Balancing Procedures and Outcomes Within Democratic Theory: Corey Values and Judicial Review

Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to both intrinsically valuable democratic procedures and democratic outcomes. In instances in which there is a conflict between these two commitments, I suggest they must be balanced. This balancing approach offers a justification of judicial review on the grounds that it potentially limits outcomes that undermine democracy. But judicial review is not justifiable in any instance in which a bad democratic outcome results from democratic procedures. When the loss that would result from overturning a democratic procedure is greater than the gain to democracy that would result from ensuring against an undemocratic outcome; judicial review is not justifiable. Loss or gain to democracy is defined by the negative or positive impact of each action on the core democratic values of equality and autonomy, aspects of the democratic ideal. Even when judicial review is justified, the fact that it overturns intrinsically valuable procedures suggests that such review is never ideal from the standpoint of democracy

Praying for America: The Anti-Theocracy and Equal Status Principles of the Free Exercise, Equal Protection and Establishment Clauses

In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise Clauses share common principled limits on the role that religion can play in public life. Specifically, drawing on the free-exercise case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the equal protection case of Romer v. Evans, and the establishment clause case of Town of Greece v. Galloway, I propose two principles to describe the proper place of religious justification as a basis for law. The first requirement is that in addition to any religious reasons for laws, the state must have secular reasons available that can appeal to non-religious citizens. I call this the “anti-theocracy principle.” The second, “equal status principle” states that even religious justifications that have secular equivalents must respect the equal status of persons in a democracy regardless of their race, gender or LGBTQ identity. In addition to the limits the anti-theocracy and equal status principles place on legitimate law making, I also argue they also limit state expression. Throughout the piece I draw from the ideal of “public reason” found in the political theory of John Locke and John Rawls. In addition to clarifying the Constitution’s understanding of the role of religion in justifying law and in government sponsored expression, my aim is also to demonstrate how an understanding of public reason can be operationalized in constitutional cases across the Free Exercise, Equal Protection, and Establishment Clauses. I, therefore, demonstrate a common role for public reason across three fundamental parts of the Constitution often thought distinct

Popular Constitutionalism Contra Populism

Book review: The Civic Constitution: Civic Visions and Struggles in the Path toward Constitutional Democracy. By Elizabeth Beaumont. Oxford University Press, 2014. Pp. xvi + 343. Peopling the Constitution. By John E. Finn. University Press of Kansas, 2014. Pp. xv + 350. Reviewed by Corey Brettschneide

Popular Constitutionalism Contra Populism

Book review: The Civic Constitution: Civic Visions and Struggles in the Path toward Constitutional Democracy. By Elizabeth Beaumont. Oxford University Press, 2014. Pp. xvi + 343. Peopling the Constitution. By John E. Finn. University Press of Kansas, 2014. Pp. xv + 350. Reviewed by Corey Brettschneide

Praying for America: The Anti-Theocracy and Equal Status Principles of the Free Exercise, Equal Protection and Establishment Clauses

In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise Clauses share common principled limits on the role that religion can play in public life. Specifically, drawing on the free-exercise case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the equal protection case of Romer v. Evans, and the establishment clause case of Town of Greece v. Galloway, I propose two principles to describe the proper place of religious justification as a basis for law. The first requirement is that in addition to any religious reasons for laws, the state must have secular reasons available that can appeal to non-religious citizens. I call this the “anti-theocracy principle.” The second, “equal status principle” states that even religious justifications that have secular equivalents must respect the equal status of persons in a democracy regardless of their race, gender or LGBTQ identity. In addition to the limits the anti-theocracy and equal status principles place on legitimate law making, I also argue they also limit state expression. Throughout the piece I draw from the ideal of “public reason” found in the political theory of John Locke and John Rawls. In addition to clarifying the Constitution’s understanding of the role of religion in justifying law and in government sponsored expression, my aim is also to demonstrate how an understanding of public reason can be operationalized in constitutional cases across the Free Exercise, Equal Protection, and Establishment Clauses. I, therefore, demonstrate a common role for public reason across three fundamental parts of the Constitution often thought distinct