Citizens in Robes

This chapter articulates a participatory defense of the democratic legitimacy of judicial review. This defense is based on an analysis of the democratic significance of citizens’ right to legal contestation. Against the widespread view of judicial review as an expertocratic shortcut that requires citizens to blindly defer to the political decisions of judges, the analysis shows that the institutions of judicial review empower citizens to make effective use of their right to participate in ongoing political struggles for determining the proper scope of their fundamental rights and freedoms. This is true no matter how idiosyncratic their fellow citizens may think their interests, views, and values are. By securing citizens’ right to legal contestation, judicial review offers citizens a way to avoid having to blindly defer to the decisions of their fellow citizens. This is the case insofar as it offers an institutional venue where they can call their fellow citizens to account by effectively requesting that proper reasons are publicly offered to justify the laws and policies to which they all are subject. It is in virtue of this communicative power that all citizens can participate as political equals in the ongoing process of shaping and forming a considered public opinion that supports the political decisions that they can all own and identify with—just as the democratic ideal of self-government requires.

Lottocratic Conceptions of Deliberative Democracy

This chapter analyzes “lottocratic” conceptions of deliberative democracy. Their defenders put their democratic hopes on the generalized use of deliberative minipublics such as citizens’ juries, citizens’ assemblies, and deliberative polls. Some propose conferring political decisional-power upon minipublics as a way of increasing citizens’ democratic control over the political process. Against this view, the chapter argues that such proposals cannot be defended on participatory grounds. By expecting citizens to blindly defer to the political decisions of a randomly selected group of citizens, the generalized use of minipublics for decision-making would decrease rather than increase the citizenry’s ability to take ownership over and identify with the policies to which they are subject, as the democratic ideal of self-government requires. Lottocrats are right to highlight the democratic potential of minipublics. But in order to unleash that potential we must resist the temptation of taking the “micro-deliberative shortcut” and keep our eyes on the macro-deliberative goal. Instead of empowering minipublics to make decisions for the rest of the citizenry, citizens should use minipublics to empower themselves.

Lottocratic Institutions from a Participatory Perspective

This chapter explores how we might institutionalize deliberative minipublics in order to serve genuinely democratic goals. In contrast to empowered uses of minipublics that would bypass the citizenry’s political deliberation, citizens could use minipublics for contestatory, vigilant, and anticipatory purposes. These uses of minipublics would improve the quality of deliberation in the public sphere and would also force the political system to take the high road of properly involving the citizenry in the political process. The chapter illustrates these potential forms of “deliberative activism” with the help of examples of actual deliberative polls that James Fishkin has conducted over several decades. This analysis shows how deliberative minipublics can help improve the democratic quality of political deliberation in the public sphere while strengthening citizens’ democratic control over political decisions.

A Participatory Conception of Deliberative Democracy

This chapter focuses on the democratic significance of political deliberation. It argues that democracy is not threatened by the inclusion of an epistemic dimension of truth within political debate but rather by the exclusion of the epistemic dimension of justification towards others who must comply with the outcomes of political debates. It is one thing to assume—as deliberative democrats do—that over time political struggles may lead to agreement on the best answers to some political questions. It is quite another to ignore the need for such political struggles to actually take place and succeed—as epistocrats and lottocrats do. The chapter articulates and defends an institutional approach to mutual justification. On this approach democratic legitimacy does not require every citizen to agree on the reasonableness of each law to which they are subject at any given time. What it requires is that institutions be in place such that citizens can contest any laws that they cannot reasonably accept by asking that proper reasons be offered or that they be changed. To the extent that such institutions are available to all citizens, they can see themselves as equal members of a collective political project of self-government.

Purely Epistemic Conceptions of Democracy

This chapter considers purely epistemic conceptions of deliberative democracy. For advocates of this approach the value of democratic procedures is a function of the quality of their outcomes. They also assume that the quality of outcomes is a function of the quality of the knowledge generated by the best decision makers. On this basis, epistocrats recommend that citizens blindly defer to the political decisions of experts (be it political elites or a representative sample of the population) to reach better political outcomes. This approach misses the democratic significance of public deliberation. By reducing the epistemic function of deliberation to the aim of figuring out the best policies, it disregards another crucial epistemic function of deliberation—ensuring that the policies in question can be justified to those who must comply with them and without whose cooperation the intended outcomes will not materialize. Thus, if we care about outcomes we must abandon the temptation of the “expertocratic shortcut” and focus on improving the processes of opinion- and will-formation in which citizens participate so that better outcomes can actually be achieved.

Introduction

According to recent empirical research, the US is no longer a democracy. Technically, it is an oligarchy. Benjamin Page and Martin Gilens arrived at this alarming conclusion by using a quite straightforward democratic standard, namely, the extent to which most citizens’ political preferences and beliefs actually influence public policy....

The Democratic Ideal of Self-Government

This chapter considers the relationship between two elements of the democratic ideal of self-government: political equality and citizens’ democratic control. With respect to democratic control, the author argues that we can evaluate the democratic promise of different conceptions of democracy and their proposals for institutional reform by assessing the extent to which they require or expect citizens to blindly defer to the decisions of others. Conceptions of democracy that include such expectation tacitly accept the possibility of a permanent misalignment between the beliefs and attitudes of the citizenry and the laws and policies to which they are subject. Thus, they cannot explain how citizens can identify with the policies that govern them and endorse them as their own. Since an expectation of blind deference is quintessentially incompatible with the democratic ideal of self-government, it offers a helpful criterion for identifying democratic shortcomings among conceptions of democracy that propose various “shortcuts” that would bypass political deliberation by the citizenry. It is also helpful for articulating and defending a conception of democracy “without shortcuts.”

Can Public Reason Be Inclusive?

This chapter articulates a participatory conception of public reason. Taking the democratic ideal of self-government as a guide, it helps throw new light on the role of religious reasons in politics. First, the chapter shows that exclusion, inclusion, and secular translation models fail to explain how all citizens, whether religious or secular, can see themselves as equal participants in a collective project of self-government. After analyzing the difficulties of each of these models, the chapter then defends an alternative, participatory conception of public reason that shows how political deliberation can be an inclusive process that enables all citizens to engage in mutual justification and get traction upon each other’s views despite their deep disagreements. This account bears a strong resemblance to Rawlsian public reason but it also has significant differences. In particular, this participatory account of public reason sees as insufficient that citizens can rely on the existence of a moral duty of civility. Instead, effective rights to political and legal contestation are required that enable citizens to trigger a process of public justification for the reasonableness of any policies that they find unacceptable.

Deep Pluralist Conceptions of Democracy

This chapter analyzes deep pluralist conceptions of democracy. Advocates of this approach contend that political disagreement runs so deep that it cannot be reasonably overcome. In light of this predicament, they recommend majoritarian procedures as a “shortcut” for solving the problem of deep disagreement while at the same time preserving political equality. Against this view, the chapter shows that majoritarianism leaves minorities with no other option than to blindly defer to the decisional majority. To the extent that this is so, deep pluralists cannot explain how all citizens can identify with the laws and policies to which they are subject and endorse them as their own, as the democratic ideal of self-government requires. Deep pluralists are right to defend political equality and insist on the need to respond to the challenge of pervasive disagreement. However, we can only make good on these insights if we abandon the temptation to take the “procedural shortcut” and embrace the long road of participatory deliberative democracy.