Judicial review, plural weighted voting, and democracy

Thispaperexaminesanimportantargumentthathasreceivedlittleat-tentiondespiteitswideimplications.Thisistheclaimthatjudicialreviewcanbeequated withpluralweightedvoting(PwV)becausebotharejustifiedasinstrumentstoachieve better outcomes, and both violate political equality. We take this argument to be a reductio :giventhatpluralvotingisunacceptable,judicialreviewmustberejected.If correct, this claim threatens to undermine much recent liberal democratic theorising. WearguethatnoneoftheobviousroutestodistinguishjudicialreviewfromPwVoffer a convincing way to distinguish these two schemes. Furthermore, this has important implicationsforhowweshouldunderstandjudicialreview.Theresultisthussignificant not only for the particular issues mentioned, but also for our understanding of the role instrumentaljustificationsplayindemocratictheory.


PALAVRAS-CHAVE
Democracia liberal; revisão constitucional das leis; voto plural; contratualismo; igualdade política.tothis,thefirstsectionexplainswhythetopicisimportant-whythe answer matters -and the second and third show why the "obvious" argumentsagainstP1arenotcompelling.Sectionsfourtosixdevelop the contractual account and shows why this account does not resolve the issue.
1 Why does it matter?
Judicial review characteristically involves judges, who are either unelected or stand at some distance from direct democratic election, reviewing democratically enacted legislation.It is highly controversial in contemporary democratic and legal theory. 1 For its proponents, extra-majoritariandemocraticinstitutionssuchasjudicialreviewhelp toprotectequalcivilandpoliticalrights,whileforitscriticssuchinstitutionsareundemocraticandviolatepoliticalequality.
The ramifications of this debate go much further than democratic theory.For many liberal democrats, judicial review is essential to the protectionoffundamentalliberalrights-suchasfreedomofreligion, the integrity of the person and freedom of association -from unrestricted majority-rule. 2 This view is associated with the liberal democratic tradition in which these rights are constitutionally entrenched outsidethereachofordinarypolitics.Forthistradition,judicialreview and fundamental rights outside the reach of ordinary politics do not impedepoliticalequality.Rather,astheliberaltheoristSamuelFreeman argues, democratic theory based on Locke, Rousseau, Kant and Rawls considers judicial review a legitimate democratic institution supplementingmajority-rule. 3 Judicial review is motivated by the importance attachedtofundamentalrights,theworrythattheserightsmaybeviolatedbymajority-rule,andtheviewthatdemocracyismorethanmerely majority-rule.
Moreover,judicialreviewisonlyoneofanumberofproposalsto adjustnormaldemocraticproceduresthathavebeenofferedbyliberal Of course, the precise form taken by judicial review -for example, the procedures for electing or appointing judges and the scope of their powers -varies by jurisdiction.We focus on the core case of unelected judges with wide power to review and strike down decisions made by an elected legislature.For papers reflecting some of the controversies, see the Special Issue of Law and Philosophy 22(3-4) including Alexander (2003), Harel (2003), Schauer (2003), Sherwin (2003), Spector (2003) and Underkuffler (2003).
democrats.Others include: some form of enhanced minority representation, which has been an important demand of multicultural theorists; 4 the idea that "power should be distributed in proportion to people's stakes in the decision under consideration" (Brighouse & Fleurbaey, 2010, p. 137); and that people vote on who ought to get more votes on a given issue and dub those with more votes "democratically elected aristocracies" (Heyd&Segal,2006).
For their critics, such schemes undermine the democratic ideal of politicalequality.Theyargue,forexample,thatjudicialreviewissynonymouswithunelectedjudgeshavingpoliticalpowersuperiortovoters and elected politicians; that is, the political power to review democratic decisions.This theyholdto beincompatiblewithpoliticalequalityin moderndemocracies.Politicalequality,understoodasincluding,among other things, universal suffrage and roughly equal political power among the electorate (one person, one vote of roughly equal value), makes judicial review incompatible with modern understandings of political equality and therefore objectionable.For example, the influential democratic theorist Robert A. Dahl claims that judicial review is nothing but a form of Platonic "quasi-Guardianship" (1989, p. 188).Thus,foritscritics,judicialreviewisflatlyundemocratic-"adeviant institutionintheAmericandemocracy" (Bickel,1986,pp.17-18)-and the default democratic position ought to be one vote, of one value, for eachadultcitizenwithinanunencumberedmajoritarianism.
There is, then, a great dealat stake in this argument.The justifiability of a central pillar of recent liberal democratic theory -the idea of constitutionally,andsojudicially,protectedrights-aswellasproposals to ensure representation of ethnic (and gender) groups, depends on the outcome. 5More generally, liberal democrats claim that "liberalism" and "democracy" are complementary ideals both grounded in the demand to "treatpeopleasequals". 6Thosewhoopposeextra-majoritarianadjustmentstodemocracy(suchasjudicialreviewandminorityrepresentation) deny this.If there is no principled difference between judicial review and PwV, then given the assumption (which we are taking for 4 See Kymlicka (1989Kymlicka ( , 1995) ) and Young (1989, pp. 250-74).

5
It is worth recalling the significant place accorded by Rawls to the US Supreme Court -the "exemplar of public reason".For reasons given above, this argument seems to us to be important.Many liberal theorists of justice -not least -assume the constitutional protection of fundamental rights and other theorists the possibility of special representation for minorities.

6
See Beitz (1989) for an illuminating discussion of different understandings of political equality, especially ch. 1.
2 The prima facie plausibility of the equivalence of PwV and judicial review P1holdsthatwithrespecttodemocraticequality,PwVandjudicial review are so similar in their normatively relevant properties that the justificationsforthemmuststandorfalltogether.Thatis,eitherboth arejustifiedorneither,andforthesamereason.Inthissectionwefirst consider why this proposition has prima facie plausibility and second consider various arguments that purport to show that it is obviously false, clearly implausible, and so on.

An argument for the normative equivalence of PwV and judicial review
One (in our view compelling) argument for the proposition is that bothPwVandjudicialreviewarejustified(iftheyare)instrumentally.Thatis,theirjustificationliesintheirproducingbetteroutcomesthan unconstraineddemocraticequality. 8Theydothisindifferentways:PwV changestheaggregationfunctionwhereasjudicialreviewactsasaconstraint on the outcomes of the aggregation function, but nevertheless theunderlyingjustificationisthesame.
Consider,forexample,thecanonicalstatement,anddefence,ofPwV in John Stuart Mill's work.Mill thought it self-evident that some citizens were capable of making better decisions than others.Whilst he thoughtthat"everyoneisentitledtosomeinfluence",hewasclearthat "the better and wiser" ought to have more than others (1991, p. 340).Theideathateverypersonshouldhavean"equal"voiceseemedtohim quixotic.Moreover,Millarguedthatthepropositionthatsomeshould haveagreatersaythanothersinpolitics(asinothermatters)should beunobjectionable:"noonebutafool",hewrote,"feelsoffendedbythe acknowledgement that there are others whose opinion, and even whose wish, is entitled to a greater amount of consideration than his" (1991, p. 335).His proposal was to give plural weighted votes to those with a certain level of education of training.
Thedefenceoftheproposition,then,isthatbothjudicialreviewand PwVarejustifiediftheiroutcomesaresuperiortothosethatwouldbe realisedthroughalternativeprocedures.So,itmightbeargued,judicial review is justified in circumstances in which it protects fundamental civilandpoliticalrightsbetterthananyotherpossibleinstitution.PwV isjustifiedincircumstancesinwhichitproducesmorejustlegislation -including by protecting civil and political rights -than any other institution or method of decision making.
The instrumental account of PwV and judicial review shows how they are closely connected.Nevertheless, two important substantial differencesbetweenthetwoschemesneedtobenoted.WhereasPwVand judicial review can be justified because of producing superior results, judicialreviewhasanimportantproceduralaspectinthatstakeholders havethechancetoinfluencetheoutcomethroughthejudicialprocess (thisisconsideredbelow).Aseconddifferenceisthatjudicialreviewis often,althoughnotalways,includedinaconstitutionwhilePwVtends, althoughnotalways,nottoholdaspecialconstitutionalstatus.Thus, differencesremainbetweenthetwoschemes.
However,thesedifferencesandtheirimplicationsdonotaffectthe instrumentalcasethatisArneson'sfocusorhismainobjectiontoboth schemes.For Arneson and others, both schemes conflict with equal politicalrights.PwVunderminespoliticalequalitybecauseitallocates plural votes to that part of the electorate that will choose the most desirableoutcomes.Similarly,judicialreviewgivesunelectedjudgestheright tostrikedownunconstitutionallegislation.Effectively,thismeansthat unelectedjudgeshavemorepoliticalpowerthanordinarycitizensas,in addition to their single vote in general elections, they have an opportunity to strike down laws after those laws are made.Judicial review described in this way shows a striking similarity to plural votes and this movesArnesontoconcludethatthat"judicialsupremacyisjustplural votes by other means… The principles underlying judicial supremacy and plural votes are the same" (1993, p. 135).

Two arguments against the normative equivalence of PwV and judicial review
The argument above seems to us not to have attracted the attentionitdeservesintheliteraturegiventhesignificanceofjudicialreview in liberal democratic theory.Perhaps this is because it strikes people as obviously false, a "strawman", or as the kind of argument that willbevulnerabletorefutationwithonlylittlethought.Thefollowing sub-sections consider two possible versions of this dismissive response andshowsthatthingsarenotquitethatsimple.

The underlying justifications for PwV and judicial review differ.
OnepossibilityisthattheclaimthatPwVandjudicialreviewstand and fall together given that each is justified in the same way is false becausetheunderlyingjustificationsforPwVandjudicialreviewdiffer.PwVmighthaveanintrinsicvaluewhereasjudicialreviewisjustified instrumentally or vice-versa.

The intrinsic value of PwV and instrumental value of judicial review
Considersomeonewhobelievesthatpersonsareofdifferentnatures (and,possibly,value)andthatitisgoodthatthisisreflectedintheirstatus as voters (perhaps a crude Platonist, who believes that those whose souls are of "gold" ought to have greater power not only because they are more likely to rule well, but because it is independently good that theydoso).SuchapersonmightconsiderthatPwVisjustifiedbyan independentvalue(respectfor"gold"souls)whilstarguingthatjudicial review is instrumentally justified if and when it is needed to ensure betteroutcomes(eventhanthosedeliveredbythemodifiedaggregation procedure).ThispositionwouldshowthatPwVandjudicialrevieware disanalogous,butgiventhatwehaveassumedthatPwVisunjustified (on egalitarian grounds), this is not something we will consider here.
A more plausible account of the intrinsic value of PwV might appeal to something akin to an argument of Brighouse and Fleurbaey that in a givendecisionmoreinfluenceoughttobewieldedbythosemostdirectly affected.Ofcourse,itispossibletoreadthatasaninstrumentalclaim.BrighouseandFleurbaeythemselvesoffersuchareadingandclaimthat PwV will, under certain assumptions, avoid some of the issues indicated by Arrow's impossibility theorem.Alternatively, one might think that thosemostaffectedaremorelikelytothinkcarefullyabouttheoptions, to inform themselves, and so on, and so are more likely to come to a betterdecisionthanwouldbearrivedatbyunencumberedmajoritarianism.
However, Brighouse and Fleurbaey also press the intrinsic claim that thegivingofanextrasaytothosemostcloselyaffectedinadecisionis rightasamatterof"respect"andofenhancingautonomy(independent ofwhethersuchapolicywillleadtobetterdecisions). 9 Brighouse and Fleurbaey's argument is part of a wider defence of a "principle of proportionality" that they see as an alternative to a "principleofequality"withrespecttopoliticalpower.Insofarastheyintend to offer an account of the potential acceptability of some non-Millian form(s) of PwV, 10 and thus deny the assumption that forms part of the argument of concern in this paper, their concerns are orthogonal to ours.Moreover, their concern with PwV plays only a minor part in an overall argument in favour of a proportional link between political power and political stakes; an argument that thus encompasses everything from global government to subsidiarity.
More generally, the comparison that concerns us -and othersis between a system of judicial review that applies to national decisions taken by a given electorate and PwV applied to members of that electorate.Ofcourse,thesearenotuncontestedandjudicialreview,in particular, can often concern who has "standing" in a given decision, butP1andtheassumptionthatPwVisnotjustifiedplayaroleherethat is independent of arguments of whether, for example, local decisions should be taken locally and for what reason.

The intrinsic value of judicial review and instrumental value of PwV
The alternative argument against the proposition that judicial reviewandPwVarejustified(ornot)forthesamereasonassertsthatit isjudicialreviewthatisintrinsicallyjustifiedbyreferencetosomeinde-pendentvaluewhereasPwVisjustified(ornot)byappealtoitsdeliveringbetteroutcomes.Forexample,EylonandHarelclaimthatjudicial review is intrinsically valuable because it institutionalises the right to a hearinginacaseorwithrespecttoalawwithwhichonedisagrees.The ideaisthatthosewhobelievethatsomemajoritydecisionviolatestheir rights are entitled to voice their concerns before their rights are (as they see it) infringed. 11Of course, it cannot be that the justification lies in theclaimthatbyvoicingtheirconcernsinjudicialreviewmoremorally desirable outcomes would be achieved (although they might be), it must be that it is intrinsicallyvaluabletoreflectthestatusofpersonsasrights holdersbygivingtoeachtherighttoattemptanappeal.Herethepoint madeaboveregardingtheproceduraldifferencebetweenPwVandjudicialreviewbecomesrelevantbecausetheclaimisthatjudicialreview isjustifiedbothbydeliveringsuperioroutcomes,andisdistinguished fromPwVbyitsemphasisonproceduresforarrivingatafinaloutcome.Inparticular,theseproceduresinvolvehearingreasonsandadjudicating in light of those reasons.
However, from the point of view of this paper, the claim that the procedures of judicial review instantiate the equal value of persons andsoareintrinsicallyvaluablebegsthequestion.Itmaybethateach personhasequalstatusandrights,butthatthisshouldbereflectedin judicialreviewispreciselywhatisatstake.Majoritariandemocracyis onemechanismformakingdecisionsgiventhatequalstatus.Thejustificationofjudicialreview-ofempoweringaselect,unelectedgroupto ruleonthedecisionsofthemajority-mightbethatit(instrumentally) gives rise to more morally desirable, rights-respecting, outcomes, but it is hard to see that this particular way of doing things has intrinsic value.Intrinsic value lies in the status of persons not in the procedures inwhichthatstatusisreflected(or,atleast,notwithoutagreatdealof further argument). 123.2.The underlying justification for PwV and judicial review is the same and points to clear normative differences between them.
Themostpowerfulformofthisargument-andperhapstheonethat bestexplainsthedismissiveresponsetotheproposition-appealstothe value of democratic equality.For example, Christopher Griffin argues that "equality in the distributive shares of political power represents anappropriateextensionofequalityofbasicmoralstatustoequalityof socialstanding" (2003,p.118).Furthermore,a"denialofanequalshare ofpowerinthecontextofdisagreementaboutthebasicgroundrules of social life is a public declaration of second-class citizenry" (2003, p. 120).In short, the argument is that if we endorse the right account ofdemocraticequality,thenPwVisclearlyunjustified.However,thatis not enough for this to be an argument against P1.For that to be so, it mustbethatPwVisunjustifiedwhereasasystemofjudicialreviewthat protectsthefundamentalrightsofallcitizensisjustified.
If this is right (and the argument pursued below is a version of it, so we think that broadly it is), it is not at all obviously so and it is not enoughsimplytoassertthatPwVviolatesdemocraticequalitywhereas judicialreviewdoesnot.PlatoandMill(inverydifferentways)thought

12
We are grateful to an anonymous reviewer for pushing us on this point.The reviewer 's claim is that the argument supporting the intrinsic value of judicial review rests on the fundamental procedural distinction between an adjudicatory process and mere voting.We cannot fully respond here, although we think that the burden of proof lies with those who would wish to assert this, but note that democratic theorists and (most importantly) proponents of P wV might baulk at the presumed contrast with mere voting.Voters, after all, are also meant to consider reasons and come to a judgement as to what is best.

Dissolving the difficulty?
Thechallengewehavedescribed-anddefendedasachallenge-is thatPwVandjudicialreviewarenormativelysimilar;thatmanyliberal theorists are committed to judicial review, but wish to exclude PwV; andthatgiventhesignificanceofjudicialreviewintheirarguments,it is (at least) a source of theoretical embarrassment that one can seeminglynothaveonewithouttheother.Werespondtothischallengein the next section, but first it is worth considering a different kind of reply grounded in taking seriously the instrumental claims made by the proponentsofthetwopolicies.Thatis,onecouldaccepttheclaimthat PwVandjudicialreviewarejustified,whentheyare,bytheirimproving outcomes in comparison with unrestricted majoritarianism, but deny thattheyareso-justifiedpreciselybecausetheydonotdeliver.Or,one could accept that they sometimes deliver and that inevitably the messy businessofpoliticsrequirescompromisesamongstvalues.
AversionofthefirstargumentisofferedbyJeremyWaldronwho famously argues that the supposed advantages of judicial review for protecting rights are significantly overvalued by liberal theorists and thatitwouldbefarbettertoleavesuchmatterstothelegislature.14If right, and assuming Waldron is sceptical of the instrumental case for PwV,thenbothcanberejectedasfailingintheirownterms.
Similarly, in a discussion of PwV, David Estlund rejects weighted voting because "the educated portion of the populace may disproportionately have epistemically damaging features that countervail the epistemic benefits of education" (2008, p. 215).Nonetheless, Estlund isawareoftheimportanceofbestresultsindemocracy(hisjustification of democracy emphasises the epistemic value of democracy), and ultimately he ends up with a compromise similar to Beitz in that he endorsessomeoutcomeorientedschemessuchasjudicialreview,but without suggesting how to distinguish between acceptable and unacceptable schemes.
These positions seek not to resolve the challenge described above somuchastotaketheheatoutofit(todissolveit).ForWaldron,there isnoreasontoretainacommitmenttojudicialreview,sothethought that such a commitment might bring with it a similar endorsement of PwVdoesnotmatter.ForBeitzandEstlund,compromisebetweenfair procedures and achieving "best results" is inevitable so the proposition underexamination(P1)doesnotposeachallengesomuchasdescribe our political predicament.That said, neither offers a way of thinking through that predicament, which is what we hope to provide below.
WehavenowexaminedmanyoftheproposalstodistinguishPwV from judicial review and our argument is that none of them are fully convincing.One further possibility is available, which is to ask if a contractual account can resolve this issue.Below we take seriously the challengeas a theoretical not an empiricalmatter and develop a contractual response.Our analysis shows that a contractual response cannot resolve this issue fully.

Ends and means
LetusassumethatbothjudicialreviewandPwVdo,asamatterof fact, produce better -including morally better -outcomes than does unencumberedmajoritarianism.Ifwewerestraightforwardconsequentialists, both would be justified relative to unencumbered majoritarianism and whether they stood or fell together would depend on the consequences of each compared to the alternatives.However, liberal theoristsofjusticeneedhardlybeconcernedaboutthat.Afterall,we should not be surprised if the policy implications of doing nothing other than maximising overall good outcomes (however understood) sometimes clash with liberal commitments.The point of course is that the reductioappealsnottoconsequentialismasanallthingsconsideredtheory of political morality, but to a more restricted instrumentalism.
However, this must be too quick.For any given morally desirable outcome, there may be various means to achieve it.But, it does not follow that all means are equally acceptable judged merely on their results.For example, we might be able to ensure that a racist candidateforelectedofficeisnotsuccessfuleitherbyengaginghiminpublic debate or by spreading malicious gossip amongst his supporters that he hasblackancestry.Thatbothpolicieswillachievethesameenddoesnot showthattheyareequivalent.Thisdoesnotmeanthatthechallengeof judicialreviewandPwVismet,butinstead(asnotedaboveinrelation to Estlund and Beitz) reinforces the need for an account that distinguishes acceptable from non-acceptable means.
Thecaseofthetwoapproachestakentotheraciststandingforelectionisasimpleone.However,judicialreviewandPwVpresentamuch greaterchallenge.Afterall,theyseemtoinvolvethesameclaim:that it is necessary to give a select group greater say in the political process thanwouldotherwisebedictatedbyunencumberedmajoritarianismin order to ensure more morally desirable outcomes.Inthenextsectionweanalysehowcontractualismcandistinguish between PwV and judicial review.To do this, we deploy the contrac-tualistframeworkdevelopedbyT.M.Scanlon.Indoingso,wearenot aiming to present "a contractualist argument", still less to limit the interest of the paper to those who are of this methodological persuasion.Rather,webelievethatcontractualismoffersasingularlyeffectiveway ofthinkingthroughhowtocombinedeontologicalandconsequentialist concerns.In particular, contractualism incorporates a concern for consequences,butmakesthatconcernsubjecttothejudgementofindividuals. 15Scanlon's version of the contractualist procedure (although we are not concerned with following it in its full glory) is to ask whether a proposal for the general regulation of society could be justified on groundsthatno-one(suitablymotivated)couldreasonablyreject.Our interest is less in the outcome of that test as it is in the way in which deliberating over what can be reasonably rejected brings out distinct featuresofPwVandjudicialreview-particularlyinthewaysinwhich they aggregate interests.

Aggregating between and within lives, judicial review, and PwV
Before proceeding to the substance of the argument, it is worth sayingalittleaboutaggregation.Insubjectingproposalstothereasonable rejectionofindividuals,contractualismseems"togotoofar…[in]disallowing any appeal to aggregative benefits".Scanlon's response is to distinguish aggregation "within lives" from aggregation "across lives" (1998,230).Whatmattershereishowtheaggregationistobedone.To distinguish judicial review from PwV contractualism must show that there are affinities between judicial review and contractualist reasoning and between PwV and aggregating across lives such that we can endorsetheformerwithouthavingtoendorsethelatter.
The following often discussed example from Scanlon is helpful in understanding the important difference between judicial review and PwV: Suppose that Jones has suffered an accident in the transmitter room of a television station.Electrical equipment has fallen on his arm, and we cannotrescuehimwithoutturningoffthetransmitterforfifteenminutes.AWorldCupmatchisinprogress,watchedbymanypeople,anditwill Joneshasalegitimateclaimtobesavedthattrumpsthebenefitsand enjoymentoftheWorldCupviewers.Thatis,asScanlonputsit,"ifone cansaveapersonfromseriouspainandinjuryatthecostofinconveniencing others or interfering with their amusement, then one must do so nomatterhownumeroustheseothersmaybe"(1998,p.235). 16 ConsidertwowaysofresolvingJones:(1)instantjudge(2)instant plebiscite (1) structurally looks at Jones's rights (2) could do what is done in (1), but that is unlikely.
Of course, it is worth noting that (2) amended by PwV might indeed deliver the answer that Jones should be rescued, which is precisely why Arneson's puzzle is real.
How does this analysis of aggregating across and aggregating within lives help with the distinction between judicial review and PwV?It mightbethoughtthatitisunlikelytodosogiventhatScanlon'sdistinction is ultimately about the outcomes (the decisions themselves) rather than about the procedures that generate those decisions.However, one argumentcouldbethattherearestructuraldifferencesbetweenjudicial reviewandPwVthatexpress,orinstantiate,thenormativegroundson whichScanlon'sdistinctionisbuilt.
Considerfirstjudicialreview.Thepurposeofjudicialreview,aswe haveunderstooditinthispaper,istoensurethatmajoritariandecisions 16 As Scanlon notes, it is instructive to contrast this with another example in which " we are deciding whether to build a new system of transmitting towers that will improve the quality of reception for many television viewers" and where it is "highly probable that in the course of this project a number of workers will suffer harms at least as great as Jones's."In evaluating this, we do not -just as we do not in the first Jones example -consider across all the lives where the most benefit will lie.Rather we ask what level of care should be exercised in building the towers and whether that level of care is met.If it will be, the remaining issue is what constraints on the (individual) lives of those affected would follow from abandoning the project on the basis of a stringent test of risking no harm at all.This might -and in many cases of public works (roads, transmitters, etc.), does -result in works that risk, and in reality impose, harms on others.But, the justification of those works is not the general good achieved, but the lack of grounds on which any individual could reasonably reject a properly designed scheme of works with adequate protections.See Scanlon (1998, pp. 236-238).
do not violate the rights of individuals.In other words, an unencumberedmajoritariandecisionprocedurecanaggregateacrosslives(across thevotingcitizenry).If,forexample,itwerepossibletohaveaninstant onlinevoteastowhethertoturnoffthetransmissionoftheworldcup football match and release Jones, the decision is dictated by the aggre-gatingofpreferencesandmayresultinJonescontinuingtosufferthe electrical shocks until the end of the game.
Thispointisimportantandworthemphasising.WegrantthatPwV might generate the correct result.It is open to the proponent of PwVor,moreimportantly-theopponentofjudicialreview-tosaythatif all thatmattersisthatindividualsareprotectedfromobjectionableinterpersonal aggregation, then we (and contractualism generally) should beindifferentbetweenthemechanismsbywhichthisoccurs.However, that is to accept Arneson's claim that those judicial review and PwV stand or fall together, which we (and others) take to be a serious challengetomostdefendersofliberaldemocracy.Thepointisthat,given that judicial review and PwV can both deliver the correct results, the differencebetweenthem(ifthereisadifference)mustlieinthewayin which they arrive at those results.Wehavearguedthatjudicialdecisionstypicallyconcernindividuals and their rights and duties, and we believe that ifjudicialreviewistobe Ifthisiscorrect,thensuchapersonmightnotreasonablyrejectthe proposal for a scheme of weighted voting.Although notice that what is compared here is a person's situation without PwV compared with asituationofequalvotingrights.Schematically,thisclaimcanbepresented in the following way: Contractualism allows aggregation within lives.Each individual, aggregating within his/her life, can reasonably endorse a proposal for PwV assuming that the anticipated results of such a proposal being enacted provides greater protection for the individual'sclaimsthanwouldasystemofunencumberedmajoritarianism.
However, note the comparison above is between PwV and unencumberedmajoritarianism.Ifthosearetheonlychoices,andwemake theempiricalassumptionthattheformerwouldleadtobetter-includingmorallybetter-outcomes,thenPwVmayindeedbejustified.But, that is not the shape of the argument.Rather, the argument concerns the (dis)analogy between PwV and judicial review.Assuming (as we have done) that both are instrumentally valuable in achieving better outcomes,thequestionisonwhatgroundscontractualistcitizensought topreferjudicialreviewtoPwV?
First, because PwV manifests a failure to treat citizens as equals.Whateverthebasisforallocationofvotingweightsmaybe,itsignals that some citizens have a greater say by virtue of some characteristic that they share (intelligence, independence, or whatever).In reality, suchinequalitywillbeassociatedwithunequalsocialstatusandunequalrespect.However,evenina"PwVideal"inwhichallcitizensrecognisethepurelyinstrumentalnatureofthescheme-thatisallrecognise thatitjustsohappensthatgivingmorevotestosomesubsetofcitizens leadstobetteroutcomesforallandthatthisconveysnootherstanding-thecitizenshavereasontopreferasysteminwhichsuchunequal statusisnotconferredonsome.Ofcourse,onemightarguethatjudicial review also fails to treat citizens as equals because of the power conferredonjudgestooverturndemocraticdecisions.Inonesensethis cannotbedenied:judgesenjoyunequalpoliticalpowerwhencompared to ordinary citizens.
Contractual reasoning comes some way in distinguishing these two schemes,butintheendthedifferencesseemslesssignificantandthe argument must be stretched beyond plausibility to be able to distinguish these two schemes.So, in the end, the contractual analysis is unable completelytodistinguishjudicialreviewfromPwV.
The distinction between judicial review and PwV, then, cannot depend on an assessment of the outcomes of each scheme.It is a contingentandempiricalmatterwhetherjudicialreviewand/orPwV-or someothernon-majoritarianscheme-happensbesttoadvancejustice andretardinjustice.However,wehavearguedthatthisdoesnotleave liberal democratic theories without a response to Arneson.Outcomes canbeachievedindifferentwaysanditisherethatadistinctioncanbe made between procedures that instantiate individual claims and those moreexpressiveofamereaggregationacrossclaims.
Thismattersinpartbecausedespitethemanyyearsthathavepassed since Arneson set his puzzle, liberal democratic theorists continue to givethehostagetofortuneheidentifiedwithrespecttoPwV.Consider, for example, a recent piece by Jeffrey Howard in which he writes, "if citizenswouldretard,ratherthanadvance,theachievementofjustice by making the [a] decision democratically when there is an alternative mechanism available, they ought to opt for the alternative" (2019, p. 182).Howard is arguing against the claim that "decisions should be made democratically no matter what" (2019, p. 181), but his argument for "alternative mechanisms" provides the gate through which PwV could pass.
Our argument has been that judicial review and PwV cannot be completelydistinguishedinsofarasbotharejustifiedoninstrumental grounds and considered from this perspective.If that is right, where does that leave liberal constitutionalism as a theoretical approach, and democraticdecision-making?Itmeanstheidealofpoliticalequalityis harder to realise in practice than many theorists have thought.Abstract ideasaboutpoliticalequalitybecomeblurrywhenpairedwiththeinstitutional arrangements that will ensure political equality.Defending political equality seems harder than anticipated by traditional liberal democratic theories.
Furthermore, the difficulty in distinguishing judicial review from PwV puts pressure on what makes democracy a morally justified and legitimate form of government.Is democracy justified instrumentally, foritsgoodconsequences,orbecauseofitsintrinsicadherencetopoliticalequality?Instrumentaljustificationsopenupforbothjudicialreview and PwV as both seem justifiable if the consequences are superior to alternative schemes.Intrinsic justifications must omit both judicial reviewandPwVasbothmayconflictwithanideaofpoliticalequality.