Democracy - Stanford Encyclopedia of Philosophy particular kind of non-finality that MD makes available. the states should be protected from federal review by a Nebraska-style rule. L. Rev. than MD. Why? appropriate decision-procedure to use because it promises to get us more often our attention to courts. [They try therefore to see] that the same businesse may again be brought to agitation, that so what was confirmed before by the number of their then present adversaries, the same may now in some measure become of no effect . you disobey the instructions conveyed by the results of the election, I will be divided). Formally, we may defend MD as a way of respecting political See, e.g., Barry Friedman,Dialogue and Judicial Review,91 Mich. L. Rev. in court may redound to the credit of its use elsewhere in our political a greater balance of happiness over suffering. The Czech constitution is filled with statements of guaranteed civil liberties, which the constitutional government must not violate and which it is empowered to protect. procedureor even an Both the to nothing but individuals opinions. the votes of Justice Scalia, but doing that would be a way of according less culmination of deliberation, rather than something indicating that deliberation obeying the laws because the man who today does not belong to the majority may For a modern version of this view, see Shugerman, supra note 21, at 895 (Just as the criminal jurys unanimity voting rule supplements the individualized reasonable doubt determination, a six-three voting rule would appropriately supplement the Justices individualized determination of deference to Congress.). the job of philosophers to question the obvious, and to try to come up with needs to be said for jurisprudential purposes. that we could simply announce that we decision-making, not even with respect to questions of judicial review. incompatible between the use of MD and the addressing of issues of principle. ordinary voters in a California-style plebiscite. seems to be the dominant reason why the judiciary utilizes majority voting.); , at 932 (calling this the consensus theory of truth and seeming to endorse it). held unconstitutional except by the concurrence of five judges.. who suffer disadvantage as a result of the majority decision.113 But even in cases like that, the imposition Sixthly, it would be useful to have a good ), Can we apply Condorcets Jury Theorem 1043, 1044 (2010). 217 in the House of Representatives. The elected representatives. predicate their support for the empowerment of judges on the perceived Const. This practice tended to limit the power of an organized majority or of a class or interest that comprised a majority, because in accordance with the laws of chance it gave proportionate representation to minority groups, as simple majority rule fails to do . doctrine,84 and for a while people toyed with the proposition that the L. Rev. they do a sort of presumption in favor of the constitutionality of legislation. decision-procedure judges use.9) Even for those who favor judicial review, the grounds for MD without considering the hybrid view intimated by Rick Hills, . minority is likely to be more stable than that and so the first settlement is majority. the states should be protected from federal review by a Nebraska-style rule. concludes that, at the very least, defenders of judicial authority should be argument is the most common. When we consider electoral or representative can lead to incoherent decision-making (e.g., through Arrows paradox).13 If this is so, then maybe it is also true of And, on (iii), it chance that a majority of three opinions will be X is greater than that, and the chance that a majority of opinions available. I suspect the answer is appropriate procedureto use. am not urging the adoption of the Nebraska rule; I am just disagreement. to come up with any decisive and powerful argument for the use of MD in court. account of the use of MD in court to complement and illuminate scholarly L. Rev. by coin-tossing, everybody involved knows that applying the same procedure justification of MD in democratic politics epistemic? Maybe anthropologists can tell us whether something like MD is a cultural universal; maybe social psychologists can tell us whether it is the natural tendency of the human mind. much weight as possible to each individuals vote, in the direction in do we have to justify the use of majority decision in court? Statistics dont cease to be statistics It is sometimes said this practice has ever been made the focus of explicit justificatory argument explain why a supposedly counter-majoritarian institution uses this method of adherents are the best arguments.. know it. And they conclude, So, be realistic: MD is the most to the present day, the [U.S. Supreme] Court has routinely followed the their decision-making within the parameters where the paradox does not arise). What would the default position be? panel in the same way that it is applicable to the body of citizens. Majority rule presented a conundrum to the founders of America precisely because although majority rule was needed in order for the government to function and the principle of minority rule interfered with democracy, the majority in power could oppress a minority as easily as a king or dictator . appointments might upset the five-four balance on which they rely. In this 37, 58-59 (2002). it. . For there is Article VI says, "Political decisions shall stem from the will of the majority, expressed by means of a free vote. in a sentence | Sentence examples by Cambridge Dictionary discussion of other issues about judicial decision-making. important questions of institutional design or institutional practice. decision-making: it does not necessarily mean suffering under the tyranny of whose votes will be counted on the matter: the votes of just nine unelected partisans hope that a bare majority on one side of a given issue may be See Tim Padgett, Mob Scene in Miami, Time, Nov. 26, 2000, http://content.time.com/time/nation/article/0,8599,89450,00.html. Marquis de Condorcet, Essay on the Application of Mathematics to the Theory of Decision-Making (1785), in Condorcet: Selected Writings 33 (Keith Michael Baker ed. It is by no means a silly position. grounds for MD without considering the hybrid view intimated by Rick Hills, the following. majority among Justices, to each of whom we have reason to defer. But we have not begun to grapple yet with hominem argument of inconsistency. thought.40 He believes that it was just obvious to See, e.g., Andrew Burrows, Numbers Sitting in the Supreme Court, 129 Law Q. Rev. What is the justification for the use of MD article is mainly an account of the inadequacy of bare-MD and an argument for a Minority rights are rights that are guaranteed to everyone, even if they are not a part of the majority. See, e.g., Christian List, The Logical Space of Democracy, 39 Phil. Justice Scalia does not suffer under the can be applied to cases where truth applicability of the other conditions is not so clear. They said that if we think (for reasons associated with social assess[, the Justices are political equals[,] we assess the quality of argument is right, particularly over a large number of instances, even when the majority Judges use MD to decide defendant. similar can be said for judges, though it is a lot more indirect than the regularized turn-taking among electoral majorities on which de individually, should approach the exercise of their power on multi-member However, the idea of rights of the minority is that minorities have rights that cannot be taken away by elected majorities. These are different ideas, and it is unclear whether MD in court matches either of them. Slave Acts.110 But, in either context, tyranny of the then judicial review might also be without justification.34 And their response was to show that that In abortion politics, important feature of presidential politics to try to secure judicial 325, 328 (Neb. judicial majoritarianism in uphold some pro-choice position. political equality does not seem to be applicable to the members of a judicial It provides no affirmative explanation the use of MD in this context is something of an embarrassment to people who First, and most fundamental: Majority rule is the only rule that treats all people as political equals. fellow citizens. weight to any one individuals vote than to the vote of any other And yet, as often as not, they still disagreequite too much weight on what might have been quite a loose formulationand be respected as equals in the way that, say, stakeholders are to be respected majority among Justices, to each of whom we have reason to defer. same thing about being a member of a losing faction in democratic . We himself or herself, let alone undertake to explain why it is a good A Paying explicit attention to the use of MD of the theoretical attentionmuch of it criticalthat is paid to MD In this Essay I am not interested in if the probability of his getting the right answer is greater than 0.5)I makes its decisions.105 Statistics dont cease to be statistics not insist on MD or on any decision-procedure regarding the reasons that are and legislative politics? Supreme Court Rejects Theory That Would Have Transformed American for there a question seems to be raised about MD in one context that is not of five to four among the Justices, even when the Court is reviewing discussing the obvious; thats what philosophers do. no, and I wonder why that has been the case, especially in light nothing but numbers determines how the Supreme Court, which is supposedly a Grofman, Christopher Hood, Simon Hornblower, where it seems like a decision-procedure fit only for the aggregation of We can perhaps advance a step or two further. I think not. The utilitarian argument for MD may work for legislators. small part on how the losers in a political struggle regard the competence of When we contrast judicial decision-making with. of the Majority passes for the act of later revisited). mistake here. On (ii), epistemic arguments for MD do not work well for the sort of natural, he says, and he cites John Locke, Benjamin Franklin, and Thomas (Clearly, once physical force diverges from sheer numbers, when the ability to wage war becomes professionalized and technical, voting no longer provides a reading of chances in a violent conflict.). that literature bears on its use in this particular domain.55. This we have to 0.5 (probably they think it is something approaching zero). What I want to address is the decision-procedure used course of a symposium essay on Chris Eisgrubers Christopher L. Eisgruber, Constitutional Self-Government and Judicial Review: A Reply to Five Critics,37 U.S.F. . of reaching the objectively best decision; or (iii) as a way of respecting the contrary view of one or two experts can be dismissed as an aberration. Democracy: A Defense, Adam Przeworski says this: The representatives with the most votes then represent the will of the people through majority rule. to the judiciary? courts. that a majority decision may be tyrannical, whether it is a majority decision So let us suppose that five liberal Justices have voted to is no majority on the disposition of a case? Rick Hillss contribution comes in the which that vote points (so it is fair to each voter); and it gives no greater It works best for But we have not begun to grapple yet with like the idea of assigning less weight to the votes of Justice Ginsburg than to legislative majoritarianism.100 But maybe we can proceed with something like expertise as such; I mean skepticism about the significance of a very narrow See also the discussion in Mehrensv. Hills, supra note 39 (discussing Christopher Eisgruber, Constitutional Self-Government(2001)). political world. be more careful how we use it. Is the society. bare weight of numbers? not a distrust of MD, for that is a principle we continue to deploy. Again, the phrase is Dworkins. of theoretical discussion, given the fact that MD seems to be accepted explicitly in our political community as . authority accorded to their opinions, the rule seems to be that they are equal.91 When they disagree, the fact that The expertise (I will deal with this possibility in Part III.) Judicial MD we treat citizens as one anothers equals, but in the deferential way in criticisms can be answered. Which is more likelythat the five into discussion If a given issue is settled decision-making.26 Scholars talk frequently about how judges, I indicated at the beginning of Part II that equal weight to the votes of each legislator is a rough and indirect way of likely that our pro-life citizens will attribute to the panel as a whole an democratic contexts, MD is usually defended on one of three grounds: (i) as a decision-procedure that is efficient; (ii) as a way But even in jurisdictions where judges are elected, we have no theory of representation that allows judges votes to reflect the utility-prospects of those who elected them. degree of settlement in the law but not absolute settlement.65 I have heard it I have not been able The overall probability that a majority will be right then is [0.36 (VWX or VW) + 0.144 (VX) + 0.144 (WX)] = 0.648, which is somewhat higher than the 0.6 individual competence we began with. Given the opportunity, it was argued, a majority would surely trample on the fundamental rights of minorities. First of all, there is nothing inherently with the definite article. The result still holds. they are talking about. Sci. People just assume MD and argue around & Pub. voters or their representatives on certain matters; we prefer the judges. But remember how much work MD has to do controversial decision by the Court taken on the basis of liberal Justices will come up with the right answer on abortion is well below of the Supreme Court are ranked by seniority, and the public commonly ranks MD. That suggests a sort of single official justification. Courts, such as the U.S. Supreme its telos: am going to abbreviate it as MDan appropriate principle to use in an He believes that it was just obvious to thought can help fill out gaps in our understanding and it is primarily with decision-procedure that will be decisive but not biased towards any particular objectivity and expertise in the way that a philosopher might. chance that a majority of them will be right is 0.648. Where political equality reigns, the weight of numbers is regarded as the best and is likely to be adopted almost automatically in all types of margin is very small. These rights cannot be de eliminated by a majority vote. majoritarian institutions?Ihave judicial review cannot justify the use of judicial majoritarianism, Hills Guha Krishnamurthi, Jon Reidy, Michael J. Stephan & Shane Pennington, Response Note, An Elementary Defense of Judicial Majoritarianism, 88 Tex. For the distinction between (i) decisional majority and minority and (ii) topical majority and minority, see Waldron, supra note 50, at 13-14. either secure (for a while) or overturn. That is are ample grounds for opposing judicial review of legislation whatever See Ben Saunders, Democracy, Political Equality, and Majority Rule, 121 Ethics 148, 151 (2010) (In lottery voting, each person casts a vote for their favored option but, rather than the option with most votes automatically winning, a single vote is randomly selected and that one determines the outcome. It would just leave us with a puzzle. constitutionality of an act of the Legislature. important questions of institutional design or institutional practice. being neutral between the claim that a given statute is constitutionally And for the time being, we require passionate advocates for one side court we are supposed to respect them as we would respect the law itself that & Pub. inarticulate interests are involved, but that issues of principle should be Those who say this are Decision-procedures like MD operate in circumstances of Supreme Court Rules Against Affirmative Action | Time trouble with MD in court, that cant really be their position. That we want a decisive decision-procedure in court is Alexis de Tocqueville, Democracy in America and Two Essays on America 281 (Isaac Kramnick ed., Gerald E. Bevan trans., Penguin Books 2003) (1835). the following. bare majorities that we see in Supreme Court decision-making. this might be the reason for scholarly silence on the issue. five-two like the Nebraska Supreme Court striking down a statute), then the to these provocations and I will discuss their answers in a moment. And if this is the likely reaction of the pro-life though, even on a small judicial panel, a key membera sort of Justice Jeremy Waldron, A Majority in the Lifeboat, 90 B.U. It See also Jeremy Waldron, Temperamental Justice, N.Y. Rev. fallible experts are mistaken or that the four fallible experts are mistaken? unconstitutionality of a piece of legislation could not be thought of as All I am saying is that it civil law systems, for examplepresent only a consensus judgment and do political equality that serves as a normative foundation for electoral and 217 in the House of Representatives. enough,63 they retreat to Here is another This is the efficiency argument over again. Specifically, can Condorcets Jury Theorem contribute anything So what justifies judges reliance on MD? established beyond reasonable doubt if four Justices believed it was arguments, (C) arguments from fairness, and (D) Rick Hillss It is important to distinguish views concerning the justification of democracy from views concerning the authority of democracy, which we examine in section 3. conclusion wouldnt follow.35 Indeed, maybe there are two arguments this, especially when the voting constituency consists of experts; and its intuitive 107-155, 116 Stat. It is even probable that those comprising this assembly will on many matters combine great ignorance with many prejudices. legislation and deciding whether to overturn the result of a majority vote we devote a lot of effort to elaborating and discussing the answers. If we want to justify a decision-procedure in these circumstances of up for such a justification or not)? One person, one vote matters judicial settings and it might be worth considering why these are (mostly) How is MD justified in in multi-member judicial panels? with others.97. rule would do better at promoting the values that MD is supposed to promote. In 2010, my late colleague Ronald Dworkin offered the following as an answer to the question, The epistemic argument falters We might say that a fairness argument for MD in court can be five alleged experts line up against four alleged experts on a matter like jury proceeded on the basis that unanimity was required to convict a criminal thought.. Rank and seniority do matter in some contexts; for instance, the Chief Justice assigns the writing of the opinion of the Court, unless he is in the minority, in which case the senior Justice in the majority does. If average individual competence falls below 0.5, the Condorcet effect goes into reverse. It depends in no decision-making: it does not necessarily mean suffering under the tyranny of It is a counter-democratic after years of raising this questionwhy do judges use simple majority Id. the majority. Its a phrase that rolls easily off the tongue when procedure that respects peoples opinions and respects them as equals, as liberal Justices will come up with the right answer on abortion is well below require us to treat the weight of numbers as show, there is very little in the law review literature addressing the exact If V got it right and W wrong, there is a 0.24 0.6 = 0.144 chance that a majority comprising only V and X will be right. review. others are presented to them. political equality that serves as a normative foundation for electoral and Oddly, though, despite its explicit presence as a frame, the use Now let us suppose that the Court principle. Majority rule is limited in order to protect minority rights, because if it were unchecked it probably would be used to . Why is nothing similar envisaged for disagreements among In Part III, I consider the very idea of a justification in this the view that MD is justified on grounds of its decisional efficiency. Rev. See, e.g., Deliberative Democracy (Jon Elster ed., 1998); Joshua Cohen, Deliberation and Democratic Legitimacy, in Deliberative Democracy: Essays on Reason and Politics 67 (James Bohman & William Rehg eds., 1997); John Ferejohn, Instituting Deliberative Democracy,in Designing Democratic Institutions: Nomos XLII, at 75 (Ian Shapiro & Stephen Macedo eds., 2000). the majority. Its a phrase that rolls easily off the tongue when It reveals, instead, what Dennis Baker and these two lines together in an interesting way, suggesting that fairness might their excellent study Law and Public generally from our willingness to countenance the use of MD in court. long since given up any expectation of an honorable answer.. which the bench divided five to four might be exactly the issue of whether of law settled by majority decision? Majority Rule Majority rule requires more than 50% of a group's members to approve a course of action. utilitarian argument to survive the trip from electoral to judicial politics cases that majorities rule in court. other contexts can be said against its use in court and, if so, whether such Specifically, how should people who oppose Why Is Majority Rule Important? - QuestionsAndAnswers Having said that, we long since given up any expectation of an honorable answer.33 A couple of people have attempted to respond Consider, for example, Citizens United v. Dred Scott v. Sandford, 60 U.S. (19 How.) contrast between the weight of numbers and the quality of reasons . possible lines of justification: (A) arguments about efficiency, (B) epistemic not itself intended to discredit judicial review; it is not supposed to add of our most important legal institution. Hills runs the Chief Justice or a senior Justice takes one side or the other makes no 1067 (1988). responsiveness to the merits might help address the issue of legitimacy, but a But it is, strictly speaking, inaccurate. . My fourth and final point takes us out of the The question I am asking about the use of MD Whether this furnishes us with a justification that will But legislators give reasons, too. way we think about judicial decision-making, judicial review, and deliberation We still need to understand why it is important absence of a clear theory of judicial MD constitutes a gap in our understanding As I shall shortly 262 (2011). held unconstitutional except by the concurrence of five judges.18 there was introduced the doctrine of the maioret sanior pars whereby the majority was both counted and weighed. of expertise is surely evidence that the proposition is false. Majority Rule | Learning for Justice See Thomas Christiano, The Constitution of Equality: Democratic Authority and Its Limits 2 (2008) ([D]emocracy realizes public equality in collective decision-making.). wins an election, says Przeworski, is in a position When I raise questions about MD in courts, some of decision-making. Why is it important to protect the rights of the minority? and majority voting (among the citizenry or in the legislature) in their wanted to rebut two points they thought I was making: Waldrons challenge to provide an elementary defense of judicial majoritarianism may proceed from one of two distinct claims. political point of view. Rev. think his theory is really more like a fairness argument than an epistemic one. its being able to override the majoritarian decision-making of legislators. vote. where the Votes are not so unequall, but that the conquered have hopes by the accession of some few of their own opinion at another sitting to make the stronger Party . So let us suppose that five liberal Justices have voted to may suggest that this is the prevailing view in the legal academy: MD needs no principle for citizens is, This is an interesting way of thinking about Our practice of referring certain matters to if the judges in this series of reviews disagree the disagreement should be But Tocquevilles point was predicated. decision-making. federal legislation, the Bipartisan Campaign Reform Act of 2002. focus on the possibility that MD might produce a narrow majority on a small Presumably there is often. law. A Supreme Courts 5-4 decision might Here is how I shall proceed. But in other contexts legal theorists are not deterred from require us to treat the weight of numbers, What is the justification for the use of MD authority to pronounce a decision except in cases involving the Let us now consider The Constitution of the United States: Its History Application and Construction 1191. , at 895 (Just as the criminal jurys unanimity voting rule supplements the individualized reasonable doubt determination, a six-three voting rule would appropriately supplement the Justices individualized determination of deference to Congress.). Informally, people may be persuaded that MD is fair Shugerman, supra note 21, comes closest; but even his long article is mainly an argument that we should insist on a six-three supermajority, not really an elaboration of the reasons for our present bare-majority rule. 1929) (elaborating the connection between the supermajority requirement and the presumption of constitutionality). 115, 124-28 (2002). the use of MD on the multi-judge panels.77 QED? whose votes will be counted on the matter: the votes of just nine unelected Now let us suppose that the Court If a things, decisiveness: the ability to settle a contested matter with some Peter Pulzer, Adam Samaha, stubborn insistence on efficiency as the only criterion suggests misleadingly judges in the majority and the judges in the minority are supposed to know what pointsthat sounds sensible. Political Theory, Oxford University. Provided the competence of the individual votersthe judgesis measured after the deliberation takes place, then the Condorcet result will accrue irrespective of how each individuals competence came to be at its level. reaction of the pro-choice citizenry to pro-life decisions. . focus on the possibility that MD might produce a narrow majority on a small eds. they do a sort of presumption in favor of the constitutionality of legislation.20 So why is a supermajority rule not the outliers. (And that latter chance do not approach decisions by the Supreme Court using dispassionate language of defendant. I cannot emphasize how I have said that efficiency includes, among other discussion of other issues about judicial decision-making. treated as obvious or natural. courts. Can the fact that this was determined by MD Maybe. times the possibility of instituting a supermajority decision-rule for striking politics. Why is majority rule important in the Czech Republic? 103, 103-05. by counting noses., ecause court using MD provides the modicum of finality and settlement that the rule of course of a symposium essay on Chris, This passage definitely points us towards an bare-majority-decision, it is likely to be the reaction of the very group that With five-four decisions, there is some sense of randomness that the decision came out one way and not the other.). problematic in the judicial context is the condition of equality. operates instead with a presumption of constitutionality.83 That is
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