Democratic Rights: The Substance of Self-Government

by Corey Brettschneider

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 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.

Product Details

ISBN-13:	9780691149301
Publisher:	Princeton University Press
Publication date:	10/10/2010
Pages:	184
Sales rank:	302,474
Product dimensions:	6.10(w) x 9.10(h) x 0.60(d)
Age Range:	18 Years

About the Author

Corey Brettschneider is assistant professor of political science and public policy at Brown University.

Table of Contents

Acknowledgments     ix
Introduction     1
The Value Theory of Democracy     7
Introduction     7
Procedural Democractic Theories     11
Procedure-Independent Theories: Epistemic and Democratic     17
Conclusion     26
Paradigmatic Democratic Rights and Citizens as Addressees of Law     28
Introduction     28
Citizens as Authors and Addressees: Co-Originality and Citizens' Status     29
Rule of Law     38
Freedom of Expression and Conscience     44
Conclusion     52
Democratic Contractualism: A Framework for Justifiable Coercion     54
Introduction     54
A Lexicon of Citizenship     55
The Principle of Democracy's Public Reason     61
The Inclusion Principle     64
Conclusion     69
Public Justification and the Right to Privacy     71
Introduction     71
Situating Democratic Privacy: A Critique of Liberal and Republican Accounts     73
Relevance and the Boundaries of Privacy     78
Privacy, Equality, and Democratically Justifiable Coercion     85
Conclusion     94
The Rights of thePunished     96
Introduction     96
The Need for Justification to Criminals qua Citizens: The Problem with Punishment as War     98
State Punishment as an Issue of Political Morality: Punishing Criminals qua Persons versus Criminals qua Citizens     101
Democratic Rights Against Punishment     105
Capital Punishment     108
Conclusion     112
Private Property and the Right to Welfare     114
Introduction     114
The Right to Private Property and State Coercion     115
Democratic Contractualism and the Right to Private Property     119
Democratic Proposals for Welfare Rights     126
Objections     132
Conclusion     135
Judicial Review: Balancing Democratic Rights and Procedures     136
Introduction     136
The Limits of a Pure Outcomes-Based Theory     140
The Failure of Pure Procedural Theories     145
Impure Procedural and Outcomes-Based Theories     146
The Flaws with Formal Democratic Arguments and the Need for Examples in a Theory of Democracy     150
The Objection from Benevolent Dictatorship     157
Conclusion     158
Conclusion: Democratic Rights and Contemporary Politics     160
Bibliography     163
Index     169

What People are Saying About This

Simone Chambers

First-rate. In a consistently accessible style, Corey Brettschneider presents a clear, innovative argument that he sustains in an elegant and economical way throughout.
— Simone Chambers, University of Toronto

From the Publisher

"No problem of democratic theory is more formidable than how to reconcile majority rule with respect for individual rights. Democratic Rights is an original and compelling contribution to this debate—one that will affect the course of democratic theory for years to come. Among its most provocative and ingenious arguments is its case for the illegitimacy of the death penalty and the political parity of property and welfare rights under a democratic constitution. The prose is a model of compact lucidity."—Eamonn Callan, Stanford University

"First-rate. In a consistently accessible style, Corey Brettschneider presents a clear, innovative argument that he sustains in an elegant and economical way throughout."—Simone Chambers, University of Toronto

"This ambitious book establishes its author as a scholar setting out a distinctive and credible position within liberal democratic theory. Clear and accessible, it reaches eminently reasonable conclusions on a range of policy issues, and develops a theoretical structure that can be used to apply the author's recommended 'middle course' (between 'pure proceduralist' democrats and 'nondemocratic' liberals) directly to constitutional law and matters of basic justice."—Leif Wenar, University of Sheffield

Eamonn Callan

No problem of democratic theory is more formidable than how to reconcile majority rule with respect for individual rights. Democratic Rights is an original and compelling contribution to this debate--one that will affect the course of democratic theory for years to come. Among its most provocative and ingenious arguments is its case for the illegitimacy of the death penalty and the political parity of property and welfare rights under a democratic constitution. The prose is a model of compact lucidity.
— Eamonn Callan, Stanford University

Leif Wenar

This ambitious book establishes its author as a scholar setting out a distinctive and credible position within liberal democratic theory. Clear and accessible, it reaches eminently reasonable conclusions on a range of policy issues, and develops a theoretical structure that can be used to apply the author's recommended 'middle course' (between 'pure proceduralist' democrats and 'nondemocratic' liberals) directly to constitutional law and matters of basic justice.
— Leif Wenar, University of Sheffield

Editorial Reviews

...Brettschneider has produced an innovative, imaginative new perspective on judicial review. He makes a persuasive case that democracy itself demands the legal recognition of certain substantive rights....[N]o one interested in rights or democratic theory can afford to ignore this book.
— A.D. Sarat

Choice

Develops a 'value theory of democracy' grounded in political autonomy, equality of interests, and reciprocity.
— Nina C. Ayoub

Chronicle of Higher Education

One of Choice's Outstanding Academic Titles for 2007

From the Publisher

[B]rettschneider has produced an innovative, imaginative new perspective on judicial review. He makes a persuasive case that democracy itself demands the legal recognition of certain substantive rights....[N]o one interested in rights or democratic theory can afford to ignore this book.

Choice - A.D. Sarat

Develops a 'value theory of democracy' grounded in political autonomy, equality of interests, and reciprocity.

Chronicle of Higher Education - Nina C. Ayoub