In his book, Corey Brettschneider defends a “substantive” conception of democracy—a “value theory of democracy”—against purely procedural accounts of democracy. Whereas “proceduralists” seek to define democracy strictly through reference to the (majoritarian) means by which decisions are rendered, Brettschneider fears that this leaves democracy rootless, at risk of producing undemocratic outcomes. His effort at solving the problem of “democratic autophagy”—the argument that democracy will consume itself through its own procedures, as I term it in Democracy and Legal Change—is twofold. First, he specifies the values that democratic rights should reflect and preserve. Second, he argues that even nonmajoritarian institutions, such as judicial review, act in a democratic fashion insofar as they help us to ensure that our laws actually do cohere with these values. The former effort is remarkably successful. In my view, however, the latter claim is less persuasive, partially because of the difficulty inherent in translating abstract substantive commitments into law.
The great strength of this book is Brettschneider's effort to identify precisely what it would mean for laws to be substantively democratic, without making democracy purely an instrument for the attainment of putatively true or just outcomes. In particular, while he acknowledges that procedural accounts of democracy reflect respect for citizens qua rulers, or “authors of law,” they may fail to respect citizens qua subjects, or “addressees of law.” Only if the legal outcomes of democratic procedures reflect and protect three “core values”—equality of interests, political autonomy, and reciprocity in the form of reason-giving—should we understand these laws to be fully democratic and to be capable of rightfully coercing addressees.
Although it would seem that Brettschneider has already provided a clear, three-pronged test of legitimacy deriving from the core values, he reshapes the three values into two critical, Rawlsian principles. Taken together, the two principles—“democracy's public reason” and “the inclusion principle”—generate a framework, “democratic contractualism,” which enables us to assess whether a particular law accords with the core values. The former principle holds that for coercion to be democratically legitimate, it must be defensible for reasons that are consistent with the autonomy and equality of democratic citizens qua whole. The latter standard demands that laws be justifiable to reasonable individual citizens, that is, those who respect the core values and are motivated to reach universal agreement through deliberation. Insofar as democratic procedures produce laws in accordance with the contractualist framework, then, these laws are legitimate.
Brettschneider argues that the contractualist “framework allows [him] to extend the value theory's argument for substantive rights into more controversial policy areas” (p. 54). His interest in examining the implications of his theory for pressing policy questions is deeply admirable, and he takes up these issues with great aplomb, focusing on the right to privacy, rights of convicted criminals, and the rights of private property and (relatedly) to welfare. We might have expected that Brettschneider, following a familiar logic, would have sought to argue that democratic decision making requires or presupposes a constellation of rights, such as freedom of speech, intellectual autonomy, or subsistence. This, however, emphasizes the instrumental value of rights for the exercise of democratic participation to an extent that he does not accept, and the arguments he instead offers on behalf of these “democratic rights” are fresh and consistently engaging. He argues, inter alia, that a prohibition on consensual homosexual conduct violates the free and equal treatment of citizens; that the death penalty is unjustifiable insofar as the relationship between citizens and the democratic state (from which the state's authority is derived) would be thus terminated; and that private property (with a robust welfare system) enables citizens' autonomy. These chapters are uniformly provocative and interesting, and deserve the attention of a wide audience beyond political theorists.
One might ask, however, why the core-values test cannot do the work with which Brettschneider seeks to task the contractualist framework. The core values constitute “an independent standard for assessing democratic legitimacy” (p. 26). That is, either a law is in accordance with “equality of interests,” “political autonomy,” and “reciprocity” and is thus legitimate, or it is not in accordance and thus not legitimate. That is, the test that he prescribes is indirect, insofar as it seeks to have us focus on whether the reasons that could be given for policies can plausibly accord with the core values, instead of simply assessing whether the policies themselves uphold the values of political autonomy or equality of interests or reciprocity.
Why should we care if laws passed via democratic procedures are evaluated against the contractualist framework or against the “core values” directly? The critical issue is the interpretive scope that the two alternatives generate—and this question is particularly important insofar as the safety of democracy against internal threats ostensibly rests upon the ability to ensure that laws properly reflect the core values. On the value-theory model, an institution with the power to assess the substantive democratic pedigree of a law—almost certainly a court, though the author maintains that his theory is detachable from a defense of judicial review—need only discern whether the law accords with the three values. Under the democratic contractualist framework, however, the institution must also assess the hypothetical arguments about the compatibility of a particular law with core values that could be offered by individual citizens who hold a variety of comprehensive doctrines and who aim at universal agreement. This would require the institution to develop an extremely robust doctrine of reasonableness. Further, the institution must ensure internally that its actors themselves are sufficiently “empathetic” in their deliberations (p. 67). The contractualist framework thus requires at least a two-stage analysis—each level of which generates considerable interpretive latitude—whereas the value-theoretic account requires only a single-level judgment, with the justifiability requirement already incorporated into the core value of reciprocity.
Although Brettschneider argues that the benefit for democracy often outweighs the cost, he argues against Ronald Dworkin—to his great credit, in my view—that there is indeed a loss for democracy when a majority vote is set aside by a court on the grounds that it would harm one or more of the core values. Thus, the broader scope of judicial decision making—to determine what constitutes the core of a core value, the penumbra of reasonable disagreement about the matter, and implicitly the overarching penumbra of reasonableness in general—under the contractualist framework should give us pause. On Brettschneider's account, the court acts democratically when it protects the core values; it fails to do so when it harms these values or strikes down legislation unnecessarily. But how can we tell when a court has acted to help or to harm democracy? Must we take the court's word for it? We have little choice in the matter, insofar as Brettschneider is willing to authorize a court to strike down even constitutional amendments it deems to be at odds with the core values. If the ultimate authority to specify the contours of our core values is situated with the court rather than with the people through the exercise of the amending power, it is difficult to claim, as he does, that we have retained any real commitment to majoritarian procedures as well as to substance.
No doubt the author is right that the quality of our democracy does indeed depend upon our ability to protect these core values, but there is, and can be, no institutional barrier to self-injury; all we can do is hope that we and our agents act to preserve rather than harm democracy, and that if we or they choose wrongly, we can correct the error swiftly. Though Brettschneider has made a major contribution through his description of the substantive values that should guide our democratic decision making, only through majoritarian procedures can we preserve the capacity to determine for ourselves the legislative implications of these values. The ongoing exercise of such procedures by citizens committed to these substantive values thus constitutes our best prospect for ensuring that democracy does not consume itself.
