Democratic Rights

The Substance of Self-Government

Inbunden, Engelska, 2007

AvCorey Brettschneider

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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.

Produktinformation

Utgivningsdatum2007-07-22
Mått152 x 235 x undefined mm
Vikt425 g
FormatInbunden
SpråkEngelska
Antal sidor192
FörlagPrinceton University Press
ISBN9780691119700
UtmärkelserShort-listed for Choice Magazine Outstanding Reference/Academic Book Award 2007

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Acknowledgments ix INTRODUCTION 1 CHAPTER ONE The Value Theory of Democracy 7 I. Introduction 7 II. Procedural Democractic Theories 11 III. Procedure-Independent Theories: Epistemic and Democratic 17 IV. Conclusion 26 CHAPTER TWO Paradigmatic Democratic Rights and Citizens as Addressees of Law 28 I. Introduction 28 II. Citizens as Authors and Addressees: Co-Originality and Citizens' Status 29 III. Rule of Law 38 IV. Freedom of Expression and Conscience 44 V. Conclusion 52 CHAPTER THREE Democratic Contractualism: A Framework for Justifiable Coercion 54 I. Introduction 54 II. A Lexicon of Citizenship 55 III. The Principle of Democracy's Public Reason 61 IV. The Inclusion Principle 64 V. Conclusion 69 CHAPTER FOUR Public Justification and the Right to Privacy 71 I. Introduction 71 II. Situating Democratic Privacy: A Critique of Liberal and Republican Accounts 73 III. Relevance and the Boundaries of Privacy 78 IV. Privacy, Equality, and Democratically Justifiable Coercion 85 V. Conclusion 94 CHAPTER FIVE The Rights of the Punished 96 I. Introduction 96 II. The Need for Justification to Criminals qua Citizens: The Problem with Punishment as War 98 III. State Punishment as an Issue of Political Morality: Punishing Criminals qua Persons versus Criminals qua Citizens 101 IV. Democratic Rights Against Punishment 105 V. Capital Punishment 108 VI. Conclusion 112 CHAPTER SIX Private Property and the Right to Welfare 114 I. Introduction 114 II. The Right to Private Property and State Coercion 115 III. Democratic Contractualism and the Right to Private Property 119 IV. Democratic Proposals for Welfare Rights 126 V. Objections 132 VI. Conclusion 135 CHAPTER SEVEN Judicial Review: Balancing Democratic Rights and Procedures 136 I. Introduction 136 II. The Limits of a Pure Outcomes-Based Theory 140 III. The Failure of Pure Procedural Theories 145 IV. Impure Procedural and Outcomes-Based Theories 146 V. The Flaws with Formal Democratic Arguments and the Need for Examples in a Theory of Democracy 150 VI. The Objection from Benevolent Dictatorship 157 VII. Conclusion 158 Conclusion: Democratic Rights and Contemporary Politics 160 Bibliography 163 Index 169

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 "Democratic Rights is not only ambitious but distinctive ... 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