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Constitutional Democracy and the Legitimacy of Judicial Review
Author(s): Samuel Freeman

Source: Law and Philosophy, Vol. 9, No. 4 (1990 - 1991), pp. 327-370
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SAMUEL FREEMAN
CONSTITUTIONAL DEMOCRACY AND THE

LEGITIMACY OF JUDICIAL REVIEW*
ABSTRACT. It has long been argued that the institution of judicial review is
incompatible with democratic institutions. This criticism usually relies on a
procedural conception of democracy, according to which democracy is essentially
a form of government defined by equal political rights and majority rule. I argue
that if we see democracy not just as a form of government, but more basically as
a form of sovereignty, then there is a way to conceive of judicial review as a
legitimate democratic institution. The conception of democracy that stems from
the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an
ideal of the equality, independence, and original political jurisdiction of all
citizens. Certain equal basic rights, in addition to equal political rights, are a part
of democratic sovereignty. In exercising their constituent power at the level of
constitutional choice, free and equal persons could choose judicial review as one
of the constitutional mechanisms for protecting their equal basic rights. As such,
judicial review can be seen as a kind of shared precommitment by sovereign
citizens to maintaining their equal status in the exercise of their political rights
in ordinary legislative procedures. I discuss the conditions under which judicial
review is appropriatein a constitutional democracy. This argument is contrasted
with Hamilton's traditional argument for judicial review, based in separation of
powers and the nature of judicial authority. I conclude with some remarks on
the consequences for constitutional interpretation.
The authority of American courts to review and declare unconstitu-

tional popularly enacted legislation is an aspect of our constitution
that strikes many as inconsistent with the idea of democracy. As H.L.A.
Hart says, English political and legal thinkers find this "extraordinary
judicial phenomenon" to be "particularly hard to justify in a democ-
racy".' Sidney Hook makes a similar claim: "Those who defend the
* I am indebtedto
John Rawlsand BurtonDrebenfor their helpfuladviceand
their comments on an earlier draft of this paper.
H.LA. Hart, 'AmericanJurisprudenceThrough English Eyes', in Essaysin
andPhilosophy(New York: Oxford University Press, 1983), p. 125.
Jurisprudence
Law and Philosophy9: 327-370, 1990-1991.

C 1990-1991 KluwerAcademicPublishers.Printedin the Netherlands.

328 SamuelFreeman
theoryof judicialsupremacycannoteasilysquaretheirpositionwith
any reasonableinterpretation of the theory of democracy".2 These
misgivingsarenot new;theyhavebeenexpressed sinceourbeginnings.
ThomasJeffersonheldjudicialreviewto be "averydangerous doctrine
indeed, and one which would place us under the despotismof an
oligarchy".3 "Thepeoplethemselvesare the only safe depositoriesof
government", he said,and thatimplies"absoluteacquiescence in the
decisionsof the majority- the vital principleof republics,from
whichthereis no appealbutforce".4
Throughoutmuchof our history,judicialreviewhasbeenexercised
in ways that are incompatiblewith any reasonableinterpretation of
democracy. Still,I believethere is a way to conceiveof democracy and
the role of judicialreviewwithinit which allowsit to be consistent
with democraticinstitutions.My basicclaimis that the set of moral
principlesand ideals that best justify democraticdecision-making
processesprovidea justificationfor the institutionof judicialreview
underappropriate circumstances. In arguingfor this,I do not meanto
engage in a fruitless dispute regardingthe meaningof the term
"democracy". Different forms of government canbe saidto be democ-
raticin one respector another.Rather,whatI aimto do is inquireinto
the reasonswe hold equalityof politicalrightsandmajorityruleto be
centralto democraticgovernmentand society.This will providea
basisfor ascertaining the institutionalrequirements of the democratic
idealof freedomandequality.It is with respectto theserequirements
that I will assessthe philosophicalclaim thatjudicialreviewis, not
simplyin its practicebut alsoby its nature,inherentlyundemocratic. I
arguethat this a prioriclaim is withoutfoundation,and that under
certainconditionsjudicialreviewcan serveto maintainand promote
thesameendsthatjustifyequalpoliticalrightsandmajorityrule.
2
Sidney Hook, TheParadoxesof Freedom(Berkeley:University of California Press,
1962), p. 95.
3 Letter to William
Jarvis, in P. L. Ford, ed., The Writingsof ThomasJefferson,vol.
10,pp. 160-61.
4 Koch and Pender, eds., The Life and SelectedWritingsof ThomasJeferson (New
York: Random House, 1944), p. 324.

Constitutional andtheLegitimacy
Democracy Review
ofJudicial 329
It mightbe askedwhatpracticalimportancetherecanbe in raising

the questionof the legitimacyof judicialreviewanew.Judicialreview
is takenfor grantedwithinour constitutional system.Questionsof its
no
legitimacy longer arise amonglawyers,politicians,or the public.
Constitutional debatenow centerson specificconstitutional issues,and
on such questionsas the scope of the Court'sauthorityof review,
standardsof review,and the natureof constitutionalinterpretation.
But all of theseissuesare connected.Manyof the argumentscitedin
public debatefor judicial restraintor againstthe WarrenCourt's
liberalreadingsof the Due Processor EqualProtectionClausesare
reformulations of earlierobjectionsto the Court'sclaim to final
authority interpretthe constitution.
to Whateverreasonstherearefor
or againstjudicial review,they retaintheir force when appliedto
issuesof constitutional My feelingis thatwe canfinally
interpretation.
resolvecontroversial constitutionalissuesonly if we can come to a
publicunderstanding of the requirements of a constitutionaldemoc-
racyandtheproperroleof thejudiciarytherein.
My discussionproceedsas follows:In SectionI, I discussthe philo-
sophicalbackground thatgivesriseto the disputeoverthe legitimacy
of judicialreview.Then in II, I reformulatethe traditionalobjection
and examinethe conceptionof democracyupon which it is based.
SectionIIIsetsforththe basesfor an alternative conceptionof democ-
racy that stems for the socialcontracttradition.SectionIV contains
the core of the argumentfor judicialreview.I contendthat if we
conceiveof democracyas a formof sovereignty andnot merelya form
of government,then judicial review can be construedas a shared
precommitment by free and equalcitizensto maintainthe conditions
of theirsovereignty. Whetherit is appropriate in a particulardemo-
craticconstitutiondependson strategicconsiderations. In V, I contrast
this argumentwith Hamilton'sargumentforjudicialreviewfromthe
natureof judicialpower,andin VI, I discussthe circumstances under
whichjudicialreviewis appropriate. SectionVIIcontendsthatjudicial
review,if appropriately exercised,does not underminethe basesof
I
democracy. close in sectionVIIIwith some remarkson the conse-
quencesforconstitutional interpretation.

330 SamuelFreeman
I. PHILOSOPHICAL BACKGROUND
Inevitablyone'sview regardingthe democraticlegitimacyor role of

judicial review must turn upon how he conceivesof democracy.
Accordingto one commonview,whatdemocracyessentiallyinvolves
is equalconsideration of and responsiveness to everyone'sinterestsin
deliberations on laws and socialpolicies.This way of conceivingof
democracyis amenableto a rangeof philosophicalviews,but it is
most closelyassociatedwith utilitarianism. Thereis nothingintrinsic
to utilitarianismthatwouldrequiremajoritarian legislativeprocedures;
whetherdemocracy,conceivedas equal representation and majority
rule, is an appropriate schemeof institutionsdependsupon social
and historicalcircumstances. And, as is well known,majorityvoting
as
procedures traditionally defined areill-suitedto reflectthe intensity
of individuals'preferences, whichis essentialto utilitariancalculations.
Still,it can be arguedthat undermodernconditions,and becauseof
theirsimplicity,majoritarian legislativeprocedures incorporating equal
representation and responsiveness to individuals' preferences approxi-
mate more closelythan any practicable alternativethe decisionsthat
wouldbe realizedundera morepreciseutilitarian calculus.One might
then conclude that what underliesand justifies our concern for
democracyand majorityrule is that they are the most workable
proceduresfor determiningthe balanceof preferencesin favor of
particular laws.
Considerations like these underliemanyobjectionsto judicialre-
view, or to the exerciseof that powerin casesthat do not involve
maintainingthe integrityof majoritarian legislativeprocedures.5Judi-
5 This kind of argumentunderlies and

JohnEly'sconceptionof democracy
judicial review. On Ely's affinities with utilitarianism, see his Democracyand
Distrust(Cambridge:Harvard University Press, 1980), pp. 187, n. 14 and 237-38,
n. 54; see also his, 'Constitutional Interpretivism, Its Allure and Impossibility',
IndianaLawJournal 53 (1978): 339, 405-08, where he argues that the appeal of
democracy can best be understood in terms of its connection with utilitarianism.
Also see Jonathan Riley, 'Utilitarian Ethics and Democratic Government', Ethics
100 (Jan 1990): 335-48, who argues that in the absence of interpersonal com-
parability,utilitariansare necessarilydemocratic.

Democracy ofJudicialReview 331
cial reversalsof majoritydecisionsviolatethe basicdemocraticprin-

ciple of equal considerationof everyone'sinterests,which majority
proceduresare designedto accommodate. This is a forceful,thoughI
believemisguided,conceptionof democracy, its bases,and the role of
judicial review. I suggestthatwe approach these issuesfrom a differ-
entperspective.
Appealto the commoninterestis a conventionof democracy, laws
are commonlyarguedfor and socialinstitutionsare claimedto be
justifiedon groundsthat they promotethe good of everyone.This
conventionproceedsfromthe premisethatthe interestsof all arenot
simplyto be consideredbut also are to be advancedby government
decisions.To groundthesecommonplaceideas,supposedemocracyis
representedin the following way: Rather than seeing democracy
essentiallyin procedural terms,we mightconceiveits essentialfeatures
in termsof the equalfreedomand independence of its citizens.This
fundamentaldemocraticvalue is specifiedby equal rights of self-
determination, and equalparticipationin the politicalprocedures that
settlelawsandbasicsocialinstitutionsaffectingcitizens'life-prospects.
The focushereis not uponindividuals' unconstrained preferences and
theirequalconsideration in (maximizing)the aggregatesatisfaction of
interests,but uponthe capacityandinterestof eachpersonto rationally
decideand freelypursuehis interests,and participate on equalterms
in politicalinstitutions
thatpromoteeachperson'sgood.
While not confinedto a specifictraditionin democraticthought,
this familyof ideas- equalfreedom,equalrights,andequalpolitical
participation - is centralto the naturalrightstheoryof the social
contracttraditionof Locke,Kant,and Rousseau,and to the modern
versionof that tradition,Rawls'sjustice as fairness.It is from this
perspectivethat I shall frame my inquiryinto the bases of equal
politicalrightsandmajorityrule,andassessthe forceof the argument
that judicial review is anti-democratic. Ultimately,the case for or
againstjudicialreviewcomes down to the questionof what is the
most appropriate conceptionof a constitutional democracy. I proceed
fromthe assumption thatthe basicideasunderlyingthe socialcontract
traditioncaptureour commitmentto democraticformsbetterthan
anytheoretical alternative.

332 SamuelFreeman
If we see the question of the legitimacy of judicial review in that

context, then it is no longer a foregone conclusionthatjudicial review
is undemocratic.Instead,the debate becomes an instance of a larger
conflict within democraticthought. This conflict is best describedin
terms of the tension that exists when we attempt to combine the
ideals expressedin Rousseauwith those of Locke.6It is the conflict
between citizen'sexerciseof their equal rights of politicalparticipation
and the various civil and social rights which we feel should not be
subject to political abridgement or calculation. The legitimacy of
judicial review ultimately depends upon how we strike the balance
betweenthese two setsof potentiallyconflictingrights.
II. THE PROCEDURAL CONCEPTION OF DEMOCRACY

AND ITS LIMITS
Let's return and considerthe bases given for the categoricalobjection

to judicial review: it is contraryto the will of the majority.This is
Jefferson'sobjection.As AlexanderBickel statesit:
The root difficulty is that judicial review is a counter-majoritarian
force ...
[This]is the reasonthe chargecan be made thatjudicialreviewis undemocratic
... Although democracy does not mean constant reconsideration of decisions
once made, it does mean that a representative majority has the power to
accomplish a reversal.7
6
I am grateful to Professor Burton Dreben for the suggestion that the dispute
over judicial review is best seen in these terms. The contrast is stylistic, and
reflects a common perception of these two figures. It is interesting to note that
while Locke provided for no institutional mechanism for resolving constitutional
disputes, Rousseau did; he envisions an institution with powers of constitutional
review. See On the Social Contract,Bk. IV, ch. 5, 'On the Tribunate', where he
discusses the need for a body, with no share in legislative or executive power,
"to protect the sovereign [people] against the government'. He says, "A well-
tempered tribunate is the firmest support of a good constitution. But if it has the
slightest bit too much force, it undermines everything".
7 Alexander
Bickel, The Least DangerousBranch (Indianapolis: Bobbs-Merrill,
1962), pp. 16-17. Jesse Choper puts the objection in this way: "[W]hen [courts]

A related reason offered to support the claim of the undemocratic

nature of judicial review is that judges are not electorallyaccountable
to the majority.AsJohn Ely says:
The centralproblemof judicialreviewis: a body that is not electedor otherwise
politically responsiblein any significantway is telling the people's elected
representativesthattheycannotgovernasthey'dlike.8
To formulate the basic problem of judicial review in terms of its

being contraryto majoritarianismand electorallyaccountablepolicy-
making focuses upon symptoms of what must be a deeper problem.
Constitutionally,federaljudges in the United Statesare appointedby
the executive, with life tenure subject to good behavior.There are
good reasonsfor this practice,some having to do with judicial review.
But the fact that federaljudges are not accountableto the majorityis
an institutional fact about the constitution of our national govern-
ment. Judges could be elected to office for a set term, as they are in
many states' systems, and reservationsabout judicial review would
remain.The basic problem with judicial review is not thatjudges are
not electorallyaccountableto majoritywill. Insteadit must be that the
exercise of this power works as a constraintupon the equal right of
citizens in a democracyto take part in and influence the government
decision-making processes that significantly affect their lives.
exercise the power of judicial review to declare unconstitutionallegislative,

executive,or administrativeaction - federal,state, or local - they reject the
product of the popularwill by denying policies formulatedby the majority's
elected representativesor their appointees.... Not merely antimajoritarian,
judicial reviewappearsto cut directlyagainstthe grainof traditionaldemocratic
theory".Choper,JudicialReviewand the NationalPoliticalProcess(Chicago:Uni-
versityof ChicagoPress,1980),p. 6. Both Bickel and Choperarguereviewis still
neededto promotemoralvalues(Bickel)andprotectminorities'rights(Choper).
8 andDistrust,pp. 4-5. MichaelPerryconcurs:"Inour political
Ely, Democracy
culture,the principleof electorallyaccountablepolicymakingis axiomatic;it is
judicial review, not that principle,that requiresjustification".M. Perry, The
Courts,the Constitution,
and HumanRights(New Haven:Yale UniversityPress,
1982),p. 9.

334 SamuelFreeman
The basis for the objection that judicial review is undemocraticis

expressedby the following principle:In a democracycitizens are to
have an equal right to participatein and to determinethe outcome of
the constitutional and legislative processes which establish the laws
with which they are to comply. I call this, following Rawls, the
principleof equal politicalparticipation.9I assumethat this principleis
a constitutionalrequirementof democracy.The constitution of any
government,whether written or unwritten,is that system of highest-
order rules for making and applying those social rules recognizedas
laws. As such it defines the basic laws and processesnecessaryfor the
enactmentand applicationof valid laws. The constitutionof a demo-
cracy is designed in accordancewith the principleof equal participa-
tion. Each citizen is to have an equal right to take part in constitu-
tionalprocessesthat establishlaws and basicsocialinstitutions.
The basic objection to judicial review might now be reformulated
in the following way:judicial review, since it involves the authorityto
overrule legislation enacted through proceduresthat accord with this
principle,is a limitation upon citizens'equal rights of participation.It
does not matter whether the judges making these decisions are
electorallyaccountableor not. By exercisingtheir equal politicalrights
throughlegislativeproceduresdesignedto accommodatethem, citizens
have alreadymade as democratica determinationas can be made. So
even if presidingjudges are elected and can be recalled,the damage
has alreadybeen done. The Court's revocation of popularly enacted
measures can be overridden only by constitutionalamendment, re-
quiringfarmore thana (bare)majorityfor enactment.
All of these argumentsassume that equal political rights requires
rule by a bare majority.Later (in IV) I contend that the connection
between equal participationand bare majorityrule is not as straight-
forwardas it is often taken to be in argumentsagainstjudicial review.
9 John Rawls, A Theoryof Justice (Cambridge, Mass: Harvard University Press,

1971), p. 221ff. Cf. San Antonio Independent School District vs. Rodriguez, 411
U.S. Reports 1, at 34, n. 74 (1973), where the Supreme Court says (quoting from
Dunn v. Blumstein, 405 U.S. 330 (1972)): "[A] citizen has a constitutionally
protected right to participatein elections on an equal basiswith other citizens".

But for now consider a more general question: How are we to

conceive of democracyif any of these objectionsare to succeed?There
are but two alternatives.First, we might understanddemocracy in
purely proceduralterms. By a proceduralconception of democracyI
mean the identification of democracy with a form of government
decision-makingwhere each is guaranteedequal rights of participation
and influence in proceduresthat determine laws and social policies,
and where decisions are reached in accordancewith the principle of
bare majorityrule. A proceduralconception of democracyinvolves no
substantiverestrictionupon the outcomes reachedby legislativedeter-
minations, other than those rights necessary to sustain legislative
proceduresthemselves.'0
The second view holds that though democracyinvolves substantive
requirementson the kinds of law that may be enacted and enforced,
still decisions on the nature and interpretationof these restrictions
must be decided as required by the principle of equal participation
and majorityrule. This conception of democracyoften underlies the
objectionthat the legislativebranchshould have exclusiveauthorityto
interpret the constitution." This implies that decisions about the
10 Brian
Barrydefines a proceduralconception:"I follow ... those who insist
that 'democracy'is to be understoodin proceduralterms.That is to say,I reject
the notion that one should build into "democracy"any constraintson the
content of outcomesproduced,such as substantiveequality,respectfor human
rights,concernfor the generalwelfare,personallibertyor the rule of law ....
The only exceptions... are those requiredby democracyitself as a procedure".
B. Barry,'IsDemocracySpecial?'Philosophy, andSociety,(fifthseries),ed. P.
Politics,
LaslettandJ. Fishkin(Oxford:Blackwell's,1979),pp. 155-56. William Nelson,
On JustifyingDemocracy (London:Routledge & Kegan Paul, 1980), p. 3, also
defines democracyin this way. TerranceSandalowargues,apparentlyon utili-
tariangrounds,that a purelyproceduralconceptionis morallysufficient,and that
judicialinterferencewith legislativeprocessis nothingmore thanthe substitution
of preferencesof a minority(viz.,judges and those whose intereststhey repre-
sent)for those of a majority.See 'The Distrustof Politics',N.Y.U.LawReview56
(1981):p. 446.
1 This seems to be the
conceptionof democracyunderlyingMichaelWalzer's
objectionsto judicial review in 'Philosophyand Democracy',PoliticalTheory9
(1981):p. 379.

336 SamuelFreeman
nature and extent of constitutionallimitations on laws can only be

decided through the very procedures that these restrictionsare in-
tended to limit. Whatever force this objection to judicial review has
must be established,I believe, on empiricalgroundswhich show that
the substantive requirementsof democracy are always on balance
better realized if their final interpretationis left up to legislative
authority.Though I doubt this can be confirmed,I will not argue the
point. My concern is the purely philosophicalobjection that stems
from a proceduralconception.
Now, of course if democracyis simply defined in proceduralterms
as a matter of stipulation, then it is trivial that judicial review is
undemocratic.But this is not an argument,for stipulativedefinitions
carry no argumentativeweight. A purely procedural definition of
democracy is fine, perhaps, for certain purposes, so long as it is
recognizedfor what it is. What I find problematicabout this account
of democracy,however, is that it unduly focuses our attention upon
but one aspect of societies that we think democraticto the exclusion
of other featuresthat are equallyimportant.It then leads us to ignore
the backgroundconditions for stable democraticregimes, as well as
the normativerequirementsof the values and ideals that underlieour
commitmentto democraticforms.
To see this we only need considerthe natureof politicalprocedures
and the principleof majorityrule. No one would argue that the mere
fact that a person makes a decision makes that decision right. The
same holds true of group decisions, whether by simple or special
majorityrules.We have criteriafor assessingthe rightnessof outcomes
resulting from any actual political decision-making procedure, no
matter how fair or appropriatethat proceduremay be. Furthermore,
there is no practicableway to design a political procedure which
would guaranteethat the resultsreachedby satisfyingits requirements
would alwayscorrespondto moral criteriaof assessment.These points
are but examples of the more general rule that principlesspecifying
what is right or fair to do (in this case, following certainprocedures)
can sometimesconflict with and be outweighedby other principlesof
right and justice. There are moral limits to the extent of the exercise
of equal political rights through majority legislative procedures,and

thereis no assurance thattheselimitsalwayswill be respectedby the

workings of these procedures.12
Giventhese limits on majorityrule, the questionis whetherthey
can be definedin a way thatis consistentwith democraticideals.Can
it be arguedthatmajorityruleprocedures mayundercertaincircum-
stancesworkout in sucha way thattheirresultscan be judgedto be
not simplyunjust,but alsoundemocratic? Onewaythismightoccuris
when majoritydecisionsresultin limitationson citizens'equalpoliti-
cal rightsby outrightdenialof theirrightto vote,or dilutionof their
votingrightsby malapportionment. Violationsof this sortarefamiliar
in Americanconstitutional law.But thesearenot the onlywaylegisla-
tive outcomes can be judged undemocratic.There are structural
requirements centralto democracyotherthanequalparticipation and
majority rule.
The absenceof a hereditarygoverningaristocracyholding real
positionsof politicalpower from which other classesare by law
excludedis arguablyan importantfeatureof democracyinsuredby
equal politicalrights.For equal participationrequiresnot only an
equalvoice and vote, but also equalaccessto politicaloffices.But to
argueagainstthe settingasideof non-politicalpositionsfor hereditary
classes,we need appealto considerations other than equal political
rights.The lack of an aristocracy is but an instanceof a largerrule
characterizing, if not actualpractice,then at leastthe publicidealsof
moderndemocracies. Namely,the absenceof socialand confessional
classsystemslimitingaccessto socialandpoliticalofficesto members
of favoredgroups.The mostfamiliarinstanceof suchclassesareracial
and ethnicgroups.But socialclasssystemsare alsodefinablein terms
of religious,moral,and politicalaffiliations,and in termsof property
and wealth.In moderndemocracies, not being a memberof favored
religiouspersuasions politicalpartiesdoes not generallyprovide
or
legal groundsfor excludingpeoplefrom socialand politicaloffices,
any more than does not being a memberof favoredhereditaryor
12
To use Rawls's phrase, no political procedure is an instance of perfect pro-
ceduraljustice. Rawls, TheoryofJustice,pp. 85, 359.

338 SamuelFreeman
racial groups.But, again, there is nothing inherent in equal political

participationand majority rule that would prevent the exclusion of
such unfavoredclassesfrom socialofficesand positions.
That personsnot be excludedfrom social and political positionson
grounds of race, sex, or wealth is associatedwith equality of oppor-
tunity, and that they not be excluded for reasonsof religious,moral,
or political affiliation has also to do with liberty of conscience and
freedom of thought. Equal opportunities and toleration of diverse
religious, moral, and philosophical views are important aspects of
modern democratic societies; if they are not fully allowed for in
practice,they are at least publicly assentedto as ideals to be obtained
undermore favorableconditions.
There are other backgroundconditionsof modern democraciesnot
guaranteedby equal political participation.All citizens of modern
democraciesare entitled to own and transferproperty(however this
institution is defined),to enter into contracts,and to engage in other
civil activities subject to whatever disabilitiesare recognized by law.
These are importantcivil, as opposedto political,rights.Also, each has
such equal rights of legal process as the right to a jury trial with
representationby counsel, the right to bring suits to redress civil
grievances,and the right against self-incrimination,all of which are
subsumedunder legal equality.Beyond this, the very idea of the rule
of law, though not peculiarto democracy,is nonethelesstaken to be
one of its conditions.But again, there is nothing inherent in equal
participationand majority rule that would prevent violations of the
many rights that come under this ideal:impartial,fair and open trials;
rules of evidence guaranteeingrationalproceduresof inquiry;publicly
promulgated and clearly defined laws; prohibitions against ex post
facto laws andbills of attainder;an absenceof executivefiat,etc.
Finally, an important feature of democraticsocieties is the public
recognitionthat there are areasof individuals'lives that are not subject
to infringement by political processes, but which are matters for
citizens' own control. We do not believe that a regime is democratic
which collectivelydictateswho individualsmarry,what they wear and
eat, where they live, and how they must spend their time during a
great part of the day. There are limits to the extent of the exerciseof

politicalpowerin democracies, and a pluralisticsocialorderof some

degreeis takenfor granted.Again,these conditionscannotbe ade-
quatelyjustifiedby appealto the natureof equalpoliticalrightsand
majorityrule.
Equalityin the distributionof politicalpowerwithingovernmentis
not then sufficientto characterizedemocraticideals or the social
conditionsnecessaryfor stabledemocraticprocedures. Howevercen-
tral certainpoliticalrights and proceduresmay be to democratic
society,theyarenot exhaustiveof whatis involvedin a society'sbeing
democratic. So,to characterizedemocracysolelyin procedural terms-
as if it werejust a procedurefor summingunconstrained preferences
- involvesa misconceptionof democracy,and of the role of equal
politicalrightsand majorityrule.Of course,we might call a society
democraticeven thoughit did not providefor all of the substantive
rights and institutionsmentioned.But we also would think that
conditionsarenot rightin this societyandthatsomethingcrucialwas
missing.Behind the descriptionof a constitutionand a society as
democraticare certainidealsregardingpersonsand theirrelationsas
citizens,and these idealsprovidethe reasonsfor holdingequalityof
politicalrightsto be of suchimportance.
III. THE CONTRACTARIAN JUSTIFICATION OF

DEMOCRACY
I havesuggestedthat the appropriate way to addressquestionsof the

legitimacyand scope of judicial review in a democracyis not by
focusingsimplyupon the politicalrightsand proceduresthat have
traditionallybeenheld to be centralto a democracy. Instead,we need
look to the valuesand idealsin virtueof which we hold such pro-
ceduralaspectsof democracies as equalpoliticalrights,majorityrule,
andpoliticalaccountability important.Thenit canbe askedwhatrole,
if any,judicialreviewhas in promotingor undermining thesevalues.
If it turnsout thatthereis no conceptionof judicialreviewthatwould
maintainand promotethe idealsthat standbehindour commitment
to democraticproceduresbetter than unconstrained majorityrule,
then the categorical claimthatjudicialreviewis undemocratic can be

340 SamuelFreeman
sustained.If, however,on some conceptionof its rolejudicialreview

can betterimplementthe idealsupon which politicaldemocracyis
based,then this is a reasonfor concluding,not simplythatjudicial
reviewcanbe compatiblewith democracy, but thatit is an important
democraticinstitution.
There are two relatedprinciplesoften cited in supportof equal
politicalrightsand majorityrule which might be thoughtto supply
sufficientjustificationfor these institutions,and which would lend
supportto a proceduralconceptionof democracy.It is sometimes
suggestedthat given the need for some kind of legislativeauthority,
fairnessalonerequiresthat it be equallydistributedand thatdisputes
be resolvedby majorityrule. Other thingsbeing equal,democratic
decisionprocedures maybe fair.But as the precedingsectionsuggests,
thisis not sufficientfor theirjustification, sincethereis nothingabout
majorityprocedures by themselvesthatwouldinsureagainstsubstan-
tively unfairoutcomes. Thus, to focus our concernsfor fairnesson
politicalprocesses alone is undulyshortsighted; if fairnessis to playa
role in the justificationof politicaldemocracyit must figurein at a
morefundamental level.
A second argumentfor proceduraldemocracyis one we have
alreadyencountered. It is thatdemocracyis basedin the principleof
equalconsideration of everyone'spreferences whateverthey may be,
anddecisionaccordingto the greaterweightof expressedpreferences.
Equalpoliticalparticipation and majorityrule are then justifiedon
groundsthatthey arethe bestpracticable meansto insurethatevery-
ones preferences get taken into account and considered. The problem
here is the same truncatedvision of the requirementsof political
justice,in thiscasefocusedon the democratic valueof equality.Forby
itself, the principleof equal considerationis nothingmore than a
requirementof formaljustice - treatlike casesalike - appliedto
politicalprocedures.It is an extremelyweak equalityrequirement,
compatiblewith substantive inequalitiesof mostanykind.Equalcon-
siderationof individuals' unconstrained preferences putsno restrictions
upon the considerations that will be taken into account in designing
laws, hence none upon the reasons that may be offered to justifythe
substantive inequalitiesthat resultfrom theseprocedures. And demo-
cracy,though it does not in
implyequality everyrespect, does ruleout

Democracy Review
ofJudicial 341
certainkindsof inequalities, and certainkindsof reasonsfor inequal-

ities, as substantively unjust.Moreover,thereis nothingaboutequal
consideration of interests,per se, thatwouldaccountfor such demo-
cratic ideals as equal freedom,self-determination, and individuals'
in
participation public affairs and decisions
on laws and socialforms.
In the end, equal rightsto vote and voice one'sviews are, on this
justification,not a partof a morebasicrightof participation at all,but
are simply a convenientmeans for registeringand satisfyingthe
greateraggregate of preferences.
Considernow a differentkind of argumentfor equal political
participation. Amongdemocratictheorists,the thinkerwith whomthe
ideaof politicaldemocracy is mostcloselyassociatedis Rousseau,for it
is initiallywith him that the principleof equalparticipation is taken
to be of such great importance.Rousseausays that, "The rule of
acceptingthe decisionof the majorityis itself establishedby agree-
ment and presupposesunanimityon at least one occasion."13 His
thought can be formulated in the followingway: The basic rules
accordingto which lawsare madearepartof the constitutionof any
regime.Sincethe constitutionstatesthe conditionsaccordingto which
all laws are made,by definitionit cannotitselfbe law (hence,estab-
lishedby majoritydecision),butmusthavesomeotherfoundation. The
foundationof the constitution, andtherewiththe laws,of a democratic
society is the equal freedom of individuals,basedin the capacityof
each to determineand rationallypursuehis good in accordance with
social requirements. For Rousseau,freedomis not doing what one
pleases in the absence of law andall otherconditions,but the rational
determination of one'sgoodin accordance with lawsa personcanpre-
scribefor himself A conditionof freedomin this sense is that a
personbe ableto acceptthe constraints imposeduponhis conductby
positive laws and other social conventions. The only conditionin
13
J.J. Rousseau,On theSocialContract,
Bk. I, ch. 5, last sentence.Kantmakesthe
same claim:"Theactualprincipleof being contentwith majoritydecisionsmust
be acceptedunanimouslyand embodiedin a contract,and this itself must be the
ultimatebasison which a civil constitutionis established". 'Theoryand Practice',
in Kant'sPoliticalWritings,ed. Hans Reiss (Cambridge:CambridgeUniversity
Press, 1970), pp. 73-74.

342 SamuelFreeman
whichwe can inferand expectthe acceptanceby free individualsof

the requirements of lawsis thatin whichlawsissuefromprocedures
which all could freely accept and unanimouslyagree to from a
positionof equal right.And the only constitutionalprocedurefor
makinglaws that free and equalindividualscould reasonably accept
andagreeto is thatof equalpoliticalrightandsomeformof majority
rule.
Partof the functionof the socialcontractin Rousseau's workis to
expressthe ideathatdemocracy is not simplyone kindof government
for
procedure makingordinarylaws, but that it is, more funda-
mentally,a formof sovereignty, one in whichfree and equalpersons
combineand exercisetheiroriginalpoliticaljurisdictionto makethe
constitution.14Underconditionswherefree and independentindivid-
uals are equallysituated,they would all accept,as the basis for
orderingtheircommonaffairs,the principleof equalparticipation. So,
it is not the fairnessor equal consideration of interestsimplicitin
politicaldemocracythat providesits foundation.Instead,equalrights
of participationin governmentarean extensionof the equalfreedom
andoriginalpoliticaljurisdictionof sovereign
democratic citizens.
Freedomand equalityare the basicvaluesthat democratictheory
has drawnupon sincethe time of Locke.Democraticpoliticalphilo-
sophyin largepart,and the contractarian traditionin particular,
has
been a seriesof attemptsto interpretandreconcilethesebasicdemo-
craticvalueswith the purposeof arrivingat the socialand political
conditionsappropriate for realizingthem.The socialcontractidealis
designed to accommodate this importantaspect of democratic
thought.Behind the ideal of a unanimoussocial agreementis the
thought that the appropriateway to determinethe principlesof
governmentand societyis by askingwhat free and equal persons
14
On the claim that democracyis a form of sovereignty,and the distinction
betweensovereignand government,see Rousseau,On theSocialContract, Bk. III,
ch. 1, paragraphs3-6; Bk. III, ch. 5, par. 1; Bk. II, ch. 6, note to par.8. James
Miller, in Rousseau:Dreamerof Democracy (New Haven:Yale UniversityPress,
1984) this
discusses aspectof Rousseau's work. The distinctionis also implicitin
andis statedin Kant'sessay'To PerpetualPeace'.
Locke's2dTreatise,

themselves,froma positionof equalright,couldmutuallyacceptand

agreeto as the conditionsfor theirsocialandpoliticalrelations. Equal
politicalparticipation and the institutionsof a politicaldemocracyare
a naturalextensionof thisbasicidea.
Severalargumentscan be made for politicaldemocracyfrom a
contractarian perspective.Here I will brieflyreviewthosemost rele-
vant to judicialreview.I assumethe frameworkspecifiedby Rawls.
The argumentsI set forth,if not explicitlymadein his works,are at
leastconsistent withhisview.
To beginwith, rationalindividualsconcernedwith the freedomto
determineandthe socialconditionsfor the advancement of theirends
have an interestin influencingthe politicalprocessesthat determine
the lawssignificantly affectingtheirprospects. Equalrightsof political
participation when combined with the other rightsgenerallyheld to
be necessaryfor effectiveparticipation (freedomof speechand of the
press,freedomof assembly,the rightto formpoliticalparties,etc.),are
a way of insuringthat everyone'sinterestsare represented, heardand
takeninto accountin processesof legislation.Openandpublicdemo-
craticproceduresprovidefor the expositionof socialpolicyand the
reasonsbehindgovernmentmeasures.Comparedwith other alterna-
tives, this sort of processis more likely to lead to the adoptionof
legislationthat is reasonableand does not consistentlydisadvantage
particularsegmentsof society.15In this way politicaldemocracyis
instrumental to free and equalindividuals' pursuitof theirgood and
theirmaintaining theirfreedom.So if we assumethe equalsituationof
individuals in a strongsense(asRawls'sveil of ignoranceis designedto
imply)in the agreementon principlesfor structuringconstitutional
forms,thennonewill havesufficientreasonto concedea greaterright
of politicalparticipation and influenceto others,given that others
might have a differentconceptionof whatis necessaryfor theirown
andothers'good.
15 William Nelson, On
JustifyingDemocracy,pp. 111-18, discusses the advantages
of open and public democratic procedures, and finds this to be the primary
justification for representativedemocracy advancedby Mill.

344 SamuelFreeman
Second,free and equalsovereignpersonswould agreeupon equal

rightsof politicalparticipation to insurefor themselvesthe conditions
of theirself-respect. Self-respect involvesa sensethatyour basicends
areworthpursuinganda confidencein yourcapacitiesto successfully
realizethem.It is an essentialaspectof anyone'ssuccessfulpursuitof
his good.Self-respect in this sensedependsuponthe respectof others
and their affirmative judgmentsregardingone's capacitiesand the
importance of one'sends. We usuallythinkof ourselvesas othersdo,
and our beliefs about ourselvesand the value of our pursuitsare
inevitablyaffectedby thejudgmentsof others.Now, howeverinconse-
quentialto ultimatelegislativeoutcomesthe exerciseof one'spolitical
rightsmay be in large moderndemocracies, the publicrecognition
that a personhas theserightsis essentialto his senseof self-respect.
For the acknowledgment that one is capableof takingpartin public
affairson an equalbasiswith othersis at the sametime a recognition
of thosesamecapacitiesof rationaldeliberation andjudgmentneces-
saryfor the successfulformulationand pursuitof his good in accor-
dance with fair terms of cooperation.Without this recognition,a
person'sconfidencein his capacitiesand the worthof his pursuitsis
undermined. And the thoughtthat one is a secondclasscitizen,not
recognized capableof takingpart in publicmatterson an equal
as
basiswith others,would be especiallydebilitatingin modernsociety,
wherebeliefin a naturalor divinelyordainedorderof thingsjustify-
ing fixedsubordinate positionsis no longerpubliclyacknowledged as
the basis of the politicalorder.The recognitionthat a personis
capableof participating in publiclife on equaltermsis then a condi-
tion of his self-respect;if so then equalpoliticalrightsarean impor-
tantconditionof thesuccessful pursuitof one'sgood.16
Third, as Mill argued, involvementin deliberations
our and deci-
sions the publicgood developsour reasoningcapacities,and also
on
broadensourinterestsbeyondour own concerns,leadingus to takean
interestin others.In havingto explainand justify our claimsand
positionsto others,we must take their interestsinto accountand
16 On the primarysocialgoodof self-respect
andits relationto certainequal
basic liberties, see Rawls, A TheoryofJustice,pp. 440-45, 543-47.

Democracy Review
ofJudicial 345
appeal to commonly held principles.Political participationcan then

lead us to a larger conception of society and to the development of
our reasoningcapacitiesand moral sentiments.Though political par-
ticipationis by no means the only form of associationthroughwhich
our capacitiesand sentimentscan be developed,it is an importantone
since it leads us to take a more comprehensiveview of society and of
the socialinterdependenceof individualsand groups.
That citizens develop their social capacities and sentiments is
importantfor a number of reasons:first, it is conduciveto the stability
of government and social forms. Social stability is a condition of
anyone's pursuit of his ends, and in a society where individuals
conceive of themselvesas free and equal, stabilityis dependent upon
citizens' desires to support and maintain social and constitutional
forms. So, as means for encouragingcitizens' desires to supportjust
social forms, equal rights of political participationare an important
way to insure the stability of social and constitutionalarrangements.
Second, in encouraging the development of various social virtues,
including a concern for justice, equal political participationlays the
bases for civic virtue and friendship. Civic friendship is not only
desirablefor the sake of its stabilizingconstitutionalarrangements,but
is important in establishingthe moral quality of civic life. As such
civic friendshipis itself a social good, and is a condition of our realiz-
ing other values of community.Finally,third, if we assume (as Rawls,
Kant and Rousseauall do) that the exercise and developmentof our
social and moral capacitiesare intrinsicto our good, then participation
in democraticpolitical proceduresis a primarymeans for everyone's
realizingthis aspectof theirgood.
A final argument for political democracy is that the rights and
principles that define it satisfy what must be a requirementon laws
and social forms if they are to be consonantwith freedom and mutual
respect. I have mentioned how the openness and public nature of
democraticproceduresis a means to just and effective legislation.But
publicity is important not just for reasons of limiting government
abuse.As Mill says,the proper function of a representativeparliament
is "to watch and control government:to throw the light of publicity
on its act; [and]to compel a full exposition of all of them
andjustification

346 SamuelFreeman
whichanyoneconsidersquestionable".17 The opennessandpublicityof

democraticlegislativeproceduresnormallyrequiresthat all seek to
publiclyjustify conductaffectingothersby appealingto principles
theycanaccept.Lawsaresocialrulesbackedby coercivesanctions, and
as such there are considerations of mutualrespectfor personsthat
requirethat they be publiclyenactedandjustified.18 Moreover,citi-
zens' knowledgeof the reasonsand purposesunderlyinglaws and
socialforms is a conditionof their freedom.For laws are primary
amongthe socialrulesthat determinewhat kind of personswe are
andcan come to be. They shapethe primarysocialinstitutionswhich
providethe framework withinwhichwe determineour courseof life,
andas suchareamongthe primarysocialinfluenceson our character
and the courseof life we take.Thatcitizensknowwhy legalrequire-
mentson theirconductareas theyaredeepenstheirunderstanding of
their characterand their interestsand promotestheir fundamental
interestin the rationalself-determinationof theirconductandthe free
pursuitof theirends.The publicenactmentandjustificationof laws
implicit in democraticpoliticalforms is in this way conduciveto
realizingthedemocratic idealof freedom.
To sum up, equalrightsof politicalparticipation are an extension
of the equalpoliticaljurisdictionof sovereigndemocraticcitizens.Free
and equalpersonswould acceptand agreeto equalpoliticalrightsof
participation out of theirconcernfor theirgood and to securetheir
fundamental interestin theirfreedomto decideandpursuetheirgood
on fair termswith others.It is by virtueof theirequalfreedomthat
democratic citizenssharein sovereignty;theyretainthatsovereigntyin
for of
providing equalrights participation in forms.
constitutional
Now Montesquieu says:19
17 Government
John StuartMill, On Representative Bobbs-Merrill,
(Indianapolis:
1958),p.81.
18
Cf.hereRawls'sclaimthatrespectfor personsis shownby treatingthemin
waystheycanseeto bejustified.TJ,p.586.
19
Montesquieu,The Spiritof the Laws,Bk. XV, ch. 2, par. 4. This passageis
discussedin John Rawls,'TheBasicLibertiesand TheirPriority',TheTanner
on HumanValue(SaltLakeCity:Universityof Utah Press,1982),vol. 3,
Lectures
pp. 1-87, at p. 82.

ConstitutionalDemocracyand theLegitimacyofJudicialReview 347
The freedom of every citizen constitutesa part of public liberty, and in a

democraticstate is even a part of the sovereignty.To sell one's freedomis so
repugnantto all reasonascanscarcelybe supposedin anyman.
The suggestion here is that there are basic rights and liberties in
addition to equal political rights that are a part of a person's freedom,
and his retaining them is also a condition of maintaining sovereignty
and independence. To freely give up any of these rights and liberties
would be to sell part or all of one's independence and equal status as a
sovereign citizen, an act so excessive and contrary to reason as cannot
be imputed to anyone. Certain basic rights and liberties are then
inalienable: any acts or agreements by which a person seeks to give
them up for the sake of other advantages are void and cannot be
enforced by the laws. It follows that any purported laws which seek to
infringe upon these basic rights, even if affirmed by a majority, are
invalid.
Among the basic rights and liberties that are a part of the freedom
of sovereign democratic citizens are liberty of conscience and freedom
of thought, freedom of association and of occupation, such rights and
liberties as are necessary to maintain the independence and integrity of
the person, and the rights and liberties implicit in the rule of law.20
As claimed in the previous section, many of these basic rights and
requirements of justice involve conditions and concepts that we natu-
rally associate with the idea of democracy. And they are not ade-
quately justified by the principle of equal participation. More impor-
tantly, given the imperfections of political procedures, these basic
rights are not in practice guaranteed by the operation of decision
procedures designed to satisfy the principle of equal participation. So,
20 I rely here on the basic libertiesimplicit in Rawls'sfirst principleof justice.

See,Rawls,'TheBasicLibertiesand TheirPriority'.On Rawls'saccountthereare
also certaininstitutionalrightsthat shouldbe a part of this list, those neededto
insure fair equalityof opportunityand to guaranteea social minimum.These
conditionsare needed for individualindependenceand the effectiveexerciseof
the basicliberties.A preciselist of basicrightsis a questionwe can passover for
purposesof discussingthe legitimacyof judicialreview.What is importantis just
thattherebe equalbasicrightsin additionto rightsof participation.

348 SamuelFreeman
the only circumstanceunderwhich free and equal personswould

acceptand agreeto politicalproceduresof any kind,includingequal
participation and majorityrule,is on conditionthat theseprocedures
be designedto maintainand protecttheir basicinterestsin the free
pursuitof theirgood,andtherewiththe equalbasicrightsthatsecure
their freedom.This has importantinstitutionalimplicationsfor the
designof a democraticregime,andin particular forjudicialreview.
I argue(in SectionIV) that the equalbasicrightsthat belongto
democraticsovereigntyprovidea differentunderstanding of the pur-
pose of legislativeproceduresthan that providedby a procedural
conceptionof democracy. The procedural conceptionrepresents legis-
lativeprocessesas a meansfor registeringcitizens'preferences without
placingany constraintson theirwantsor specifyingin advancethe
purposeof legislativeprocedures. Majorityrule becomes,in effect,a
devicefor maximizingthe sum (or the average)of satisfactions, with-
out regard to the disadvantages this imposes on some persons.
Though this may accuratelyrepresent the interest-group politicsthat
often pervadeAmericanpoliticallife, it does not accordwith the
publicidealswe professtojustifylaws.Forit is generallyacceptedthat
the purposeof legislativeproceduresin a democracy is to promotethe
commongood,therebyadvancingthe interestsof everyone.Thisis the
intuitiveideaunderlyingthecontractarian conceptionof democracy.
IV. THE DEMOCRATIC JUSTIFICATION OF

JUDICIAL REVIEW
We are now in a position to address the democratic legitimacy of

judicial review. I begin with some remarks on a democratic constitu-
tion. A primary aspect of modern constitutionalism is that the author-
ity to make laws is an ordinary power of government, one that is both
delegated and limited. In a constitutional democracy all political
authority is understood to derive from the sovereign people who,
conceived as equals, exercise their constituent power to create and
define the nature and limits of ordinary political authority. Legislative
authority is among the ordinary powers of government that have their
source in the peoples' constituent powers. As such it is subject to

whateverconstraintsare placedupon it by the sovereignpeoplein

exercisingthatauthority.21 Likeanypowerof governmentthe author-
ity to make laws is then fiduciaryand is only to be exercisedfor the
publicgood.
By contrast,we mightlook upon legislativeauthorityas havingits
sourcein the will of God or the naturalorderof things.Someperson
or groupis then representedas havingthe powerto make laws in
virtue of certain naturalperfectionsand virtues (as in Aristotle's
or by delegationfrom God or his worldlyrepresentatives
Politics), (as
in certainmedievaltheoriesand theoriesof royal absolutism).22 In
thesecasesthe criterionof the legitimacyof legislativeauthorityis not
conceivedin termsof the will of the governed.Thoughtheymightbe
viewed as agreeingto be ruled accordingto these principles,their
consentandagreement playsno roleinjustifyinglegislative
authority.
This is what distinguishesa constitutionaldemocracyfrom other
constitutional forms:all legitimatepoliticalauthorityis derivedfrom
the constituentpowerof the sovereignpeople,conceivedas equalsand
as havingequalrightsto determinethe politicalconstitution, andthis
authority is created by them with the understanding that it is to be
exercisedfor the good of each.23 So conceived,a democraticconstitu-
21 Constituentpower is the power of the people,joined togetheras a body

politic, to create political authorityand determinethe form of the political
constitution.By the exerciseof constituentpower,the people createinstitutional
formsendowedwith the ordinarypowersof government.These governingagents
of the peoplemake,apply,and administerlaws for the publicgood.The distinc-
tion between the constituentpower of the people and the ordinarypower of
governmentis common to the natural rights theory of the social contract
tradition.See Locke, Two Treatises (Cambridge:CambridgeUni-
of Government
versityPress,1960),SecondTreatise,chs. 11-13.
22 See, for example,Sir Robert Filmer'sPatriarcha,or theNaturalPowerof Kings
(1680),to which Locke's socialcontractdoctrine
waslargelya response.
23 Kant defines democracyin this way: "The democraticform of the state is
most complex.[forit containsthe followingrelationships]: first,the Will of all to
unite to constitutethemselvesa people;then, the Will of the citizensto form a
commonwealth;and, finally, [theirWill] to place at the head of this common-
wealth a sovereign,who is none other than this united Will itself". TheMeta-
physicalElementsofJustice Bobbs-Merrill,1965),Ak.339/110.
(Indianapolis:

350 SamuelFreeman
tion is a naturalextensionof social contractviews. It is the result of an

agreement,whose purposeis to define and set up political institutions
to determine laws and institutionsthat are necessaryfor the effective
exerciseof the equal basic rights that securepersonsin the free pursuit
of their good. The proceduresbest designed to realize this end meet
the democraticrequirementsof justice. On this conceptionof democ-
racy,what makes a constitutiondemocraticis not equal consideration
in majority procedures,but that it specifies rights and procedures
devised to promote the good of each citizen and maintain the equal
rights that constitute their democratic sovereignty.I will define the
role of majoritarianlegislativeproceduresin this context, and address
the legitimacyofjudicial review.
Constitutionalproceduresthat incorporateequal rights of participa-
tion are, we have seen, most likely to insure that equal freedom and
the good of each are realized. A just democratic constitution then
must specify constitutional rights and procedures that define the
principle of equal participation.It includes a universal franchise,
legislative procedures allowing for equal representation,election to
offices open to all, and whatever rights are necessaryfor free and
informed political deliberation and public discussion (freedom of
speech and of the press, freedom of assembly,the right to form and
join politicalparties,etc.).Now, what is the place of bare majorityrule
in these procedures?There is nothing about rights of equal participa-
tion that would requirethat a bare majoritymake legislativedecisions
under all conditions.If it did, political equality could not be satisfied
at the level of decision on a constitution, or be the condition of a
unanimous social contract. In fact, any number of special majority
rules (three-fifths,two-thirds, or even unanimity)are consistentwith
equal rights of participation,so long as persons are symmetrically
situatedin decision procedures.24 The argumentfor bare majorityrule
24
Rousseau saw decision by a bare majority as appropriateonly for certain kinds
of decisions: "[T]he more important and serious the decisions, the closer the
prevailing opinion should be to unanimity;... the more hastily the matter under
consideration must be decided, the smaller the prescribed majority should be; in
decisions that must be reached immediately, a majority of a single vote should

must then be that at the level of constitutional agreement, free and

equal rational persons concerned with advancing their good would
unanimously choose that ordinary legislative decisions be settled by a
bare majority. There may be different ways to show this. To begin
with, bare majority rule provides the most efficient way consistent
with equal political rights to respond to problems requiring prompt
solution. Special majority rules are more cumbersome. Second, this
rule is more effective than any special majority rule in advancing the
particular interests of each person. On the assumption that they know
very little about the indefinite future, by choosing bare majority rule
rational individuals minimize the chances that their interests will
depart from legislative decisions. This decision rule is more likely than
any alternative to result in legislation that does not unduly disadvan-
tage anyone in the pursuit of his interests. Bare majority rule should
then yield results that concur more often with each person's particular
good than any special majority rule.25
suffice".SocialContract
Bk. IV, ch. 2, 'On Voting',last par.This follows from his
conception of voting proceduresas a means for accuratelydeterminingthe
requirementsof the GeneralWill. For a similarconception,see Rawls, TJ,sec.
54; and Joshua Cohen, 'An Epistemic Conception of Democracy',Ethics97
(1986):26-38. These accountsare partof ideal theory,presupposingwhat Rawls
calls a "well-orderedsociety".Since the argumentfor judicial review is part of
non-ideal theory,presupposingthat legislatorswill not alwaysimpartiallyvote
the requirementsof justice, I have adaptedan argumentfor majorityrule more
in accordwith thisassumptionof partialcompliance.
25 An intuitive
way to see this is that bare majorityrule is the only size for
which losers can never outnumberwinners. So the chance that one will be
amongthose losing out is minimizedwith this rule.See BrianBarryand Russell
Hardin, eds., Rational Man and IrrationalSociety (Beverly Hills: Sage Pub. Co.,
1982),pp. 305-06, 313-15, for a discussion.This argumentwas initiallymade
by DouglasRae,'DecisionRulesand IndividualValuesin ConstitutionalChoice',
AmericanPoliticalScienceReview 63 (1969): 40-53. Rae contends that in a con-
stitutionalchoice procedure,the collectivechoice rule that would be chosenby
rationalvoterswishingto maximizethe agreementbetweenthe collectivechoice
and their own individualpreferencesis baremajorityrule.Bare majorityrule is
best in the long run, assumingthat voters do not know the likelihoodof their
being in the majorityon issuesthat will arise.A formalproof of the argument

352 SamuelFreeman
But in order for these considerationsto be convincing to free and

equal rational persons, certain backgroundconditions must be sus-
tained. At the level of constitutionalchoice, their representativeswill
want to insure that the ordinaryproceduresfor making laws do not
compromiseanyone'ssovereigntyby endangeringthe rights and liber-
ties necessaryfor free persons'pursuit of their good. This providesa
reasonfor imposing constitutionalconstraintson bare majorityproce-
dures, which insure that the basic rights and requirementsof justice
are taken into account and respected.Primaryamong these constraints
is a constitutionalbill of rights, which further specifies their equal
basic rights in light of general knowledge of their circumstances,and
servesas a substantivecondition of the exerciseof legislativeauthority.
This providesa way for sovereigncitizens to guaranteenot only their
equal politicalrights,but also the other equal basic rightsnecessaryfor
citizens' free pursuit of their good. By a bill of rights they, in effect,
agree to take certainitems off the legislativeagenda.In so doing they
publicly recognize and acknowledgethat maintainingthe sovereignty
and independence of each is a condition of their cooperation,and
partiallydefinethe ends of legislativechange.
Now the problem becomes how to best insure that these substan-
tive constraintson legislativechange are respected.Given the imper-
fect nature of even just legislativeprocedures,a democraticconstitu-
tion might justifiably incorporatecertain proceduralconstraintsupon
legislativeprocesses,to insure that the basic rightsand interestsof each
citizen are actually taken into account in legislative deliberation.
Among these procedurallimitations upon bare majoritarianrule are
such familiarconstitutionaldevices as separationof powers;bicameral
legislaturesand other checks and balances,including perhaps some
has been given by Michael Taylor, 'Proof of a Theorem on MajorityRule',

BehavioralScience14 (1969):228-31, and Philip D. Straffin,Jr., 'MajorityRule
and GeneralDecision Rules', TheoryandDecision8 (1977):351-60. The argu-
ment, however,does not work if peoples'preferencesare patternedor asym-
metric (e.g.,dividedalong ethnic or classlines).In that case,the rationalchoice
may be a specialmajorityrule, or, what comes to the same thing, specificcon-
as I arguefor in the text.
stitutionalguarantees,

Democracy Review
ofJudicial 353
federalistscheme;and the executive'sauthorityto requirethatcertain

legislativedecisionsbe madeby the decisionof a specialmajority(the
executiveveto).The criterionfor determiningwhetherany of these
constitutionalproceduresare called for is as follows:what, given
currentconditions,is requiredof politicalprocedures by the principles
of rightandjusticeto securethe conditionsnecessaryfor citizens'fair
andeffectiveexerciseof theirequalbasicrights?
It is in this contextthatwe shouldunderstand the role of judicial
review.It is amongthe proceduraldevicesthatfree and equalsover-
eign personsmight rationallyagreeto and impose,in light of their
generalknowledgeof socialconditions,as a constraintupon majority
legislativeprocesses,to protectthe equalbasicrightsthat constitute
democraticsovereignty. Judicialreviewlimitsthe extentof the exercise
of equal rightsof politicalparticipation throughordinarylegislative
procedures.Its purposeis to enforcethe substantiveconstraintson
legislationthat have been takenoff the legislativeitinerary.Sinceit
invokesa non-legislative meansto do this,it maywell be a constitu-
tionalmeasureof last resort.But this does not imply that it is un-
democratic. Forit is not a limitationuponequalsovereignty, but upon
ordinarylegislativepower in the of
interest the
protecting equalrights
of democratic sovereignty.
So conceived,judicial review is a kind of rationaland shared
precommitment amongfree and equalsovereigncitizensat the level
of constitutional choice.By the exerciseof theirrightsof equalpar-
ticipationthey agreeto a safeguardthatpreventsthem,in the future
exerciseof theirequalpoliticalrights,fromlaterchangingtheirminds
and deviatingfrom their agreementand commitmentto a just con-
stitution.This is one conditionthey mightput on theiragreementto
the decisionrule that the preferencesof a bare majorityshall be
decisivein makingordinarylaws. By grantingto a non-legislative
body that is not electorallyaccountablethe powerto reviewdemo-
craticallyenactedlegislation,citizensprovidethemselveswith a means
for protectingtheirsovereignty andindependence fromthe unreason-
able exerciseof theirpoliticalrightsin legislativeprocesses.Thereby,
theyfreelylimit the rangeof legislativeoptionsopento themselvesor
theirrepresentatives in the future.By agreeingto judicialreview,they

354 SamuelFreeman
in effecttie themselvesinto theirunanimousagreementon the equal

basicrightsthat specifytheirsovereignty. Judicialreviewis then one
to
way protect theirstatus as citizens.
equal
To conceiveof judicalreviewas a kind of sharedprecommitment
implies a division of labor among governmentinstitutions.Bare
majoritylegislationpromotesmoreeffectivelythananyotherdecision
rule the particulargood of eachindividual; moreoverit providesthe
most rapidresponseto legislativeissuesconsistentwith equalpolitical
rights.But what is effectivein the long run is not alwaysjust in
particularinstances.Baremajoritydecisionsare not the best rule for
insuringthat no one'sconstitutional rightsare violated.Here special
rulesarebetter,with unanimitybeingthe best.But suchrulesbecome
increasinglyineffectivethe larger the majorityrequired,and are
normallyunworkablefor legislativepurposes.So to maintainlegisla-
tion thatmosteffectivelypromoteseachperson'sgood andthe public
good,while providingthatthe basicrightsof citizensarenot violated
in the process,free and equalpersonscould rationallyagreeto bare
majoritydecisionson conditionthat they be subjectto reviewby an
independent bodysetupforthesepurposes.
To sum up the argumentthus far for judicialreview:Like any
ordinarypowerof government, majoritylegislativeprocedureshavea
subordinateposition and are justified in terms of the ends they
promote.As a decisionrule for satisfyingthe requirements of equal
in
political participation legislativecontexts,majority rule is the
primary institution for the
promoting ends that equalpoliticalrights
realize.Recallthatthe firstargument(in sectionIII)for equalpolitical
participation is thatit is instrumentalto insuringthatthe interestsof
all are representedand advancedin politicalprocesses.And yet,
majoritarian legislativeprocedures are themselvesan imperfectmeans
for realizingtheseends.This suppliesthe justificationfor the tradi-
tional constitutionaldevicesthat limit legislativeprocedures.These
institutionslimit these procedureseither by slowing the pace of
legislativechangeto insurethe rationalityof deliberation(bicamer-
alism, federalism,and other checksand balances),or they directly
restrictthe scopeof legislativeauthorityto insurethe justiceof this
procedure(bya bill of rights,with or withoutjudicialreview). Judicial

Democracy Review
ofJudicial 355
review is then one among severalconstitutionalmechanismsthat

could be agreedto, to limit the exerciseof rightsof equalpolitical
participation throughbaremajoritylegislativerule.As such,its general
justification thatundercertaincircumstances
is it maybe necessaryas
a meansfor insuringthat fundamental equalrightsthatare a partof
democraticsovereigntyare respectedand maintainedin the ordinary
processesof government. In this way,itsjustificationis ultimatelythe
sameas thatgivenfor majorityrule.Whatultimately justifiesmajority
legislativeprocedures,the equal freedom of sovereigndemocratic
citizens,alsojustifiesour acceptanceof otherconstitutional procedures
thatdefineandenforcelimitsto the sortsof decisionsthatareleft up
to baremajoritydecisions.
Amongpossiblelegislativeforms,majorityrule best advancesthe
interestof each democraticcitizen in the free pursuitof his good.
Wherethereis widespread publicrecognitionandacknowledgment of
the equalrightsof democraticsovereignty,and where it is publicly
acceptedthatthe purposeof legislationis to advancethe goodof each,
then majoritylegislationmaybe adequatefor realizingtheseends.For
undertheseidealconditionsthereis a sharedconceptionof justiceand
the commongood to guidepublicdebate,and legislativedeliberation
and change.Majoritydecisionsshouldthen normallyconvergeupon
just measuresthatadvancethe basicinterestsof all andenablethemto
pursuetheirgood.But in the absenceof widespread publicagreement
on these fundamentalrequirements of democracy,thereis no assur-
ancethatmajorityrulewill not be used,as it so oftenhas,to subvert
the publicinterestinjusticeandto depriveclassesof individuals of the
conditionsof democraticequality.It is in these circumstances that
thereis a placeforjudicialreview.
V. THE TRADITIONAL ARGUMENT FOR

JUDICIAL REVIEW
I have argued that judicial review can be made consistentwith

democracyif it is viewed as a sharedprecommitment to the equal
rightsof democratic To
sovereignty. see judicalreviewas a precom-
mitment to equalityfits with the basic idea underlyingthe social

356 SamuelFreeman
contract tradition of Locke, Rousseau, Kant, and Rawls. The social

contract is often described in terms of a rational, self-interested
compromise among essentially conflicting interests. This is the tradi-
tion that stems from Hobbes. Agreement is born of competition for
scarce resources, and is a bargain that is made to insure against
mutually destructive conduct in each person's pursuit of his private
ends. The model for agreement here is economic bargains. But not all
agreements are like this. For example, in marriage vows, pacts among
friends, or compacts among members of the same religious faith, the
parties make the agreement, not because of a conflict of interest, but
to commit themselves to a shared ideal of association for the indefinite
future. Their agreement is not a compromise, but a shared precom-
mitment. This is one way to envision the role of the social contract in
the natural rights tradition and in Rawls. The agreement is not born
of a fundamental conflict of interest; indeed it presupposes there
presently is none. It represents democratic citizens' shared fundamental
interest in maintaining the conditions of their equal sovereignty.
Though diversity of particular interests resulting from individuals'
freedom is presupposed, the agreement captures their shared acceptance
of and commitment to maintaining their equal status in the free
pursuit of their ends. By the social contract, they agree to the equal
rights and conditions of justice that maintain their equal sovereignty;
and in agreeing to a constitution they create political institutions that
tie themselves into the terms of this agreement. Judicial review, as one
among several features of that constitution, is a part of democratic
citizens' precommitment to just social forms. It can be an effective
way for free and equal persons to bind themselves to the basic terms
of their social cooperation.26
Let's look now more closely at legislative and judicial authority, and
see how the democratic argument for judicial review differs from the
traditional argument for that institution. On the conception of a
26
For discussionof the idea that the social contractinvolvesa sharedprecom-
mitment to justice, and a contrastwith Hobbesianviews, see my paper,'Reason
and Agreementin SocialContractViews',Philosophy andPublicAffairs19 (1990)
122-57.

democraticconstitutionoutlined,legislativeproceduresembodying
baremajorityrule are not identifiablewith democracy,insteadthey
arebut a partof the institutionalframeworkof a democraticregime.
Likeanyinstitutioncreatedby the sovereignpeople,legislativeauthor-
ity is a delegatedpowerof government, to be exercisedby representa-
tivesin accordance conditionsandfor the good of
with constitutional
eachcitizen.As delegated,it is an ordinarypowerof government, not
to be confusedwiththeconstituent power thatcreatesit.
In settingup a constitution,the bodyof citizensplacethe ordinary
powersof governmentin a politicalregime.Eachof thesepowershas
the dutyto interpretthe constitutionin carryingout its assignedrole.
In any regimewherethesepowersare separate,therewill be a need
for a final authoritative of the constitutionin orderto
interpretation
coordinatethesediversepowersand resolvepersistentdisputes,avoid
conflictingdemandsfrombeingplacedon citizens'conduct,andinsure
that constitutionalformsare being respectedand adheredto by the
ordinarypowersof government.Since the constitutionspecifiesthe
abstractbasicrightsof citizens,the cleardelineationof constitutional
rightsandconsistencyin application providedby a finalinterpretation
is essentialto citizens'pursuitof their good, as well as to just and
effectivelaws.
Finalauthorityto interpretthe constitutionis a necessarypowerof
governmentthatis distinctfromthe ordinarypowersof the legislative,
judicial,and executivefunctions.It is the power to determine,for
institutionalpurposes,whetherthe people'sexerciseof their consti-
tuent power has been respectedin each branch'sexecutionof its
ordinarypowers.Finalauthorityis also a delegatedand institutional
power,and is not to be confusedwith eitherthe ordinarypowersof
governmentor with ultimateconstitutionalauthority,which always
residesin the sovereignbody politic. Somewhatlike institutional
procedures for amendingthe constitutionanda bill of rights,the final
of
authority interpretation mightbe seenas an institutionalexpression
of theconstituent of
power sovereigncitizens.
My centralclaimhasbeenthatthereis nothingintrinsicto ordinary
legislativepowerin a democracythatwouldrequirethatthe separate
and distinctpowerof finalinterpretation be placedor conjoinedwith

358 SamuelFreeman
it. I have not argued,however,that the authorityof finalinterpreta-

tion mustbe placedin thejudiciary.Comparethiswith the traditional
argumentfor judicial review,statedby Hamiltonin TheFederalist,
#78. The SupremeCourt, under Marshall,later relied on it in
Marbury vs.Madisonin claimingthe powerof the courtsto give the
finalinterpretation of the constitution.The argumentis basedin the
doctrineof separation of powers,whichHamiltonclaimsis a require-
mentof the ruleof law.Beginwith the assumption, (1)"Nolegislative
act ... contraryto the Constitutioncanbe valid."The questionarises,
who then has the institutionalauthorityto make determinations of
constitutionalvalidity?(2)Separation of powersis a requirement of the
rule of law that is a part of a constitutionaldemocracy;without
separatepowers,thereis no protectionfor "publicliberty."(3) Under
separationof powers,it is the institutionalrole of the judiciaryto
interpretand apply the law. (4) The constitutionis, and must be
regardedas, fundamental law. (5) Therefore,it must belong to the
courts"toascertain[theConstitution's] meaningas well as the mean-
ing of any particularact proceedingfrom the legislativebody."(6) It
followsthatwhen,in the courseof applyingthe law,the courtsdecide
thatlegislation(or executivedecrees)conflictwith the Constitution, it
mustdeclaretheseactsunconstitutional. (7) The Courts then have,by
virtueof theirconstitutional role,authorityto interpretthe constitu-
tion,andin the interestof stabilityandpubliclibertytheyshouldhave
finalauthority.
Assumption(2) is questionable. The Englishparliamentary system
is not markedby separationof powersin our sense.And therethe
courtshaveno authorityof constitutional review,yet "publicliberty"
and a democraticsystemis prettywell maintained.But the crucial
assumptionfor our purposesis (4).Separation of powersis a doctrine
thatdefinesthe divisionof thoseordinarypowersof governmentthat
existin any politicalregime.And underthe doctrineof separation of
powers, the courts have exclusive to
authority interpret and apply
ordinarylaws,just as the legislativehasauthorityto makeall the laws.
The problemis thatthe constitutionof a politicalregimeis notjust so
muchmoreordinarylaw for courtsto interpret. It is ratherthe highest
order systemof rules for makingthose institutionalrules that are

Democracy Review
ofJudicial 359
recognizedas ordinarylaws.As such,it providesthe basisfor all laws

and for the separationof the powersof government; nothingis law,
and no institutionhas any powers,exceptas it accordswith the con-
stitution.And thereis nothingaboutthe ordinarypowersof courts
grantedunder the constitutionalseparationof powers that would
grantto thejudiciary(or any otherbranch)the authorityto interpret
thoseexceptionalrulesthatconstitutethe threepowersof government
and assignto them theirordinarypowers.To see this,we need only
posit a separateinstitutionthat has powersof constitutionalreview
overall threeordinarypowers.Thisis just whatRousseausuggestsas a
solutionto the problemof who is to have the powerof final inter-
pretationof theconstitution.27
So it is a mistaketo interpretjudicialreviewas implicitin separa-
tion of powersandthe ordinaryauthorityof the courts.To seejudicial
review in this way obscureswhat is reallygoing on when courts
exercisethispower.It makesit seemas if theyaremerelycarryingout
theirnormalconstitutional function.Whereaswhat is reallyinvolved
is that the courts step beyondordinarylaw and their role under
separation of powersto assessordinaryactsof governmentby any of
the threeseparatepowers.This is not a peculiarly judicialpower;it is
ratherthe exerciseof a conservingpower.Whoeverexercisesthis final
authorityactsastheconservator of theconstitution.
It mightbe arguedthatthis is all thatopponentsof judicialreview
needto establishthe authorityof the legislativebranchin a democracy
to have final interpretiveauthority:this authoritymust rest with a
democraticlegislaturebecause,afterall, it has lawmakingpowersand
is thereforesovereign,or at leastbest representativeof popularwill.
27
See note 6, above.Suchan institutioncurrentlyexistsin severalconstitutional
regimes. The constitutions of the Federal Republic of Germany (1949), and
Austria provide for a constitutional court separate from ordinary courts. Unlike
American judicial review, these extraordinarycourts have the authority to review
acts of legislation as they are promulgated by their parliaments,in the absence of
enforcement by the executive and judicial "case or controversy". See Carl J.
Friedrich, ConstitutionalGovernmentand Democracy,4th ed. (Waltham, Mass.:
Blaisdell, 1968), pp. 261-62.

360 SamuelFreeman
But this argument also misunderstandsthe nature and function of

majoritylegislativerule. The people are sovereignin a democracy,as is
evidencedby their retainingauthorityto amend the constitution.They
delegate a fiduciarypower to legislativeagents to make ordinarylaws
for the public good. In so doing, they do not alienate constituent
power or any part of their sovereignty.Moreover,popularwill has its
clearestand most originalexpressionin a democraticconstitution.And
there is nothing about that agreementthat would requiredelegatingto
those with the authorityto make ordinarylaws the final authorityto
decide the natureof constitutionalconditionsfor the validity of those
laws. Only if one holds to the doubtful claim that legislativeinstitu-
tions are the sole legitimate representatives,not simply of legislative
will, but also of the constitutionalwill of the people, can he draw that
conclusion.
VI. THE CIRCUMSTANCES OF JUDICIAL REVIEW
The democraticargumentfor judicial review rests on the assumption

that the courts can play a significantrole in maintainingthe condi-
tions of democraticsovereignty.An obviousobjectionto this argument
is that we have no assurancethat judicial review will be properly
exercised to correct for the failures of legislative processes.Just as
likely it will be used to secure the power of elites againstlegitimate
democratic measures.28This is an empirical objection my argument
has not addressed.My concernhas been with the categoricalobjection,
made on purely philosophicalgrounds, that judicial review is incon-
sistent with democracy. It is certainly true that judicial review is
subjectto abuse,just as are the legislativeproceduresit is designedto
correct.But this does not affect the democraticargumentfor judicial
review in terms of its being appropriateunder certain conditions to
maintain a just democratic constitution. The likelihood that courts
28 Peter Railton argues that the court is an elite institution that maintains the
power of elites in liberal democracies via judicial review, in 'Judicial Review,
Elites, and Liberal Democracy', Nomos,XXV: LiberalDemocracy(New York: NYU
Press, 1983), 153-80.

Constitutional ofJudicialReview
andtheLegitimacy
Democracy 361
will, in a particulargovernment,fail to maintaina just constitutionis

one among several empirical considerationsthat must be taken into
account before it can be decided that conditions appropriatefor
judicial reviewhold in a particularsociety.
This means that whether judicial review is appropriatefor a par-
ticular democratic constitution is a strategic question. Unlike the
argument for democratic legislative procedures, the argument for
judicial review does not attempt to show that this institution is
essential to a democratic constitution. Instead, it takes democratic
legislative proceduresfor granted, and its justification is contingent
upon the extent to which these proceduresserve the ends in virtue of
which they are found appropriate.All that has been argued is that
judicial review can be a proper institution in a democracyto insure
that the democraticrequirementsof justice are realizedwhere there is
a substantiallikelihood that legislativeprocedureswill not insure these
requirementsthemselves. This does not mean that it is called for
whenever legislative processesmight result in unjust outcomes.Even
under the ideal conditionsof what Rawlscalls a "well-orderedsociety",
majorityproceduresare not perfect with respect to the requirements
of democraticjustice. We can assume, however, that under these
circumstancesthe public's sense of justice is sufficiently strong and
developed that, once the consequencesof unjust legislation come to
public awareness,legislative procedureswill themselves provide the
necessaryadjustmentto justice. In that instance there is no need for
judicial review to act as a corrective to legislative failures.The cir-
cumstanceswhere judicial review is appropriateare where legislative
proceduresare incapableof correctingthemselves.This happenswhen
the public sense of justice is not sufficientlydeveloped or directed to
influence legislative proceduresto make the necessarycorrectionsto
democraticjustice, or when the legislativebranch is so controlled by
particularinterests(due, most often, to the undue influence of wealth
on elections and legislativeprocesses)that it does not accuratelyreflect
consideredpublicviews in mattersofjustice.
Whetherjudicial review is needed to maintainthe requirementsof
a democratic constitution is then dependent on social and historical
circumstances.It is a matter for factual determinationwhether the

362 SamuelFreeman
overallbalanceof democraticjustice can be more effectivelyestab-

lishedin a democraticregimewith or withoutjudicialreview.Thisin
the end is how we must assessclaimsthat majoritarian legislative
procedures are the only form of decision-making consistent with
democracy; or that the should
legislature make decisions accordingto
its own view of the constitution;or that it should have exclusive
authorityto interpretthe constitution. Thesecontentionscanbe made
only with to
respect specific democraticregimes,andtheirjustification
mustproceedon empiricalgrounds.A primarypointof my argument
has been that one cannotdogmatically singleout a featureof demo-
craticconstitutions or
(suchas majorityrule,or politicalaccountability,
even equalpoliticalparticipation) and concludethatjudicialreviewis
undemocratic becauseit does not meet the demandsof this standard.
Morethan one principleis neededto characterize democraticideals,
and we cannotcategorically sayjudicialreview is not undercertain
conditionsan effectiveinstitutionfor maintainingtheseprinciples.If
so, then the a prioriphilosophical claimthatjudicialreviewis inher-
ently undemocratic is unfounded.
This means that there are variouscombinationsof institutional
processesthatcan satisfythe requirements of democracy. As I saidat
the outset,democracyis not a notionthatis exhaustible in procedural
terms.Whateverelsewe mightchooseto callit, a societythatallowed
for equalpoliticalrightsand majorityrule,yet systematically denied
religious,ethnic,and racialclassessome or most of the basicrightsI
havementioned,does not realizethe idealswe associatewith democ-
racy,andconsequently hardlydeservesthe name.A societyis moreor
less democraticto the degreethat it providesfor the fundamental
rights of free and equal sovereigncitizens,and insuresthe social
conditionsfor theireffectiveexerciseandeachperson'sfreepursuitof
his good.If judicialreviewis, for socialor historicalreasons,among
the institutionsnecessary to guaranteetheserightsandconditions,and
is not put to improperuse,thena constitutionthatallowsfor it is still
democratic. If on the otherhandjudicialreview,or anyothergovern-
mentinstitution(includingmajorityrule),is used,as theyso oftenare,
to frustrateor deny citizensthe effectiveexerciseof the equalbasic
rightsof sovereigncitizens,then that societyto that extentdoes not

realizethe idealof democracysuggested. Whethera societyis moreor

less democraticcannotbe ascertained by lookingto the presenceor
absenceof judicialreviewin its constitution;
we mustalsolook to see
if thispoweris necessary,
andhowit is exercised.
VII. THE EFFECT OF JUDICIAL ON SELF-RESPECT,

STABILITY, AND PUBLIC JUSTIFICATION
I have arguedfor the democraticlegitimacyof judicialreviewon

groundsof its likelihoodto promotethe sameendsas thosejustifying
majorityrule:judicialreviewcan be an effectiveinstitutionalmeans
for insuringthe equalfreedomof sovereigncitizensand the funda-
mentalequalrightsthat are amongthe conditionsnecessaryfor the
free pursuitof theirgood.But therewere otherargumentsmadein
SectionIIIfor equalpoliticalparticipation,
fromself-respect, stability,
and publicity.Beforethe casefor democraticlegitimacycan be com-
pleted,it must be askedwhetherjudicialreviewis consistentwith
thesearguments.
It has been suggestedthat judicial review involves a form of
inequalitythatcan underminethe self-respectof citizensin a democ-
racy,therebyfrustratingtheir pursuitof their good.29What can be
said in responseto this?We can distinguishtwo formsof political
inequality.Firstthereareformalinequalitiesof politicalrights,suchas
rulesdeprivingcertainclassesof the franchise,or givingothersplural
voting privileges.These inequalitiesexplicitlysingle out groupsfor
preferentialand adversetreatment,and thesediscriminations arepub-
licly known and recognized.Second, there are the inequalitiesof
influence implicit in special majorityrules. Though affordingto
minoritiesgreaterthanequalinfluencein decidinglegislativechange,
theseinequalitiesdifferfrom formalpoliticalinequalitiesin thatthey
are anonymous.No specifiedminorityhas the authorityof unequal
influence.Specialmajorityrules do not single out individualsor
groupsfor specialor adversetreatmentin politicalprocedures, andany
29 Frank Michelman, 'In Pursuit of Constitutional Welfare Rights: One View of

Rawls'sTheoryofJustice',U.Penn.LawReview121 (1973):962, 1008-09.

364 SamuelFreeman
citizen can exercisea greaterthan equalinfluenceon any occasion

wheretheseruleshold by votingagainstany measurerequiringmore
thana baremajorityforitspassage.
limitsuponbaremajorityrulein the formof a Bill
Constitutional
of Rightswithjudicialreview,canbe viewed,like an executiveveto,as
functionalequivalentsof specialmajorityrules.For a judicialdeter-
minationof unconstitutionalitycan be overcomeby a constitutional
amendmentby a specialmajority.This helps in respondingto two
objections.First, it is relevant to the objection that judicial review is
undemocratic becauseit is counter-majoritarian.To seejudicialreview
as a functionalequivalentof a specialmajorityrule deprivesthat
objectionof much of its force. For specialmajoritiesrequiredto
amendthe constitutionalwaysretainthe ultimateauthorityto deter-
mine any politicalquestion.So unlessit is just arbitrarily stipulated
thatdemocracy alwaysentailsthe rightof a baremajorityto rulein all
questions,the claim that judicial review is undemocraticbecause
counter-majoritarian simply means it is inconsistentwith rule by
majorities less than those needed to make constitutionaldecisions
through amendment. But surelyit is not undemocratic to requirea
specialmajority to make certain those
decisions,especially thatdirectly
affect democraticsovereignty,the equalityof basic rights,and the
constitutionaldesignof governmentand society.To hold otherwise
wouldmeanthatdemocracy withconstitutionalism.
is inconsistent
Second,to see judicialreviewas a kind of specialmajorityrule
clarifieswhy that practiceneed not underminecitizens'self-respect.
For thoughthe Courtis itself a specifiedminority,its adversedeci-
sionson lawscanalwaysbe overcomeby a specialmajorityof citizens
or their representatives,and no specifiedminorityhas the ultimate
authority in this constitutionalprocedure.The ultimateauthoritythat
minoritieshavein constitutional questionsremainsanonymous. There
are no formal inequalitiesin the systemas a whole that gives a
specifiedminorityultimateauthorityon any politicalquestion.Each
citizenin the amendmentprocessretainsan equalrightto participate
in the constitutional process,to expresshis views,and to vote upon
any constitutional issue(eitherdirectlyor throughhis representative).
So, seen as part of a specialmajorityrule procedurefor deciding

Democracy Review
ofJudicial 365
questionsthatbearon the constitution, judicialreviewitselfshoulddo

little to underminecitizens'senseof self-worth,at leastas long as that
poweris properlyexercised.
Furthermore, maintainingthe equalbasicrightsof all citizensis of
far greaterimportanceto everyone'sself-respectthanwhatevernon-
formalinequalitiesof politicalpowerjudicialreviewmight involve.
The argumentfor politicaldemocracyfromself-respect (in SectionIII)
proceeds from the premise that an equal status as citizens is the
primarysocialbasisof self-respect. Equalpoliticalrightsarejustified
on thatground.But othercivilandsocialrightsareequallyimportant,
if not moreso, to the equalstatusof citizensandtheirself-respect. If
judicial review is appropriate is
to societyand properlyexercisedto
insurethat theserightsand the conditionsfor theireffectiveexercise
are legislativelymaintained,then, on balance,the self-respectof all
citizensshouldbe betterpreserved thanwithoutjudicialreview.
Considernext the argumentfor democracyfrom the publicityof
democraticprocedures.Here I will only note that judicial review,
ratherthan underminingthe processof publicjustification,can con-
tributesubstantially to thatend.The practiceof the Courtof publicly
justifyingits decisionsby issuingreasonedopinionsmakespublic(in a
way legislativeproceduresdo not) the reasonsand purposesbehind
legislation,and examineslawsin light of the constitution. In uphold-
ing legislationagainstconstitutionalchallenge,the Court seeks to
legitimatelawsby showinghow theyareconsistentwith the constitu-
tion. This requiresthat the Courtpubliclydemonstrate that laws are
not undulycoercivebut areconsonantwith democraticfreedom.And
in holdinglegislationunconstitutional, the Courtdoes not just check
legislative failuresof it
justice; also suppliesconstitutionalreasonsfor
these failures.In both of these ways,judicial review can work to
establisha publicreadingof the constitutionand its moralfounda-
tions,andexaminethelawsin lightof theseprinciples.
Moreover,in servingthis justificatoryfunction,judicial review
(againif exercisedappropriately) can play an importantrole in culti-
vating a shared senseof justiceand the publicgood.Recallthe third
argumentfor political democracyon groundsof its tendencyto
broadencitizens'viewsbeyondtheirown concerns,layinga basisfor

366 SamuelFreeman
the qualitiesof civic virtueand civic friendshipthat are neededto

sustainstablesociallife in the absenceof autocraticpower.If we see
judicialreviewas havinga justificatoryrole in additionto its role in
checkinggovernmentabuse,then it can be understoodas a further
governmentinstitutionfor cultivatingcitizens'appreciationof and
supportfor just democraticinstitutionsand ways of life. In publicly
interpreting the constitution,the Courtdemonstrates the moralbases
of constitutional forms,and therebyprovidesa commongroundfor
publicunderstanding andsupport.As such,judicialreviewencourages
citizens'sense of justice and their desireto maintainconstitutional
forms.The justificatoryfunction of judicial review is then partly
educativeas well. Judicialreviewis, I have said, most appropriate
under conditionswhere the public sense of justice is divided or
underdeveloped, or wherelegislativerepresentatives are unresponsive
to the interestsof everyone.Underthesecircumstances, when legisla-
tive proceduresdepartfrom the requirements of a just democratic
constitution,they are unlikelyto be capableof self-correction. As an
institutionalmeansfor cultivatingthe public'ssenseof justice,review
cannot only be a way of increasingthe likelihoodthat legislative
departures fromjusticewill not be repeated,but also that they will
notbe publiclytolerated.
Finally,the existenceof a largebodyof judicialopinionsestablishes
a doctrinalbasisfor publicdiscussionandlegislativedeliberation, and
gives directionto public affairs.In interpretingthe constitutionin
light of its applicationto specificlaws,the Courtgivescontentto the
otherwiseabstractprovisionsof the constitution,and furnishesa
commonsourcefor the termsof public debate.This can have the
effectof soberingand improvingthe qualityof publicand legislative
discussionandargumentby securingcommonlyunderstoodmeanings
for abstractand often vague constitutionalprinciplesand concepts.
Moreover,the existenceof a bodyof constitutional law can serveas a
reminderto legislatorsof theirconstitutional andtheir
responsibilities
duty to direct laws towards constitutionally
legitimate ends. These
considerations show that,as a meansfor both rectifyingunconstitu-
tional legislationand cultivatingcitizens'commitmentto just con-

Democracy Review
ofJudicial 367
stitutionalforms,judicial review,if correctlyexercised,can be an

forcein thosedemocracies
importantstabilizing whereit is calledfor.
VIII. CONCLUSION
Thereareotherargumentsforjudicialreviewwhichmaybe pertinent
to our constitutionalscheme.The most importantstem from our
federalsystemand the extraordinary powerof the executivebranch.
Within any federalscheme,where legislativeand other powersare
divided among severalgovernments,there is a need for a single
authoritative voice to provideclearanduniforminterpretations of the
constitution, for reasonsof coordination,
nationalunity,andto protect
againststates'overlyzealouspursuitof theirparticular interests.Fur-
the
ther,given extraordinary powers(both constitutional andpopular)
exercisedby the Presidency in ourcountry,as well as its independence
from the legislativebranch,one of the most compellingreasonsfor
the authorityof judicialreviewis to insureagainstthe potentialabuse
of executivepowerin situationswhereCongressis eitherincapableor
unwillingto intervene.Thoughtheseareimportantarguments, I have
not reliedon themsincetheyconcernpeculiarities of our constitution,
andhavelittle directbearingon the objectionto judicialreviewbased
on thenatureof democracy.
In fact,I havehardlyaddressed the specificquestionof thejustifica-
tion of judicialreviewon democraticgroundswithinour constitution
at all. My concernhas been to establishthat the standardbasisfor
objectingto the institutionof judicialreview- thatit is inconsistent
with democracyand majorityrule - involvesa misconception of the
natureof legislativepowerand a shortsighted of
conception democ-
racy. There is nothing undemocratic (andit is disingenuous to claim
there is) about the judicialreviewof laws that infringeagainstthe
equalityof suchfundamental moralrightsas libertyof conscienceand
freedomof thought,freedomof association,freedomof occupation
and choiceof careers,politicalparticipation, and,moregenerally,the
freedomto pursueone'sown planof life.Judicialreviewis undemo-
craticwhen it contravenes majoritydecisionsin orderto maintainthe

368 SamuelFreeman
powerand legalprivilegesof elite socialand economicclassesagainst

socialchangeand economicreformsdesignedto enableeach citizen
to achieveindependence andto effectivelyexercisethesefundamental
rights.Our Court has taken bothdirections.Formuchof its existence
the SupremeCourt tendedto constitutionally enshrine,againstat-
temptedlegislativereform,prevailinglaws,conventions, andprivileges
the
regarding legal institutionof privateproperty that were especially
favorableto those who legally control the great mass of wealth.
Whether,on balance,the Court'smore recentdisavowalsof these
interpretations andits moreconcentrated effortsat securingthe equal
basic rights of citizensare sufficientto compensatefor its earlier
distortions of a democraticconstitutionis a questionI shallnot under-
taketo answer.
Who is to havethe finalauthorityto interpretthe constitutionin a
democracyis one question;how that authorityis to be exercisedis a
more complicatedquestionI have only indirectlyaddressed.The
secondquestionrequiresbotha theoryof constitutional interpretation,
andan accountof the scopeof the Court'sauthorityofjudicialreview.
But the argumentfor judicial review offeredprovidesa basis for
responding to theseissues.30
The contractarian conceptionof democracyused to justifyjudicial
review implies that certainsubstantiverights and requirementsof
justice underlieour commitmentto the politicalproceduresof a
democracy,and that it is these substantivevalues that democratic
procedures aredesignedto realize.So, in reviewinglegislation,thereis
no way for the Courtto avoidsubstantiveconsiderations of justice;
thatis its mandate.This contrastswithJohnEly'sinfluential"process-
perfecting" view,accordingto whichthe authorityof judicialreviewis
to be limited to proceduralconsiderations in order to insure fair
representation and electoral in
accountability decision-making pro-
cesses.It is not deniedthatthe Court'sprimaryroleis to maintainthe
30 David A. Richardshas of the

J. long arguedfor a contractarian
interpretation
U.S. Constitution.See TheMoralCriticism
of Law (Encino,CA.: Dickenson,1977):
andtheConstitution
Toleration (Oxford:OxfordUniversityPress,1985);Foundations
ofAmericanConstitutionalism
(Oxford:OxfordUniversityPress,1989).

Constitutional ofJudicialReview
andtheLegitimacy
Democracy 369
integrity of proceduralforms. But we cannot understandwhat these

proceduralforms are, their conditionsand limits, without first coming
to a decision on the basic rights and ends of justice these procedures
aredesignedto realize.31
Similar considerationsapply to the account of judicial review that
saysjudges should look exclusivelyto the written Constitutionand the
original intentions of its framers to decide the requirementsof its
abstractprovisions.32 No one would deny that the historicaldocument
which bears the name "The Constitution of the United States"is an
important feature of the practices and principles that make up our
constitution.But it is importantnot to confuse the two. For there are
many practicesthat are a part of our constitution - judicial review
being primaryamong them - which are not inferablefrom this text
in the way original intent proponentspropose. How we identify the
constitution of our regime is the ultimate question of constitutional
interpretation.And nothing can identify itself as the constitutionin a
self-referential way. Officials and the public look to the written
Constitution, among other things, to identify the basic principles of
our constitution. But this is simply to say that referring to this
document is part of the settled conventions and proceduresof inter-
pretation within our constitution for identifying constitutional re-
quirements.Our written Constitutionis then a part, and only a part,
of our constitution.It plays a significantthough non-exclusiverole in
constitutionalinterpretation.It is not, and it is not generallyunder-
stood to be, the complete representationor embodiment of all con-
stitutionalconditionsand institutions.
I do not mean to belittle the importanceof a written constitution
31 Here I agree with Ronald Dworkin's arguments against Ely in A Matterof

Principle(Cambridge, Mass: Harvard University Press, 1985), ch. 2. For a similar
criticism see Laurence H. Tribe, ConstitutionalChoices(Cambridge, Mass: Harvard
University Press, 1985), ch. 2.
32 See Raoul
Berger, Governmentby Judiciary (Cambridge, Mass: Harvard Uni-
versity Press, 1977); Robert Bork, 'Neutral Principles and Some First Amendment
Problems', IndianaLaw Journal 47 (1971): 1; and The Temptingof America (New
York: Free Press, 1990). See Dworkin, id., for an effective attack on this view.

370 SamuelFreeman
in a democracy. My point is rather that deciding the role that any

such writing must play cannot be taken for granted (as original intent
theorists do). Instead, it is an important issue in constitutional inter-
pretation which cannot be decided by looking to the text itself or the
intentions of those who designed or ratified it. Our forebears' inten-
tions can be of little relevance to constitutional interpretation in a
democracy. For it is now our constitution; we now exercise constituent
power and cannot be bound by our ancestors' commitments. Only our
intentions, as free and equal sovereign citizens, are then relevant in
assessing the constitution and assigning a role to the document that
bears that name. And we cannot do this without ultimately looking to
the requirements of a just democratic constitution.
Philosophy Department,
University of Pennsylvania,
Philadelphia, Pennsylvania 19104,
U.S.A.


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Constitutional Democracy and the Legitimacy of Judicial Review

Author(s): Samuel Freeman

This content downloaded from 195.34.79.192 on Sat, 14 Jun 2014 19:00:03 PM

CONSTITUTIONAL DEMOCRACY AND THE

The authority of American courts to review and declare unconstitu-

Law and Philosophy9: 327-370, 1990-1991.

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This content downloaded from 195.34.79.192 on Sat, 14 Jun 2014 19:00:03 PM

It mightbe askedwhatpracticalimportancetherecanbe in raising

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Inevitablyone'sview regardingthe democraticlegitimacyor role of

5 This kind of argumentunderlies and

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cial reversalsof majoritydecisionsviolatethe basicdemocraticprin-

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If we see the question of the legitimacy of judicial review in that

II. THE PROCEDURAL CONCEPTION OF DEMOCRACY

Let's return and considerthe bases given for the categoricalobjection

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A related reason offered to support the claim of the undemocratic

To formulate the basic problem of judicial review in terms of its

exercise the power of judicial review to declare unconstitutionallegislative,

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The basis for the objection that judicial review is undemocraticis

9 John Rawls, A Theoryof Justice (Cambridge, Mass: Harvard University Press,

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But for now consider a more general question: How are we to

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nature and extent of constitutionallimitations on laws can only be

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thereis no assurance thattheselimitsalwayswill be respectedby the

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racial groups.But, again, there is nothing inherent in equal political

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politicalpowerin democracies, and a pluralisticsocialorderof some

III. THE CONTRACTARIAN JUSTIFICATION OF

I havesuggestedthat the appropriate way to addressquestionsof the

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sustained.If, however,on some conceptionof its rolejudicialreview

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certainkindsof inequalities, and certainkindsof reasonsfor inequal-

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whichwe can inferand expectthe acceptanceby free individualsof

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themselves,froma positionof equalright,couldmutuallyacceptand

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Second,free and equalsovereignpersonswould agreeupon equal

This content downloaded from 195.34.79.192 on Sat, 14 Jun 2014 19:00:03 PM

appeal to commonly held principles.Political participationcan then

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whichanyoneconsidersquestionable".17 The opennessandpublicityof

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The freedom of every citizen constitutesa part of public liberty, and in a

20 I rely here on the basic libertiesimplicit in Rawls'sfirst principleof justice.

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the only circumstanceunderwhich free and equal personswould

IV. THE DEMOCRATIC JUSTIFICATION OF

We are now in a position to address the democratic legitimacy of

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whateverconstraintsare placedupon it by the sovereignpeoplein

21 Constituentpower is the power of the people,joined togetheras a body

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