Footnote:
In: University of Pennsylvania Journal of Constitutional Law, 2006
Description:
Courts, constitutional doctrine, and democratic theory all give a place of privilege and respect to the role of political actors in the constitutional system. In a host of different ways, the decisions of political actors receive deference. At a theoretical level, this approach is justified by a widespread, if not universal, belief that majority rule plays a significant role in the legitimacy of democratic government. This essay explores the theoretical bases of that belief in majority rule. Following several different schools of thought - all of which accord significant respect to majority rule - the paper identifies equality as the core commitment of all schools that animates their commitment to majority rule as a preferred rule of decision. Each school, however, imposes limitations on how far it is willing to apply the principle of equality. This essay argues that, if one abandons these artificial limitations and instead follows a commitment to equality to its logical limits, equality leads, not only to majority rule itself, but also to a limit on majority rule. That limit is the exposure of majority-backed decisions to a requirement of public reason, of non-arbitrary justification for those subject to its constraints. This requirement, at the core of liberty protection under the due process clause, fulfills, rather than frustrates, the principles underlying the privileged status of majority rule