Brennan and Democracy.

• Author: Williams, David Lay
• Position: Book Review

BRENNAN AND DEMOCRACY. By Frank I. Michelman. (1) Princeton University Press. 1999. Pp. 176. $25.95.

Robert McCloskey once wrote that the "propensity to hold contradictory ideas simultaneously is one of the most significant qualities of the American political mind at all stages of national history." (3) The contradiction to which he was referring was the twin commitment in American legal culture to both popular sovereignty and a "higher law." The very notion of constitutional democracy necessitates this paradoxical marriage of seemingly irreconcilable principles. On the one hand, the concept of democracy implies that the people exercise ultimate authority over their own lives. Any departure from this principle pushes us in the direction of aristocracy or even monarchy. On the other hand, practical experience has suggested that no democracy, however optimistic one might be, should be left completely to its own devices. Whether through the enforcement of rights, or in the careful protection of the political process, democrats find it necessary to counterbalance a commitment to self-rule with equally strong substantive principles.

The tension in this twin commitment is obvious. It is always possible that a self-determining people could pose a threat to its own cherished substantive ideals. The recent rise of the anti-immigration Freedom Party in Austria, led by reputed Nazi-sympathizer Jorg Haider, is a development justifying this fear. The fact that the democratic nations of the European Union protested this procedural outcome testifies that they feared the violation of dearly held fundamental rights. Procedure, otherwise known as democratic choice, threatens substance.

On the other hand, any encoding of substantive principles into the law represents an exercise in hand-tying. To the extent that our Constitution forbids establishment of religion, for example, the people cannot--no matter how much they might want to--create a national house of worship. Substance, in this instance, constrains procedure.

Given this tension in democratic theory, the table is set for an uneasy, yet urgent, question: How do we reconcile democratic procedures with democratic principles? This tension is most obvious in the Supreme Court's practice of judicial review. The very existence of an undemocratically appointed judiciary with the power to strike down the democratically determined laws of the people suggests that this might well be the heart not only of timely policy debates, but also deeper questions about democratic legitimacy itself.

This is the departure point for Frank I. Michelman's excellent new book, Brennan and Democracy. (4) Michelman places one of the most discussed Justices of the modern era at the center of what might well be the most important question for democratic theorists. And this question arrives at a time when, given the number of incipient democracies around the world, it is crucial to determine what democracy really is. The book is divided into two roughly equal parts, presenting Michelman's version of Constitutional Theory, and Brennan as an expositor of that theory, respectively. In this review I will focus largely on the first half of Michelman's volume.

1. SUBSTANCE AND PROCEDURE

   Constitutional theorists busy themselves with many problems, but nearly all of them ultimately distill to one: how do we reconcile an unelected and life-term judiciary with our democratic principles? This is the question commonly labeled the "counter-majoritarian difficulty." (5) Most constitutional theorists provide us with some justification of the Supreme Court doing what it does--striking down the democratically willed law of the people in the name of a higher law. Frank Michelman is astute enough to note this in his introductory section: "Their [the theorists'] concern is to explain, and perhaps to justify, an apparently undemocratic practice of government `by judiciary' in which popular political outcomes are subjected to the test of a judicially administered `higher' law." (p. 4)

   Almost all constitutional theory is ultimately democratic theory. If one rejects the practice of judicial review, then the question of democratic legitimacy becomes refocused into questions surrounding a "trustee" model of representation or other potential hindrances to an efficient channeling of the democratic will. In this spirit Justice Brennan's activism is the personification of constitutional villainy. Brennan's willingness to exercise judicial review strikes at the very heart of what proceduralist democrats hold dear--the unadulterated self-rule of the people. On the other hand, if one accepts, for one reason or another, the legitimacy of the Supreme Court in striking down popularly enacted law, one can conceive a defense of Brennan. In this spirit, Michelman's book may be read as providing a theoretical account and defense of the liberal-activist Court personified in Brennan.

   As a means to solving the problem of democratic theory, and ultimately understanding Brennan, Michelman focuses much of his attention on two constitutional theorists--Ronald Dworkin and Robert Post. Each theorist is taken to be representative of a particular approach to understanding the Constitution. Dworkin is the substantive theorist, Post the procedural. Michelman distinguishes the two perspectives in the following way: "Roughly, a substantive or primary social norm does, and a procedural or secondary norm does not, contain information about what rights and obligations people are supposed to have, or, in other words, about how people in various social settings ought and ought not to act in regard to each other's interests and claims." (6)

   Insofar as Ronald Dworkin prioritizes the protection of certain rights, Michelman suggests, Dworkin must be read as a substantive constitutional theorist. That is to say, Dworkin places much of the political world outside the scope of democratic determination. In Michelman's terminology, Dworkin means to emphasize primary norms, rather than secondary ones. His notion of rights as trump cards rests on this assumption. Certain rights exist independent of the people's will. This is most evident in Dworkin's theory of Justice, which he takes some effort to distinguish from popular will. For Dworkin, justice is one of the standards to which a judge must appeal in deciding hard cases. "Justice," according to Dworkin, "is our critic not our mirror." (7) Justice does not come from the people as a derivative principle, but rather exists independently of human agreement. For Michelman, this is the essence of substantive Constitutional Theory.

   It is nevertheless the case, as Michelman argues, that democracy cannot exclude procedure. After all, if government were about nothing other than substance, what is to distinguish democracies from monarchies? There is, to be sure, something about the process of democracy that is particularly appealing. This is certainly true for Dworkin. In the previous paragraph, I identified "justice" as one of Dworkin's final appeals in the judicial decision process. The other appeal is to what Dworkin calls "fairness." He describes this in Law's Empire as "the opinions of the community." (8) This, it would seem, is merely popular morality. This is just one of many concessions Dworkin makes to democratic procedure. Dworkin further develops his procedural inclinations in Freedom's Law, where, as Michelman notes, Dworkin describes what he normatively holds to be the rules of the democratic process. These are: 1) everyone ought to have equal access to the political process, 2) everyone's interests ought to be considered equally, and 3) everyone's opinion formulation ought to be shielded from "collective control." (p. 31) These kinds of commitments are all fine and good, says Michelman, but they take us back to the very problem with which we began: a dual commitment to two distinct--and often competing-values, process and substance. We know this to be the case as soon as we question whether or not the democratic procedure itself is subject to democratic alteration. That is to say, Dworkin's rules 1-3 above cannot be altered by the people. The same is also true of his conception of "fairness." As is so often the case with philosophers of law, however, his conception of popular morality is not without important qualifications. This is because a community itself cannot be considered a "community" unless it satisfies the condition of having equal concern and respect for all its members. (9) Thus, even Dworkin's procedural component includes a substantive origin in the equal importance and integrity of individual human beings. The substantive brings us to the...