Vol. 15 No.6 (June 2005), pp.539-545

BRENNAN AND DEMOCRACY, by Frank I. Michelman. Princeton: Princeton University Press, 2005, 160pp. Paper.  $17.95 / £11.95.  ISBN: 0-691-00715-2.

Reviewed by Robert Justin Lipkin. Widener University School of Law. Email: Robert.J.Lipkin@law.widener.edu .

Is it possible to square judicial review with democracy?  Just where do judges derive the democratic credentials to overturn laws enacted by elected officials? For the past five decades, if not considerably longer, American political scientists and legal scholars have been preoccupied, even obsessed, with this so-called “counter-majoritarian problem”? In BRENNAN AND DEMOCRACY, Frank I. Michelman, one of America’s pre-eminent constitutional theorists, tackles this question head-on. From the pages of Justice William Brennan’s judicial opinions, Michelman cobbles together the idea of romantic democratic liberalism as a possible savior of judicial supremacy in a constitutional democracy.

In fact, Michelman is more concerned with the dialectic of judicial supremacy than with final answers. Through Michelman’s methodology of dialectic exposition the idea of romantic democratic liberalism unfolds, depicting the process through which the American political community becomes more inclusive as the public recognition of individual dignity increases. This dialectic presents a rare opportunity to be privy to the reflections of one of the most philosophically sophisticated constitutional theorists in contemporary scholarship as he dramatically explores the prospect of a democratically bona fide system of judicial review.

The major players in this drama are constitutional theorists, Ronald Dworkin and Robert Post, Justice Brennan, and of course, Michelman himself, with political theorists Claude Lefort and Nancy Rosenblum,  philosopher John Rawls, and legal scholars Robin West, Steven Shiffrin, and Roberto Unger making brief but significant appearances. The book consists of two chapters, the first examining the idea of democracy and constitutionalism through the theories of Dworkin and Post, the second teasing out Justice Brennan’s commitment to romantic democratic liberalism and contrasting it with communitarianism.

Serving as a shill for a host of other, more fundamental, issues in political philosophy and constitutional theory, the counter-majoritarian problem is less important in Michelman’s inquiry than it may first seem. Keeping the counter-majoritarian problem in focus, Michelman’s inquiry assumes an explanatory framework, which raises four distinct, though interrelated, questions: (1) What legitimizes political authority? (2) Is individual liberty compatible with collective self-government? (3) Are democracy and constitutionalism compatible? and (4) Is the judiciary a democratically appropriate institution for deciding the content of constitutional constraints on self-government? [*540]

The first question reflects political philosophy’s relentless pursuit of the source of political authority. What justifies political organization and the duty to obey law in the first place? This primary question opens the door to the remaining questions in the framework of political legitimacy, though Michelman has little explicitly to say about its answer. The second question is the touchstone of Michelman’s inquiry. Here Michelman reveals his commitment to the moral sovereignty of the individual and the salience of consent in a constitutional democracy. For Michelman, the individual is the basic moral unit of political legitimacy; any state warranting allegiance must respect the individual’s freedom to govern her own life. This second question attempts to understand how individual freedom and democracy are compatible. Is it possible for someone to be self-governing while simultaneously obeying laws of which she disapproves? And, in the end, how can a person identify with such laws as her own? If, for example, an individual opposes social security, how can she retain her freedom to self-govern in a democracy requiring social security? The third question asks how constitutional constraints on self-government are possible. Are such constraints legitimate? If so, according to which conception of democracy?  If not, what other sources of legitimacy are available? Finally, assuming an affirmative answer to question three, namely, that democracy is compatible with constitutionalism, how can such an ostensibly undemocratic institution as the judiciary serve as final arbiter of constitutional constraints on self-government? More germane to the subject of Michelman’s dialectic, what justifies Brennan’s judicial activism?

Michelman approaches the third question by presenting the paradox of constitutional democracy, which sets constitutionalism—“the ideal of self-government constrained by law”—against democracy—“the ideal of self-government by the people” (p.4). One possible way to overcome this paradox, in the first instance, is to realize that democracy may depend on both substantive and procedural norms. Substantive norms have content; they take a stand on what has value, while procedural norms are methods for deciding which substantive norms are correct and just what their content is.

As an exemplar of substantive democracy, Michelman explores Dworkin’s conception of democracy as rights. Democracy, according to Dworkin, requires the basic laws of a country to include: a prohibition against caste, the right to vote, non-arbitrary use of state power, freedom of speech, conscience and association, and “the intellectual and moral independence of every citizen” (p.18). Democracy as rights requires that both constitutional text, and interpretations of constitutional text, respect these democratic rights as constitutional constraints on lawmaking. For Dworkin, once we grant this conception of democracy as rights, there is no obvious reason why judges should not appeal to these rights in formulating the laws of lawmaking.  This conclusion becomes even more evident when one considers “the practical possibility that an independent judiciary will tend to get closer to the truth than would the great body of the people or their elected tribunes in the legislatures” (p.19). [*541]

After all, in a democracy some branch of government must decide whether ordinary laws, enacted by the elected branches of government, satisfy the laws of lawmaking as set forth in the Constitution and in the governing interpretations of constitutional text. It stands to reason that the branches that enact ordinary laws should not sit in judgment over the constitutional propriety of these very same laws. Indeed, that would be posting a fox as guard of the hen-house. By keeping the legislative fox at bay, the courts constitute a proper guard over the operations of self-government.

Judicial review disciplines the government to maintain fidelity to the Constitution. Independent courts, with only an interest in protecting the Constitution, are perfectly situated to enforce the laws of lawmaking.  Impartial judges can make sure that the legislative and executive branches are not carried away by sudden fashions or by the perceived necessity to enact legislation that, in the end, conflict with the laws of lawmaking and therefore are undemocratic and illegitimate. Democracy as rights expresses the proper conception of “democracy” when judges, though interpretive review, enable constitutional rights to trump wayward legislative choices. Democracy as rights also helps determine who is morally eligible for membership in the political community without the bigotry and intolerance often associated with legislative exclusion of marginalized citizens.

Michelman clearly recognizes the tension between democracy as rights and self-government. Even if we grant that democracy as rights requires enforcement against a maverick majority, it hardly follows that the courts are the appropriate enforcer. Why not the people? Why not let the electorate decide in the next election whether the present majority violated the laws of lawmaking? Doesn’t judicial review “put the court in the people’s rightful place” (p.22)?

While realizing the people’s central role in self-government, Michelman’s impulse is to resist the idea of popular constitutionalism. If laws have a correct, determinate content, then subjecting them to politics can be catastrophic. Letting the electorate decide effectively denies the connection between constitutionalism and truth. That is where judges come in. As outsiders to politics, judges are especially suited, if anyone is, to articulate the true content of these laws. Remember, in a democracy, “the electorate and the legislatures act on the basis of policy and preference, and [we should] leave it to the judges to tell them when their policies and preferences are over the line of morally necessary constraint” (p.23).

Because the judiciary is impartial, it is also the best institution for determining who is morally eligible for membership in the political community; these eligibility conditions, interpreted correctly, guarantee that everyone is afforded the dignity and respect they deserve. An independent judiciary, guaranteeing these conditions, enables citizens to identify their own political agency with the lawmaking acts of the polity (p.31).

Yet problems remain. Even if “democracy” has a determinate meaning, why should we credit judges with any special expertise in deciding what it is?  Why not give the job of interpreting the laws of lawmaking to political philosophers, whose professional job is [*542] to analyze and rank competing conceptions of democracy? What in a legal background qualifies judges to decide the meaning of democracy? More important, Dworkin ignores the possibility that the best conception of democracy not only includes individual rights, but also requires that people, individually and collectively, discover the content of these rights themselves. Emphasizing individual rights might imply that it is the electorate’s responsibility and prerogative to determine through political engagement just what the parameters of this content are. Finally, should there not be some empirical evidence that judges guarantee the eligibility conditions of membership in a political community better than the elected branches or the people?  DRED SCOTT, PLESSY, and a host of other Supreme Court decisions, suggest otherwise.

If democracy as rights fails, what about procedural democracy? In the eyes of its proponents, procedural democracy is necessary for self-government.  However, any possibility of pure procedural democracy seems doomed from the start. If democratic politics is the method of deciding the content of democracy, we face the paradox of needing to know what democracy means before we can deploy a democratic procedure for deciding its meaning. To overcome this paradox, a democratic polity must possess a procedurally independent conception of democracy.  However, any procedurally independent conception seems to make self-government illusory. Because citizens have little, or no, say in what counts as the procedurally independent content of these laws, the most important question of self-government, namely, just what democracy means is beyond the people’s reach.  Is there any way to resurrect the possibility of procedural democracy in order to avoid this paradox?  In search of an answer, Michelman turns next to Robert Post’s procedural conception of “responsive democracy.”

Post’s responsive democracy echoes what the philosopher Richard Rorty refers to as free, undistorted conversation, perpetual and unrelenting argument between and among members of a diverse population. Values, old and new, are continually tested through deliberative discourse, and as a result some are revised or abandoned while others are retained. No one’s values have any assurance of prevailing and the debate has no guarantor or necessary termination. Participating in this public discourse enables each member, winner and loser alike, to make the lawmaking system her own (p.37).

Post’s responsive democracy is not restricted to any particular norm except robust free discourse itself. This renders responsive democracy exceptionally attractive because it requires no foundations, and so bars no one. Instead, democracy is achieved when discourse is responsive to each and every citizen who wants to participate in shaping the identity of the democracy at any given time. Michelman considers Post’s commitment to anti-foundationalism to be suspect.  In his view, Post’s responsive democracy cannot be jump-started without a commitment to the foundational principle of free and unfettered discourse open to all who choose to participate. Without this foundational principle the distinction between legitimate and illegitimate discourse is impossible. Yet, this distinction is necessary if responsive democracy is to make good on its pledge to create free and open discourse. We [*543] need to know when discourse fails to satisfy this pledge for responsive democracy to work in the first place.

In Post’s defense, however, Michelman seems to overlook the distinction between strong and weak foundationalism. Democracy, in a strong foundationalist sense, is fixed or dedicated to a closed set of particular values such as libertarianism, socialism, capitalism, and so forth.  Post’s weak foundationalism is not committed to any such substantive values. Responsive democracy relies on citizens to determine the content of the laws of lawmaking through free and open debate. The differences between substantive democracies and Post’s responsive democracy are broad enough to deflect Michelman’s charge that Post is committed to foundationalism. Michelman is correct that no theory can escape weak foundationalism. But Post’s weak foundationalism is sufficiently different from other strong democratic foundations to warrant the name “anti-foundationalism” or at least “limited foundationalism.” Of course, even so, Post’s responsive democracy is open to the charge that it lacks the resources to prevent a current majority from establishing tyrannical rule. This raises the perennial question of whether normative democratic theory permits democrats to democratically end their democracy. Michelman’s view seems to reject any conception that permits this possibility.

In rejecting Dworkin’s substantive conception of democracy and Post’s procedural conception, Michelman has not, of course, damned the project of grounding democracy in one or the other or in some syncretic conception of both. However, there exist a priori reasons for doubting the possibility of either conception. Substantive conceptions seem to introduce an undemocratic element into democracy, namely, deciding on democracy’s content independently of politics. Procedural democracy seems defective because if nothing substantive guides the procedure, its susceptibility to tyrannical preemption is ubiquitous.

Substantive conceptions also suffer from Rawls’ “burden of judgment,” the fact that reasonable disagreement over basic values is an inevitable feature of social life in diverse societies (pp.54-55).  Since the burdens of judgment make universal agreement on the constraints of lawmaking unlikely, a fair-minded person would not insist that these constraints completely match her considered moral judgments. Why should her ego-centric perspective dictate for everyone else the proper constitutional constraints on lawmaking? Other fair-minded individuals have different, equally provable or unprovable, perspectives. Hence, the burdens of judgment make it highly unlikely that any substantive conception, requiring universal acceptance, can be the basis of what makes the law “publicly respect-worthy” (p.57).

Perhaps procedural norms should be given a second look. With this in mind, Michelman shifts the inquiry from what the laws of lawmaking mean in a democracy to which institution should decide the governing interpretations of these laws.  Remember such interpretations must be democratic. The question for Michelman then becomes how should we understand the democratic basis of judicial interpretations of constitutional law?  But again, why should the institution be the judiciary? The courts’ democratic pedigree is much less obvious than that [*544] of the elected branches. Of course, constitutional democracy supervised by the courts may simply be the worst form of constitutional review except for all the rest. Michelman resists this backhanded justification (p.62).  So his inquiry seems to have reached a dead-end. Not quite. At this point, Michelman turns to Brennan as the best exemplar of constitutional democracy through the courts.

Brennan is the central jewel in Michelman’s pantheon of democratic theorists; but Michelman derives Brennan’s “theory” from his judicial opinions. Brennan, in Michelman’s view, was committed to the inherent worth and dignity of individual human beings and to an abiding respect for their political judgments (p.62).  And Brennan expressed this commitment through a particular approach to constitutional interpretation, namely, that of a democratic liberal (p.64).  As a democratic liberal, Brennan is committed to basic individual rights, constraining and nurturing majoritarian politics. But Brennan is more than just a democratic liberal; he is a democratic liberal committed to romantic constitutionalism and social emancipation (p.68).  Romantic democratic liberalism embraces basic individual rights, as in Dworkin’s democracy as rights, as well as the relentless examination of social and personal values, as in Post’s responsive democracy. The romantic democratic liberal eschews dedicated or fixed values and instead seeks self- and context-transcendence (pp.68-69).  This commitment to revisionism requires self-expression, which is both an “individual right of self-presentation” and a basic feature of any political system governing a diverse population (p.71).  For romantic democratic liberals, conflicts in values give rise to the perennial examination and revision of tradition, as well as novel solutions to traditional constitutional controversies.

Michelman next examines several of Brennan’s judicial opinions to demonstrate their commitment to the singularity and independence of a person’s life in contradistinction to an encumbered communitarianism where group rights may prevail (p.91).  Singularity and independence do not preclude encumbrances (p.123).  All of us are situated in a particular society exhibiting certain customs and traditions. That is our lot.  But the romantic democratic liberal takes these encumbrances and subjects them to comprehensive criticism and revision, at least as far as possible. Through this penchant for revision citizens may discover goods collectively that they could not know alone.

Michelman’s dialectic presents a formidable conception of constitutional democracy through the courts.  However, his approach is not without difficulties. One major difficulty is that his dialectical methodology obscures and conflates the questions of political legitimacy. It is often unclear at any particular stage in Michelman’s dialectic, whether he is addressing the question of political legitimacy generally, the question of democracy’s legitimacy, the question of the compatibility of democracy and constitutionalism, or the question of the legitimacy of the courts as the appropriate institution for explicating the constitutional constraints on democracy.  The issue, for example, of why an individual should respect a democratically grounded law of which she disapproves is a general problem for [*545] democratic theory not just for the theory of constitutional democracy. Indeed, the idea of constitutionalism is often given as the answer to the question of democratic legitimacy. Similarly, the question of whether constitutional constraints are compatible with democracy is applicable to all constitutional constraints, not just those decided by courts. In the end, Michelman’s failure to keep these questions distinct, or at least to explain explicitly how answers to these questions are inter-related, detracts from the power of his dialectic.

Finally, Michelman fails to take seriously enough the problems posed by unelected, virtually unaccountable judges interpreting the basic structure of a democratic system of lawmaking. Institutional checks on the legislature may be required.  But that in itself fails to prove that courts are the best checkers.  Michelman is certainly aware of this problem, but his answer is more perfunctory than convincing.  Justice Brennan might have been a powerful constitutional voice; indeed, in some interesting sense, Brennan might have been a constitutional “framer,” as Michelman suggests (p.138); but who effectively checks Brennan?  Article Five?  The difficulty of constitutional change through Article Five is notorious, and without an effective means of formal constitutional change, some informal mechanism will inevitably take its place. Judicial supremacy as the mechanism of constitutional change permits the Brennans and the Scalias on the Court to go virtually unchecked. Self-government requires that some mechanism be capable of checking the checkers, and the electorate must effectively control that mechanism.

We certainly need a constitutional system that is capable of systemically re-considering the constitutional fidelity of ordinary laws. But in a republic, the ultimate authority must lie with the people or their representatives, and this is just as true in a democratic republic as it is in a majoritarian democracy. While a republic is more than a simple majoritarian democracy, the last word nonetheless should be left to the people.  Depriving citizens of an effective last word seems to eliminate self-government from the idea of a republic.

Despite these objections, BRENNAN AND DEMOCRACY is rich in content. It illuminates the questions of political legitimacy in a constitutional democracy where courts determine the meaning of the laws of lawmaking. Michelman’s examination cannot fail to deepen our understanding of these questions even as it raises, as the tenor of his dialectic demands, additional questions about constitutional democracy and judicial supremacy.

CASE REFERENCES:

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

SCOTT v. SANFORD, 19 How. 393 (1857).

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© Copyright 2005 by the author, Robert Justin Lipkin.