Judging Without Rights: Public Reason and the Counter-Majoritarian Difficulty

• DOI: https://doi.org/10.1108/S1059-4337(2012)0000058004
• Pages: 1-27
• Date: 20 August 2012
• Published date: 20 August 2012
• Author: Sonu Bedi

JUDGING WITHOUT RIGHTS:

PUBLIC REASON AND THE

COUNTER-MAJORITARIAN

DIFFICULTY

Sonu Bedi

ABSTRACT

Rights constitute a familiar feature of the liberal discourse of judging.

This chapter seeks to recast this discourse away from the language of

rights by considering two cases where liberals often invoke it: abortion

and same-sex marriage. I argue that the presence of rights in American

constitutional discourse exacerbates the counter-majoritarian nature of

judicial review. We do better to recast the language of judging from an

emphasis on protecting rights to an emphasis on making sure that the

demos acts on publicly justifiable reasons. In doing so, I proffer a novel

analysis of liberal theory’s extant commitment to public reason, one that

conceptualizes public reason as representing the scope of state power.

The conventional role of a constitutional court in a liberal democracy is to

protect rights. Rights constitute a familiar feature of the liberal discourse of

judging. Consider that liberals invoke the language of rights to strike down

Special Issue: The Discourse of Judging

Studies in Law, Politics, and Society, Volume 58, 1–27

Copyright r2012 by Emerald Group Publishing Limited

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000058004

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laws against abortion and same-sex marriage. And it is precisely in these

cases that the charge of ‘‘judicial activism’’ is often made. From a scholarly

perspective, when a court does strike down these illiberal laws, it invites

the counter-majoritarian (CM) difficulty, a difficulty made famous by

Alexander Bickel (1962). Bickel defines it as one where a court ‘‘thwarts the

will of representatives of the actual people of the here and now’’ by

exercising ‘‘control, not in behalf of the prevailing majority but against it’’

(1962, p. 17). This tension is at the center of judicial review in a consti-

tutional liberal democracy: on one hand is our commitment to democratic

rule and on the other hand is our commitment to ensuring liberty and

equality. When a court strikes down laws in the name of liberty or equality,

it acts in a counter-majoritarian fashion. The sting of ‘‘judicial activism,’’

then, informs the counter-majoritarian nature of judicial review. It suggests

that the court has problematically acted against the democratic majority.

Most scholarly work focuses on solving this puzzle or extinguishing the

sting of counter-majoritarianism. Scholars aim to provide an answer to the

question of why judicial review is important even necessary to liberal

democracy. My focus, however, is not on why a court ought to have the

ability to strike down laws and policies. I examine how a court does so.

I suggest that the langue the Court deploys in striking down legislation is

of critical normative importance. In short, this chapter hopes to mitigate

but not extinguish the sting of counter-majoritarianism by recasting the

language of judging from an emphasis on protecting rights to an emphasis

on making sure that the demos acts on publicly justifiable reasons. Doing

so, as I argue, makes for a more democratic discourse in striking down

legislation on liberal grounds.

This chapter is not about a particular theory of constitutional inter-

pretation: originalism, non-originalism, interpretivism, pragmatism, textu-

alism, etc. Mine is a conceptually prior question about the language a court

ought to deploy in a constitutional liberal democracy. While my examples

draw from American constitutional law and the United States Supreme

Court, this chapter is not primarily an analysis or critique of current

constitutional doctrine. Mine is a normative inquiry that seeks to recast the

discourse of judging away from the language of rights by considering two

cases where liberals often invoke it: abortion and same-sex marriage.

By ‘‘rights’’ I mean those constitutional interests, areas, or classifications

off limits to state regulation. Rights attach to individuals or groups of

individuals (cf. Shapiro, 1986, p. 14). We say that A has a right to x. Or that

a group of Bs has a right to y. This is the conventional way liberal constitu-

tional theory limits democratic government. For example, laws restricting

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