Democratic Rights

Democratic Rights: The Substance of Self-Government

Corey Brettschneider
Copyright Date: 2007
Pages: 192
https://www.jstor.org/stable/j.ctt7s934
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    Democratic Rights
    Book Description:

    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 Rightschallenges 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.

    eISBN: 978-1-4008-2810-4
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction
    (pp. 1-6)

    In 2003 the Supreme Court of the United States overturned its decision inBowers v. Hardwickand struck down a Texas law that prohibited homosexual sodomy.¹ Writing for the Court inLawrence v. Texas, Justice Kennedy argued that the Court’s guarantee of a right to privacy, which it had earlier extended to areas such as contraception, marriage, and abortion, also included a protection of sexual relationships for gay and straight couples.² The privacy doctrine invoked inLawrencewas based, he argued, in the Fourteenth Amendment’s guarantee of “substantive due process.”

    One prominent critique of this privacy doctrine and of the...

  5. Chapter 1 The Value Theory of Democracy
    (pp. 7-27)

    The notion that individual rights are distinct from, and often in tension with, democracy is widespread in the literature of liberal political theory.¹ This view needs to be rethought, however. Most contemporary liberal theorists understand democracy as a set of procedures intended to manifest the ideal of rule by the people.² In contrast, substantive individual rights, such as those that protect privacy and property and limit state punishment, are thought to be “procedure-independent.” Rights are distinct from democracy, according to these theorists, because they are linked to substantive values of justice. Furthermore, liberal theorists believe that because there are good...

  6. Chapter 2 Paradigmatic Democratic Rights and Citizens as Addressees of Law
    (pp. 28-53)

    In the previous chapter, I argued that democratic theorists have been mistaken to locate the basis for democratic legitimacy in democratic procedure itself. Instead, I suggested that democratic institutions derive their justification—and their constraint—from the ideal of rule by, for, and of the people, and from the related core values of equality of interests, political autonomy, and reciprocity. In this chapter, I extend my critique of proceduralism and continue to develop the value theory of democracy by demonstrating why citizens’ status as rulers in a legitimate democratic society entitles them to individual rights based on the core values....

  7. Chapter 3 Democratic Contractualism: A Framework for Justifiable Coercion
    (pp. 54-70)

    In the previous chapter, I suggested why the core values—understood as a procedure-independent standard of democratic legitimacy—require recognizing that citizens retain substantive democratic rights in their capacity as addressees of law. I argued that citizens’ status as rulers entitles them to protection from state coercion that undermines that status. So far, however, I have limited my discussion of substantive rights to the paradigmatic examples of the rule of law and free speech. In this chapter, I develop a democratic framework for justifying coercion that draws on the core values, especially reciprocity’s requirement that citizens be treated reasonably. The...

  8. Chapter 4 Public Justification and the Right to Privacy
    (pp. 71-95)

    In this chapter I propose and defend an account of the right to privacy from the perspective of democratic contractualism, the value theory’s framework for justifying coercion. I am particularly concerned with the issue of “decisional autonomy,” the individual’s right to a sphere of intimate decision making free from state coercion and public scrutiny.¹ Given that democratic contractualism advances an ideal of political justification, both of state coercion and of the rights of democratic citizens, this ambition might appear paradoxical. Courts interpreting the Constitution and political theorists who have offered defenses of privacy doctrine have defended individuals’ rights to make...

  9. Chapter 5 The Rights of the Punished
    (pp. 96-113)

    In the previous chapter, I argued that a right to privacy, or decisional autonomy, is a necessary aspect of an ideal democracy. I also argued that in some instances decisional autonomy must be limited. This is the case, for instance, when the state seeks to protect its citizens from violent crime.Yet the claim that state coercion can be justified raises a distinct question: what forms of state coercion are legitimate? In this chapter, I examine the question ofhowthe state should coerce through the lens of democratic contractualism. I argue that although some forms of criminal punishment are legitimate...

  10. Chapter 6 Private Property and the Right to Welfare
    (pp. 114-135)

    The past two chapters examined democratic contractualism’s approach to laws that limit decisional autonomy and to state punishment, both important instances of state coercion. I suggested that democratic contractualism requires “negative” rights, rights against the state, that protect citizens against certain restrictions on decisional autonomy and against particular punishments. In this chapter, I argue that democratic contractualism also requires rights to welfare. Specifically, I propose that all citizens in an ideal democracy are entitled to a basic set of welfare guarantees. In contrast tonegativerights against the state, these welfare rights arepositiverights of individuals to be given...

  11. Chapter 7 Judicial Review: Balancing Democratic Rights and Procedures
    (pp. 136-159)

    In this book I have proposed the value theory of democracy as an alternative to procedural and epistemic theories. One of the virtues of the value theory is that it resolves the problem of constraint by defending substantive rights through an appeal to citizens as addressees of law. In the previous three chapters, I made the case for a democratic account of rights to privacy and against certain forms of criminal punishment. I also argued for a democratic right to welfare as a necessary condition for legitimizing property rights. The value theory suggests that ideal democracies will protect these rights...

  12. Conclusion: Democratic Rights and Contemporary Politics
    (pp. 160-162)

    I have argued in this book that the ideal of democracy should not be limited to guaranteeing the right of individuals to participate in fair procedures. Polities that are truly democratic also must offer basic respect for, and an institutional defense of, other fundamental rights. In chapter 1, I proposed the value theory of democracy: the idea that three core values underlie democratic procedures and should underlie the outcomes of those procedures. These values—equality of interests, political autonomy, and reciprocity—serve as a procedure-independent standard for articulating the fundamental democratic rights of citizens. In chapter 2, I demonstrated why...

  13. Bibliography
    (pp. 163-168)
  14. Index
    (pp. 169-179)