Legal Pragmatism: Community, Rights, and Democracy

Five. Reconstructing Judicial Review

[ Ω∫ ] f i v e Reconstructing Judicial Review We began by considering and rejecting a descriptive claim commonly made by communitarians. According to authors such as Glendon and Sandel, contemporary political and legal discourse is dominated and impoverished by concerns over the rights of individuals. As we saw in chapter 1, however, while there is a great deal of talk about rights, case law makes plain that the rights of individuals are often subordinated to community interests. The point is not merely that communitarians have misdescribed present social reality. Rather, in seeking to weaken the status of rights, the communitarians have also weakened the social space wherein individuals can flourish. This is not to say, however, that legal and political theory should retreat into classic liberalism that defends rights as strongholds of negative liberty. Instead, rights must be understood pragmatically, that is as self-conscious, social e√orts to foster individual growth. As such, rights are both means and ends.1 They are means in that they are tools by which a society protects its citizens against unwarranted interference from the state or tyrannical reconstructing judicial review [ ΩΩ ] majorities. As a proper result of legislation, rights are also ends to be defended as such. In defending a pragmatic account of rights against the unsubstantiated charges of Ronald Dworkin (for example, that pragmatists ignore precedent), we also began to consider a more general pragmatist jurisprudence. Building on the work of John Dewey, I argued that like rights, the law itself needs to be understood as a social tool oriented toward the cultivation of conditions conducive to individual growth. In order for this social tool to function properly, it must be supported by critical analyses of the context in which various laws and rights will be enacted. Contra Rorty, therefore, pragmatism cannot do without the kind of critical empirical questions asked by the likes of Dewey. In fact, everything seems to depend on knowing as thoroughly as possible what consequences are likely to follow from particular policy choices. One should not, however, construe such inquiry too narrowly as Posner does. Normative reflections and defenses, for example, in support of rights are integral to the project of jurisprudence. What has been shown thus far is that a pragmatic approach can avoid many of the objections directed toward it. It can avoid the overly abstract theoretical orientation of Dworkin’s jurisprudence without removing critical intent as Posner does or rational content in the manner that Fish and Rorty recommend. A pragmatic philosophy of law is something of a middle path between those overly confident in the authority of principled reasoning and those overly confident in the reconstructive capacity of a historically uninformed imagination. However , an even deeper threat to the cogency of a pragmatic philosophy of law may lie within its own proceedings. In fact, a potentially crippling paradox seems to await any attempt to foster the growth of individuals. A paradox looms here because in attempting to foster the growth of individuals through the institution and revision of laws, pragmatism risks putting the cart before the horse. That is, through paternalistic practices pragmatism risks overdetermining the possibilities open to the very individuals whose autonomy it claims to respect. More precisely , pragmatism risks usurping individual self-creation in favor of a kind of social engineering through the rule of law. In this chapter, I aim to show that a pragmatic philosophy of law oriented toward fostering individual growth does not fall prey to this legal pragmatism [ ∞≠≠ ] paradox. In order to show that this is the case, I will develop what I take to be a pragmatic response to what has come to be known as the ‘‘counter-majoritarian di≈culty.’’ My point is not that this is a unique problem for pragmatism as opposed to other approaches to jurisprudence . Rather, it is that the counter-majoritarian di≈culty contains a problem analogous to the aforementioned paradox. Thus, if one can provide a coherent response to the counter-majoritarian di≈culty, then one can also elude the paradox of ‘‘engineering’’ persons capable of self-determination. The counter-majoritarian di≈culty arises because an unelected judiciary exercises the prerogative to void acts of Congress, thus overriding the represented will of the people. This power would seem to render judicial review an inherently anti-democratic practice. The di≈culty is analogous to the paradox confronting a pragmatic jurisprudence. Where the courts must justify the...