential fault I find in Taney's Dred Scott decision is not in the substantive interpretation of the Constitution, not in the answer to the question posed by the case. The fault I find is in the Court's decision to answer the question as posed, in its decision to decide. But this decision, we will see, fits quite comfortably within the currently dominant conception of the Supreme Court's proper role in our society. And this is what makes it so truly difficult, in the context of our contemporary norms of constitutional law, to say precisely what was wrong with Dred Scott.

49. See generally RoBINSON, supra note 31, at 168-247 {discussing constitutional provisions regarding slave importation, fugitive slaves and enumeration of slaves for purposes of electoral representation and taxation). 50. NOTES OF DEBATES, supra note 32, at 532.

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II. From the moment the Court first spoke in Dred Scott, it was criticized for addressing the constitutionality of the Missouri Compromise. Justice Curtis, in his dissent, charged that the court had "transcend[ed] the limits of [its] authority'; in reaching this question, because its initial holding that Dred Scott was not a citizen, and therefore could not sue in federal courts, had wholly disposed of the case. 51 As a technical proposition, however, Justice Curtis's charge does not hold. Chief Justice Taney clearly articulated an adequate jurisdictional justification for reaching the Missouri Compromise question. Having first concluded that no black, slave or free, was a citizen of the United States for purposes of federal diversity jurisdiction, Taney then set out to show that even if he were wrong in concluding that Scott lacked citizenship on this ground, there was nonetheless another basis for holding that Scott lacked citizenship. If Scott were still a slave, Taney said, then it would be clear that he was not a citizen of Missouri, which he alleged as the basis for his jurisdictional diversity claim; and if, Taney continued, the Missouri Compromise forbidding territorial slavery were invalid, then Scott would have no basis for alleging his freedom; he would still be a slave and barred from federal court on this ground. 52 There are prudential grounds for criticizing Taney's decision to reach the Missouri Compromise issue, grounds of judicial tact, but the technical basis for Taney's position is unassailable and Curtis's charge is wrong. Taney did not go beyond deciding the question that Scott lacked citizenship for federal court diversity jurisdiction; he simply stated alternative grounds to reach this same conclusion. Nonetheless, this technical criticism of Dred Scott quickly attained acceptance as a truism. In 1911 it was effectively rebutted in a notable article by Edward Corwin; 53 but he criticism has persisted. 54 David Potter has suggested an intriguing explanation for this resistant technical error by Dred Scott critics. The charge that Taney had violated the Court's own clear-cut jurisprudential rules was, Potter said, "a psychological godsend" 55 to the critics because they could both condemn the Dred Scott decision, which they detested, and yet affirm the sanctity of the Supreme Court, which they continued to revere. Potter thus points to the central irony arising from the Dred Scott decision. Though the Court's decision was anathema to antislavery forces in the North, and though its contemporaries (as well as subsequent observers) believed that the decision played some significant role in precipitating the Civil War by polarizing the ideological opposition of North and South, nonetheless the Supreme Court emerged

51. 60 U.S. at 589. 52. !d. at 427. 53. Corwin, The Dred Scott Decision in the Light of Contemporary Legal Doctrines, 17 AM. HIST. REV. 52 (1911). 54. PoTTER, supra note 2, at 283; KUTtER, supra note 2, at xiv. 55. PoTTER, supra note 2, at 284.

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form the Civil War with an extraordinary vote of confidence in the addition of the Fourteenth Amendment to the Constitution.;o By 1868, ~f course, the Court's personnel had dramatically changed; Taney had died and Lincoln had appointed five members, a majority of the Court. Nonetheless it is at least curious that the antislavery Republicans who had been burnt by Dred Scott, who had been directly subjected to the politically uncontrollable force of the Court's authority, and who were now in firm control of the national political institutions-it is a least curious that these men should frame the most substantial grant of judicial power that appears anywhere in the Constitution. The fourteenth amendment in effect ratified the claim of judicial supremacy over Congress and the states in interpreting the Constitution; 57 it provided a more explicit, self-consciously intended grant of this judicial authority than John Marshall had available for his patchwork argument in Marbury v. Madison. 58 This is, then, a considerable irony (echoed, as we will see later, by the fact that a majority of the Court that decided Brown v. Board of Education59 in 1954-the most expansive invocation of judicial authority in our history-had been appointed by Franklin Roosevelt with an avowed mission to dismantle the regime of Rule by the Judiciary). There is a cultural explanation for this irony and for the persistent effort of Dred Scott critics to condemn the decision while praising the Court as an institution (to hate the sin but love the sinner, as it were). Dred Scott may have proven the Supreme Court's unreliability as a wise guide, as a moral arbiter, for a troubled nation. But the role of guide and arbiter was needed and there was no other institutional candidate for it. Henry Adams testified to this imperative in his Education, recalling his own attitude in 1870, little more than a decade away from the wounds inflicted by Dred Scott: Although, step by step, he [Adams] had been driven, like the rest of the world, to admit that American society had outgrown most of

56. The House Committee's initial draft of the fourteenth amendment provided a direct grant of authority only to Congress to "make laws" securing "equal protection" and other guarantees against hostile state legislation; this draft was found unacceptable because of fears about the political complexion of future Congresses. See Burt, supra note 28, at 92-93. The amendment was changed to its present form to assure that the judiciary would protect its purposes against future Congresses. See id. 57. While the history of judicial review properly goes back to Marbury v. Madison, and beyond, the Court's performance from 1864 to 1873 marked a significant deviation. The sheer volume alone is different. But more important was the political and public acceptance of this judicial function as a standard for measuring the legitimacy of power. Marbury v. Madison and Dred Scott occasioned bitter disagreements over the role of the judiciary. But while dissatisfaction occasionally existed with the results of the Chase Court's decisions, there were few who called into question the idea of exercising this judicial role. S. KUTLER, JUDICIAL POWER AND RECONSTRUCTION POLITICS 125 (1968) (emphasis in original). 58. 5 U.S. (1 Cranch) 137 (1803). 59. 347 u.s. 483 (19754).

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its institutions, he still clung to the Supreme Court, much as a churchman clings to his bishops, because they are his only symbol of unity; his last rag of Right. 60 This clinging faith was the imperative that led the Supreme Court in 1857 to decide the constitutionality of the Missouri Compromise. On the Court itself, Justice Wayne gave most direct voice to this faith in his brief concurring opinion: [T]he Court neither sought nor made [this] case .... [W]e have only discharged our duty ... as the framers of the Constitution meant the judiciary to [do] .... The case involves private rights of value, and constitutional principles of the highest importance, about which there had become such a difference of opinion, that the peace and harmony of the country required the settlement of them by judicial decision. 61 Wayne thus clearly revealed his underlying assumption that an authoritative proclamation by the Supreme Court would effectively resolve this deeply divisive question, would somehow create unity from discord by waving the Constitution, the "rag of Right." Wayne's espousal of this assumption, of course, had an institutionally self-serving aspect. But he was not alone in this assumption. President Buchanan had spoken to the same effect in his inaugural address, just two days before the Supreme Court issued its decision. The status of slavery in the territories, he said, was ... a judicial question which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be .... 62 Buchanan's statement also had a self-serving quality, since it is likely that he had advance knowledge of the Court's intended disposition of the case and was quite cheerful as a personal matter in exhorting submission to it. 63 But Buchanan also had distinguished company in his avowal that the issue of territorial slavery "legitimately belongs" to the Court. This was also the considered judgment of the Congress-a judgment that had been recently embodied in legislation. Indeed, the proposition that this issue should be authoritatively resolved by the Supreme Court was, after 1846, the only position regarding territorial slavery that could find the concurrence of a majority in Congress.

60. H. ADAMS, THE EDUCATION OF HENRY ADAMS 277 (Modern Library ed. 1931).

61. 60 U.S. at 454-55. 62. J. Buchanan, Inaugural Address, in 6 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 2%2 (J.D. Richardson ed. 1903). 63. Mendelson, Dred Scott's Case-Reconsidered, 38 MINN. L. REv 16, 24 n.36 (1953).

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1846 was the year the House of Representatives approved the Wilmot Proviso, specifying that slavery would be prohibited from any territory acquired from Mexico in the then-pending warfare. 64 The Proviso was not accepted in the Senate, but its House approval nonetheless marked the first significant repudiation in our national politics of the terms of the Missouri Compromise of 1820, because the Proviso ignored the Compromise's geographic demarcation of slave and free territories. After four years of legislative stalemate regarding both the admission of new states and the organization of new territories, the Congress enacted a series of measures collectively known as the Compromise of 1850. 65 Two new territories, Utah and New Mexico, were organized with no specific provision made in either regarding slavery. Instead, the Congress seemingly delegated regulatory authority to the new territorial legislatures; but, at the same time, the Congress refused to decide what regulatory authority it could constitutionally delegate. By an artfully drawn provision, the Congress said only that the territorial legislative power "shall extend to all rightful subjects of legislation consistent with the Constitution of the United States." 66 Then, in subsequent provisions, direct appeals were authorized on the slavery question from the highest territorial court to the Supreme Court and jurisdictional amounts were abolished in such appeals.6' In 1854 Congress enacted the Kansas-Nebraska Act, explicity repealing the Missouri Compromise and instead enacting as a general proposition the evasive formula of 1850 regarding the slavery issue in the territories. 68 As one Senator observed, the Congress had enacted a lawsuit, not a law. 69 It had repealed the Missouri Compromise and had replaced it with an appeal to the Supreme Court. As it happened, Dred Scott's lawsuit, which found its way to the Supreme Court in 1856, did not come by this congressionally prescribed route. Indeed, the Supreme Court's invalidation of the Missouri Compromise in Dred Scott was in a practical sense redundant, since the Congress had repealed that act in 1854. But the issue was properly presented to the Court in a technical sense, since Scott claimed that rights had vested in him when that act was in force. Furthermore, beyond technicalities, the political branches were patently asking the Court to answer questions about the constitutionality of the Missouri Compromise that they were unable to resolve. As two of the Justices explained fifteen years later, in retrospective reflections on the Court's decision to decide Dred Scott, "the Court would not fulfill public expectation or discharge its duties by maintaining sPence upon these questions. " 70 64. 65. 66. 67. 68. 69.

PoTTER, supra note 2, at 21-23. Id. at 112-14. The Texas and New Mexico Act, 9 Stat. 446 (1850); The Utah Act, 9 Stat. 453 (1850}. See supra note 66. The Kansas-Nebraska Act, 10 Stat. 227 (1854). Mendelson, supra note 63, at 20 n.21 {quoting Senator Corwin). 70. !d. at 27 n.53.

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The Court thus fatefully undertook to decide questions that neither their contemporaries in Congress nor their antecedents in the Constitutional Convention had been prepared to resolve. This fact alone should have given some pause even to men supremely confident of their reasoning and rhetorical powers. But though this cautionary impulse is relevant, it is an incomplete basis for criticizing the Court's decision to decide. In retrospect, the Court's action may appear hubristic and impolitic. But in prospect. the times seemed desperate, communal peace seemed endangered, and the Constitution seemed applicable for resolution of the social questions at issue. Here is the nub of our contemporary problem in evaluating the Dred Scott case: The times often seem desperate; communal peace is frequently at stake in hotly litigated issues; the Constitution seems plausibly applicable to almost anything. What then should the Court have done? I believe the Court should have answered the underlying question presented to it by the Dred Scott case. But the specific answers provided by the Court were wrong. I do not mean that the Court should necessarily have given different answers to the questions regarding the constitutionality of the Missouri Compromise or the citizenship status of blacks-though I do believe that if the Court chose to answer these questions, they were obliged to give different answers. More fundamentally, however, l believe the Court answered the wrong questions in the case. To be sure, the Missouri Compromise and citizenship-status questions were presented and they were important; but they were not the central question posed by the case and they should have been answered, if at all, only after the Court had understood and answered the central question. The central question was both obvious to all the Justices and misunderstood by them. The central question was whether the Union would remain intact in the face of a deeply divisive national dispute. Put another, more prosaic way, the litigants (and those disputants whom they also represented) in effect asked whether, in view of the intense conflicts between them, it was necessary or even possible for them to remain members of the same political community. The Justices of course knew that this question hovered at the edge of all the pleadings in the case. But they acted as if the question were already settled-as if the continued existence of a political community was an agreed premise among the parties not requiring and even unfit for any questioning. By assuming rather than deliberating the answer to this basic question, the Justices may have thought they were resolving to continue the communal relationship, to preserve the Union. But they were wrong in this. Because they did not think about the necessary preconditions for a continued political union between deeply antagonistic parties, the Court took steps that were inconsistent with those preconditions. In saying this, l do not contend that the Court could have saved the Union if it had acted differently; there is no way to know this, and many reasons to think that disunion and warfare were inevitable by 1857. 71 I do contend that the Court's action favored 71. See PoTTER, supra note 2, at 27-50 (discussing underlying causes of Civil War).

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disunion and warfare in principle, even though its action may have had limited practical significance in bringing this result, and even though contrary action by the Court might not have averted this result. Stated abstractly, I believe that the Court decided the wrong questions in Dred Scott, that the real question at issue was not understood by the Court, and that the Court gave the wrong answer (as well as an unintended answer) to this real question. The real question was whether the Union should continue and the Court, without realizing it, answered that in principle the Union should be dissolved. Put thus baldly, these are paradoxical conclusions. The paradox may be resolved, however-or at least become clearer-by comparing Dred Scott to the Supreme Court's decision in Brown v. Board of Education. In my view, Brown both addressed this central question and answered it correctly. To demonstrate this, and to show how Brown both resembles and differs from Dred Scott, is to identify what was right with one and wrong with the other. III.

The two cases are almost a century apart. The first endorsed the oppression of blacks while the second embraced their liberation. But in their invocation of and justification for judicial authority there are significant similarities between Dred Scott and Brown v. Board of Education. The doctrinal basis for both decisions, first of all, has the same kind of historical vulnerability. The Court was more honest in Brown than in Dred Scott about admitting its inability to find support in the framers' original intention. But even Brown stated only that the historical sources were "at best, .. .inconclusive" 72 without clearly acknowledging that at worst, those sources contradicted the Court's ruling. The same Congress that approved the fourteenth amendment, after all, established an explicitly segregated school system for the District of Columbia. Segregated public education, moreover, was established in many Northern states when the amendment was adopted, though none of the framers or ratifiers suggested that the amendment invalidated that practice. 73 (Indeed, in 1896 when the Supreme Court upheld the "separate but equal" public accommodations law in P!essy v. Ferguson, it relied on an 1850 Massachusetts decision, written by the redoubtable Chief Justice Shaw, approving racially segregated public schools.) 74 The invocation of constitutional doctrine in Brown is thus at least as vulnerable to historic refutation as Taney's reading of black-citizenship status or congressional authority in the territories. Both decisions can also be justified by a frequently invoked canon of constitutional interpretation. But it is the same justification for both cases: John Marshall's sweeping directive for judges to interpret the Constitution 72. 347 u.s. 483, 489 (1954). 73. See LITWACK, supra note 11, at 113-152 (discussing racially "separate and unequal" education in antebellum Northern states). 74. 163 U.S. 537, 544 (1896) (citing Roberts v. City of Boston, 5 Cush. 198 (1850)).

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to facilitate its adaptation to changing times." The relevance of this justification points to another shared similarity and vulnerability of the decisions: that both rested on the judges' reading of the dominant moral conviction of their time. For Dred Scott that morality spoke explicitly of property rights and implicitly of popular disdain for blacks; for Brown, equality was the spoken norm, while popular distaste for Southern white brutality toward blacks was the unspoken message. 76 But though the Justices in both cases appealed to widely shared contemporary attitudes, and accordingly hoped for popular acquiescence, there was, nonetheless, no clear evidence of this support where it might have been expected-that is, among popularly elected officials. In both cases, numerous state legislative enactments were clearly hostile to the Court's ruling and the~ national government was stalemated, unable or unwilling to take any position on the issue. Indeed, in both cases, the very fact of congressional stalemate was construed by some as a justification for Court intervention. (Justic~: Jackson thus observed during oral argument in Brown, "I suppose that realistically the reason this case is here is that action couldn't be obtained from Congress.") 77 But though congressional stalemate might ordinarily prompt considerable judicial diffidence, there was one added similarity between Brown and Dred Scott that pressed the Justices toward action: the threat of civil warfa'!'e hanging over the litigated issues. None of the Justices in Brown were as opt:n in acknowledging their concerns on this score as was Justice Wayne in Droed Scott. But there was surely equivalent concern for "the peace and harmol!ly of the country" and hope that this could be assured by "the settlement of (the deeply divisive dispute) by judicial decision." 78 Finally, in both cases the judicial decision was met by a firestorm of protest, an increased polarization of publicly expressed attitudes among tlh.e disputants, and regional, popularly approved overt resistance to judicial authority. 79 Here, however, the similarities between the two cases end. Dr.ed Scott was repudiated by constitutional amendment and is now universally reviled; Brown was ultimately ratified by popular opinion and national legislative support and is now almost universally praised as an exercise of judicial authority. This ultimate difference may serve for some as an adequate 75. Marshall's dictum was the basis for Alexander Bickel's conclusion that if the fourteenth amendment had been an ordinary statute, it could not be read to prohibit school segregation in light of the circumstances surrounding its enactment, but that as a constitutional provision such reading would be permissible. See Bickel, The Original Understanding and the Segregation Decision, 69 HARv. L. REv. 1, 59, 62 (1955). 76. See G. MYRDAL, AN AMERICAN DILEMMA, THE NEGRO PROBLEM A.'ID MODERN DEMOC· RACY 44-49 (1944) (discussing Northern white attitudes toward blacks and Southern white racial policies). 77. 22 U.S.L.W. 3161 (1953). 78. 60 U.S. at 454-55. 79. See PoTTER, supra note 2, at 286, 294-95 (regarding Northern resistance to Dred Scott and parallels with Brown); B. MUSE, TEN YEARS OF PRELUDE (1964) (regarding Southern resistance to Brown).

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distinction between the two cases, but not for me. To claim the vindication of history works well· only in retrospect; it gives no guidance for action in confronting an uncertain future. There is, however, another difference between the two cases that I find dispositive. In both cases, the Court saw itself addressing profoundly divided disputants with apparently irreconcilable claims; in both cases, the Court conceived its role as preserving a communal bond, a political union, between these antagonists; but in Dred Scott the Court chose means toward this goal that the Court in Brown pointedly rejected. In Dred Scott the Court sought virtually to eliminate future occasions for possible contentious interchange between the disputants regarding the specific issue that divided them. Taney's opinion rigorously pursued this goal in three specific ways: by denying any congressional authority over territorial slavery, thus removing the issue from possible deliberation in the national legislature; by denying such authority to the territorial legislatures on the ground that they had only derivative powers from Congress, thus effectively shutting off any local deliberative process until statehood status had already been attained; and by closing off any possible access of blacks to federal courts, where aspects of the territorial slavery issue at least might have been publicly focussed in the litigative process. The Court thus defined the territorial slavery issue as an exclusively "private" question, not only in its insistence that public institutions were obliged unquestioningly to honor the "private rights" of masters in their slave property but also, and more fundamentally, in its ruling that no public issue was posed-that is, nothing was properly the subject of public deliberation as such-regarding the status of territorial slavery. Beyond the three specific ways that it removed the territorial slavery issue from the public agenda, the Court invoked a more general proposition toward this same effect: that this issue should be authoritatively and finally resolved by the Court itself. The Congress had invited the Court to assume this role, to be sure; but an invitation is not necessarily a command performance. The Court seized the opportunity purportedly to save the Union. There may have been a practical miscalculation here by the Court; its decision may in fact have done more to precipitate than to avert civil war. But that is not the basis on which I find fault in the decision. As decided, Dred Scott in principle did not and could not save the Union. This is because the decision was inconsistent in democratic principle with a continued political union, a continued communal relationship, between the antagonists. The Court purported to settle the antagonism by awarding total victory to one side and, concomitantly, by inflicting total defeat on the other. The only political relationship that can follow from this result is the relation of victor and vanquished or, to put the matter in its then-current signification, the relation of master and slave. Dred Scott thus did more than find constitutional validation for the enslavement of blacks. For the sake of argument, let us accept the proposition that this racist premise was enshrined

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in the Constitution, so that blacks were-as Taney said-not participants in the federal union but merely the properly of some participants. Accept the proposition, moreover, that the enslavement of blacks was not inconsistentas Taney argued-with the democratic principle of equality on which the Union, the American political community, was founded. Even swallowing these propositions, it cannot follow that democratic principles permit one acknowledged member of the American polity to enslave another. But this is the result embraced by the Supreme Court in Dred Scott-that the Northern whites who opposed territorial slavery were effectively enslaved by their defeat at the hands of Southern whites. This is not to say, however, that a contrary decision by the Court could have averted the enslavement of some whites by others. If the Court in Dred Scott had approved congressional power to prohibit territorial slavery (or if the Court had endorsed the theory, pressed earlier by antislavery lawyers, that the Constitution itself forbade territorial slavery80), then Southern whites would have been effectively enslaved at the hands of their Northern white brothers. The fact is that the Court in Dred Scott was confronted with a dilemma-an intractable dilemma in democratic principle. When one group (or even one person) cannot submit to the will of others without suffering what it (or he) regards as an excessive and intolerable defeat, then that defeat cannot be justified in democratic principle. 81 Majority rule is insufficient justification for this defeat. The underlying premise of majority rule is the equality of each voter, but if the election results so totally defeat the interests of one voter as he sees it, then his future as an equal member of the polity is in jeopardy. 82 The mere fact that he had been treated equally in the past is no justification for others to inflict this future deprivation, this ineradicable inequality as he sees it, on him. The fact that this one person (or group) construes defeat as intolerable enslavement is, however, no justification for him (or it) to inflict enslaving defeat on antagonists. This is the dilemma in democratic principle. There is no principled way out of it. There are only practical ways out-warfare in which defeat is involuntarily imposed or a unilateral breaking of communal relations, an involuntarily imposed secession from political union. In these fundamental and diametrically opposed disputes, the only way out consistent with the democratic principle of political equality among members of the same polity is if the antagonists change the terms of their dispute-if, for example, they can find some mutually agreed compromise; or one side can be persuaded to redefine defeat as acceptable, because on reflection it seems only a temporary and ultimately recoupable setback; or because the losing side 80. W. WIECEK, THE SOURCES OF ANTISLAVERY CoNSTlTUTIONALISM IN AMERICA, 17601848, 209-13 (1977). 81. I develop this proposition in Burt, Constitutional Law and the Teaching of the Parables, 93 YALE L.J. 455, 455-57, 483-85 {1984). 82. See id. at 455 n.l (regarding equality and majority rule).

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becomes convinced that its adversaries' defeat would be even more devastating and therefore less justifiable than its own loss. There are of course many kinds of persuasion. A threat of force is one kind; a demand for obedience based on a claim of unquestionably superior worth or status is another. But neither of these persuasive techniques rests on the democratic premise of mutually acknowledged equality. The only technique that qualifies on this score is an appeal to reason. This is not to invoke reason as narrowly conceived, cool rationality, but reason as a mutually engaged deliberative process in which appeals to powerfully felt emotions-fears, needs, angers, loyalties-play important parts: reason as public conversation. The acknowledged goal of this reasoning process must be persuasion based on respect for mutual equality-a process that must (paradoxically) acknowledge that the very definition of mutual equality is itself a properly disputable subject, even the most basic and most disputable subject, of public conversation. 83 Dred Scott fails on this score. It was an attempt to shut off public conversation which would thereby irrevocably break the bonds of communally acknowledged equal status among disputants-bonds that were already stretched thin by their intensely felt, diametric opposition. On this score, Brown v. Board of Education succeeds. Its success was not inevitable as a practical matter, since mutually respectful public conversation among the adversaries was not the immediate or perhaps even the most foreseeable result of the decision. 84 Brown was a success in principle. The Court committed itself to facilitating a process of public conversation, of mutually respectful dialogic engagement, between the adversaries. It thereby avoided the error in principle committed by Dred Scott. Brown presented the Court with the same dilemma of principle as Dred Scott: the disputants were making intensely felt, mutually inconsistent demands, so that victory for one was construed as intolerable defeat for the other. 85 In Brown, however, the defeat had already been inflicted on blacks by the institution of race segregation, whereas in Dred Scott, neither disputant had yet prevailed in the legislature regarding the status of territorial slavery. Thus, in Dred Scott, the Court wrongly undertook to settle a dispute that still raged unresolved among the antagonists, whereas in Brown, the Court rightly acted to unsettle a legislative resolution that one disputant found intolerable. This unsettling was all that the Court in fact did in Brown. The Court invalidated segregation laws because, as it correctly observed, these laws violated the democratic principle of equality by inflicting a permanently subordinate status on blacks (marking them, in effect, as 83. Id. at 486-89. 84. Muss, supra note 79; cf MYRDAL, supra note 76, at 1011-15 (Gunnar Myrdal's ominous forebodings ten years before Brown). 85. This was the basis for Her~rt Wechsler's famous critique of Brown as unjustified because no "neutral principle" transcended the opposed parties' positions. Wechsler, Toward Neutral Principle of Constitutional Law, 73 HARV. L. REv. I, 34 {1959). For a critique of this view, see Burt, supra note 81, at 463-64, 483.

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"permanent losers" in any disputes with whites). But though the Court ruled in principle that blacks and whites were equal, it did not specify the precise meaning of that equality. The Court did not dictate a new resolution for the disputants; by reopening the controversy, it forced the disputants into a process of sustained, direct public confrontation in forging a new resolution. This was the underlying meaning of Brown II, 86 where the Court refused to specify what would constitute an ultimately appropriate resolution of the race segregation dispute and instead remanded this issue for further proceedings in the various federal district courts. The practical effect of this remand was to create visible, orderly public forums where black and white disputants could confront and debate one another on the basis of an underlying premise of equality. Because of blacks' rigorous exclusion from political participation in the South, there was no other such public forum locally or nationally available in 1955. 87 Thus, unlike Dred Scott, which cut off all available forums for public conversation, Brown created such forums where there had been none. This same underlying meaning-that the Court would not dictate a resolution to the race segregation dispute but would force the antagonists into direct, sustained public contact to forge their own-was even more evident in the Court's effectively prolonged silence for more than a decade following Brown II. 88 During this time the Court broke its silence only to reiterate that Southern whites could not properly resist any public contact with blacks, any possibility of ever acknowledging that blacks and whites equally were members of the same political community. This was the meaning of the Court's response to the "massive resistance" invoked by Governor Faubus of Arkansas 89 and to the specific resistance employed by Prince Edward County, Virginia, in closing its public schools altogether rather than accepting the prospect of any racial integration. 90 But throughout this time, the Court did not say what specific resolution of the race segregation controversy would constitute an adequate acknowledgment of equal communal membership between blacks and whites-for example, whether race integration "in fact" was required or race segregation "by voluntary choice" was permitted and how soon all of these issues must be settled. The Court spoke to these specifics for the first time in 1968, announcing an end to this tolerance for delay in eliminating "root and branch" all aspects of racially separate public schools. 91 But by 1968 the national political institutions had offered a new answer to the underlying question that the Court had confronted in 1955-whether whites were prepared to acknowledge blacks as equal members of the same community. The answer was provided 86. Brown v. Board of Educ., 349 U.S. 294 (1955). 87. See MYRDAL, supra note 76, at 474-490 (describing Southern practices excluding blacks from political participation). 88. G. GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 765-66 (10th ed. 1980). 89. Cooper v. Aaron, 358 U.S. 1 (1958). 90. Griffen v. County School Bd., 377 U.S. 218 {1964). 91. Green v. County School Bd., 391 U.S. 430, 438 (1968).

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in the Civil Rights Acts of 1964, 1965 and 1968, the passage of each of which required the extraordinary (and, before 1964, unprecedented) amassing of a two-thirds vote in the Senate to override the Southern filibuster. 92 By these legislative acts, Northern whites embraced a communal bond, a political union, with blacks that had not previously been so explicitly acknowledged, or even truly believed, on either side. (This acknowledgment was perhaps most direct in the enactment of the "fair housing" title of the 1968 Act, which proscribed discriminatory practices more prevalent in the North than in the South.)93 The question originally posed by Brown had thereby been both broadened and transformed: it no longer was simply whether Southern blacks and whites were mutually prepared to acknowledge communal ties; it was now also whether Southern whites would acknowledge continued political union with the North explicitly conditioned on acceptance of the principle of equal communal membership with blacks. The context and meaning of community for Southern whites and blacks, and the ideal of equality in that community, had thus been radically changed for the original antagonists in Brown. The Supreme Court did not, and could not, force this transforming action by Northern whites. It could and did force the issue into stark visibility in national public forums, so that Northern whites could not avoid some explicit action, some response to the question posed by the Court. Now armed with the Northern response in 1968, the Court spoke again to Southern whites-but this time with a more pointed specificity: "Are you now prepared to acknowledge a mutual communal relation with blacks?" This question had been symbolically transformed, moreover, by more than the congressional acts; the Court itself had been changed from the time Brown was decided. Thurgood Marshall was then, in 1954, the principal advocate for, as well as a member of, the excluded minority; now, in 1968, he sat as a Justice of the Court. 94 But Southern whites might still have refused an affirmative answer to the Court's question. If they had done so, the original dilemma of Brown would have remained unresolved: the dilemma of achieving a communal bond based on mutually acknowledged equality between diametrically opposed anatagonists. This was the same dilemma, unresolvable as such, that Taney's Court faced in 1857; but it had ignored the dilemma, sought to override it by fiat. A hundred years later, the Court did at least implicitly understand this as a dilemma and it implicitly shaped its response accordingly: to highlight the dilemma as such for the antagonists rather than to obscure it by purporting to award total victory to one of them; and to press them 92. Thus only seven Senators outside the South voted against closure when it was first invoked in 1964. See Burt, supra note 81, at 485 n.97. 93. S. LUBELL, WmTE AND BLACK: TEST OF A NATION 140-45 (rev. ed. 1966); Hauser, Demographic Factors in the Integration of the Negro, 94 DAEDALUS 847, 850-53 (1965). 94. Justice Marshall was appointed to the Court in 1967; he had been appointed to the Court of Appeals for the Second Circuit by President Kennedy in 1962 and had resigned in 1965 to become Solicitor General at President Johnson's appointment.

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toward finding some mutually acceptable escape from this dilemma. But the Court in Brown and subsequent race segregation cases never explicitly drew this lesson to explain its various actions and inactions. There are of course many possible explanations for the Court's silence on this score. One possibility is that the Justices did not conceive their careful course as required (or perhaps even as justified) in principle, but instead saw themselves forced into their adroit gymnastics by a regrettable though unavoidable political reality. Whatever the explanation, the Court never articulated a clearly principled rationale for its cautious, Delphic progression following Brown I. Conflicting rationales were, however, at least hinted by Justices Frankfurter and Jackson during oral argument in Brown, according to Alexander Bickel's account: [T]he perceptive Iistener ... would have heard Mr. Justice Frankfurter probe the enforcement problem, worry about the possible gerrymandering of school districts that were supposedly not constituted on racial lines, and finally say: "Nothing could be worse from my point of view than for this Court to make an abstract declaration that segregation is bad and then have it evaded by tricks." And the listener would have noted persistent indications of Mr. Justice Jackson's feeling that the issue before the Court was better left to the legislature, and that the ideal solution of it from the Court's point of view would be to find a formula for making precisely a sort of "abstract declaration" that would encourage Congress to deal with the problem under the enforcement clause of the Fourteenth Amendment.95 Just before his appointment to the Court, Frankfurter had written an appreciative critique of Taney, ranking him "second only to Marshall" in "intellectual power" and "enduring contribution" to constitutional theory,% and characterizing his Dred Scott opinion as an unaccustomed lapse from "judicial self-restraint. " 97 The concerns Frankfurter expressed during oral argument in Brown seemed to be an application of this critique. He was eager to protect the public appearance of the Court's potency while his underlying conception of its proper role, as a final authoritative dispute resolver, was essentially similar to Taney's. 98 Immediately before his Court appointment, Jackson had also written about Taney and Dred Scott; his critique also seemed to lie beneath his expressed concerns about Brown: The vice of judicial supremacy ... has been its progressive closing of the avenues to peaceful and democratic conciliation of our social and economic conflicts .... 95. A. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 6 (1978). 96. F. FRANKFURTER, THE COMMERCE CLAUSE UNDER MARSHALL, TANEY AND WAITE 7273 (1937). 97. !d. at 67, 72. 98. Compare Justice Frankfurter's statement, dissenting in the reapportionment case: Disregard of inherent limits in the effective exercise of the Court's "judicial Power"

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[I]n the Dred Scott case ... the Missouri Compromise itself had ceased to be important. But there was still hope that American forbearance and statesmanship would prove equal to finding some compromise between the angry forces that were being aroused by the slave issue. That hope vanished when the Supreme Court held that the Constitution would allow no compromise about the existence of slavery in the territories. 99 [l]n the Dred Scott case ... the Missouri Compromise itself had ceased to be important. But there was still hope that American forbearance and statesmanship would prove equal to finding some compromise between the angry forces that were being aroused by the slave issue. That hope vanished when the Supreme Court held that the Constitution would allow no compromise about the existence of slavery in the territories.99 The implicit tension between Justices Frankfurter and Jackson was never made explicit in the Court's opinions in Brown; a coherent justification for Brown II, and an adequate distinction between Brown and Dred Scott, was never explicitly formulated. By 1968 the Court was not only prepared to abandon the "deliberate speed" formula of Brown II, but some Justices at least seemed ready to repudiate that entire enterprise. Justice Black thus indicated, in a 1968 television interview, that the Court had been wrong both as a matter of political judgment and of principle by tolerating delay in Brown Il. 100 He suggested that Southern whites would have more readily complied with an adamantly stated, authoritative judicial order in 1955. Black's retrospective political judgment may be correct; the practical basis for Frankfurter's counsel of judicial self-restraint thus may not find support in retrospect. But if, as a matter of practical politics, we are prepared to say that the Supreme Court should have acted in Brown as the Court acted in Dred Scott, then we are left with the task of distinguishing these two decisions in principle. Perhaps there is some better basis than I have found. But in any event, as Justice Jackson observed about Dred Scott, "[o]ne such precedent is enough!" 101

not only presages the futility of judicial intervention .... It may well impair the Court's position as the ultimate organ of "the supreme Law of the Land" in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court's authority-possessed of neither the purse nor the sword-ultimately rests on sustained public confidence in its moral sanction. Such feelings must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements. Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting). 99. JACKSON, supra note 2, at 321, 327. 100. Black Believes Warren Phrase Slowed Integration, N.Y. Times, Dec. 4, 1968, at I, col. 2. 101. JACKSON, supra note 2, at 327.

[11] On the Internal Relation between the Rule of Law and Democracy Jiirgen Habermas

In academia we often mention law and politics in the same breath, yet at the same time we are accustomed to consider law, including the rule of law, and democracy as subjects of different disciplines: jurisprudence deals with law, political science with democracy, and each deals with the constitutional state in its own way, one side in normative terms, the other from an empirical perspective. Even when legal scholars and social scientists refer from their different standpoints to the same objects, they treat law and the rule of law and, on the other hand, democracy as different matters. There are good reasons for this. Because political authority is, in whatever kind of regime, always exercised in forms of law, there exist legal orders where political force has not yet been domesticated by the rule of law. And there may again exist a rule of law, where the government has not yet been democratized. In short, there are legal systems without a rule of law, and a rule of law may exist without democratic forms of political will-formation. Both come together only within the frame of constitutional states. However, these empirical grounds for a division of labour in the analysis of the two subjects by no means implies that, from the normative standpoint of legal philosophy, the rule of law could be implemented without democracy. In this paper I want to treat several aspects of this internal relationship between the rule of law and democracy, which is essential for any constitutional state. This relation results from the concept of modem law itself (section 1) as well as from the fact that positive law can no longer draw its legitimacy from a higher law (section 2). Modem law is legitimated by the autonomy guaranteed equally to each citizen, and legitimated in such a way that private and public autonomy reciprocally presuppose each other (section 3). This conceptual interrelation also makes itself felt in the dialectic of legal and factual equality. It was this dialectic that first elicited the social welfare paradigm of law as a response to the liberal · understanding of law, and today this same dialectic necessitates a proceduralist self-understanding of constitutional democracy (section 4). In closing I will elucidate this proceduralist legal paradigm with the example provided by the feminist politics of equality (section 5).

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1. Formal Properties of Modem Law Since Locke, Rousseau, and Kant, a certain concept of law has gradually prevailed not only in philosophical thought but in the constitutional reality of Western societies. This concept is supposed to account simultaneously for both the positivity and the freedom-guaranteeing character of coercive Jaw. The positivity of law, the fact that norms backed by the threat of state sanction stem from the changeable. decisions of a political legislator, is bound up with the demand for legitimation. According to this demand, positively enacted Jaw should equally guarantee the autonomy of all legal persons; and the democratic procedure of legislation should in turn satisfy this demand. In this way, an internal relation is established between, on the one hand, the coercibility and changeability of positive Jaw and, on the other, a mode of Jaw-making that engenders legitimacy. Hence, from a normative perspective there is a conceptual relation - and not simply an historically accidental relation - between Jaw and democracy, between legal and democratic theory. At first glance, this has the look of a philosophical trick. Yet, as a matter of fact, this internal relation is deeply rooted in the presuppositions of our everyday practice of law. For in the mode of validity that attaches to Jaw, the facticity of the state's legal enforcement is intermeshed with the legitimating force of a legislative procedure that claims to be rational because it guarantees freedom. This is shown in the peculiar ambivalence with which the Jaw presents itself to its addressees and expects their obedience: that is, it leaves its addressees free to approach the law in either of two ways. They can either consider norms merely as factual constraints on their freedom and take a strategic approach to the calculable consequences of possible rule-violations, or they can comply with legal statutes in a performative attitude, indeed comply out of respect for results of a common will-formation that claim legitimacy. Kant already expressed this point with his specific concept of 'legality', which highlighted the connection between these two moments without which legal obedience cannot reasonably be expected: legal norms must be so fashioned that they can be viewed simultaneously in two different ways, as coercive laws and as laws of freedom. These two aspects belong to our understanding of modern law; we consider the validity of a legal norm as equivalent to the explanation that the state can simultaneously guarantee factual enforcement and legitimate enactment - and thus it can guarantee, on the one hand, the legality of behaviour in the sense of average compliance, which can if necessary be compelled by sanctions; and, on the other hand, the legitimacy of the rule itself, which should always make it possible to comply with the norm out of reasonable respect for the law. Of course, this immediately raises the question of how the legitimacy of rules should be grounded when the rules in question can be changed at any time by the political legislator. Constitutional norms too are changeable; and even the basic norms that the Constitution itself has declared non-amendable share,

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along with all positive law, the fate that they can be abrogated, say, after a change of regime. As long as one was able to fall back on a religiously or metaphysically grounded natural law, the whirlpool of temporality enveloping positive law could be held in check by morality. Situated in a hierarchy of law, temporalized positive law was supposed to remain subordinate to an eternally valid moral law and therefrom receive its lasting orientations. But even aside from the fact that in pluralistic societies such integrating worldviews and collectively binding comprehensive doctrines have disintegrated, modem law, simply by virtue of its formal properties, resists the direct control of a posttraditional morality of conscience, which is, so to speak, all we have left.

2. The Complementary Relation between Positive Law and Autonomous Morality Modem legal systems are built out of individual rights. Such rights have the character of releasing legal persons from moral obligations in a carefully circumscribed manner. By introducing rights that concede to agents the latitude to act according to personal preferences, modem law as a whole implements the principle that whatever is nqt explicitly prohibited is permitted. Whereas in morality an inherent symmetry exists between rights and duties, legal duties are a consequence of entitlements, that is, they result only from statutory constraints on individual liberties. This basic conceptual privileging of rights over duties is explained by the modem concepts of the 'legal person' and the 'legal community'. The moral universe, which is unlimited in social space and historical time, includes all natural persons in their life-historical complexity; morality itself extends protection to the integrity of fully individuated persons (Einzelner). By contrast, the legal community, which is always localized in space and time, protects the integrity of its members precisely insofar as they acquire the artificial status of rights-bearers. For this reason, the relation between law and morality is more one of complementarity than of subordination. The same is true if one compares their relative scope. The matters that require legal regulation are at once narrower and broader in scope than morally relevant concerns: they are narrower in scope inasmuch as legal regulation has access only to external, that is, coercible, behaviour; they are broader irt scope inasmuch as law, as an organizational form of politics, pertains not only to the regulation of interpersonal conflicts but also to the pursuit of political goals and the implementation of policies. Hence, legal regulations touch not only on moral questions in the narrow sense, but also on pragmatic and ethical questions, and on compromise formation among conflicting interests. Moreover, unlike the clearly delimited normative validity claimed by moral norms, the legitimacy claimed by legal norms is based on various sorts of reasons. The legislative practice of justification depends O!l a complex network of discourses and bargaining, and not just on moral discourse.

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The natural law idea of a hierarchy of laws (Rechten) at different levels of dignity is misleading. Law is better understood as a functional complement to morality. As positively valid, legitimately enacted and adjudicated, that is actionable, law can relieve the morally judging and acting person of the considerable cognitive, motivational, and organizational demands of a morality based entirely on individual conscience. Law can compensate for the weaknesses of a highly demanding morality that - if we judge from its empirical results provides only cognitively indeterminate and motivationally unreliable results. Naturally, this does not absolve legislators and judges from a concern that the law be in harmony with morality. But legal regulations are too concrete to be legitimated solely through their compatibility with moral principles. From what, then, can positive law borrow its legitimacy, if not from a superior moral law? Like morality, law too is supposed to protect the autonomy of all persons equally. Law too must prove its legitimacy under this aspect of securing freedom. Interestingly enough, though, the positive character of law forces autonomy to split up in a peculiar way, which has no parallel in morality. Moral self-determination in Kant's sense is a unified concept insofar as it demands of each person, in propria persona, that she obey just those norms that she herself posits according to her own impartial judgment, or according to a judgment reached in common with all other persons. However, the binding quality of legal norms does not stem solely from processes of opinion- and will-formation, but arises also from the collectively binding decisions of authorities who make and apply law. This circumstance makes it conceptually necessary to distinguish the role of authors who make (and adjudicate) law from that of addressees who are subject to established law. The autonomy that in the moral domain is all of a piece, so to speak, appears in the legal domain only in the dual form of private and public autonomy. However, these two moments must then be mediated in such a way that the one form of autonomy does not detract from the other. Each form of autonomy, the individual liberties of the subject of private law and the public autonomy of the citizen, makes the other form possible. This reciprocal relation is expressed by the idea that legal persons can be autonomous only insofar as they can understand themselves, in the exercise of their civic rights, as authors of just those rights which they are supposed to obey as addressees.

3. The Mediation of Popular Sovereignty and Human Rights

It is therefore not surprising that modern natural law theories have answered the legitimation question by referring, on the one hand, to the principle of popular sovereignty and, on the other, to the rule of law as guaranteed by human rights. The principle of popular sovereignty is expressed in rights of communication and participation that secure the public autonomy of citizens; the rule of law is expressed in those classical basic rights that guarantee the private autonomy

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of members of society. Thus the law is legitimated as an instrument for the equal protection of private and public autonomy. To be sure, political philosophy has never really been able to strike a balance between popular sovereignty and human rights, or between the 'freedom of the ancients' and the 'freedom of the modems'. The political autonomy of citizens is supposed to be embodied in the self-organization of a community that gives itself its laws through the sovereign will of the people. The private autonomy of citizens, on the other hand, is supposed to take the form of basic rights that guarantee the anonymous rule of law. Once the issue is set up in this way, the one idea can be upheld only at the expense of the other. The intuitively plausible co-originality of both ideas falls by the wayside. Republicanism, which goes back to Aristotle and the political humanism of the Renaissance, has always given the public autonomy of citizens priority over the pre-political liberties of private persons. Liberalism, which goes back to John Locke, has invoked the danger of tyrannical majorities and postulated the priority of human rights. According to republicanism, human rights owed their legitimacy to the ethical self-understanding and sovereign self-determination achieved by a political community; in liberalism, such rights were supposed to provide, from the very start, legitimate barriers that prevented the sovereign will of the people from encroaching on inviolable spheres of individual freedom. In their concepts of the legal person's autonomy, Rousseau and Kant certainly aimed to conceive of sovereign will and practical reason as unified in such a way that popular sovereignty and human rights would reciprocally interpret one another. But even they failed to do justice to the co-originality of the two ideas; Rousseau suggests more of a republican reading, Kant more of a liberal one. They missed the intuition they wanted to articulate: the idea of human rights, which is expressed in the right to equal individual liberties, must neither be merely imposed on the sovereign legislator as an external barrier, nor be instrumentalized as a functional requisite for legislative goals. To express this intuition properly it helps to view the democratic procedurewhich alone provides legitimating force to the law-making process in the context of social and ideological pluralism - from a discourse-theoretical standpoint. Here I assume a principle that I cannot discuss in detail, namely, that a regulation may claim legitimacy only if all those possibly affected by it could consent to it after participating in rational discourses. Now, if discourses- and bargaining processes as well, whose fairness is based on discursively grounded procedures- represent the place where a reasonable political will can develop, then the presumption of reasonability, which the democratic procedure is supposed to ground, ultimately rests on an elaborate communicative arrangement: the presumption depends on the conditions under which one can legally institutionalize the forms of communication necessary for legitimate lawmaking. In that case, the desired internal relation between human rights and popular sovereignty consists in this: human rights themselves are what satisfy the requirement that a civic practice of the public use of communicative freedom be legally institutionalized. Human rights, which make the exercise of popular

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sovereignty legally possible, cannot be imposed on this practice as an external constraint. Enabling conditions must not be confused with such constraints. Naturally, this analysis is at first plausible only for those civil rights, specifically the rights of communication and participation, that safeguard the exercise of political autonomy. It is less plausible for the classical human rights that guarantee the citizen's private autonomy. Here we think of the fundamental right to the greatest possible degree of equal individual liberties, though we also think of basic rights that constitute membership status in a state and provide the individual with comprehensive legal protection. These rights, which are meant to guarantee to everyone an equal opportunity to pursue his or her private conceptions of the good, have an intrinsic value, or at least they are not reducible to their instrumental value for democratic will-formation. We will do justice to the intuition that the classical liberties are co-original with political rights only if we state more precisely the thesis that human rights legally enable the citizens' practice of self-determination. I tum now to this more precise statement. 4. The Relation between Private and Public Autonomy

However well-grounded human rights are, they may not be paternalistically foisted, as it were, on a sovereign. Indeed, the idea of citizens' legal autonomy demands that the addressees of law be able to understand themselves at the same time as its authors. It would contradict this idea if the democratic legislator were to discover human rights as though they were (pre-existing) moral facts that one merely needs to enact as positive law. At the same time, one must also not forget that when citizens occupy the role of co-legislators they are no longer free to choose the medium in which alone they can realize their autonomy. They participate in legislation only as legal subjects; it is no longer in their power to decide which language they will make use of. The democratic idea of selflegislation must acquire its validity in the medium of law itself. However, when citizens judge in the light of the discourse principle whether the law they make is legitimate, they do so under communicative presuppositions that must themselves be legally institutionalized in the form of civil rights, and for such institutionalization to occur, the legal code as such must be available. But to establish this legal code it is necessary to create the status of legal persons who as bearers of individual rights belong to a voluntary association of citizens and when necessary effectively claim their rights. There is no law without the private autonomy of legal persons in general. As a result, without basic rights that secure the private autonomy of citizens there also would not be any medium in which to legally institutionalize the conditions under which these citizens, as citizens of a state, could make use of their public autonomy. Thus private and public autonomy mutually presuppose each other in such a way that neither human rights nor popular sovereignty can claim primacy over its counterpart.

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This expresses the intuition that, on the one hand, citizens can make adequate use of their public autonomy only if, on the basis of their equally protected private autonomy, they are sufficiently independent; but that, on the other hand, they can arrive at a consensual regulation of their private autonomy only if they make adequate use of their political autonomy as enfranchised citizens. This internal relation between the rule of law and democracy has been concealed long enough by the competition between the legal paradigms that have been dominant up to the present. The liberal legal paradigm reckons with an economic society that is institutionalized through private law - above all through property rights and contractual freedom - and left to the spontaneous workings of the market. This 'private law society' is tailored for the autonomy of legal subjects who as market participants more or less rationally pursue their personal life-plans. This model of society is associated with the normative expectation that social justice can be realized by guaranteeing such a negative legal status, and thus solely by delimiting spheres of individual freedom. The critique of this supposition gave rise to the social welfare model. The objection is obvious: if the free 'capacity to have and acquire' is supposed to guarantee social justice, then an equality in 'legal capacity' must exist. As a matter of fact, however, the growing inequalities in economic power, assets, and living conditions have increasingly destroyed the factual preconditions for an equal opportunity to make effective use of equally distributed legal powers. If the normative content of legal equality is not to be inverted into its opposite, then two correctives are necessary. On the one hand, existing norms of private law must be substantively specified and on the other hand, basic social rights must be introduced, rights that ground claims to a more just distribution of socially produced wealth and to more effective protection against socially produced dangers. In the meantime, of course, this materialization of law has in turn created the unintended side effects of welfare paternalism. Clearly, efforts to compensate for actual living conditions and power positions must not lead to 'normalizing' interventions of a sort that once again restrict the presumptive beneficiaries' pursuit of an autonomous life-project. The further development of the dialectic of legal and factual equality has shown that both legal paradigms are equally committed to the productivist image of an economic society based on industrial capitalism. This society is supposed to function in such a way that the expectation of social justice can be satisfied by securing each individual's private pursuit of his or her conception of the good life. The only dispute between the two paradigms concerns whether private autonomy can be guaranteed straightaway by negative liberties (Freiheitsrechte), or whether (on the contrary) the conditions for private autonomy must be secured through the provision of welfare entitlements. In both cases, however, the internal relation between private and public autonomy drops out of the picture.

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5. The Example of the Feminist Politics of Equality In closing, I want to examine the feminist politics of equality to show that

policies and legal strategies oscillate helplessly between the conventional paradigms as long as they remain limited to securing private autonomy and disregard how the individual rights of private persons are related to the public autonomy of citizens engaged in law-making. For, in the final analysis, private legal subjects cannot enjoy even equal individual liberties if they themselves do not exercise their civic autonomy in common in order to specify clearly which interests and standards are justified, and to agree on the relevant respects that determine when like cases should be treated alike and different cases differently. Initially, the goal of liberal policies was to uncouple the acquisition of status from gender identity and to guarantee to women equal opportunities in the competition for jobs, social recognition, education, political power, etc., regardless of the outcome. However, the formal equality that was partially achieved merely made it more obvious how women were in fact treated unequally. Social welfare politics responded to this, especially in the areas of social, labour, and family law, by passing special regulations relating, for example, to pregnancy and child care, or to social hardship in the case of divorce. In the meantime feminist critique has targeted not only the unredeemed demands, but als