Democratic Rights: The Substance of Self-Government

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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 Jurgen 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.

Reviews

One of Choice's Outstanding Academic Titles for 2007 "Develops a 'value theory of democracy' grounded in political autonomy, equality of interests, and reciprocity."--Nina C. Ayoub, Chronicle of Higher Education "[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."--A.D. Sarat, Choice "Princeton University Press's decision to issue a paperback edition of Corey Brettschneider's ambitious Democratic Rights, three years after the book's initial appearance, is one that students of democratic theory and political theorists in general should applaud... Democratic Rights is not only ambitious but distinctive, then, and marked by virtues that one does not always find in such books, being clearly written, carefully argued, and admirably concise. It is a book, in short, that is well worth the attention of democratic theorists and anyone who wants to know how far contractualism can take us in political and legal philosophy."--Richard Dagger, Criminal Law and Philosophy

Author Bio

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