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Chronicle of Higher Education
Develops a 'value theory of democracy' grounded in political autonomy, equality of interests, and reciprocity.— Nina C. Ayoub
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When the Supreme Court in 2003 struck down a Texas law prohibiting homosexual sodomy, it cited the right to privacy based on the guarantee of "substantive due process" embodied by the Constitution. But did the court act undemocratically by overriding the rights of the majority of voters in Texas? Scholars often point to such cases as exposing a fundamental tension between the democratic principle of majority rule and the liberal concern to protect individual rights. Democratic Rights challenges this view by showing that, in fact, democracy demands many of these rights.
Corey Brettschneider argues that ideal democracy is comprised of three core values--political autonomy, equality of interests, and reciprocity--with both procedural and substantive implications. These values entitle citizens not only to procedural rights of participation (e.g., electing representatives) but also to substantive rights that a "pure procedural" democracy might not protect. What are often seen as distinctly liberal substantive rights to privacy, property, and welfare can, then, be understood within what Brettschneider terms a "value theory of democracy." Drawing on the work of John Rawls and deliberative democrats such as Jürgen Habermas, he demonstrates that such rights are essential components of--rather than constraints on--an ideal democracy. Thus, while defenders of the democratic ideal rightly seek the power of all to participate, they should also demand the rights that are the substance of self-government.
Acknowledgments ix
INTRODUCTION 1
CHAPTER ONE
The Value Theory of Democracy 7
I. Introduction 7
II. Procedural Democractic Theories 11
III. Procedure-Independent Theories: Epistemic and Democratic 17
IV. Conclusion 26
CHAPTER TWO
Paradigmatic Democratic Rights and Citizens as Addressees of Law 28
I. Introduction 28
II. Citizens as Authors and Addressees: Co-Originality and Citizens' Status 29
III. Rule of Law 38
IV. Freedom of Expression and Conscience 44
V. Conclusion 52
CHAPTER THREE
Democratic Contractualism: A Framework for Justifiable Coercion 54
I. Introduction 54
II. A Lexicon of Citizenship 55
III. The Principle of Democracy's Public Reason 61
IV. The Inclusion Principle 64
V. Conclusion 69
CHAPTER FOUR
Public Justification and the Right to Privacy 71
I. Introduction 71
II. Situating Democratic Privacy: A Critique of Liberal and Republican Accounts 73
III. Relevance and the Boundaries of Privacy 78
IV. Privacy, Equality, and Democratically Justifiable Coercion 85
V. Conclusion 94
CHAPTER FIVE
The Rights of the Punished 96
I. Introduction 96
II. The Need for Justification to Criminals qua Citizens: The Problem with Punishment as War 98
III. State Punishment as an Issue of Political Morality: Punishing Criminals qua Persons versus Criminals qua Citizens 101
IV. Democratic Rights Against Punishment 105
V. Capital Punishment 108
VI. Conclusion 112
CHAPTER SIX
Private Property and the Right to Welfare 114
I. Introduction 114
II. The Right to Private Property and State Coercion 115
III. Democratic Contractualism and the Right to Private Property 119
IV. Democratic Proposals for Welfare Rights 126
V. Objections 132
VI. Conclusion 135
CHAPTER SEVEN
Judicial Review: Balancing Democratic Rights and Procedures 136
I. Introduction 136
II. The Limits of a Pure Outcomes-Based Theory 140
III. The Failure of Pure Procedural Theories 145
IV. Impure Procedural and Outcomes-Based Theories 146
V. The Flaws with Formal Democratic Arguments and the Need for Examples in a Theory of Democracy 150
VI. The Objection from Benevolent Dictatorship 157
VII. Conclusion 158
Conclusion: Democratic Rights and Contemporary Politics 160
Bibliography 163
Index 169
Overview
When the Supreme Court in 2003 struck down a Texas law prohibiting homosexual sodomy, it cited the right to privacy based on the guarantee of "substantive due process" embodied by the Constitution. But did the court act undemocratically by overriding the rights of the majority of voters in Texas? Scholars often point to such cases as exposing a fundamental tension between the democratic principle of majority rule and the liberal concern to protect individual rights. Democratic Rights challenges this view by ...