Melissa Schwartzberg intelligently raises the important question of how we might move from the ideal of the value theory democracy, to which she is sympathetic, to its institutionalization. I share the concern she voices about the extent to which democratic contractualism can be directly applied in democratic institutions, but I differ with the conclusion she draws in response to this concern.

Schwartzberg argues that democratic contractualism—my framework for interpreting the core values of political autonomy, equality of interests, and reciprocity—is too philosophically demanding to mandate institutions to use it directly. I agree; in fact, I never intended to imply that internal institutional reasoning must always directly mimic democratic contractualist reasoning. Like Jürgen Habermas, who labels theories with such an intention “mirror theories,” I view such a requirement as overly demanding. Instead, I proposed that democratic contractualism, and the value theory upon which it is based, should function primarily as a standard for evaluating the degree to which existing institutions live up to the ideal of democracy. In articulating what is required by this ideal, democratic contractualism, I argued, is particularly important in refining the meaning of the general core values of democracy and suggesting why they require rights. Indeed, without this refined framework it could be argued that the core values are consistent with anti rights theories such as act utilitarianism. Understood as a way of thinking about the ideal of democracy, democratic contractualism allows for a nuanced understanding of actual institutions that exclusively procedural theories do not.

In the last chapter of Democratic Rights, I provide an example of this nuanced understanding. First I employ the arguments developed earlier in the book to demonstrate why some of the Supreme Court's decisions, such as Lochner v. New York, have violated substantive and procedural features of democracy. However, I also point out how democratic contractualism vindicates some Court decisions that defend democratic rights in the face of legislatures that violate them. I argue that these decisions include not only protections of the right to vote but, more controversially, defenses of substantive rights, such as those of gay couples. Although I suggest why these rights would have been better affirmed by democratic majorities, in actuality they were not, and the Court defended democratic values when it protected them. Of course, to require that the Court or any institution exclusively use the language or principles of democratic self-governance that I defend in my book would be to employ a flawed mirror theory. Although there are often important intersections, legal reasoning is not political theory. However, as a standard for evaluation, the framework of democratic contractualism vindicates the Court's actions when it protects democratic rights.

Schwartzberg seems to endorse my contention that core values and substantive rights are fundamental to democratic legitimacy, but she claims that majoritarian institutions should have the exclusive power to discern and defend them. Thus, her view ultimately leads to proceduralism. On the issue of discernment, once we reject relativism about the content of democratic rights and concede that some of the specific rights I defend are fundamental, it follows that any institution can be judged in a particular case according to whether it affirms or violates rights. Schwartzberg suggests that majoritarian institutions can best defend democratic rights, but history shows that no one institution has had a monopoly on the protection or recognition of rights. Indeed, her argument would have a radical implication for democracy in the United States. It seems to require that we jettison all nonmajoritarian decision making. Such a move would throw the baby out with the bath water, denying all the important democratic protections provided by courts interpreting the Constitution over time and placing too much faith in legislatures. It would grant majoritarian institutions exclusive control over the interpretation and protection of democratic rights, shielding them from criticism on substantive democratic grounds when they violated these rights.