1029
AGAINST MAJORITARIANISM: DEMOCRATIC VALUES
AND INSTITUTIONAL DESIGN
STEPHEN MACEDO*
INTRODUCTION ............................................................................................. 1029
I. THE “GAP” THESIS ............................................................................ 1030
II. WHY MAJORITARIANISM?................................................................. 1031
A. Waldron’s Argument for Majoritarianism................................. 1031
B. Majoritarianism and Judicial Review ....................................... 1033
C. Indeterminacy, Uncertainty, and Judicial Deference................ 1034
III. AGAINST “MAJORITARIANISM”......................................................... 1035
IV. MAJORITY RULE VOTING: A DECISION RULE NOT A POLITICAL
SYSTEM ............................................................................................. 1037
V. JUDICIAL REVIEW AS A DEMOCRATIC OPTION .................................. 1039
CONCLUSION................................................................................................. 1042
INTRODUCTION
“This is something tremendous, this is something unbelievable. We’re talking
above all of an idea of democracy that isn’t only majority rule, an idea of
democracy that is about minority rights and group rights and above all
individual human rights.”
– Kanan Makiya, remarks at a press conference in London before the second
Iraq war discussing a post-war governance plan.1
“Hard-line Shiite politicians have been saying with growing vehemence that . .
. American goals [such as a fair distribution of future oil revenues, lower
barriers for Sunnis seeking government jobs, and a militia law that would
demobilize armed groups such as Shiite militants] amount to an attempt to
deprive them of the victory they won at the polls, and that instead of placating
Sunni Arabs, a minority of about 20 percent in Iraq’s population of 27 million,
the United States should stand aside and ‘allow the minority to lose.’”
– Sabrina Tavernise and John F. Burns2
*
Laurance S. Rockefeller Professor of Politics and the University Center for Human
Values, Princeton University.
1
GEORGE PACKER, THE ASSASSINS’ GATE: AMERICA IN IRAQ 95 (2005); see also
SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 33 (2006) (“‘Without the Sunni
parties there will be no consensus government[,] . . . without consensus government there
will be no unity, there will be no peace.’” (quoting Iraqi President Jalal Talabani)).
2
Sabrina Tavernise & John F. Burns, Promising Troops Where They Aren’t Really
Wanted, N.Y. TIMES, Jan. 11, 2007, at A20.
1030 BOSTON UNIVERSITY LAW REVIEW [Vol. 90:1029
Competing understandings of democracy vie for our attention and support.
One understanding identifies democracy as the right of majorities to rule. This
has the advantage of simplicity and gains further support from the frequent
employment of majority-rule voting. Another understanding is more complex
but far more adequate. It insists that political systems be organized on the
basis of an abstract principle of political morality: political equality. It allows
opportunities for majority rule voting and direct popular participation to play
important roles in working democracies, but it asserts that legitimate
democracies are those that respect minority rights and promote fair and
inclusive deliberation.
Of course, we often disagree about the substance of particular rights claims,
and the objectively difficult question of how best to organize our institutions –
including judicial review – so as to realize a system of collective self-rule on
the basis of fair and inclusive deliberation and political equality. Perhaps
because of the complexities inherent in any account of democracy in today’s
world, there is much loose talk, and some impressive political theorizing, in
favor of the simple idea of democratic politics as majority rule. I would like to
argue here, however, that we should stop talking about “majoritarianism” as a
plausible characterization of a political system that we would recommend.
I. THE “GAP” THESIS
Ronald Dworkin seems to me correct with respect to a fundamental point
which is very often missed: the basic principle of democracy is political
equality3 and there is an important gap – an interpretive gap – between that
principle and the more concrete rules and norms that structure decision making
in particular institutional settings.
Importantly, majority rule is not a fundamental principle of either
democracy or fairness, nor is it required by any basic principle of democracy
or fairness. Rather, it is one among a variety of decision rules that may, but
need not, advance the project of collective legitimate self-rule based on
political equality.4 Majority rule is a decision rule that has some nice
properties, for example it is decisive when there are only two options, but its
virtues, both practical and moral, are easily and frequently exaggerated.
An excellent discussion of this general terrain can be found in Charles
Beitz’s Political Equality.5 Indeed, the core aim of that book is to insist on the
gap between the basic principle of political equality and more concrete
questions of institutional design, including the choice of voting rules and forms
of representation (e.g., proportional representation vs. single-member, first-
3
RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009
manuscript at 218-19, on file with the Boston University Law Review).
4
See id. (manuscript at 242).
5
See CHARLES R. BEITZ, POLITICAL EQUALITY: AN ESSAY IN DEMOCRATIC THEORY 55-67
(1989).
2010] AGAINST MAJORITARIANISM 1031
past-the-post systems).6 Questions of democratic institutional design are rarely
settled by reference to fundamental principles alone.7 This is an example of
what Dworkin might call objective indeterminacy.8
The debate over democracy, majority rule, and judicial review has often
been conducted at too high a level of abstraction. The interesting issue is what
constitutes the best overall system of collective self-government on the basis of
political equality. Judicial review – designed one way or another – may or
may not contribute to the improvement of legitimate self-rule. But judicial
review is neither ruled out by first principles of political morality, nor is it
required by first principles of political morality. Those principles need to be
worked out and interpreted in particular practical settings as we take up the
difficult issue of optimal institutional design. None of this is to criticize
Dworkin, because I think he has it pretty much right at the level of basic
principle.
It would be fruitful to recognize that actual democratic political systems are
not sensibly described as “majoritarian,” and then to move discussions of
optimal institutional design to less abstract terrain.
II. WHY MAJORITARIANISM?
A. Waldron’s Argument for Majoritarianism
Jeremy Waldron has advanced an argument for majority rule based on the
principle of political equality. He has argued that “final decisions” about
political questions – including individual rights and political processes
themselves – should be made by majoritarian procedures.9 Majoritarianism
can be supported on a variety of grounds, but the simplest and apparently most
morally basic defense is that when “equal” persons disagree about what the
rules or policies should be, the fairest way of settling the disagreement is to
give everyone an equal vote and the side that gets the most votes wins.
Majoritarianism appears to respect our political and moral equality by
submitting political questions to a procedure in which everyone has an equal
6
See id. at x-xi.
7
See id. at 138-40 (“[T]here is no general reason to reject a system of representation
simply because it does not adhere to the proportionality principle.”).
8
Professor Dworkin rejects indeterminacy as the default position and would require a
positive justification for a claim of indeterminacy rather than uncertainty, see DWORKIN,
supra note 3 (manuscript at 58-63), but, in some cases, abstract questions of democratic
institutional design may be objectively indeterminate. This is not to say that one cannot
make a sound case for particular reforms when one combines these principles with greater
information about particular contexts and historical patterns and pathologies.
9
JEREMY WALDRON, LAW AND DISAGREEMENT 299 (1999). Democracy is founded on
the premise of political equality: individuals equally hold rights, including an equal right to
participate in making majority decisions. This right to participate, Waldron maintains, is the
“right of rights.” Id. at 232.
1032 BOSTON UNIVERSITY LAW REVIEW [Vol. 90:1029
say; no one is regarded as more competent or worthy of having a greater say
than anyone else. Majoritarianism instantiates one straightforward
understanding of the principle of political equality: equal votes for equal
people and the greatest number wins.10
Dworkin calls this – deflatingly – the “head-counting” principle, and argues
that majority rule has no special claim to legitimacy.11 It certainly lacks
legitimacy if majorities oppress minorities and flaunt their rights. Even
Waldron at his most majoritarian concedes that some rights are conditions of
democratic legitimacy.12 So the question remains: why should we regard
majority rule as morally special? Why should a part of the people – even the
larger part – decide for the whole? Why should majorities make decisions
even about “the nature and limits of majority decision-making?”13 Waldron
has suggested an answer: politics is characterized by pervasive disagreement,
so we disagree over every standard that might be invoked to qualify or limit
majority decision, including the content and scope of those rights whose
observance is essential to democratic legitimacy. As Waldron has said: “[i]t is
disagreement all the way down, so far as constitutional choice is concerned.”14
Since a part will always decide for the whole, it is preferable that the ruling
part should be the larger part.
Majorities, Waldron has said, should have the final say on political
questions, including the question of the procedures by which we normally
decide political issues. This is not because majority decisions are necessarily
legitimate but because when political disagreements are at issue – including
disagreements about the preconditions of legitimacy – there is no procedure
preferable to majority rule as a matter of basic principle. Waldron does not
rule out reliance on complex decision procedures and he favors space for
deliberation, but the majority should be the ultimate “decider” when there is
disagreement; and, presumably, complex procedures should not be deeply
entrenched in a way that is hard for the majority to change.15
10
These paragraphs draw on a draft paper I coauthored with Christopher L. Karpowitz
and Evan Oxman. See generally Stephen Macedo, Christopher L. Karpowitz & Evan
Oxman, Two Conceptions of Democracy (Mar. 7, 2006) (unpublished manuscript, on file
with the Boston University Law Review).
11
DWORKIN, supra note 3 (manuscript at 242-43).
12
WALDRON, supra note 9, at 283.
13
Id. at 298.
14
Id. at 295.
15
See id. at 289-312; Mark Tushnet, Against Judicial Review 2-3 (Harvard Law Sch.
Pub. Law & Legal Theory Working Paper Series, Paper No. 09-20, 2009), available at
http://ssrn.com/abstract=1368857 (arguing that “mechanisms of displacement must be
relatively easy” so that the people can “replac[e] the legislators who made choices of which
[they] disapprove); see also MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE
COURTS 96-100 (2000) (discussing the importance of ensuring non permanent majority
factions, especially in a system without judicial review).
2010] AGAINST MAJORITARIANISM 1033
It seems paradoxical to allow the majority to decide on the limits of majority
rule. However, majoritarians respond to this apparent paradox by pointing out
that every alternative method of decision will have the same liabilities as
majority decision – persisting disagreement, and some making decisions that
bind all – as well as the additional problem of privileging the “voices and votes
of a few” over a greater number.16 Majority rule at least allows “a voice and a
vote in final decision-procedure to every citizen of the society,” and when
numbers rule, the equality of each person is, at least in one aspect, preserved.17
Nevertheless, as Dworkin says, if all decision procedures are controversial,
saying the choice should be settled by majoritarian procedure simply begs the
question: why?18 Waldron’s response seems to be that the choice of any
ultimate settlement procedure is going to beg the question in its own favor, so
why not majority rule? Waldron’s argument seems to boil down to the
contention that we should prefer majority rule to minority rule in conditions in
which we disagree about everything else and know only that one side has
numbers on its side.
B. Majoritarianism and Judicial Review
Waldron has pursued the argument at a high level of abstraction, and his
examples are scarce. In reality, societies engaged in constitutional design often
manage to secure super-majority support for constitutions containing minority
rights guarantees and independent judiciaries charged with enforcing them.
These and other limitations on majority rule have become ubiquitous features
of democratic constitutions.
Of course, some disagree with particular rights guarantees and Americanstyle
judicial review. But what is the character of this disagreement, and is it
reasonable? Sometimes objections to minority rights claims are palpably
unreasonable, even when asserted by a majority of the people or the people’s
representatives. This becomes clearer when we shift the discussion away from
abstract conceptions of disagreeing “majorities” and “minorities” to more
concrete examples. For instance, it seems unreasonable for a majority of
Americans or their representatives to deny indigent persons accused of crimes
the right to publicly funded counsel or to deny adult homosexuals the liberty to
have consensual sex in the privacy of their homes. I agree with Dworkin that it
is a gain for democracy when a court that is empowered by a popular
constitution with the power of review insists upon protecting the equal rights
of accused persons or homosexuals. I am not moved by the observation that
some people disagree with the proposition that those rights should be secured:
what reasons do they have?
16
WALDRON, supra note 9, at 299.
17
Id. As with utilitarianism, there is another aggregative standard for decision: everyone
counts for one, nobody counts for more than one. BEITZ, supra note 5, at 55-67.
18
See RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION 18, 68-70 (1996).
1034 BOSTON UNIVERSITY LAW REVIEW [Vol. 90:1029
Waldron has other cards up his sleeve. He observes that there may be a gain
to democracy in one respect insofar as we agree that a right essential to
legitimacy has been unfairly denied by legislatures. But there is also a loss to
democracy insofar as “unelected and unaccountable” judges have invalidated a
duly enacted law.19
This critique is flawed. First, federal judges are not “unaccountable.”
Rather than being accountable at the polls, judicial accountability takes a
different form. Judges are accountable for the quality of the decisions they
reach and the reasoning and evidence that backs their decisions. Those
decisions and opinions are subject to intense scrutiny and debate. Courts are
not alone in this regard: democratic societies routinely and increasingly design
institutions that operate on the basis of multiple forms of accountability.20
Elections are one form of direct accountability, but as an accountability
mechanism, elections are deeply flawed in a variety of ways. Requiring judges
to give reasons in public and subjecting those reasons to intense scrutiny is
another, albeit indirect, form of democratic accountability.
Second, judges’ decisions are not final. True, judges’ decisions can be very
difficult to reverse, and this is certainly true of the U.S. Supreme Court. But
unpopular Supreme Court decisions eventually are reversed, and in the
meantime their force can be limited.21 Waldron, Tushnet, and others may be
right that other countries have done a better job than the U.S. of organizing the
interactions among courts and legislatures.22 Nonetheless, I do not argue that
the U.S. Constitution is perfect, nor does Dworkin.
C. Indeterminacy, Uncertainty, and Judicial Deference
Sometimes it seems that Waldron wants to advance a more modest
argument, focusing on the range of cases where differing legislative factions
disagree reasonably. In those instances, he seems to be saying, the courts
should respect the disagreement and not settle it.
Valuable observations on this score can be found in the early chapters of
Justice for Hedgehogs. Obviously, moral questions concerning rights arise
which strike us as uncertain: for example, when is a one-day waiting period an
19
WALDRON, supra note 9, at 286-87.
20
See John Ferejohn, Accountability and Authority: Toward a Theory of Political
Accountability, in DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION 131, 131-53
(Adam Przeworski et al. eds., 1999) (arguing that “[e]lectoral punishment . . . is a fairly
blunt instrument,” and that accountability through greater transparency can be much more
effective).
21
For example, Congress can enact legislation that limits the decision’s impact and
lower courts can narrowly interpret the holding or call the Supreme Court’s reasoning dicta.
22
See discussion infra notes 45, 46 and accompanying text (discussing how limited
judicial review in countries such as the United Kingdom and New Zealand has resulted in a
higher caliber of debate and discussion within the political branches). Similarly, Dworkin
does not argue that the United States’s institutional design is optimal.
2010] AGAINST MAJORITARIANISM 1035
unfair burden on the choice of a woman to have an abortion? And other
questions may be objectively indeterminate on the basis of abstract principles
alone.23 But if these are the sorts of cases that Waldron is trying to single out
as inappropriate for judicial resolution, then the stark and simple case for
majoritarianism – which I believe Waldron has distilled better than anyone –
sweeps far too broadly. We need to specify which questions concerning rights
are objectively uncertain and which are indeterminate.
Waldron mentions abortion as an example of a policy area where the U.S.
Supreme Court should have exercised greater deference.24 What we need to
know is exactly what is indeterminate or uncertain about the claimed abortion
right and why a woman should not have the right to reflect on that
indeterminacy or uncertainty and choose for herself. Waldron presumably
means that important aspects of the abortion question are matters of reasonable
disagreement even when we factor in the liberty interests of women; on the
other side, after all, are the interests of the unborn. Perhaps so, but the case
needs to be laid out in some detail to show that there really is a stalemate here
with powerful reasons on both sides and no sufficiently clear stronger case.
The bare fact of disagreement, without more in terms of supporting reasons,
often deserves little or no weight. Somewhere there will be a crank, zealot, or
nut who disagrees with the most sensible and well-justified of policies.
Obviously, I am not insisting that Jeremy Waldron pronounce on every
controversy. But our judgment about the reasonableness of his urging that the
federal courts stay out of the abortion issue (if he does urge that) will depend in
significant part on our assessment of the substantive merits of the contending
positions in this controversy. We need to address the issue at retail. It is hard
to see how we will get anywhere on the basis of talking about “disagreement”
in the abstract.
III. AGAINST “MAJORITARIANISM”
Waldron’s defense of majority rule is the best available, and it is
unsuccessful. Indeed, it is half-hearted, as Waldron favors complex
constitutional arrangements designed to protect minority rights and promote
equitable representation and fair deliberation.25 His model of well-working
legislative politics has many of the same admirable features as Dworkin’s
23
See supra notes 7-8 and accompanying text.
24
Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346,
1366-67 (2006) (citing both abortion and affirmative action as examples of rights-based
disagreements that “define major choices that any modern society must face”).
25
See id. at 1361-62 (“I assume that the [democratic] institutions, procedures, and
practices of legislation are kept under constant review from this perspective, so that if there
are perceived inequities of representation that derogate seriously from the ideal of political
equality, it is understood among all the members of the society that this is an appropriate
criticism to make and that, if need be, the legislature and the electoral system should be
changed to remedy it.”).
1036 BOSTON UNIVERSITY LAW REVIEW [Vol. 90:1029
partnership democracy. Waldron sensibly questions the legitimacy of
unicameral legislative systems, and other systems that do not adequately insure
minority representation and inclusive deliberation.26 But note that bicameral
systems are not majoritarian, but rather are super-majority systems. His more
recent criticisms of judicial review as practiced in the United States do not
depend entirely upon majoritarian premises, but also rely on the more
pragmatic assertion that, in practice, courts and judges do not improve, but
rather frequently degrade, deliberation in legislative and other political
settings.27 Waldron and other critics of American-style judicial review would
do well to simply stop talking about majoritarianism, which in real world
discussions of democratic institutions serves more to distract than to illumine.
It is unclear what people mean when they describe a political system as
“majoritarian.” Actual democratic polities (and non-public associations)
employ majority rule in particular phases of decision-making. But majority
rule is merely a voting rule, employed in particular settings. It has strengths
and weaknesses. It is decisive when there are only two options, but when there
are more than two options, there can be cycling of preferences such that there
will be no majority winner.28 So E.E. Schattschneider once said that the
people are a sovereign who can answer only one question: A or B?29
“Majority rule” cannot get us to the point at which majority decision-making is
possible; it cannot be all there is to democracy. When to employ it is generally
as much a matter of pragmatic as principled considerations: how is it liable to
work over time in the context in question, are their alternative voting rules that
would be fairer to all concerned, and perhaps more useful in other ways?
Mass elections for legislatures or executives in constitutional democracies
often empower governments that represent only pluralities of the public, rather
than majorities. In these real world systems, moreover, the choices that voters
face are typically highly constrained: a limited number of parties, perhaps only
two, compete for our support. Moreover, the office of modern citizen is not
26
Id. at 1361 & n.47.
27
Id. at 1369-95 (arguing that because neither majoritarian nor non-majoritarian
processes clearly produce better outcomes, majoritarian processes should be preferred
because they are procedurally superior); Jeremy Waldron, Compared to What? Judicial
Activism and the New Zealand Parliament, 2005 N.Z. L.J. 441, 442-45.
28
Add a third alternative and the possibility of intransitive preferences and the familiar
Arrow-type cycling problems (varying the order in which several pair-wise alternatives
come up for a vote) make it impossible to say that any particular results are preferred by a
majority.
29
See E.E. SCHATTSCHNEIDER, PARTY GOVERNMENT 52 (1942) (“The people are a
sovereign whose vocabulary is limited to two words, ‘Yes’ and ‘No.’”); see also E.E.
SCHATTSCHNEIDER, THE SEMISOVEREIGN PEOPLE: A REALIST’S VIEW OF DEMOCRACY IN
AMERICA 56-59, 137-38 (Harcourt Brace Jovanovich Coll. Publishers 1980) (1975)
[hereinafter SCHATTSCHNEIDER, SEMISOVEREIGN] (describing how the two-party system
“organize[s] the electorate by reducing their alternatives to the extreme limit of
simplification”).
2010] AGAINST MAJORITARIANISM 1037
such as to elicit a high level of responsibility. It is no insult to observe, with
Schumpeter,30 that being one citizen among millions is like being a member of
an enormously large committee – the incentive to do one’s homework before
meetings is weak. Mass popular elections surely do – as they ought – matter
greatly in modern representative systems, and legislative deliberation is often
highly admirable, well-informed, conscientious, and dignified. But there is no
insult or affront – either to the voters or to the democratic principle of political
equality – if, in designing and adopting popular constitutions, additional
mechanisms are adopted to further improve the quality of collective
deliberation: expert administrative agencies, politically arm’s-length
commissions, and courts with the power of review. Political institutions such
as these are crucial features of modern democratic systems. They are
accountable not on the basis of elections but often based on demanding
expectations that reasons will be given in public and subjected to intense
scrutiny.31
IV. MAJORITY RULE VOTING: A DECISION RULE NOT A POLITICAL SYSTEM
We should dispense with the word “majoritarian” as a shorthand description
for democracy, and instead consider when majority rule voting makes sense
and when it does not within fair, inclusive, and deliberative systems of
collective self-rule. Majority voting is one of many possible decision
procedures that are consistent with the underlying principle of political
equality; other decision rules are also consistent with political equality and
may be fairer and more inclusive. When it comes to elections for councils or
legislative bodies, proportional representation and “multi-winner” rules can
help insure that minorities get their fair share of power. Preferential voting can
allow for more fine-grained expression of preferences. In some settings,
consensus rather than majority rule is a reasonable aim of deliberation.32
Different procedures yield different accounts of what “the people” prefer, but
no one procedure is clearly superior on the basis of fundamental normative
principles, nor on the axioms of social choice theory.33 Perhaps most
importantly, supermajority voting rules in which minority interests gain special
30
JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 261 (2d ed. 1947);
see also SCHATTSCHNEIDER, SEMISOVEREIGN, supra note 29, at 135-36.
31
For example, administrative agencies are subject to robust due process requirements
codified in administrative law including publication of proposed rules, opportunities for
public comment, and judicial review of agency decisions. See Administrative Procedure
Act, 5 U.S.C. §§ 553(b)-(c), 702 (2006).
32
See JANE J. MANSBRIDGE, BEYOND ADVERSARY DEMOCRACY 31-33 (1983).
33
See Mathias Risse, Arguing for Majority Rule, 12 J. POL. PHIL. 41, 43-48, 57-62 (2004)
(critiquing arguments for majority rule and describing various alternate voting procedures);
see also BEITZ, supra note 5, at 58-67 (arguing that simple majority rule does not
completely satisfy social choice theory).
1038 BOSTON UNIVERSITY LAW REVIEW [Vol. 90:1029
protection are often preferable: we all might prefer these systems given the
possibility of finding ourselves in the minority.
Part of the apparent appeal of majority rule is its fairness (everyone counts
for one), but in the real world, where we know there can be persistent
majorities and minorities, insisting that democratic principles favor majority
rule seems to me wrong as well as imprudent. If majority factions develop,
whether through clusterings of voters or linkages across issues, the minority
may never get its way via majority rule, and its fundamental interests – and
basic human rights – may be ignored.34
Finally, majority rule is flawed in a way that other “aggregative”
conceptions often are. Like utilitarianism, majoritarianism looks at social
decisions as aggregation problems in which everyone counts for one and
nobody counts for more than one. Majority rule says that the loss for the few
is justified by the fact that the winners are greater in number. But why should
the minority accept this way of looking at it? Perhaps under a system of
“minorities rule” in which all groups have their turns to rule in shifting and
unstable governing coalitions, the (distributive) fairness criterion is satisfied
since theoretically, everyone gets a fair turn to be in the majority. In actual
politics, there can be consistent losers – “discrete and insular minorities”35 –
who are entitled to the protections afforded by basic rights. Fairness requires
that institutions should speak to the vulnerable perspective of minorities and
not simply lump them in with everyone else. Fairness requires that we look at
the justifiability of a political system distributively and not merely
aggregatively, as Jeremy Waldron himself has argued with great eloquence.36
34
See BEITZ, supra note 5, at 90 (“[F]air procedures ought not to allow the more or less
permanent exclusion of an entrenched minority from effective participation in politics.”).
As Douglas Rae has argued, if our collective choice about decision rules is guided by the
aim of assuring each person that the system maximizes the chances of getting what he wants
and not getting what he does not want, majority rule wins out only under extremely
restrictive conditions – strictly pair-wise alternatives, strictly individualistic preferences (no
factions or coalitions), no linkages across decisions, no accounting for intensity of
preferences, no asymmetry of gains and losses (no preference for avoiding bads over
achieving goods). See Douglas W. Rae, Decision-Rules and Individual Values in
Constitutional Choice, 63 AM. POL. SCI. REV. 40, 40-63 (1969) (discussing the difficulties
that permanent minority factions pose to majority rule). If we depart from these conditions
(by allowing for the existence of factions, by including non-individualistic preferences,
etc.), majority rule loses its appeal. See id.
35
United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1937); JOHN HART ELY,
DEMOCRACY AND DISTRUST, 152-53 (1980) (arguing that the real issue is not that the
minorities are “discrete and insular,” rather that status is the result of an underlying
prejudice that is harmful to a democratic system). Note here that the objection to a simple
aggregation approach refers to the underlying strategy of justification.
36
Waldron argues this point in his terrific review of John Rawls’s Collected Papers. See
generally Jeremy Waldron, The Plight of the Poor in the Midst of Plenty, LONDON REV.
BOOKS, July 15, 1999, at 3-6 (reviewing JOHN RAWLS, COLLECTED PAPERS (Samuel Freeman
ed., 1999)). For another account, see, for example, BEITZ, supra note 5, at 23 (“[T]he terms
2010] AGAINST MAJORITARIANISM 1039
The idea that majoritarianism is the moral core of democracy does not hold
up to critical scrutiny. Majoritarianism is not a uniquely authoritative or
legitimate decision rule in conditions of disagreement among political equals.
It has the virtue of simplicity, and it is decisive when there are two options.
However, majoritarianism as an ideology is a simplistic and morally
unattractive solution to the problem of collective self-rule amidst the great
diversity and disagreement of modern mass societies. It is not a promising
way of taking seriously the principle of fair treatment that we should also want
our politics to represent. As Dworkin says, it should not be fetishized, as it too
often is.37
V. JUDICIAL REVIEW AS A DEMOCRATIC OPTION
Judicial review should also not be fetishized in our accounts of
constitutional democracy, and the critics of American-style “strong” judicial
review are right to complain that many celebrate the Supreme Court’s role
without adequately considering the possible costs and drawbacks. It is much to
Dworkin’s credit that he defends judicial review without fetishizing it. As he
says, “Nothing guarantees in advance that judicial review either will or will not
make a majoritarian community more legitimate and democratic.”38 He denies
that the Supreme Court is, in principle, at odds with democracy, and argues
that its contribution, on balance, depends upon how it has actually behaved.39
Assessing the Court’s contributions to democracy cannot, therefore, be settled
at the level of principle, but requires careful attention to history and
institutional analysis.
The history is a mixed bag, and it is difficult to assess the impact of federal
court decisions on the political activities, energies, and capacities of other
institutions and actors in democratic politics. Some charge that the availability
of litigation strategies has sapped and wasted the political energies and
resources of those seeking social change. Gerald Rosenberg and others have
argued that federal court decisions make no discernible difference with respect
to desired outcomes.40 The courts are generally impotent to effect social
change but they frequently spur political backlash.41
of democratic participation are fair when they are reasonably acceptable from each citizen’s
point of view.”).
37
DWORKIN, supra note 3 (manuscript at 246).
38
Id. (manuscript at 250).
39
Id. (manuscript at 249-51).
40
See GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL
CHANGE? 353-54 (2d ed. 2008).
41
See id. at 415-19 (“[T]hose who rely on the courts absent significant public and
political support will fail to achieve meaningful social change, and may set their cause
back.”); Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80
VA. L. REV. 7, 71, 85 (1994) (arguing that “a transformation in American race relations was
. . . a virtual inevitability” and that judicial action through Brown “catalyz[ed] southern
1040 BOSTON UNIVERSITY LAW REVIEW [Vol. 90:1029
These charges of impotence and backlash are hard to assess, resting as they
do on suppositions about counterfactual history (i.e., what would have
happened had alternative strategies been pursued). The best empirical work on
these matters – by Michael McCann, Thomas Keck, and others – points to
ways in which those advocating for social change can be energized by court
decisions even if their opponents are also energized.42 While the litigation
strategies pursued by those seeking equal rights for gays and lesbians have
enjoyed mixed success,43 for example, it is very hard to imagine that the repeal
of sodomy laws nationwide would have occurred without the Supreme Court.44
Furthermore, who would have foretold twenty-five years ago that gay marriage
would be a realized fact in some states and the District of Columbia and a
matter of widespread debate and ferment in so many others? One must allow
that the strategy that has been pursued, which has prominently included
litigation, has in many ways been phenomenally successful.
Those who defend judicial review without fetishizing it are open to the idea
that there may be ways of organizing the interactions among courts and
legislatures that do a better job than the American model. “Weaker” forms of
judicial review facilitate the reconsideration of legislation deemed to infringe
on minority rights without invalidating it. Arguably, as Mark Tushnet,
Waldron, and others have posited, “weak” judicial review may be a better way
of improving legislative deliberation and the caliber of political argument
democratic politics as a whole.45 Waldron is especially impressed by the
caliber of debate in the British Parliament and speculates that this may be due
resistance to racial change”). See generally Robert Post & Reva Siegel, Roe Rage:
Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373 (2007)
(arguing that backlash is a normal part of “democratic constitutionalism” because it permits
the people to have an interpretive voice in constitutional law).
42
See MICHAEL W. MCCANN, RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS
OF LEGAL MOBILIZATION 58-65 (1994); Thomas M. Keck, Beyond Backlash: Assessing the
Impact of Judicial Decisions on LGBT Rights, 43 LAW & SOC’Y REV. 151 passim (2009)
[hereinafter Keck, Beyond Backlash] (observing how same-sex marriage law suits resulted
in a backlash against gay rights, but also laid the groundwork for future successful
litigation); cf. Thomas M. Keck, Party, Policy, or Duty: Why Does the Supreme Court
Invalidate Federal Statutes?, 101 AM. POL. SCI. REV. 321, 322-23 (2007) (examining how
often and under what circumstances “partisan elites regularly attempt to use the Court to
promote their own policy preferences and political fortunes”).
43
See Keck, Beyond Backlash, supra note 42, at 172.
44
See Lawrence v. Texas, 539 U.S. 558, 578-79 (2003) (holding a Texas sodomy law to
be a violation of substantive due process).
45
See MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL
WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 151-57 (comparing the British
and American models and illustrating a higher caliber of constitutional debate in the British
system).
2010] AGAINST MAJORITARIANISM 1041
to the absence of strong judicial review in Britain.46 Who knows? If it is true
it is likely due to a lot of things.
It seems to me that the issue of ideal design is difficult. Neither Dworkin
nor I argue that the American model is ideal. For example, in Justice for
Hedgehogs, Dworkin suggests term limits for Supreme Court Justices.47 The
American Constitution is now extremely old – some might call it “antique” –
and though it certainly has been durable, it would be very surprising indeed if
nothing could be learned from 220-plus years of subsequent constitutional
experience!
The challenge is to be fair in our assessments of particular institutions, while
also realistically assaying the opportunity costs of mobilizing for constitutional
reform when political energies are scarce, and doing all of this on the basis of a
defensible account of the values of democracy. Dworkin adopts a sensibly
pragmatic attitude toward institutional design. He insists that we should take
an interpretive posture toward the institutions that we have, making them the
best they can be, while also considering how they might be reformed.48
Dworkin does not argue for an abstract “right to judicial review,” as some
have done,49 though citizens do of course have a right to judicial review within
the constitutional system of the United States. The relevant individual right at
a more abstract level would presumably be a right to a fair hearing before
being convicted of a crime or otherwise disadvantaged by a determination of
law. It is worth noting that from a democratic standpoint, judicial review of
legislation – or some other reasonable form of hearing for individuals – does
provide a particular and valuable form of participation to individuals. In court
– or some other appropriate setting in which individuals can have their
complaints fairly assessed on the merits and in a way that is insulated from
partisan political pressures – the state and dissenting individuals appear as
equals, and the state must justify itself to particular dissenting parties,
responding to the merits of their claims. As Dworkin observed long ago: it is
wonderfully democratic that the state and dissenting individuals or groups
appear in court as equals (at least formally), there to argue for and against the
contention that the law offends individual rights or some other constitutional
46
WALDRON, supra note 9, at 289-94 (discussing how “limited review” may have
improved the quality of political dialogue on issues such as abortion and gay rights in the
United Kingdom and New Zealand); see also TUSHNET, supra note 45 at 157 (“[T]he
performance of legislators and executive officials [in systems with weak judicial review] in
interpreting the constitution is not . . . dramatically different from the performance of
judges.”).
47
DWORKIN, supra note 3 (manuscript at 251).
48
See id. (manuscript at 219-20) (“We do better when we recognize that the familiar
concepts of political virtue are interpretive concepts.”).
49
See Yuval Eylon & Alon Harel, A Right to Judicial Review, 92 VA. L. REV. 991, 997-
99 (2006) (arguing that judicial review protects a moral right to a hearing rather than merely
a legal “watch-dog” right).
1042 BOSTON UNIVERSITY LAW REVIEW [Vol. 90:1029
principle.50 In considering the democratic merits of judicial review, or other
forms of individualized hearings for individuals who believe their rights have
been unjustifiably infringed, it is worth recognizing that courts furnish
intrinsically valuable participatory forums.51
CONCLUSION
Judicial review of legislation is a permissible option when considering the
difficult question of optimal institutional design in modern democracies: it
offends no basic principle of democratic political morality. According some
power to judges (and other political officials) insulated from some partisan
political pressures may help political communities better achieve their
democratic aspirations. Deliberation on hard questions of institutional design
is not advanced by wrongly identifying democracy with majority rule.
50
DWORKIN, TAKING RIGHTS SERIOUSLY 216-17 (1977) (arguing that our judicial system
provides democratic opportunities for “the development and testing of the law through
experimentation by citizens and through the adversarial process”).
51
For two good discussions responding to Waldron, which I found helpful in writing this
paper, see Annabelle Lever, Is Judicial Review Undemocratic?, PUB. L., Summer 2007, at
280, which argues that Waldron has underestimated “the extent to which democratic forms
of politics can be judicial,” and Annabelle Lever, Democracy and Judicial Review: Are
They Really Incompatible?, 7 PERSP. ON POL. 805 (2009), which illustrates a democratic
justification for judicial review. For a good discussion of the philosophical and
constitutional underpinnings of judicial review and its implications on democracy and
equality, see RONALD DWORKIN, A MATTER OF PRINCIPLE 33-71 (1985).