The Core of the Case Against Judicial Review PDF

TH AL LAW JO RAL JEREMY WALDRON The Core of the Case Against Judicial Review ABSTRACT. This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its...

TH AL LAW JO RAL JEREMY WALDRON The Core of the Case Against Judicial Review ABSTRACT. This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law. The Essay criticizes judicial review on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so. However, the case against judicial review is not absolute or unconditional. In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even if they may disagree about what rights they have). The Essay ends by considering what follows from the failure of these conditions. AUTHOR. University Professor in the School of Law, Columbia University. (From July 2oo6, Professor of Law, New York University.) Earlier versions of this Essay were presented at the Colloquium in Legal and Social Philosophy at University College London, at a law faculty workshop at the Hebrew University of Jerusalem, and at a constitutional law conference at Harvard Law School. I am particularly grateful to Ronald Dworkin, Ruth Gavison, and Seana Shiffrin for their formal comments on those occasions and also to James Allan, Aharon Barak, Richard Bellamy, Aileen Cavanagh, Arthur Chaskalson, Michael Dorf, Richard Fallon, Charles Fried, Andrew Geddis, Stephen Guest, Ian Haney-Lopez, Alon Harel, David Heyd, Sam Issacharoff, Elena Kagan, Kenneth Keith, Michael Klarman, John Manning, Andrei Marmor, Frank Michelman, Henry Monaghan, Wronique Munoz-Dard., John Morley, Matthew Palmer, Richard Pildes, Joseph Raz, Carol Sanger, David Wiggins, and Jo Wolff for their suggestions and criticisms. Hundreds of others have argued with me about this issue over the years: This Essay is dedicated to all of them, collegially and with thanks. i a6 Imaged with the Permission of Yale Law Journal ESSAY CONTENTS INTRODUCTION 1348 I. DEFINITION OF JUDICIAL REVIEW 1353 II. FOUR ASSUMPTIONS 1359 A. Democratic Institutions 1361 B. Judicial Institutions 1363 C. A Commitment to Rights 1364 D. Disagreement About Rights 1366 Ill. THE FORM OF THE ARGUMENT 1369 IV. OUTCOME-RELATED REASONS 1376 A. Orientation to Particular Cases 1379 B. Orientation to the Text of a Bill of Rights 138o C. Stating Reasons 1382 V. PROCESS-RELATED REASONS 1386 V1. THE TYRANNY OF THE MAJORITY 1395 VII.NON-CORE CASES 1401 CONCLUSION 14o6 1347 Imaged with the Permission of Yale Law Journal THE YALE LAW JOURNAL 115:1346 20o6 INTRODUCTION Should judges have the authority to strike down legislation when they are convinced that it violates individual rights? In many countries they do. The best known example is the United States. In November 2003, the Supreme Judicial Court of Massachusetts ruled that the state's marriage licensing laws violated state constitutional rights to due process and equal protection by implicitly limiting marriage to a union between a man and a woman.' The decision heartened many people who felt that their rights had been unrecognized and that, as gay men and women, they had been treated as second-class citizens under the existing marriage law.' Even if the decision is eventually overturned by an amendment to the state constitution, the plaintiffs and their supporters can feel that at least the issue of rights is now being confronted directly. A good decision and a process in which claims of rights are steadily and seriously considered 3 -for many people these are reasons for cherishing the institution of judicial review. They acknowledge that judicial review sometimes leads to bad decisions-such as the striking down of 170 labor statutes by state and federal courts in the Lochner era 4 -and they acknowledge that the practice suffers from some sort of democratic deficit. But, they say, these costs are often exaggerated or mischaracterized. The democratic process is hardly perfect and, in any case, the democratic objection is itself problematic when what is at stake is the tyranny of the majority. We can, they argue, put up with an occasional bad outcome as the price of a practice that has given us decisions like Lawrence, Roe, and Brown,' which upheld our society's commitment to individual rights in the face of prejudiced majorities. That is almost the last good thing I shall say about judicial review. (I wanted to acknowledge up front the value of many of the decisions it has given us and the complexity of the procedural issues.) This Essay will argue that judicial review of legislation is inappropriate as a mode of final decisionmaking in a free and democratic society. 1. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003). 2. See Landmark Ruling: The Victors, BOSTON HERALD, Nov. 19, 2003, at S. 3. This adapts a phrase of Ronald Dworkin's, from RONALD DWORKIN, A MATTER OF PRINCIPLE 9-32 (1985). 4. Lochner v. New York, 198 U.S. 45 (1905). The calculation of the overall number of cases in which state or federal statutes on labor relations and labor conditions were struck down in the period 1880-1935 is based on lists given in WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT apps. A, C, at 177-92, 199-203 (1991). 5. Lawrence v. Texas, 539 U.S. 558 (2003); Roe v. Wade, 410 U.S. 113 (1973); Brown v. Bd. of Educ., 347 U.S. 483 (1954). 1348 Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW Arguments to this effect have been heard before, and often. They arise naturally in regard to a practice of this kind. In liberal political theory, legislative supremacy is often associated with popular self-government, 6 and democratic ideals are bound to stand in an uneasy relation to any practice that says elected legislatures are to operate only on the sufferance of unelected judges. Alexander Bickel summed up the issue in the well-known phrase, "the counter-majoritarian difficulty." 7 We can try to mitigate this difficulty, Bickel said, by showing that existing legislative procedures do not perfectly represent the popular or the majority will. But, he continued, nothing in the further complexities and perplexities of the system, which modern political science has explored with admirable and ingenious industry, and some of which it has tended to multiply with a fertility that passes the mere zeal of the discoverer- nothing in these complexities can alter the essential reality that judicial review is a deviant institution in the American democracy. 8 In countries that do not allow legislation to be invalidated in this way, the people themselves can decide finally, by ordinary legislative procedures, whether they want to permit abortion, affirmative action, school vouchers, or gay marriage. They can decide among themselves whether to have laws punishing the public expression of racial hatred or restricting candidates' spending in elections. If they disagree about any of these matters, they can elect representatives to deliberate and settle the issue by voting in the legislature. That is what happened, for example, in Britain in the 196os, when Parliament debated the liberalization of abortion law, the legalization of homosexual conduct among consenting adults, and the abolition of capital punishment.9 On each issue, wide-ranging public deliberation was mirrored in serious debate in the House of Commons. The quality of those debates (and similar debates in Canada, Australia, New Zealand, and elsewhere) make nonsense of the claim that legislators are incapable of addressing such issues responsibly -just as the 6. The locus classicus for this concept is John Locke, The Second Treatise of Government, in Two TREATISES OF GOVERNMENT 265, 366-67 (Peter Laslett ed., Cambridge Univ. Press 1988) (169o). 7. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16-17 (2d ed. 1986) ("[J]udicial review is a counter-majoritarian force in our system.... [W]hen the Supreme Court declares unconstitutional a legislative act... it thwarts the will of representatives of the actual people of the here and now... 8. Id. at 17-18. 9. Abortion Act, 1967, c. 87; Sexual Offences Act, 1967, c. 6o; Murder (Abolition of Death Penalty) Act, 1965, c. 71. Imaged with the Permission of Yale Law Journal 1349 THE YALE LAW JOURNAL 115:1346 20o6 liberal outcomes of those proceedings cast doubt on the familiar proposition that popular majorities will not uphold the rights of minorities. By contrast, in the United States the people or their representatives in state and federal legislatures can address these questions if they like, but they have no certainty that their decisions will prevail. If someone who disagrees with the legislative resolution decides to bring the matter before a court, the view that finally prevails will be that of the judges. As Ronald Dworkin puts it- and he is a defender of judicial review-on "intractable, controversial, and profound questions of political morality that philosophers, statesmen, and citizens have debated for many centuries," the people and their representatives simply have to "accept the deliverances of a majority of the justices, whose insight into these great issues is not spectacularly special."' ° In recent years, a number of books have appeared attacking judicial review in America." For years, support for the practice has come from liberals, and opposition from conservative opponents of the rights that liberal courts have upheld. In recent years, however, we have seen the growth of liberal opposition to judicial review, as the Rehnquist Court struck down some significant achievements of liberal legislative policy.12 But there have been spirited defenses of the practice as well." The two-hundredth anniversary of Marbury v. Madison elicited numerous discussions of its origins and original legitimacy, and the fiftieth anniversary of Brown v. Board of Education provided a timely reminder of the service that the nation's courts performed in the mid-twentieth century by spearheading the attack on segregation and other racist laws. So the battle lines are drawn, the maneuvering is familiar, and the positions on both sides are well understood. What is the point of this present 10. RONALD DwoRKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 74 (1996). 11. See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REvIEW (2004); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999). 12. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (striking down part of the Violence Against Women Act); United States v. Lopez, 514 U.S. 549 (1995) (holding that Congress has no authority to legislate a prohibition on the possession of guns within a certain distance from a school); see also Mark Tushnet, Alarmism Versus Moderation in Responding to the Rehnquist Court, 78 IND. L.J. 47 (2003). 13. DWORKIN, supra note 1o; CHRISTOPHER L. EISGRUBER, CONSTITUTIONAL SELF- See, e.g., GovERNMENT (2001); LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE (2004)..... Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW intervention? I have written plenty about this myself already.1 4 Why another article attacking judicial review? What I want to do is identify a core argument against judicial review that is independent of both its historical manifestations and questions about its particular effects -the decisions (good and bad) that it has yielded, the heartbreaks and affirmations it has handed down. I want to focus on aspects of the case against judicial review that stand apart from arguments about the way judges exercise their powers and the spirit (deferential or activist) in which they approach the legislation brought before them for their approval. Recent books by Mark Tushnet and Larry Kramer entangle a theoretical critique of the practice with discussions of its historical origins and their vision of what a less judicialized U.S. Constitution would involve.15 This is not a criticism of Tushnet and Kramer. Their books are valuable in large part because of the richness and color they bring to the theoretical controversy. As Frank Michelman says in his blurb on the back cover of The People Themselves, Kramer's history "puts flesh on the bones of debates over judicial review and popular constitutionalism.", 6 And so it does. But I want to take off some of the flesh and boil down the normative argument to its bare bones so that we can look directly at judicial review and see what it is premised on. Charles Black once remarked that, in practice, opposition to judicial review tends to be "a sometime thing," with people supporting it for the few cases they cherish (like Brown or Roe) and opposing it only when it leads to outcomes they deplore. 7 In politics, support for judicial review is sometimes intensely embroiled in support for particular decisions. This is most notably true in the debate over abortion rights, in which there is a panic-stricken refusal among pro-choice advocates to even consider the case against judicial review for fear this will give comfort and encouragement to those who regard Roe v. Wade as an unwarranted intrusion on the rights of conservative legislators. I hope that setting out the core case against judicial review in 14. See, e.g., JEREMY WALDRON, LAW AND DISAGREEMENT 10-17, 211-312 (1999); Jeremy Waldron, Deliberation,Disagreement, and Voting, in DELIBERATIVE DEMOCRACY AND HUMAN RIGHTS 210 (Harold Hongju Koh & Ronald C. Slye eds., 1999) [hereinafter Waldron, Deliberation, Disagreement, and Voting]; Jeremy Waldron, Judicial Power and Popular Sovereignty, in MARBURY VERSUS MADISON: DOCUMENTS AND COMMENTARY 181 (Mark A. Graber & Michael Perhac eds., 2002) [hereinafter Waldron, Judicial Power and Popular Sovereignty]; Jeremy Waldron, A Right-Based Critique of Constitutional Rights, 13 OXFORD J. LEGAL STUD. 18 (1993) [hereinafter Waldron, A Right-Based Critique]. 15. See KRAMER, supra note 11; TUSHNET, supra note 11. 16. Frank Michelman, Jacket Comment on KRAMER, supra note ii. 17. CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 109 (1997). Imaged with the Permission of Yale Law Journal THE YALE LAW JOURNAL 115:1346 20o6 abstraction from its particular consequences can help overcome some of this panic. It may still be the case that judicial review is necessary as a protective measure against legislative pathologies relating to sex, race, or religion in particular countries. But even if that is so, it is worth figuring out whether that sort of defense goes to the heart of the matter, or whether it should be regarded instead as an exceptional reason to refrain from following the tendency of what, in most circumstances, would be a compelling normative argument against the practice. A connected reason for boiling the flesh off the bones of the theoretical critique is that judicial review is an issue for other countries that have a different history, a different judicial culture, and different experience with legislative institutions than the United States has had. For example, when the British debate the relatively limited powers their judges have to review legislation, they are not particularly interested in what the Republicans said to the Federalists in 1805 or in the legacy of Brown v. Board of Education. What is needed is some general understanding, uncontaminated by the cultural, historical, and political preoccupations of each society.' 8 My own writing on this has been more abstract than most. But I have managed to discuss judicial review in a way that embroils it with other issues in jurisprudence and political philosophy.' 9 I am not satisfied that I have stated in is. Again, this is not to dismiss the more fleshed-out accounts. The idea behind this Essay is that we take a clear view of the theoretical argument and put it alongside our richer understanding of the way the debate unfolds in, to name a few examples, Britain, the United States, Canada, and South Africa. 19. I have asked whether the very idea of individual rights commits us to judicial review in Waldron, A Right-Based Critique, supra note 14. I have considered its relation to civic republican ideas in Jeremy Waldron, Judicial Review and Republican Government, in THAT EMINENT TRIBUNAL: JUDICIAL SUPREMACY AND THE CONSTITUTION 159 (Christopher Wolfe ed., 2004), its relation to the difference between Benthamite and Rousseauian conceptions of democracy in Jeremy Waldron, Rights and Majorities: Rousseau Revisited, in NoMOS XXXII: MAJORITIES AND MINORITIES 44(John W. Chapman & Alan Wertheimer eds., 199o) [hereinafter Waldron, Rights and Majorities], and its relation to Continental theories of popular sovereignty in Waldron, JudicialPower andPopularSovereignty, supra note 14. I have considered the relation of the judicial review controversy to debates in meta-ethics about realism and the objectivity of values in Jeremy Waldron, The Irrelevance ofMoral Objectivity, in NATURAL LAw THEORY 158 (Robert P. George ed., 1992) [hereinafter Waldron, The Irrelevance of Moral Objectivity]; and Jeremy Waldron, Moral Truth and Judicial Review, 43 AM. J. JURIS. 75 (1998) [hereinafter Waldron, Moral Truth and Judicial Review]. I have responded to various defenses of judicial review, ranging from the precommitment case, see Jeremy Waldron, Precommitment and Disagreement, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 271 (Larry Alexander ed., 1998) [hereinafter Waldron, Precommitment and Disagreement], to the particular argument that Ronald Dworkin makes in Freedom's Law 1lcl Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW a clear and uncluttered way what the basic objection is, nor do I think I have given satisfactory answers to those who have criticized the arguments I presented in Law and Disagreementand elsewhere. In this Essay, I shall argue that judicial review is vulnerable to attack on two fronts. It does not, as is often claimed, provide a way for a society to focus clearly on the real issues at stake when citizens disagree about rights; on the contrary, it distracts them with side-issues about precedent, texts, and interpretation. And it is politically illegitimate, so far as democratic values are concerned: By privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality in the final resolution of issues about rights. I will proceed as follows. In Part I, I will define the target of my argument - strong judicial review of legislation - and distinguish it from other practices that it is not my intention to attack. Part II will set out some assumptions on which my argument is predicated: My argument against judicial review is not unconditional but depends on certain institutional and political features of modern liberal democracies. Then, in Part III, I will review the general character of the argument I propose to make. That argument will attend to both outcome- and process-related reasons, and these will be discussed in Parts IV and V, respectively. In Part VI, I will expose the fallacy of the most common argument against allowing representative institutions to prevail: that such a system inevitably leads to the tyranny of the majority. Finally, in Part VII, I shall say a little bit about non-core cases - that is, cases in which there is reason to depart from the assumptions on which the core argument depends. I. DEFINITION OF JUDICIAL REVIEW I begin with a brief account of what I mean by judicial review. This is an Essay about judicial review of legislation, not judicial review of executive action or administrative decisionmaking.2 ° The question I want to address concerns about its ultimate compatibility with democracy, see Jeremy Waldron, JudicialReview and the Conditionsof Democracy, 6 J. POL. PHIL. 335 (1998). 2o. Much of what is done by the European Court of Human Rights is judicial review of executive action. Some of it is judicial review of legislative action, and some of it is actually judicial review of judicial action. See Seth F. Kreimer, Exploring the Dark Matter of Judicial Review: A Constitutional Census of the 199os, 5 WM. & MARY BiLL RTS. J. 427, 458-59 (1997), for the claim that the majority of constitutional decisions by the United States Supreme Court concern challenges to the actions of low-level bureaucrats rather than of legislatures. Imaged with the Permission of Yale Law Journal 1c THE YALE LAW JOURNAL 115:1346 2oO6 primary legislation enacted by the elected legislature of a polity. It might be thought that some of the same arguments apply to executive action as well: After all, the executive has some elective credentials of its own with which to oppose decisionmaking by judges. But it is almost universally accepted that the executive's elective credentials are subject to the principle of the rule of law, and, as a result, that officials may properly be required by courts to act in accordance with legal authorization.2 The equivalent proposition for legislators has been propounded too: Judicial review is just the subjection of the legislature to the rule of law. But in the case of the legislature, it is not uncontested; indeed that is precisely the contestation we are concerned with here. There are a variety of practices all over the world that could be grouped under the general heading of judicial review of legislation. They may be distinguished along several dimensions. The most important difference is between what I shall call strong judicial review and weak judicial review. My target is strong judicial review.2" In a system of strong judicial review, courts have the authority to decline to apply a statute in a particular case (even though the statute on its own terms plainly applies in that case) or to modify the effect of a statute to make its application conform with individual rights (in ways that the statute itself does not envisage). Moreover, courts in this system have the authority to establish as a matter of law that a given statute or legislative provision will not be applied, so that as a result of stare decisis and issue preclusion a law that they have refused to apply becomes in effect a dead letter. A form of even stronger judicial review would empower the courts to actually strike a piece of legislation out of the statute-book altogether. Some European courts have this 21. Seana Shiffrin, Richard Pildes, Frank Michelman, and others have urged me to consider how far my argument against judicial review of legislation might also extend to judicial review of executive action in the light of statutes enacted long ago or statutes whose provisions require extensive interpretation by the courts. Clearly more needs to be said about this. Pursuing the matter in this direction might be considered either a reductio ad absurdum of my argument or an attractive application of it. 22. The distinction between strong and weak judicial review is separate from the question of judicial supremacy. Judicial supremacy refers to a situation in which (1) the courts settle important issues for the whole political system, (2) those settlements are treated as absolutely binding on all other actors in the political system, and (3) the courts do not defer to the positions taken on these matters in other branches (not even to the extent to which they defer to their own past decisions under a limited principle of stare decisis). See Barry Friedman, The History of the CountermajoritarianDifficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 352 & n.63 (1998); Jeremy Waldron, Judicial Power and PopularSovereignty, supra note 14, at 191-98. 1354 Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW authority.23 It appears that American courts do not,' but the real effect of their authority is not much short of it.25 In a system of weak judicial review, by contrast, courts may scrutinize legislation for its conformity to individual rights but they may not decline to apply it (or moderate its application) simply because rights would otherwise be violated.26 Nevertheless, the scrutiny may have some effect. In the United Kingdom, the courts may review a statute with a view to issuing a "declaration of incompatibility" in the event that "the court is satisfied that the provision is incompatible with a Convention right" - i.e., with one of the rights set out in the European Convention of Human Rights as incorporated into British law through the Human Rights Act. The Act provides that such declaration "does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and... is not binding on the parties to the proceedings in which it is made."' 7 But still it has an effect: A minister may use such a declaration as authorization to initiate a fast-track legislative procedure to remedy the incompatibility. 8 (This is a power the minister would not have but for the process of judicial review that led to the declaration in the first place.) 23. See Mauro Cappelletti & John Clarke Adams, Comment, Judicial Review of Legislation: European Antecedents and Adaptations, 79 HARv. L. REV. 1207, 1222-23 (1966). There are further complications in regard to whether the statute declared invalid is deemed to have been invalid as of the time of its passage. 24. The matter is not clear-cut. In support of the proposition that unconstitutional statutes are not struck out of the statute book, consider Dickerson v. United States, 530 U.S. 428 (2000), in which the Supreme Court by a majority held that a federal statute (18 U.S.C. § 3501) purporting to make voluntary confessions admissible even when there was no Miranda warning was unconstitutional. The closing words of Justice Scalia's dissent in that case seem to indicate that legislation that the Supreme Court finds unconstitutional remains available for judicial reference. Justice Scalia said: "I dissent from today's decision, and, until § 3501 is repealed, will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary." Id at 464. A contrary impression may appear from McCorvey v. Hill, 385 F.3d 846, 849 ( 5th Cir. 2004), in which the Fifth Circuit held that the Texas abortion statute at issue in Roe v. Wade must be deemed to have been repealed by implication. A close reading of that case, however, shows that the implicit repeal was held to have been effected by the Texas statutes regulating abortion after Roe, not by the decision in Roe itself. (I am grateful to Carol Sanger for this reference.) 25. See Richard H. Fallon, Jr., Commentary, As-Applied and Facial Challenges and Third-Party Standing, 113 HARv. L. REV. 1321, 1339-40 (2000). a6. See Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L. 707 (2001). 27. Human Rights Act, 1998, C. 42, § 4(2), (6). 28. Id. § jo. Imaged with the Permission of Yale Law Journal 12cc THE YALE LAW JOURNAL 115:1346 2oo6 A form of even weaker judicial review would give judges not even that much authority. Like their British counterparts, the New Zealand courts may not decline to apply legislation when it violates human rights (in New Zealand, the rights set out in the Bill of Rights Act of 199o29); but they may strain to find interpretations that avoid the violation."0 Although courts there have indicated that they may be prepared on occasion to issue declarations of incompatibility on their own initiative, such declarations in New Zealand do not have any legal effect on the legislative process.31 There are some intermediate cases. In Canada, there is a provision for the review of legislation by courts, and courts there, like their U.S. counterparts, may decline to apply a national or provincial statute if it violates the provisions of the Canadian Charter of Rights and Freedoms. But Canadian legislation (provincial or national) may be couched in a form that insulates it from this scrutiny- Canadian assemblies may legislate "notwithstanding" the rights in the Charter.3 2 In practice, however, the notwithstanding clause is rarely invoked.33 Thus, in what follows I shall count the Canadian arrangement as a 29. New Zealand Bill of Rights Act 199o, 199o S.N.Z. No. 109, 5 4 ("No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights).... [h]old any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or... [d]ecline to apply any provision of the enactment -by reason only that the provision is inconsistent with any provision of this Bill of Rights."). 30. Id. S 6 ("Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning."). 31. See Moonen v. Film & Literature Bd. of Review, 2 N.Z.L.R. 9, 22-3 (C.A.). 32. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, ch. 11, 5 33(1)-(2) (U.K.). The full text of the provision reads: (i) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. 33- When it has been invoked, it has mostly been in the context of Oub&ois politics. See Tsvi Kahana, The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored PracticeofSection 33 ofthe Charter,44 J. INST. PUB. ADMIN. CAN. 255 (2001). 12CA Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW form of strong judicial review, with its vulnerability to my argument affected only slightly by the formal availability of the override. 4 A second distinction among types of judicial review pays attention to the place of individual rights in the constitutional system of a society. In the United States, statutes are scrutinized for their conformity to individual rights as set out in the Constitution. Rights-oriented judicial review is part and parcel of general constitutional review, and the courts strike down statutes for violations of individual rights in exactly the spirit in which they strike down statutes for violations of federalism or separation of powers principles.3 ' This gives American defenses of judicial review a peculiar cast. Though philosophical defenses of the practice are often couched in terms of the 34. Jeffrey Goldsworthy has suggested that the "notwithstanding" provision provides a sufficient answer to those of us who worry, on democratic grounds, about the practice of strong judicial review. Jeffrey Goldsworthy, Judicial Review, Legislative Override, and Democracy, 38 WAKE FOREST L. REv. 451, 454-59 (2003). It matters not, he says, that the provision is rarely used. [S]urely that is the electorate's democratic prerogative, which Waldron would be bound to respect. It would not be open to him to object that an ingenuous electorate is likely to be deceived by the specious objectivity of constitutionalised rights, or dazzled by the mystique of the judiciary-by a naive faith in judges' expert legal skills, superior wisdom, and impartiality. That objection would reflect precisely the same lack of faith in the electorate's capacity for enlightened self-government that motivates proponents of constitutionally entrenched rights. Id. at 456-57. I believe that the real problem is that section 33 requires the legislature to misrepresent its position on rights. To legislate notwithstanding the Charter is a way of saying that you do not think Charter rights have the importance that the Charter says they have. But the characteristic stand-off between courts and legislatures does not involve one group of people (judges) who think Charter rights are important and another group of people (legislators) who do not. What it usually involves is groups of people (legislative majorities and minorities, and judicial majorities and minorities) all of whom think Charter rights are important, though they disagree about how the relevant rights are to be understood. Goldsworthy acknowledges this: When the judiciary... is expected to disagree with the legislature as to the "true" meaning and effect of Charter provisions, the legislature cannot ensure that its view will prevail without appearing to override the Charter itself. And that is vulnerable to the politically lethal objection that the legislature is openly and self- confessedly subverting constitutional rights. Id. at 467. However, maybe there is no form of words that can avoid this difficulty. As a matter of practical politics, the legislature is always somewhat at the mercy of the courts' public declarations about the meaning of the society's Bill or Charter of Rights. I am grateful to John Morley for this point. 35. The most famous judicial defense of judicial review, Marbury v. Madison, had nothing to do with individual rights. It was about Congress's power to appoint and remove justices of the peace. Imaged with the Permission of Yale Law Journal 1 THE YALE LAW JOURNAL 115:1346 2o06 judiciary's particular adeptness at dealing with propositions about rights, in reality that argument is subordinate to a defense of the structural role the courts must play in upholding the rules of the Constitution. Sometimes these two defenses are consistent; other times, they come apart. For example, textualism may seem appropriate for structural issues, but it can easily be made to seem an inappropriate basis for thinking about rights, even when the rights are embodied in an authoritative text. 6 In other countries, judicial review takes place with regard to a bill of rights that is not specifically designated as part of the (structural) constitution. Weak judicial review in the United Kingdom on the basis of the Human Rights Act is of this kind. Because most cases of strong judicial review are associated with constitutional review, I shall focus on these cases. But it is important to remember both that an approach oriented to structural constraints might not be particularly appropriate as a basis for thinking about rights, and the additional point that many of the challenges to rights-oriented judicial review can be posed to other forms of constitutional review as well. In recent years, for example, the Supreme Court of the United States has struck down a number of statutes because they conflict with the Supreme Court's vision of federalism.3 7 Now, everyone concedes that the country is governed on a quite different basis so far as the relation between state and central government is concerned than it was at the end of the eighteenth century, when most of the constitutional text was ratified, or in the middle of the nineteenth century, when the text on federal structure was last modified to any substantial extent. But opinions differ as to what the new basis of state/federal relations should be. The text of the Constitution does not settle that matter. So it is settled instead by voting among Justices - some voting for one conception of federalism (which they then read into the Constitution), the others for another, and whichever side has the most votes on the Court prevails. It is not clear that this is an appropriate basis for the settlement of structural terms of association among a free and democratic people."' A third distinction is between a posteriori review of the American kind, which takes place in the context of particular legal proceedings, sometimes long 36. See DWORKIN, supra note 3, at 11-18; ANDREI MARMOR, INTERPRETATION AND LEGAL THEORY 156-57 (rev. 2d ed. 2005). 37. See, e.g., supra note 12. 38. The need for judicial review for patrolling structural limits on the allocation of authority between state and federal legislatures is often cited (opportunistically) by defenders of rights-based limitations on legislatures. People say, "Legislatures are subject to judicial review anyway, for federalism reasons. So why not exploit that practice to develop rights- based judicial review as well?" My analysis of the desirability of rights-based judicial review will be pertinent to this sort of hybrid or opportunistic argument. 12cR Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW after a statute has been enacted, and ex ante review of legislation by a constitutional court specifically set up to conduct an abstract assessment of a bill in the final stages of its enactment.3 9 There are questions about how to understand ex ante review. Something that amounts in effect to a final stage in a multicameral legislative process, with the court operating like a traditional senate, is not really judicial review (though the case against empowering an unelected body in this way may be similar).4° 1 shall not say much more about this. For some defenses of judicial review, the a posteriori character of its exercise-its rootedness in particular cases 41- is important, and I shall concentrate on that. A fourth distinction is connected with the third. Judicial review can be carried out by ordinary courts (as in the Massachusetts case we began with) or it can be carried out by a specialized constitutional court. This may be relevant to an argument I will make later: The ability of judges in the regular hierarchy of courts to reason about rights is exaggerated when so much of the ordinary discipline of judging distracts their attention from direct consideration of moral arguments. Perhaps a specialist constitutional court can do better, though experience suggests that it too may become preoccupied with the development of its own doctrines and precedents in a way that imposes a distorting filter on the rights-based reasoning it considers. II. FOUR ASSUMPTIONS To focus my argument, and to distinguish the core case in which the objection to judicial review is at its clearest from non-core cases in which judicial review might be deemed appropriate as an anomalous provision to deal with special pathologies, I shall set out some assumptions.4 2 39. Some systems of the first kind make provision for ex ante advisory opinions in limited circumstances. For example, in Massachusetts, "[e]ach branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions." MASS. CONST. pt. II, ch. III, art. II (amended 1964). This procedure was used in the months following the Goodridge decision, discussed at the beginning of this Essay. In Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004), the Supreme Judicial Court of Massachusetts held that alegislative provision for civil unions for same-sex couples that also prohibited discrimination against civilly joined spouses would not be sufficient to avoid the constitutional objection to the ban on same-sex marriages noted in Goodridge. 40. See Jeremy Waldron, Eisgruber's House ofLords, 37 U.S.F. L. REv. 89 (2002). 41. See infra Section IV.A. 42. These assumptions are adapted from those set out in Jeremy Waldron, Some Models of DialogueBetween Judges and Legislators, 23 SuP. CT. L. REV. 2d 7 , 9-21 (2004). Imaged with the Permission of Yale Law Journal THE YALE LAW JOURNAL II5: 1346 2oo6 Certain of these assumptions may strike some readers as question-begging, but I am not trying any sort of subterfuge here. The reasons for beginning with these assumptions will be evident as we go along, and the possibility of non- core cases, understood as cases in which one or more of these assumptions does not hold, is freely acknowledged and will be considered in Part VII. In effect, my contention will be that the argument against judicial review is conditional; if any of the conditions fail, the argument may not hold. 43 Let me add that part of what I want to combat in this Essay is a certain sort of bottom-line mentality toward the issue of judicial review. 44 1fully expect that some readers will comb quickly through my assumptions to find some that do not apply, say, to American or British society as they understand it, leading them to ignore the core argument altogether. What matters to them is that judicial review be defended and challenges to it seen off; they don't particularly care how. That is an unfortunate approach. It is better to try and understand the basis of the core objection, and to see whether it is valid on its own terms, before proceeding to examine cases in which, for some reason, its application may be problematic. Let me lay out in summary the four assumptions I shall make. We are to imagine a society with (1)democratic institutions in reasonably good working order, including a representative legislature elected on the basis of universal adult suffrage; (2) a set of judicial institutions, again in reasonably good order, set up on a nonrepresentative basis to hear individual lawsuits, settle disputes, and uphold the rule of law; (3)a commitment on the part of most members of the society and most of its officials to the idea of individual and minority rights; and (4)persisting, substantial, and good faith disagreement about rights (i.e., about what the commitment to rights actually amounts to and what its implications are) among the members of the society who are committed to the idea of rights. I shall argue that, relative to these assumptions, the society in question ought to settle the disagreements about rights that its members have using its legislative institutions. If these assumptions hold, the case for consigning such disagreements to judicial tribunals for final settlement is weak and unconvincing, and there is no need for decisions about rights made by legislatures to be second-guessed by courts. And I shall argue that allowing decisions by courts to override legislative decisions on these matters fails to satisfy important criteria of political legitimacy. Let me first elaborate the four assumptions. 43. See itifra text accompanying note 136. 44. For a general critique of the "bottom-line" mentality in political philosophy, see Jeremy Waldron, What Plato Would Allow, in NOMOS XXXVII: THEORY AND PRACTICE 138 (Ian Shapiro & Judith Wagner DeCew eds., 1995). 136o Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW A. DemocraticInstitutions I assume that the society we are considering is a democratic society and that, like most in the modern Western world, it has struggled through various forms of monarchy, tyranny, dictatorship, or colonial domination to a situation in which its laws are made and its public policies are set by the people and their representatives working through elective institutions. This society has a broadly democratic political system with universal adult suffrage, and it has a representative legislature, to which elections are held on a fair and regular basis.4" I assume that this legislature is a large deliberative body, accustomed to dealing with difficult issues, including important issues of justice and social policy. The legislators deliberate and vote on public issues, and the procedures for lawmaking are elaborate and responsible, 46 and incorporate various safeguards, such as bicameralism,47 robust committee scrutiny, and multiple levels of consideration, debate, and voting. I assume that these processes connect both formally (through public hearings and consultation procedures) and informally with wider debates in the society. Members of the legislature think of themselves as representatives, in a variety of ways, sometimes making the interests and opinions of their constituents key to their participation, sometimes thinking more in terms of virtual representation of interests and opinions throughout the society as a whole. I assume too that there are political parties, and that legislators' party affiliations are key to their taking a view that ranges more broadly than the interests and opinions of their immediate constituents. None of this is meant to be controversial; it picks out the way in which democratic legislatures usually operate. In general, I am assuming that the democratic institutions are in reasonably good order. They may not be perfect and there are probably ongoing debates as to how they might be improved. I assume these debates are informed by a culture of democracy, valuing responsible deliberation and political equality. The second of these values- 45. Thus, the application of my argument to nondemocratic societies, or societies whose institutions differ radically from these forms, is not a subject discussed in this Essay. 46. See Jeremy Waldron, Legislatingwith Integrity, 72 FORDHAM L. REV. 373 (2003). 47. The assumption of bicameralism might seem problematic. There are in the world a number of well-functioning unicameral legislatures, most notably in the Scandinavian countries: Denmark, Norway, and Sweden. But unicameral arrangements can easily exacerbate other legislative pathologies. For an argument that this has happened in New Zealand to an extent that may take that country outside the benefit of the argument developed in this Essay, see Jeremy Waldron, Compared to What?-JudicialActivism and the New Zealand Parliament, 2005 N.Z. L.J. 441. Imaged with the Permission of Yale Law Journal , THE YALE LAW JOURNAL 115:134 6 20o6 political equality-is worth particular emphasis. I assume that the institutions, procedures, and practices of legislation are kept under constant review from this perspective, so that if there are perceived inequities of representation that derogate seriously from the ideal of political equality, it is understood among all the members of the society that this is an appropriate criticism to make and that, if need be, the legislature and the electoral system should be changed to remedy it. And I assume that the legislature is capable 48 of organizing such change, either on its own initiative or by referendum. I belabor these points about a democratic culture and electoral and legislative institutions in reasonably good working order because they will be key to the argument that follows. The initial structure of the argument will be to ask the following question: Once we have posited this first assumption, what reason can there be for wanting to set up a nonelective process to review and sometimes override the work that the legislature has done? On the other hand, I do not want to beg any questions with this initial assumption. I shall balance it immediately with the assumption that the society we are postulating also has courts in good working order -this will be the second assumption - doing reasonably well what courts are good at doing. The society we are contemplating has what it takes to have a system of judicial review, if judicial review can be shown to be appropriate. One note of caution: When I say that the institutions are in good working order, I am not assuming that the legislation that the reasonably democratic legislature enacts is by and large good or just, so far as its content is concerned. I assume some of the legislation is just and some of it unjust (people will disagree about which is which), and that this is true both of the measures that might conceivably be subject to judicial review and of the measures that nobody is proposing to subject to judicial review. All that I have said about the legislative and electoral arrangements being in good working order goes to process values rather than outcome values. In Part V, however, I shall say more about the sort of reasoning that we would expect to see in such a process. 48. It is sometimes said that elective institutions are incapable of reforming themselves because legislators have an entrenched interest in the status quo. This may be true of some of the pathological electoral and legislative arrangements in the United States. (But the issues for which this is most true in the United States are those on which the courts have scarcely dared to intervene -consider the disgraceful condition of American redistricting arrangements, for example.) It is patently false elsewhere. In New Zealand, for example, in 1993 the legislature enacted statutes changing the system of parliamentary representation from a first-past-the-post system to a system of proportional representation, in a way that unsettled existing patterns of incumbency. See Electoral Act 1993, 1993 S.N.Z. No. 87; Electoral Referendum Act 1993, 1993 S.N.Z. No. 86. I A, Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW B. JudicialInstitutions I assume that the society we are considering has courts -that is, a well- established and politically independent judiciary, again in reasonably good working order, set up to hear lawsuits, settle disputes, and uphold the rule of law. I assume that these institutions are already authorized to engage in judicial review of executive actions, testing it against statutory and constitutional law. I assume that, unlike the institutions referred to in the previous Section, the courts are mostly not elective or representative institutions. By this I mean not only that judicial office is not (for the most part) an elective office, but also that the judiciary is not permeated with an ethos of elections, representation, and electoral accountability in the way that the legislature is. Many defenders of judicial review regard this as a huge advantage, because it means courts can deliberate on issues of principle undistracted by popular pressures and invulnerable to public anger. Sometimes, however, when it is thought necessary to rebut the democratic case against judicial review, defenders of the practice will point proudly to states where judges are elected. This happens in some states in the United States. But even where judges are elected, the business of the courts is not normally conducted, as the business of the legislature is, in accordance with an ethos of representation and electoral accountability. I am going to assume that, in the society we are considering, courts are capable of performing the functions that would be assigned to them under a practice of judicial review. They could review legislation; the question is whether they should, and if so, whether their determinations should be final and binding on the representative branches of government. I assume, though, that if they are assigned this function, they will perform it as courts characteristically perform their functions. There is an immense law review literature on the specific character of the judicial process and of the tasks for which courts do and do not seem institutionally competent.4 9 I do not want to delve deeply into that here. As I indicated above, I will assume that we are dealing with courts that (i) do not act on their own motion or by abstract reference, but rather respond to particular claims brought by particular litigants; (2) deal with issues in the context of binary, adversarial presentation; and (3) refer to and elaborate their own past decisions on matters that seem relevant to the case at hand. I further assume a familiar hierarchy of courts, 49. See, e.g., HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 640-47 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994); Lon L. Fuller, The Forms andLimits of Adjudication, 92 HARV. L.REV. 353 (1978). Imaged with the Permission of Yale Law Journal 1363 THE YALE LAW JOURNAL 115:1346 20o6 with provisions for appeal, and with larger multimember bodies (perhaps five or nine judges) addressing cases at the highest level of appeal, with lower courts being required largely to follow the lead of higher courts in the disposition of the matters that come before them. In some societies, judges are specially and separately trained; in other societies, they are chosen from the ranks of eminent lawyers and jurists. In either case, I assume that they have high status in the political system and a position that insulates them from specific political pressures. In other regards, I assume they are typical of the high-status and well-educated members of their society. This is important for two reasons. First, because the society prides itself on being largely democratic, I shall assume that the judges share some of that pride and so are likely to be self-conscious about the legitimacy of their own activity if they engage in judicial review of legislation. This may affect how they exercise such authority."0 Second, although judges are likely to be at least as committed to rights as anyone else in the society, I assume that like other members of the society, judges disagree with one another about the meaning and implications of individual and minority rights. That is, I assume they are subject to my fourth assumption about rights-disagreement, and that this too affects how they exercise powers of judicial review (if they have such powers). Specifically, just like legislators, modes of decisionmaking have to be developed for multi-judge tribunals whose members disagree about rights. The decision-procedure most often used is simple majority voting. In Part V, I will address the question of whether this is an appropriate procedure for judges to use. C. A Commitment to Rights I assume that there is a strong commitment on the part of most members of the society we are contemplating to the idea of individual and minority rights. Although they believe in the pursuit of the general good under some broad utilitarian conception, and although they believe in majority rule as a rough general principle for politics, they accept that individuals have certain interests and are entitled to certain liberties that should not be denied simply because it would be more convenient for most people to deny them. They believe that minorities are entitled to a degree of support, recognition, and insulation that is not necessarily guaranteed by their numbers or by their political weight. so. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980) (discussing the Supreme Court's legitimacy in this context); see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 864-69 (1992) (same).. Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW The details of the prevalent theory of rights need not detain us here. I assume that this society-wide commitment to rights involves an awareness of the worldwide consensus on human rights and of the history of thinking about rights."1 I assume that this commitment is a living consensus, developing and evolving as defenders of rights talk to one another about what rights they have and what those rights imply. I assume that the commitment to rights is not just lip service and that the members of the society take rights seriously: They care about them, they keep their own and others' views on rights under constant consideration and lively debate, and they are alert to issues of rights in regard to all the social decisions that are canvassed or discussed in their midst. No doubt there are skeptics about rights in every society, but I assume that this position is an outlier. Some reject rights as they reject all political morality; others reject rights because they hold utilitarian, socialist, or other doctrines that repudiate them for (what purport to be) good reasons of political morality-e.g., rights are too individualistic or their trumping force undermines the rational pursuit of efficiency or whatever. But I assume that general respect for individual and minority rights is a serious part of a broad consensus in the society, part of the most prevalent body of political opinion, and certainly part of the official ideology. To make this third assumption more concrete, we may assume also that the society cherishes rights to an extent that has led to the adoption of an official written bill or declaration of rights of the familiar kind. I shall refer to this throughout as the "Bill of Rights" of the society concerned. This is supposed to correspond to, for example, the rights provisions of the U.S. Constitution and its amendments, the Canadian Charter of Rights and Freedoms, the European Convention on Human Rights (as incorporated, say, into British law in the Human Rights Act), or the New Zealand Bill of Rights Act. Those familiar with the last of these examples will recognize that I am making no assumption that the Bill of Rights is entrenched or part of a written constitution. I want to leave that open. All I assume at this stage is that a Bill of Rights has been enacted to embody the society's commitment to rights. Thus, it may have been enacted sometime in the past on the society's own initiative, or it may be the product of imitation, or it may be a fulfillment of the country's external obligations under human rights law. 51. This is so even if this awareness does not involve much more than a vague understanding that human rights conventions have become ascendant in the world since 1945, and that their history reaches back to the sort of conceptions of natural right alluded to in documents such as the 1776 Declaration of Independence and the 1789 French Declaration of the Rights of Man and the Citizen. Imaged with the Permission of Yale Law Journal THE YALE LAW JOURNAL 115:1346 2oo6 Readers may be puzzled by these assumptions. On the one hand, I appear to be arguing against interest, stacking the deck in favor of judicial review by assuming a Bill of Rights. On the other hand, it may seem that something sneaky is in the offing. Readers may be aware that I have argued in the past that judicial review should not be understood as a confrontation between defenders of rights and opponents of rights but as a confrontation between one view of rights and another view of rights. 2 What I want to emphasize in response to both these observations is that there is a distinction both at the cultural and at the institutional level between a commitment to rights (even a written commitment to rights) and any particular institutional form (e.g., judicial review of legislation) that such a commitment may take. I am tired of hearing opponents of judicial review denigrated as being rights-skeptics. The best response is to erect the case against judicial review on the ground of a strong and pervasive commitment to rights. This third assumption defines as non-core cases societies in which the commitment to rights is tenuous and fragile. It may seem strange or unfair to proceed in this way, for defenders of judicial review do sometimes argue that we need the practice to help shore up our commitment to rights, to teach participants in a new democracy to value rights, or to give guarantees to minorities that might not be forthcoming in a pure majority-rules system. Such arguments are interesting, but they do not go to the heart of the case that is made for judicial review in countries like the United States, Britain, or Canada. In those countries, we are told that judicial review is an appropriate way of institutionalizing or administering a society's existing commitment to rights. These formulations should be taken at face value, and that is what I am doing with my third assumption."s D. DisagreementAbout Rights My final and crucial assumption is that the consensus about rights is not exempt from the incidence of general disagreement about all major political issues, which we find in modern liberal societies. So I assume that there is 52. See Waldron, A Right-Based Crtitique, supra note 14, at 28-31, 34-36. s3. My approach here is similar to that of John Rawls. I am using this device of the core case to define something like a well-ordered society with a publicly accepted theory of justice. See, e.g., JOHN RAWLS, POLITICAL LIBERALISM 35-36 (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]. Rawls seems to assume that judicial review of legislation is appropriate for even a well-ordered society. Id. at 165-66, 233-40; see also JOHN RAWLS, A THEORY OF JUSTICE 195-99, 228-31 (1971) [hereinafter RAwLs, A THEORY OF JUSTICE]. One of my aims is to show that he is wrong about that. 1366 Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW substantial dissensus as to what rights there are and what they amount to. Some of these disagreements are apparent at a philosophical level (e.g., whether socioeconomic rights should be included in the Bill of Rights), some become apparent when we try to relate abstract principles of right to particular legislative proposals (e.g., whether the free exercise of religion demands exemptions from otherwise generally applicable laws), and some become apparent only in the context of hard individual cases (e.g., how much tolerance for dissident speech there should be in a time of national emergency). I assume that the rights-disagreements are mostly not issues of interpretation in a narrow legalistic sense. They may present themselves in the first instance as issues of interpretation, but they raise questions of considerable practical moment for the political community. Elsewhere I have referred to these as "watershed" issues of rights. 4 They are major issues of political philosophy with significant ramifications for the lives of many people. Moreover, I assume that they are not idiosyncratic to the society in which they arise. They define major choices that any modern society must face, choices that are reasonably well understood in the context of existing moral and political debates, choices that are focal points of moral and political disagreement in many societies. Examples spring quickly to mind: abortion, affirmative action, the legitimacy of government redistribution or interference in the marketplace, the rights of criminal suspects, the precise meaning of religious toleration, minority cultural rights, the regulation of speech and spending in electoral campaigns, and so on. As these examples suggest, disagreements about rights are often about central applications, not just marginal applications. Because I am already assuming a general commitment to rights, it is tempting to infer that that general commitment covers the core of each right and that the right only becomes controversial at the outer reaches of its application. That is a mistake. A commitment to rights can be wholehearted and sincere even while watershed cases remain controversial. For example, two people who disagree about whether restrictions on racist hate speech are acceptable may both accept that the right to free speech is key to thinking through the issue and they may both accept also that the case they disagree about is a central rather than marginal issue relative to that right. What this shows, perhaps, is that they have different conceptions of the right," but that is no reason to doubt the sincerity of their adherence to it. 54- See Waldron, JudicialPower and PopularSovereignty, supra note 14, at 198. 55. For a discussion of the distinction between the concept of a right and various conceptions of it, see RONALD DwoRKIN, TAKING RIGHTS SERIOUSLY 134-36 (1977). Imaged with the Permission of Yale Law Journal 1167 THE YALE LAW JOURNAL I15:1346 2oo6 Generally speaking, the fact that people disagree about rights does not mean that there must be one party to the disagreement who does not take rights seriously. No doubt some positions are held and defended disingenuously or ignorantly by scoundrels (who care nothing for rights) or moral illiterates (who misunderstand their force and importance). But I assume that in most cases disagreement is pursued reasonably and in good faith. The issues involved are serious issues on which it is not reasonable to expect that there would be consensus. In other words, I assume something like John Rawls's "burdens of judgment," but applied (where Rawls hesitated to apply the doctrine) to issues of the right as well as issues of the good. 6 It is not reasonable to expect that people's views on complex and fraught issues of rights will always converge to consensus. And as Rawls emphasizes, "It is unrealistic... to suppose that all our differences [on these matters] are rooted solely in ignorance and perversity, or else in the rivalries for power, status, or economic gain."' The assumption of disagreement has nothing to do with moral relativism. One can recognize the existence of disagreement on matters of rights and justice-one can even acknowledge that such disagreements are, for practical political purposes, irresolvable -without staking the meta-ethical claim that there is no fact of the matter about the issue that the participants are disputing. The recognition of disagreement is perfectly compatible with there being a truth of the matter about rights and the principles of constitutionalism- assuming that our condition is not one in which the truth of the matter discloses itself in ways that are not reasonably deniable."s If there is a Bill of Rights, I assume that it bears on, but does not resolve, the issues at stake in the disagreements. I mentioned some examples a few paragraphs back. In the United States, it is indisputable both that the provisions of the Bill of Rights have a bearing on how each of these issues is to be resolved and that the provisions of the Bill of Rights do not themselves determine a resolution of the issue in a way that is beyond reasonable dispute. Thus, I assume that the extent of these disagreements belies our ingenuity at devising abstract formulations. Disagreement does not prevent the enactment 56. See RAwLs, PoirricAL LIBERALISM, supra note 53, at 54-58 (discussing "the burdens of judgment"). Rawls argues that "many of our most important judgments are made under conditions where it is not to be expected that conscientious persons with full powers of reason, even after free discussion, will arrive at the same conclusion." Id. at 58. For an argument applying this to the right as well as the good, see WALDRON, supra note 14, at 149-63. 57. RAWLS, POLITICAL LIBERALISM, supra note 53, at 58. S8. See Waldron, The Irrelevance of Moral Objectivity, supra note 19, at 182. 1;68 Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW of a Bill of Rights.s9 But the disagreements remain unresolved, leaving us in a situation in which - when an issue about a possible rights-violation arises - it is beyond dispute that a Bill of Rights provision bears on the matter, but what its bearing is and whether it prohibits (or should limit the application of) the legislative provision that is called into question remains a matter of dispute among reasonable people.6 ° This is not to deny that arguments can be made that seem conclusive-at least to those who make them -as to the bearing of the Bill of Rights on the issue in question. If judicial review is set up in the society, then lawyers will argue about these issues using both the text and the gravitational force of the text of the Bill of Rights. In fact, lawyers will have a field day. Each side to each of the disagreements will claim that its position can be read into the bland commitments of the Bill of Rights if only those texts are read generously (or narrowly) enough. Neither will be prepared to acknowledge publicly that which I am assuming now will be obvious: that the bland rhetoric of the Bill of Rights was designed simply to finesse the real and reasonable disagreements that are inevitable among people who take rights seriously for long enough to see such a Bill enacted. Instead of encouraging us to confront these disagreements directly, judicial review is likely to lead to their being framed as questions of interpretation of those bland formulations. Whether that is a desirable context in which to deliberate about the moral issues that they pose is one of the things we shall consider in Part V. III. THE FORM OF THE ARGUMENT So these are our assumptions. What do we do with the situation they define? The members of the community are committed to rights, but they disagree about rights. Most issues of rights are in need of settlement. We need settlement not so much to dispose of the issue -nothing can do that 6 , -but to provide a basis for common action when action is necessary. Now, there are all 59. See Thomas Christiano, Waldron on Law and Disagreement,19 LAW & PHIL. 513, 537 (2000). 6o. Once again, I am not saying that the provisions in the Bill of Rights cover the central cases, with disagreement confined to the margins of their application. The provisions are usually vague and abstract, leaving open the possibility that even when there are uncontroversial cases, people still might be using the same abstract formula to cover different substantive approaches to the right- and we should still say that they both take the right seriously. 61. Cf. JON STEWART ET AL., AMERICA (THE BOOK): A CITIZEN'S GUIDE TO DEMOCRACY INACTION 90 (2004) (discussing Roe v. Wade and noting that "[t]he Court rules that the right to privacy protects a woman's decision to have an abortion and the fetus is not a person with constitutional rights, thus ending all debate on this once-controversial issue"). Imaged with the Permission of Yale Law Journal 1369 THE YALE LAW JOURNAL 11S:1346 2oo6 sorts of issues on which we do not need society-wide settlement- transubstantiation, the meaning of Hamlet, the value of a purely contemplative life -and that is fortunate, because there is little prospect of agreement in these areas. Unfortunately, on issues of rights, for which we do need settlement, there is little prospect of agreement either. The need for settlement does not make the fact of disagreement evaporate; rather, it means that a common basis for action has to be forged in the heat of our disagreements. In the real world, the need for settlement confronts us in the legislative arena. We legislate in certain areas, and the legislation we enact raises issues of rights. Those issues may not be facially prominent in the legislation. The legislation may be on marriage formalities, minimum working hours, campaign finance reform, or the historic preservation of city centers, but what happens is that somebody notices that its application happens to raise an issue of rights and it is in connection with that issue - is the legislation to be applied according to its terms or not? -that the need for settlement arises. An argument, which I respect, for some sort of power of judicial review goes as follows: It may not always be easy for legislators to see what issues of rights are embedded in a legislative proposal brought before them; it may not always be easy for them to envisage what issues of rights might arise from its subsequent application. So it is useful to have a mechanism that allows citizens to bring these issues to everyone's attention as they arise. But this is an argument for weak judicial review only, not for a strong form of the practice in which the abstract question of right that has been identified is settled in the way that a court deems appropriate. It is an argument for something like the system in the United Kingdom, in which a court may issue a declaration that there is an important question of rights at stake. 62 Alternatively, it is an argument for the arrangement we find in systems of even weaker review, whereby the attorney general has the nonpartisan duty to scrutinize legislative proposals and publicly identify any issues of rights that they raise. 6 3 Such an arrangement is a kind of institutionalization of the alertness to issues of rights that was embodied in assumption three above. 62. See supratext accompanying notes 26-28. 63. Cf. New Zealand Bill of Rights Act 199o, 199o S.N.Z. No. 109, § 7 ("Where any Bill is introduced into the House of Representatives, the Attorney-General shall... as soon as practicable after the introduction of the Bill,-bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights."). For a controversial example of the exercise of this power, see Grant Huscroft, Is the Defeat of Health Warnings a Victory for Human Rights? The Attorney-General and Pre-Legislative Scrutinyfor Consistency with the New ZealandBill of Rights, 14 PUB. L. REv. lO9 (2003). 1;7o Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW Let us assume, for now, that the legislature is broadly aware of the issues of rights that a given bill gives rise to and that, having deliberated on the matter, it resolves- through debate and voting-to settle those issues in a particular way. The legislature takes sides on one or more of the disagreements we imagined in assumption four. The question we face is whether that resolution of the legislature should be dispositive or whether there is reason to have it second-guessed and perhaps overruled by the judiciary. How should we answer this question? I have heard people say that the decision-rule should be this: The legislature's decision stands, except when it violates rights. But clearly this will not do. We are assuming that the members of the society disagree about whether a given legislative proposal violates rights. We need a way of resolving that disagreement. The point is as old as Hobbes: We must set up a decision-procedure whose operation will settle, not reignite, the controversies whose existence called for a decision-procedure in the first place. 6' This means that even though the members of the society we are imagining disagree about rights, they need to share a theory of legitimacy for the decision-procedure that is to settle their disagreements. So, in thinking about the reasons for setting up such a procedure, we should think about reasons that can be subscribed to by people on both sides of any one of these disagreements. 6 s I am presenting the need for legitimate decision-procedures as a response to the problem of moral disagreement. But I have heard philosophers say that because disagreement is pervasive in politics, we should not let it throw us off our stride. Because we disagree as much about legitimate decision-procedures as we do about the justification of outcomes, and because (on my own account) it is plain that we have to take a stand on something- namely, decision- procedures- despite such disagreement, why can't we just take a stand on the issue of substance and be done with it?66 The response to this is that we must go to the issue of legitimacy whether we are likely to find disagreement there or 64. Cf THOMAS HOBBES, LEVIATHAN 123 (Richard Tuck ed., 1996) (1651). 6S. Another way of saying this is that a normative political theory needs to include more than just a basis for justifying certain decisions on their merits. It needs to be more than, say, a theory of justice or a theory of the general good. It also has to address the normative issue of the legitimacy of the decision-procedures that are used to make political decisions in the face of disagreement. A normative political theory that does not do that is seriously incomplete. 66. Christiano phrases the point in terms of a regress of procedures: "We can expect disagreement at every stage, if Waldron is right; so if we must have recourse to a higher order procedure to resolve each dispute as it arises, then we will be unable to stop the regress of procedures." Christiano, supra note 59, at 521. But Christiano makes no attempt to show that this is a vicious regress. For discussion of the regress, see WALDRON, supra note 14, at 298-301. Imaged with the Permission of Yale Law Journal THE YALE LAW JOURNAL 115:1346 2oo6 not. For one thing, we do need to design a decision-procedure and we need to consider reasons relevant to that design. For another thing, there are important reasons relating to legitimacy-e.g., fairness, voice, participation- that arise because of disagreement and do not arise apart from our addressing the question of decision-procedures. Even if we disagree about these too, we have no choice but to consider them. The fact that we will disagree about them is not a proper ground for pushing them to one side and simply taking a stand on one side or the other in the prior (or substantive) disagreement. No decision-procedure will be perfect. Whether it is a process of unreviewable legislation or whether it is a process of judicial review, it will sometimes come to the wrong decision, betraying rights rather than upholding them." 7 This is a fact of life in politics. Everyone must concede that there will sometimes be a dissonance between what they take to be the right choice and what they take to be the choice yielded by the decision-procedure they regard as legitimate. Richard Wollheim called this "a paradox in the theory of democracy," 68 because it allows one and the same citizen to assert that A ought not to be enacted, where A is the policy he voted against, and A ought to be enacted, because A is the policy chosen by the majority. But Wollheim was wrong to ascribe this paradox to democracy. It is a general paradox in the theory of politics affecting any political theory that complements its account of what ought to be done with an account of how decisions ought to be made when there is disagreement about what ought to be done. With that caution in mind, what are the reasons that need to be taken into account in designing or evaluating a decision-procedure for settling disagreements about rights? Two sorts of reasons may be considered. I shall call them "outcome-related" and "process-related" reasons, though they are both relevant to the issue of decision-procedure. Process-related reasons are reasons for insisting that some person make, or participate in making, a given decision that stand independently of considerations about the appropriate outcome. In personal life, we sometimes say that a parent has the right to make the decision as to whether her child should be disciplined for a given infraction: It is not for a passer-by on the street or another passenger on the bus to make that decision. We may say that 67. I have heard people say that the errors are always likely to be worse on the legislative side: The legislature may actually violate rights, whereas the worst that the courts can do is fail to interfere to protect them. This is a mistake. Courts exercising the power of judicial review may sometimes violate rights by striking down a statute that aims to protect them. I will discuss this further at the end of Part IV. 68. Richard Wollheim, A Paradox in the Theory of Democracy, in PHILOSOPHY, POLITICS AND SOCIETY 71 (Peter Laslett & W.G. Runciman eds., 2d ser. 1969). 1172 Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW while reserving judgment on whether the child should be disciplined. Indeed, we may say that even though we think the passer-by is likely to make a better decision on this than the parent. In politics, the most familiar process-related reasons are those based on political equality and the democratic right to vote, the right to have one's voice counted even when others disagree with what one says. Outcome-related reasons, by contrast, are reasons for designing the decision-procedure in a way that will ensure the appropriate outcome (i.e., a good, just, or right decision). Our subject matter is disagreements about rights. Because rights are important, it is likewise important that we get them right and so we must take outcome-related reasons very seriously indeed. Wrong answers may be tolerable in matters of policy; but on matters of principle, if the wrong answer is given, then rights will be violated. The members of the society we are imagining understand how important it is to avoid such outcomes or minimize them to the extent they can. Of course, it may not be easy to identify outcome-related reasons that people on opposing sides of rights-disagreements can agree upon. As I said earlier, 6 9 the design of a decision-procedure must be independent of the particular disagreement it is supposed to settle; it is no good if it simply reignites it. So we must avoid outcome-related reasons that aim specifically at particular controversial outcomes -e.g., favoring a decision-procedure because it is more likely to generate a pro-choice than a pro-life outcome. A decision- procedure chosen on this basis will hardly command the allegiance of the pro- life advocates. Given the disagreement, the whole point here is to set up a procedure for generating settlements in a way that can be recognized as legitimate on both sides. It is possible, however, to garner outcome-related reasons on a more modest basis. Instead of saying (in a question-begging way) that we should choose those political procedures that are most likely to yield a particular controversial set of rights, we might say instead that we should choose political procedures that are most likely to get at the truth about rights, whatever that truth turns out to be. As Aileen Kavanagh puts it: [W]e do not need a precise account of what rights we have and how they should be interpreted in order to make some instrumentalist [i.e., outcome-related] claims. Many instrumentalist arguments are not based on knowledge of the content of any particular rights. Rather, they are based on general institutional considerations about the way in 69. See supra text accompanying note 64. Imaged with the Permission of Yale Law Journal 1272 THE YALE LAW JOURNAL 115:1346 20o6 which legislatures make decisions in comparison to judges, the factors which influence their decision and the ways in which individuals can bring their claims in either forum."0 Reasons of this kind deserve to be taken seriously. Joseph Raz has gone further and suggested that these kinds of outcome-related reasons are the only reasons worth considering." This dogmatism is based, presumably, on the importance of the issues at stake. The outcomes of decisions about rights are important. But there are also all sorts of important reasons that are not outcome-related that we should not hesitate to apply to the choices we make about the design of procedures for the resolution of disagreements about rights. I have given a few examples already, but here is another one: the principle of self-determination. There is a reason for having these disagreements be settled for each society within its own political system, rather than by diktat from outside (e.g., by a neighboring government or a former colonial power). Some think this is not a conclusive reason. They say that national self-determination and sovereignty should sometimes give way to international authority on questions of human rights.7 2 But few deny that it has some importance. Raz has paid insufficient attention to the point that although outcome-related reasons are very important in this area of decisionmaking about rights, reasons of other kinds may be important too. Once we see that there are reasons of all sorts in play, we have to consider their normative character because this will affect how they relate to one another. The term "outcome-related" sounds consequentialist. But because the consequences we are trying to avoid are rights-violations, their avoidance has some of the deontological urgency associated with rights. They may not be quite as compelling as the principle that prohibits direct violations: The designers of a decision-procedure are indirectly, not directly responsible for the violations that might be involved in an exercise of that procedure. But their responsibility is still a rights-based responsibility-there is a duty to take care 73 in this regard. 7o. Aileen Kavanagh, Participationand JudicialReview: A Reply to Jeremy Waldron, 22 L. & PHIL. 451, 466 (2003). p. J. Raz, Disagreementin Politics, 43 AM. J. JuRiS. 25, 45-46 (1998); see also RAwLs, A THEORY OF JUSTICE, supra note 53, at 230 ("The fundamental criterion for judging any procedure is the justice of its likely results."). 72. See, e.g., Louis Henkin, That "S" Word: Sovereignty, and Globalization, and Human Rights, Et Cetera, Address at Fordham University School of Law, Robert R. Levine Distinguished Lecture Series (Feb. 23, 1999), in 68 FORDHAM L. REV. 1 (1999). 73. For the idea of various waves of duty being generated by a particular right, see Jeremy Waldron, Rights in Conflict, 99 ETHICS 503, 509-12 (1989). S2 7A Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW What about the normative character of the process-related reasons? Process-related reasons are often matters of deontological urgency also. Ronald Dworkin, I think, misstates the character of participatory reasons when he refers to them as "[t]he participatory consequences of a political process."74 He suggests that allowing individual citizens the opportunity to play a part in the community's political decisionmaking has a consequence- a good consequence -which is that it confirms their equal membership or standing in the community. It reassures them that they are regarded by others as persons whose opinions and choices have value. Allowing people to participate also has the good consequence of helping citizens to identify with the results of political decisions and to view those decisions as in some sense theirs, with good knock- on effects for legitimacy (in the sociologist's sense of that word). 7' All this is no doubt important. But it has the flavor of a headmaster noting the advantages that may accrue from giving his pupils a say in educational affairs through a school council. Dworkin's account radically underestimates the notion of a right to participate, the imperative that one be treated as an equal so far as a society's decisionmaking is concerned, the sense of principle that is at stake when someone asks indignantly, "How dare they exclude my say- disenfranchise me -from this decision, which affects me and to which I am subject?" So, how do we weigh these process-related and outcome-related considerations? We face the familiar problem of trying to maximize the value of two variables, like asking someone to buy the fastest car at the lowest price. There are various ways we can set up the question. We could ask: "What method is most likely to get at the truth about rights, while at the same time adequately respecting the equal claim to be heard of the voices of those affected?" 76 Or we could ask: "What method best respects the equal claim to be heard of the voices of those affected, while at the same time being reasonably likely to get at the truth about rights?" I think I can cut through this Gordian knot. What I will argue, in Part IV, is that the outcome-related reasons are at best inconclusive. They are important, but they do not (as is commonly thought) establish anything like a clear case for judicial review. The process- related reasons, however, are quite one-sided. They operate mainly to discredit judicial review while leaving legislative decisionmaking unscathed. Thus, it 74. RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 187 (2000). 7s. These summary formulations of Dworkin's view are adapted from Kavanagh, supra note 70, at 458-59. 76. This is how the question is stated in FRANK I. MICHELMAN, BRENNAN AND DEMOCRACY 59- 6o (1999). Imaged with the Permission of Yale Law Journal THE YALE LAW JOURNAL 115:1346 20o6 seems to me the legislative side wins on either formulation of the question. And that will be the core of the case against judicial review. IV. OUTCOME-RELATED REASONS According to Raz, "[a] natural way to proceed is to assume that the enforcement of fundamental rights should be entrusted to whichever political decision-procedure is, in the circumstances of the time and place, most likely to enforce them well, with the fewest adverse side effects." 77 guess the discussion at this point ought to be continuous with the broader debate about the 7s institutional competence of courts, initiated by the legal process school. Courts are good at deciding some issues and not others. Technically, we use the term "rights" to denote the issues that courts characteristically decide, because a plaintiff has to state a claim of right to be heard in a court at all. But as Lon Fuller observed, it does not follow that courts are therefore the appropriate forum for dealing with claims of right in the less technical sense under consideration here.79 Some claims of right have the character of the sort of binary issue that courts might be competent to address; others have a multifaceted character that has usually been regarded as inappropriate for decision in a judicial structure. This matter bears further consideration. I will not say much more about it now, but will turn instead to the more specific claims that are made about the competence of courts and legislatures on the important moral issues that are the subject of this Essay. It is tempting to associate outcome-related reasons with the case for judicial review (and process-related reasons with the case against it). This is a mistake. It is true that many of the more important process-related reasons are participatory and therefore favor elective or representative institutions. But it does not follow that all or most outcome-related reasons argue the other way. Outcome-related reasons, as we shall see, cut in both directions. There are things about legislatures that sometimes make them vulnerable to the sorts of pressures that rights are supposed to guard against; but there are also things about courts that make it difficult for them to grapple directly with the moral issues that rights-disagreements present. Raz acknowledges that outcome-related reasons may weigh on both sides. He argues in familiar fashion that 77. Raz, supra note 71, at 45. 78. See HART & SACKS, supra note 49, at 640-47. 79. Fuller, supra note 49, at 368-70. -A.Imaged with the Permission of Yale Law Journal THE CORE OF THE CASE AGAINST JUDICIAL REVIEW [i]n many countries there are ample reasons to suspect that members of the legislature are moved by sectarian interests to such a degree that they are not likely even to attempt to establish what rights (some) people have.... We may know that certain factors are likely to cloud people's judgments. They may be, for example, liable to be biased in their own interest. We may therefore prefer a procedure in which those charged with a decision are not affected, or not directly affected, by their own decision. There are other factors known to bias judgment, and their nature and presence can be established even without knowledge of the content of the rights concerned." Now, in considering a charge like this, we have to ask about its compatibility with our third assumption: Is this sort of sectarian prejudice typical of legislatures in all societies? Or should we associate it with the non- core case of a society whose members are largely indifferent to rights? I shall say more about this in Part VII. 8 ' But even taken at face value, Raz's argument is not univocal in its tendency. The same sectarian pressures often explain judicial neglect of rights as well. We have seen this in the United States in cases as diverse as Korematsu, Schenck, Dred Scott, and Prigg.8s More recently, Laurence Tribe (usually a stalwart defender ofjudicial review) observed that in the panic that afflicted America after 9/11, "it would be a terrible mistake for those who worry about civil rights and liberties to pin too much hope on the judiciary in times of crisis. '' s In any case, Raz acknowledges that outcome-related reasons also argue in the opposite direction: Sometimes... there are reasons for thinking that those whose interests are not going to be affected by a decision are unlikely to try honestly to 8o. Raz, supra note 71, at 46. 81. See infra text accompanying notes 137-141. This is where I will deal with the claim (for non- core cases) that judges who sympathize with minority rights are in a better position to resist popular prejudice than are legislators who sympathize with minority rights. 82. Korematsu v. United States, 323 U.S. 214 (1944) (refusing to protect citizens of Japanese descent from internment during the Second World War); Schenck v. United States, 249 U.S. 47 (1919) (holding that criticizing conscription during the First World War was like shouting fire in a crowded theater); Dred Scott v. Sanford, 6o U.S. (19 How.) 393, 425-27 (1857); Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 612 (1842) (striking down state legislation that sought to protect African-Americans from slave-catchers). 83. Laurence Tribe, Trial by Fury: Why Congress Must Curb Bush's Military Courts, NEw REPUBLIC, Dec. io, 2001, at 18, 19; see also Ronald Dworkin, The Threat to Patriotism, N.Y. REv. BOOKS, Feb. 28, 2002, at 44, 46-47 (noting courts' past tolerance of rights-violations in times of crisis). Imaged with the Permission of Yale Law Journal THE YALE LAW JOURNAL 115:1346 2oo6 find out what is just in the circumstances. Sometimes one may be unable to appreciate the plight of classes of people unless one belongs to the same class oneself, and therefore rather than entrusting the decision to those not affected by it, it should be given to those who are so affected."s Legislatures are set up with structures of representation precisely in order to foster this sense of appreciation. It is sometimes suggested that structures of democratic participation take no cognizance at all of the independent importance of securing appropriate outcomes -they just blindly empower the majority. This is nonsense. All democracies limit the fran