Are Courts the better arbitrator of rights based on the criterion of democracy?Introduction This essay will argue that judicial review based on constitutionalized rights is not as undemocratic as Waldron makes it seem and that ultimately we should decide on which democratic institution should have the final say on rights based on which institution is able to decide questions about rights in the best way. The best way, is the way, in which disagreements about rights are decided, based on what the people think has the most merit not based on which idea will advantage a person the most. That is how a person would think about rights if they were thinking about it behind a veil of ignorance.1

Waldron’s argumentTo Waldron constitutionalizing rights is not compatible with democracy because by constitutionalizing rights we are taking away the right of the people to decide for themselves what rights are important and what rights deserve protection.2 We are putting this decision in the hands of a few judges who have no democratic legitimacy and that we should instead put this decision in the hand of legislators because at the end of the day however many flaws there is with the a democratically elected legislature it will still be more democratic than a judiciary that is not elected.3

Criticism of Waldron’s argumentHowever what Waldron’s argument does not properly explains is why of all the conceptions of democracy we should choose a majoritarian form of democracy. This is important because the judiciary is only as undemocratic as it seems because Waldron assumes that the judiciary should be judged by a majoritarian standard of democracy. Waldron’s argument that this is the most neutral form of democracy rests on Waldron’s own conceptions about what is most neutral. Others may think that some other form of democracy is just as respectful of the people’s right to govern themselves. For instance consider Eisgruber’s conception of democracy. Eisgruber conceptualizes democracy as an attempt to impartially represent all the people and not just a majority of them.4

Another flaw in Waldron’s argument is that he seems to take little account of the realities of democracy. He idealizes legislative supremacy without really considering whether the legislature is truly representative of the people in the first instance. It is unlikely that any ordinary person will be able to successfully launch a campaign and get elected. It is more likely that the legislator will be an elite backed by the elite. Legislators often win not based on their policies but based on how much money they can afford to spend on their campaign. It has been observed that many times a candidate decides his policies based not on

1 John Rawls, A Theory of Justice (Cambridge Mass: Harvard, 1971) 3-4.2Jeremy Waldron, “A Rights Based Critique of a Bill of Rights (1993) 13 Oxford Journal of Law and Legal Studies. 18-51.3 Jeremy Waldron, “A Rights Based Critique of a Bill of Rights (1993) 13 Oxford Journal of Law and Legal Studies. 18-51.4 Christopher Eisgruber, “Judicial Review and Democratic Legitimacy” in his Constitutional Self Government (Harvard University Press, 2001)

what the electorate really want but based on what his or her financial backers support. Furthermore because the of the way the system works when people vote they are not voting with perfect information on how the candidate voted on each bill therefore it is less likely that the candidate will be kicked out of office because he chose to legislate in favor of the financial backers rather than the electorate.

Are courts democratically legitimate?Once we abandon the view that the only way in which the voice of the people can be heard is through elected legislators we can see that there are other ways through which the voices of the people can be heard. If we follow Eisgruber’s conception of democracy we can see that courts are democratically legitimate because they are appointed by legislators who appoint based on what the popular conception of justice is. As a result courts do reflect the ideas of the people and they are therefore capable of speaking on the behalf of the people.

Why should we allow the courts to have the final say in rights?1. Because the legislature may not accurately reflect what the people truly believe about rights and justice.Eisgruber argues that the legislature is not the best way to decide on this question because when people vote they vote based on self interest rather than issues of principle.5 For example people may vote to allow a candidate who supports racially discriminatory laws such as the controversial racial profiling laws in Arizona not because they think that racial discrimination is good but because they think that such laws will enable them to protect their jobs from migrant workers. Eisgruber argues that as a result legislators will decide based not on whether they think an idea is a good one but based on self-interest, theirs and the voters because they want to be reelected.It may be argued that there will be voters who voted based not on self-interest but on principle. But empirically these people will be amongst the minority not the majority. 2. Courts are more likely to make principled decisionsCourts may in a sense be better the best way in to decide questions of rights because the justices that are appointed to the bench are unlikely to be as self interested as voters. They have lifetime tenure and therefore are less likely to be swayed on questions about which rights to priorities and other questions about rights based on issues like the economy. There will likely be some objections to this view of courts as impartial institutions with no self-interest. For example in the case of Bush v Gore the United States Supreme Court had a clear self-interest and they decided in favor of that self interest. Eisgruber however argues that these are the exception and not the rule.

Conclusion It is evident that elected legislators aren’t as democratic as Waldron argues and since the ultimate goal according to him is to develop a system in which rights

5 Christopher Eisgruber, “Judicial Review and Democratic Legitimacy” in his Constitutional Self Government (Harvard University Press, 2001) Chapter 2.

can be decided in a way that takes in to account the views of the people judiciaries may be just as legitimate the legislature, if democracy is taken to be that which Eisgruber claims it is.However the limitation of this argument is that while it justifies that courts an be considered democratically legitimate and that courts may be the better final arbitrator of rights it doesn’t necessarily tell us who should have the first say in rights.

Bibliography 1. Waldron, Jeremy, “A Rights Based Critique of a Bill of Rights (1993) 13

Oxford Journal of Law and Legal Studies.2. Eisgruber, Christopher, Constitutional Self Government (Harvard

University Press, 2001)