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Many countries have constitutions that protect individual rights. Strong form judicial review (hereinafter ‘strong JR’) is the practice whereby courts, usually the ‘supreme’ court in a given jurisdiction, have the final power to strike down legislation that they perceive to be in conflict with constitutionally protected rights. The United States and Ireland are two jurisdictions in which strong JR prevails; the UK and New Zealand are two jurisdictions where it does not. In the US, judicial review was not enshrined in the original text of the constitution, but it was endorsed in the famous case of Marbury v Madison; in Ireland, the practice was explicitly enshrined in the text of the 1937 Constitution.
Strong JR is a controversial practice. It allows judges — who are usually unelected and relatively unaccountable officials — to strike down legislation that has been passed by the majority-approved legislature. Its democratic legitimacy is, consequently, contested. But it also has many supporters, particular among legal academics, who defend it is an appropriate check on the ‘tyranny of the majority’ and a potentially progressive force for good.
Some go even further. In his 1996 book Freedom’s Law, the late Ronald Dworkin argued that not only was strong JR a potentially progressive check on the tyranny of the majority, it was also consistent with (possibly protective of) democracy. Thus, far from there being any tension between strong JR and democratic decision-making, there was actually considerable harmony between the two, both in theory and in practice.
Jeremy Waldron is a long-time critic of this school of thought. He argues that strong JR is democratically problematic and that, in many instances, legislative process is the more appropriate forum for settling matters of individual rights and policy. He wrote a critique of Dworkin’s attempted reconciliation of strong JR and democracy in 1998.
Sadly, Waldron is not the most reader-friendly of political theorists. This blog post is my attempt to make sense of the objections he presents in his 1998 critique. On my reading, Waldron challenges two of Dworkin’s arguments. I’ll give these arguments names. I’ll call the first one the ‘deliberative argument’ and the second one the ‘necessary connection argument’. I’ll look at each in turn.
As a preliminary to doing that, it is worth noting that arguments for and against strong JR can usually be divided into two main categories:
Consequentialist Arguments: These are arguments that claim that strong JR is good/bad because it yields better/worse results (according to some measure of betterness) than alternative procedures for settling rights disputes.
Proceduralist Arguments: These are arguments that claim that strong JR is good/bad because it creates a procedure that is/is not consistent with the requirements of democracy.
Consequentialist arguments are most commonly marshalled in defence of strong JR (though sometimes are used against it) and proceduralist arguments are most commonly marshalled against strong JR. What’s interesting about Dworkin’s arguments is that they try to dispute the proceduralist arguments against strong JR, while at the same time defending it on consequentialist grounds.
1. The Deliberative Argument for Strong JR
Public deliberation is often thought to be part of what makes democracy a preferable mode of government. Democracy is not simply about getting individuals to vote on competing propositions and policy preferences; it is also about getting them to deliberate on these propositions and preferences. They get to defend particular policy preferences on rational grounds; they get to present reasons to one another.
But not all exercises in public deliberation are ideal. Sometimes public debate on contentious policies ignores the important values and facts that are at stake in those debate (witness the rise of so-called ‘post truth’ politics); sometimes public debate is reduced to fear-mongering, demonisation and ad hominem attacks. Surely anything that could improve the quality of public deliberation would be desirable?
That’s what Dworkin’s deliberative argument claims on behalf of strong JR. He thinks that strong JR can raise the standard of national debate:
When an issue is seen as constitutional…and as one that will ultimately be resolved by courts applying general constitutional principles, the quality of public argument is often improved, because the argument concentrates from the start on questions of political morality…a sustained national debate begins, in newspapers and other media, in law schools and classrooms, in public meetings and around dinner tables. That debate better matches [the] conception of republican government, in its emphasis on matters of principle, than almost anything the legislative process on its own is likely to produce.
(Dworkin 1996, 345)
- (1) Good quality public deliberation is important/essential for democracy: anything that facilitates or encourages it is consistent with (or contributes to) democracy.
- (2) Strong JR facilitates/encourages good quality public deliberation (possibly more so than the legislative process on its own).
- (3) Therefore, strong JR is consistent with/contributes to the conditions of democratic rule.
Waldron challenges premise (2) of this argument. I see five distinct challenges in what he has to say. The first is a modest challenge to the bracketed portion of premise (2):
- (4) Counterexamples: In countries without strong JR, good quality public deliberation can take place on matters of public importance.
Waldron appeals here to his experience of the UK and New Zealand, arguing that national debates about issues such as abortion are just as robust and well-informed in those jurisdictions as it is in the US. This may well be true, but, as I say, this is only a modest challenge to Dworkin’s argument. It doesn’t call into question Dworkin’s larger point, which is that strong JR is at least consistent with (and possibly facilitative of) good quality deliberation. The four remaining challenges take issue with this larger point, suggesting that strong JR can actually undermine good quality public deliberation.
- (5) Contamination problem: Strong JR can contaminate public deliberation by replacing the core moral questions with abstruse and technical questions of constitutional/legal interpretation.
This is probably Waldron’s most important critique of the deliberative argument. Take a contentious issue like whether the death penalty should be implemented. In the US, any debate about the desirability of the death penalty has to get into debates about the interpretation of the 8th amendment (the “cruel and unusual punishment” clause). It has to ask whether the death penalty in general is ‘cruel’ and ‘unusual’ or whether particular methods of execution are; it has to look at the history of constitutional jurisprudence on the interpretation of the 8th amendment. This often distracts from the core moral questions around theories of punishment and their respective moral desirability. We cannot have a full-blooded moral debate about the death penalty; we have to have one filtered through the lens of the 8th amendment.
For what it’s worth, I think this critique of strong JR is correct: public debate that is contaminated by legalistic concepts is less than ideal. But let’s not romanticise legislative debates either. They are often contaminated by political considerations that prevent the elected representative from engaging in a full-blooded moral debate.
Another problem, related to contamination, is this:
- (6) Mystification problem: When public debates have to be filtered through legal concepts and ideas, it has a mystificatory effect: the ordinary public is put off by the technical and legalistic framing, and are less able to contribute to the debate.
People often assume that legal arguments can only be properly understood after years of technical, professional training. It’s only once you have been schooled in the fine arts of legal interpretation, have familiarised yourself with the key legal doctrines and precedents, and mastered the legal mode of speech, that you will be able to say anything worthwhile. This excludes people from public debate.
This has another negative implication:
- (7) Anticipatory Defence Problem: People are unwilling to support or defend certain policy views for fear that they may be inconsistent with or contrary to the interpretation of certain constitutional provisions.
This is subtly different from the contamination and mystification problems. Here, the problem is not just that strong JR changes how we talk about certain issues; it also prevents certain issues (certain points of view) from ever getting to the table. Why? Because participants in the public discourse are put off by the possibility of judicial strikedown of a proposed reform. Daly (2017) has documented several examples of this happening in the Irish political context. Politicians in this jurisdiction often conveniently avoid controversial legal reforms on the ground that they may be ‘unconstitutional’, despite the fact that the Irish Supreme Court gives considerable latitude to the legislature to decide on the content of constitutional rights.
Finally, as Waldron points out, there is something a bit shallow about the kind of public deliberation Dworkin celebrates in the US:
- (8) Spectator Problem: When questions of political/public morality are finally settled/determined by courts, the general public tends to be reduced to mere spectators in political/legal reform.
In other words, Americans can have as many fine public debates as they like on the legality of abortion and same-sex marriage, but these debates have very little practical import. The law on those issues is only going to change when the US Supreme Court decides to overturn its previous decisions. The public deliberation is, consequently, a little hollow or empty.
This strikes me as being a good critique of what happens in the US. I am not sure that it applies as well to a country like Ireland where the constitutional referendum procedure is used quite regularly. Referenda can effectively bring judicially determined topics back onto the public playing field.
That’s Waldron’s critique of the deliberative argument. In the end, this argument is not too important. The far more interesting argument is the next one.
2. The Necessary Connection Argument
The necessary connection argument is a philosophically deeper defence of strong JR. It maintains that there is a necessary connection between certain individual rights and democracy. That is to say, unless those rights are protected there can be no (legitimate) democratic governance. It then adds to this observation the claim that strong JR can sometimes help to protect these rights from majoritarian encroachment and hence strong JR is consistent with democracy at a fundamental level (i.e. it is one of the things that makes democracy possible).
Let’s set this argument out in formal terms first:
- (9) Certain rights are necessary for democracy; if those rights are limited/encroached there can be no legitimate democratic governance.
- (10) Sometimes, strong JR can protect those rights from majoritarian encroachment.
- (11) Therefore, strong JR is not anti-democratic; it can be protective of democracy.
This is a weak version of the argument. It concludes merely that strong JR is consistent with democratic rule. A stronger version of the argument (which is probably closer to what Dworkin actually believes) would modify premises (10) and (11) to something like the following:
- (10*) Strong JR is a good way (or is often a good way) to protect those rights from majoritarian encroachment.
- (11*) Therefore, strong JR is not anti-democratic; in fact, it is often a good way to protect democratic rule.
Obviously, this stronger version of the argument is harder to defend. It requires some empirical support.
Now that we have a clearer sense of what the argument looks like, let’s burrow down into its key premises, starting with (9). Why is it that certain rights are necessary for democracy? Which rights might those be? Waldron identifies two broad classes of rights that animate Dworkin’s discussion:
Participatory Rights: These are rights that make it possible to actually participate in democratic decision-making (e.g. right to vote; right to be heard).
Legitimacy Rights: These are rights that, if they were not protected in a given society, would mean that any decision made through a democratic decision-procedure in that society would lack legitimacy (e.g. freedom of conscience, freedom of association, freedom of speech).
The connection between participatory rights and democratic rule is logical: it would not be possible to have democratic rule if you did not have those participatory rights. The connection between legitimacy rights and democracy is normative: we could imagine a world in which we can all participate in democratic decision-making procedures and yet those procedures would lack legitimacy because our opinions were suppressed or brainwashed into us.
The problem with legitimacy rights is that the potential pool of rights that fit within this category is indeterminate. There is much (reasonable) disagreement about what exactly is necessary for democratic legitimacy. We might all agree that a right to vote is essential, but should the voting system be first past the post or proportional representation? Do we need to protect certain minority groups in order to ensure democratic legitimacy? Must we privilege the opinions of some in certain contexts? Must all opinions be freely expressible or can some be legitimately curtailed? This indeterminacy creates problems for Dworkin’s argument.
Let’s assume that premise (9) is defensible. This moves us on to premise (10) (or 10* if you prefer). Waldron deals with a number of objections and replies to this premise. Some of them are of academic interest only; some of them are technical or esoteric. I’m going to ignore these and focus instead on the two major criticisms he launches against Dworkin.
The first criticism takes issue with Dworkin’s results-oriented approach to assessing the merits of certain rights-based decisions. In suggesting that strong JR can be a good way to protect democratic rights, Dworkin dangerously tiptoes into suggesting that the ‘ends justify the means’ when it comes to such rights. As long as the procedure (strong JR in this instance) protects the democratic rights it does not matter if the procedure was non-democratic in nature. Indeed, Dworkin almost exactly this in his writings:
I see no alternative but to use a result-driven rather than a procedure-driven standard…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 compliance with those conditions.
(Dworkin 1996, 34)
Waldron challenges this with a thought experiment:
Voting System Decision: Suppose two countries are debating whether to switch from using a first past the post voting system to using a single transferable vote system. Suppose it is true that the single transferable vote system is better for democracy. In country A (say the United Kingdom), the constitutionally recognised monarch grows exasperated by the parliamentary debate on the topic and decides to resolve the issue by decree, favouring the single transferable vote system. In country B, the issue is debated in public and decided upon by a popular referendum, implementing the single transferable vote (Waldron points out that this was what actually happened in New Zealand). Both countries end up with the same system. This system is democratically preferable. But can we really say that both systems are equally protective of democracy?
Waldron suggests we cannot: the means matter. To elaborate on this point, when it comes to assessing any decisions about democratic rights, there are two variables to keep in mind: (i) the result of the decision and (ii) the means to that result. Both can be consistent with democracy, or not (as the case may be). That means that when it comes to assessing such decisions, we have four possible scenarios with which to contend (illustrated below):
Waldron criticises Dworkin for assuming that scenario C is on a par with scenario A. They are not. Scenario A is clearly preferable to scenario C: it is more consistent with and protective of democratic values. This strikes me as being a relatively uncontroversial point, at least in principle. But I think that the really tricky question is how we should rank scenarios B and C. Should you favour a democratic means over a democratic result Waldron seems to suggest that he might follow Dworkin to some extent by ranking C above B, though his comments about the tyranny of the majority (below) suggest he has doubts about this.
That’s the major criticism of the necessary connection argument. The other point that Waldron makes is slightly more subtle and takes issue with the implication underlying the argument. In appealing to strong JR’s capacity to resist majoritarian encroachments on democratic rights, Dworkin, like many, is presuming the so-called ‘tyranny of the majority’. Waldron doesn’t like this. He thinks the phrase ‘tyranny of the majority’ trips too easily off the tongue and leads us to ignore other forms of tyranny.
The problem he has is this. Proponents of strong JR too readily assume that if the majority is or can be tyrannous it follows that strong JR is a legitimate check on that tyranny. That does not follow. All forms of decision-making have the potential to be illegitimate/tyrannous. Strong JR doesn’t pass muster simply because majority rule is acting up. Strong JR can be — and historically often has been — a conservative and anti-democratic force. So just because one system has its faults does not mean that we can jump to the defence of an alternative system. That system could be just as bad (possibly even worse).
Okay, so that’s it — that’s my summary of Waldron’s critique of Dworkin. To briefly recap, Dworkin defended strong JR on the grounds that it facilitated good quality public discourse. Waldron disputed this, suggesting that it can contaminate and mystify public discourse, leading politicians to act in a conservative and precautionary manner, and reducing most ordinary citizens to mere spectators. Dworkin also defended strong JR on the grounds that it protected rights that were essential to democratic rule. Waldron also disputed this, suggesting that when it comes to the protection of such rights the means matter: if we can protect them by democratic means this is better than protecting them through judicial review.