When the Supreme Court in 2003 struck down a Texas law prohibiting homosexual sodomy, it cited the right to privacy based on the guarantee of "substantive due process" embodied by the Constitution. But did the court act undemocratically by overriding the rights of the majority of voters in Texas? Scholars often point to such cases as exposing a fundamental tension between the democratic principle of majority rule and the liberal concern to protect individual rights. Democratic Rights challenges this view by showing that, in fact, democracy demands many of these rights.
Corey Brettschneider argues that ideal democracy is comprised of three core values--political autonomy, equality of interests, and reciprocity--with both procedural and substantive implications. These values entitle citizens not only to procedural rights of participation (e.g., electing representatives) but also to substantive rights that a "pure procedural" democracy might not protect. What are often seen as distinctly liberal substantive rights to privacy, property, and welfare can, then, be understood within what Brettschneider terms a "value theory of democracy." Drawing on the work of John Rawls and deliberative democrats such as J?rgen Habermas, he demonstrates that such rights are essential components of--rather than constraints on--an ideal democracy. Thus, while defenders of the democratic ideal rightly seek the power of all to participate, they should also demand the rights that are the substance of self-government.
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Princeton University Press
July 01, 2007
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Excerpt from Democratic Rights by Corey Brettschneider
In 2003 the Supreme Court of the United States overturned its decision in Bowers v. Hardwick and struck down a Texas law that prohibited homosexual sodomy.1 Writing for the Court in Lawrence v. Texas, Justice Kennedy argued that the Court's guarantee of a right to privacy, which it had earlier extended to areas such as contraception, marriage, and abortion, also included a protection of sexual relationships for gay and straight couples.2 The privacy doctrine invoked in Lawrence was based, he argued, in the Fourteenth Amendment's guarantee of "substantive due process."
One prominent critique of this privacy doctrine and of the decision in Lawrence is that an appeal by the Supreme Court to a set of substantive rights is antidemocratic: it was never endorsed by a legislature or a constitutional convention.The word "substantive"does not appear in the Fourteenth Amendment or anywhere else in the Constitution. At its base, "substantive" is defined as "not procedural," or "procedure-independent." Substantive matters pertain to issues of justice, such as protecting individual rights against abuses of power. In contrast to procedural rights, such as the right to vote, substantive rights are often thought to be at the heart of a just society but not integrally connected to citizens' ability to partake in the democratic process. In addition to the right to privacy, they include rights to property and against excessive punishment. Because of this clear distinction between substantive and procedural rights, many think that the phrase "substantive due process" is not only bad doctrine, but an oxymoron: the terms "substantive" and "process" are at loggerheads.
Although the Lawrence decision was hailed by many as a gain for the rights of gay citizens, as this critique makes clear, it poses a dilemma for democratic theory. The Texas law had been passed according to the procedures established by the Texas legislature. The representatives of that legislature had been elected by a majority of Texans, and thus their decision not to repeal the Texas law was arguably majoritarian.3 Although critics of the law might find it repugnant, it would seem to have been democratically authorized. Therefore, while critics of the Court's decision might agree that the legislation at issue in Lawrence was "uncommonly silly," some argue that the Court acted without democratic authority in striking down the law.4 Defenders of the Court's decision in Lawrence, as well as of the general concept of "substantive due process," face what Alexander Bickel calls the "counter-majoritarian difficulty."5 Such defenders must explain why, in a society guided by democratic principles, a majority of the Supreme Court can override a majority of voters in an entire polity.6
Although the question of whether the Court should ever act contrary to democratic will is a live issue in political and legal theory, the case of Lawrence v. Texas raises another distinct issue: What is required for a society to be an ideal democracy in the first place? Are substantive rights an essential aspect of ideal democracies? Those who point to the countermajoritarian difficulty often assume that democracy is to be defined exclusively by adherence to majoritarian procedures. They adhere to what I call a "pure procedural" definition of democracy.7 This means that a decision is democratically legitimate only if it is produced by citizens participating in a set of sanctioned processes. As such, there is nothing intrinsically democratic about outcomes of such decisions aside from the fact that they were produced by democratic procedures. On a pure procedural view, then, even when democratic processes produce results that are unjust or violate individual rights, such as the antisodomy law in Texas, they are democratic. According to pure proceduralists, concerns about the justice or injustice of policy outcomes, apart from procedural issues, are not matters of democratic concern. In other words, these thinkers suggest that procedure-independent evaluations of outcomes, what I call "substantive evaluations," are not rightly characterized as democratic.
In this project, however, I offer an alternative to the traditional divide between procedural theories of democracy and substantive theories of justice. I argue that democracy is an ideal of self-government constituted by three core values--political autonomy, equality of interests, and reciprocity--with both procedural and substantive implications. I contend that what are often thought of as distinctly liberal substantive rights to privacy, property, and welfare can be newly understood within a theory of democracy. I do not aim merely to provide new democratic justifications for traditional rights; in many instances, I argue that democracy requires rights less often invoked in the liberal tradition. I argue, for example, that rights to welfare are central to democratic legitimacy, as are free speech rights for convicted criminals and the right not to be executed by the state. Moreover, once democracy has been reformulated in this manner, I suggest that we can reexamine Lawrence's legitimacy with a new lens. Rather than being counterdemocratic, the Court's substantive due process doctrine and its decision in Lawrence help to guarantee a set of basic, democratic rights.
I begin by challenging the idea that the only proper criterion by which a decision can be judged democratic is whether it resulted from a majoritarian procedure. In contrast to pure procedural theories of democracy, I propose the value theory of democracy as a way of articulating the fundamental idea that self-government should respect each individual's status as a ruler. The three core values serve as the independent standards by which to judge whether citizens' democratic status is respected through procedural rights to participate in governance and substantive rights that protect against undemocratic outcomes of democratic procedures. Thus, democratic procedures and substantive rights are both distinct yet necessary aspects of ideal democracies.
In a broad sense, the value theory of democracy draws on the idea of "co-originality" present in the work of J�rgen Habermas and arguably implicit in the work of Jean-Jacques Rousseau and John Rawls. Co-originality suggests that participatory rights and the right to be free from government intervention are not conflicting ideals, but rather are complementary aspects of a good theory of political legitimacy. These theories thus aim to reject the conflict between what Berlin termed "positive" and "negative" liberty and what Constant called the "liberty of the ancients" and the "liberty of the moderns."8 On my understanding, rights and procedures are co-original in that each is founded on the three core values that best define the democratic ideal of rule by the people.9
My argument for the value theory of democracy begins in chapter 1, where I consider and reject procedural accounts of democracy. I instead defend the value theory and elaborate why its three core values should be the standard for judging democratic legitimacy.