BY SALMAN SHAH

Introduction

There is a longstanding debate about whether it is democratically legitimate for a court to review the constitutional validity of a democratically elected parliament’s legislation. In a recent iteration of this debate, Jeremy Waldron adopts a majoritarian conception of ‘democracy’ to argue that any judicial review of the constitutionality of legislative action is democratically illegitimate. On the other hand, Ronald Dworkin utilises a moral definition of ‘democracy’ to put forward an integrated theory of political morality in which democracy provides a moral justification for judicial review. This post follows the debate between Waldron and Dworkin. It traces their contrasting conceptions of democracy, constitutionalism and judicial review to make two general arguments, before turning to consider the application of these arguments in the Australian context. The first general argument is that Dworkin’s integrated theory of democracy is preferable to Waldron’s majoritarian conception because Dworkin provides compelling moral justifications for his position, unlike Waldron’s pragmatic ones. The second general argument is that, under this integrated view, democracy provides a moral justification for judicial review. Beyond this foundational debate about the legitimacy of judicial review, there is an open question about whether this moral justification for judicial review is applicable in the context of the Australian Constitution given that it contains few express rights. The third and final argument in this post is that the moral justification is applicable in the Australian context (notwithstanding the dearth of express rights) and necessitates a moral reading of the Australian Constitution.

What is Democracy?

Waldron’s majoritarian conception

‘Democracy’ is not a legal term of art. Waldron’s understanding of ‘democracy’ has two distinctive features. First, any collective action is democratic if a decision is made by a process of counting the votes of elected representatives. Waldron presupposes that the voting processes allow for debate and deliberation and that elected representatives are committed to the political equality of every person. The second distinctive feature is that collective action is legitimised by ensuring that the voting process is proper, rather than by assessing the propriety of the effects or outcomes produced by that process. This conception of democracy accords with Waldron’s pragmatic legal positivism, which holds that society’s need for collective action provides authoritative validity to a legislature’s law regardless of its content or effects. Waldron is not unconcerned with morality, justice or rights. He believes that, given certain process requirements (such as the commitment to deliberation and equality mentioned above), legislatures are capable of respecting rights including those of minorities. This faith in process-legitimised legislatures informs Waldron’s understanding of constitutionalism as a system of legal, but democratically illegitimate, restraints on government.

Dworkin’s integrated conception

Dworkin calls his theory of democracy ‘the constitutional or partnership conception of democracy’. Like Waldron, Dworkin begins by establishing that any collective action is legitimate if it is undertaken by elected representatives in a system which gives prime importance to the political equality of every person. However, the similarities end here. Dworkin stresses that collective action is legitimate only if it is symbolically attributable to the whole community, rather than some statistical majority of individuals. The distinction is one of character: collective action should be of a nature that it can be characterised as having been taken on behalf, and for the benefit, of everyone – regardless of how many people were actually involved in the decision-making. Further, Dworkin argues that the ideal of democracy implies not only procedural propriety, but also certain democratic conditions or outcomes. He argues that a democracy necessarily “guarantees each individual a sovereign immunity from such collective decisions over certain matters of conscience and faith that, as a matter of self-respect, people must decide for themselves”. This conception merges democracy and constitutional rights into the distinct ideal of political partnership. Thus, Dworkin’s conception of democratic validity involves a normative judgement about the effect a legislative decision has on each person’s rights. Such a view accords with Dworkin’s ‘one-system picture’ which treats law as one form of political morality. This theory functions in itself as a theory of constitutionalism and is reconcilable with Dworkin’s earlier writing on a ‘moral reading’ of the United States Constitution. Dworkin’s constitutionalism is based on the idea that written constitutions are manifestations of political morality and that their limiting functions are not strictly legal, but are legally enforceable because they have moral authority.

Why is Dworkin’s integrated conception preferable?

Dworkin’s integrated conception of democracy is preferable over Waldron’s majoritarian understanding because Dworkin provides a moral justification for why the result of a democratic decision-making procedure is legitimate, whereas Waldron’s justification is a pragmatic one. Dworkin’s theory of political morality is built upon his moral epistemology. He argues that every individual’s liberty demands that they live responsibly, with self-respect, and in a dignified manner which is “authentic and worthy rather than mean or degrading”. Each person’s responsibility also extends outwards in ensuring an equal respect for others’ dignity – firstly as a limited obligation to aid others when they are in need, and secondly as a greater obligation to not harm others. One form of this outward moral responsibility is the distinct category of political obligation. Dworkin argues that each person owes an obligation to their political community to follow its laws because the laws create the social order for persons to respect their own dignity and that of others. On Dworkin’s account, this justification is valid only so far as the coercive political organisation allows for each person’s dignity to be realised. This principle of legitimacy is both the source of rights and of the core outcome-oriented feature of Dworkin’s integrated conception.

In contrast, the legitimacy of Waldon’s majoritarian conception does not rest upon any moral justification extrinsic to the process of legislative action. Waldron claims that the ‘circumstances of politics’ (that is the fact that persons in a political community disagree about issues of both mundane administration and fundamental rights) create the need for legislative decisions to be respected because they are the achievement of collective action. In particular, Waldron considers any coordinated action to be intrinsically valuable because, as a matter of simple probability, coordination is unlikely when people are in disagreement, and yet those disagreements are transcended through deliberation, compromise and majoritarian decision-making. However, as Dworkin argues, “the majoritarian, counting-heads principle” is not a fundamental principle of fairness which itself legitimises legislative authority. As Waldron acknowledges, unimpeded majorities may easily tyrannise a minority if the legislators are not committed to respecting rights. Moreover, Waldron’s justification is not peculiar to his conception of representative, deliberative democracy. Indeed, even non-representative legislatures which act without regard to the virtues of equality and dignity can be legitimised by the ‘circumstances of politics’ argument. Thus, Dworkin’s integrated conception of democracy and constitutionalism is preferable because it provides a moral justification which is uniquely adapted to the peculiarities of political obligation.

The Issue of Judicial Review

The integrated conception of democracy is not without its flaws. The principal way it is different from the majoritarian conception is that it incorporates constitutionalism as a primary feature, which allows Dworkin’s ideal of political partnership to be legally enforced through judicial review. As Dworkin himself argues, a mechanism of judicial review that allows a non-representative adjudicative institution to strike down legislation enacted by a representative legislature can be legitimate only if it improves the overall legitimacy of the democratic system. While Waldron’s two criticisms of judicial review discussed below do not succeed, Dworkin’s own doubt about the effectiveness of judicial review is more pertinent. Nevertheless, the moral imperative of respecting each person’s dignity demands the continued existence of judicial review.

Waldron’s criticisms

First, Waldron argues that strong judicial review is democratically illegitimate because, in theory, there is no principle of decision-making which makes it likely that rights are better protected by judges than by legislators. Waldron first points out that constitutional courts arrive at their decisions using the same process as legislatures: by counting whether a prospective decision has more people in favour of it than against. Then, Waldron argues that this majoritarian decision-making process is more legitimate in legislatures than in courts because legislatures consist of representatives who have a moral claim to represent a community’s view in making their decisions, unlike judges who merely have a legal adjudicative function. However, as Dworkin recognises, the majoritarian principle alone cannot justify either the legislature or the court’s decision-making process. Recourse to a moral justification is necessary. Having accepted that the integrated conception of democracy is preferable, Waldron’s view is not accurate because, under the integrated conception, a judicial bench’s task of enforcing constitutional rights is not merely a legal function, but a moral endeavour as well. The court’s decision is not legitimate simply because more judges agreed on it than not, but because the majority agree that their decision is the right interpretation of certain moral and constitutional limits required by the imperative of democratic partnership.

Secondly, Waldron argues that, in practice, rights are better protected by legislatures than by courts. He claims that courts do not adjudicate disagreements about rights in terms of the moral issues they actually are. Rather, judicial reasoning is distracted by arcane legal issues which are secondary to the moral issues at hand. Legislatures, in contrast, Waldron claims, debate and deliberate extensively over the precise moral issue at hand, and often with regard to specific notorious cases. However, as Dworkin recognises, the realisation of a right cannot be left to the “vagaries of politics” which determine whether and when a right will be redeemed. Judicial review provides a more predictable opportunity to contest legislative action and have one’s right enforced. This is especially true when faced with a legislative majority unconducive to protecting the infringed right.

Dworkin’s doubt

While Dworkin advocates for judicial review because of its potential to improve the legitimacy of democratic systems, he is also cognisant that there is nothing guaranteeing that judicial review will always lead to more democratic outcomes. Dworkin is hopeful because specific landmark cases in the United States Supreme Court have enforced the political equality that the United States Constitution requires (consider, for example, landmark cases which ended racial segregation and guaranteed marriage equality). But, at the same time, Dworkin is doubtful because the same court has also struck down dozens of statutes which seek to promote democratic ends by finding them inconsistent with the United States Constitution (consider, for example, early twentieth century rulings which blocked legislative efforts to combat rising economic inequality, and more recent decisions which deregulated campaign finance and abrogated voting rights). The structural cause for judicial review’s ineffectiveness in promoting democracy is that it too is subject to a judiciary which does not accept the moral reading of a constitution or can become politicised like a legislature, as the United States Supreme Court has. There is nothing in the argument this essay has made that suggests that courts are more effective than legislatures at protecting rights. This, in Waldron’s pragmatic eyes, might be fatal to the institution of judicial review.

The morality of judicial review

The integrated conception of democracy is based on a moral imperative which guarantees that collective action is enacted with equal respect and concern for each person’s dignity. This guarantee is what distinguishes a democracy from mere majority rule. Judicial review is one way to operationalise such a guarantee, but not necessarily the only way. Illegitimate collective action can also be prevented by other means such as a non-representative upper house in a legislature, a presidential veto, through civil disobedience, or by designing some new legal mechanism for constitutional review. The only requirement, commonly phrased as separation of powers, is that the constitutional review be undertaken by a body which is independent from the representative legislature. However, the problem with any such mechanism for constitutional review is that it would be operationally and functionally indistinguishable from judicial review. Because this new mechanism might curtail the will of the majority, Waldron will have the same criticisms, and because the mechanism might act inconsistently with the demands of morality, Dworkin will have the same doubt. The morality of judicial review consists in the fact that it provides the constitutional limitation that the integrated conception of democracy demands and that it is no worse than any other institution which can perform the same moral function.

The Morality of Australian Constitutionalism

Australia’s constitution is ostensibly amoral and lacks any express rights capable of guaranteeing equal respect and concern for each person’s dignity. The Australian High Court nonetheless routinely reviews and invalidates statutes. While the High Court’s jurisdiction to review legislation is often justified on a structural basis, a more sophisticated moral justification has begun to take hold. Due evolution of constitutional doctrine based on the moral justification may result in stronger rights protections, but the moral imperative of democracy would still be subject to retrenchment by a judiciary which does not accept the moral reading of a constitution. This final section focuses on the principle of separation of powers to demonstrate the point.

The Structural Justification

The Australian Constitution was never drafted as a ‘people’s constitution’ inspired by notions of individual freedom or civic virtue as the United States’ constitution was. Instead, it was designed by the Australian colonies to deal with practical concerns such as trade tariffs, taxes, post, telegraph, external affairs, defence and immigration. It was largely a continuation of the British tradition of responsible government in which a non-legal notion of public trust and confidence was the main mechanism for rights protection. While the framers borrowed the structure of the United States Constitution and with it the principle of separation of powers, attempts by Andrew Inglis Clark to include an equal protection clause and a due process clause based on the United States Constitution did not succeed. The insertion of these clauses would have resulted in stronger rights protections, which would have been inconsistent with the framers’ conceptions of majoritarian democracy, responsible government, and indeed, their desire to maintain laws which discriminate against “Chinamen, Japanese, Hindoos, and other barbarians”. As the Australian Constitution contains few express rights which are subject to a moral reading, judicial review of legislation in Australia, it seems, cannot be justified on a moral basis.

Thus, the structural view of Australian constitutionalism is that the Constitution is designed to create a federated system of representative and responsible government in which moral disagreements are resolved through political participation and deliberation. The High Court’s role in this constitutional scheme is to act as the final arbiter of constitutional structure and meaning. The justification for judicial review of legislative action in Australia is that it is aimed primarily at ensuring that the Commonwealth and state Parliaments are acting within constitutional limits, rather than performing the moral function of guaranteeing equal respect and concern for each person’s dignity. Adrienne Stone refers to this type of review of a constitution’s federal and structural provisions as structural review and suggests that it is just as democratically illegitimate as rights review. However, Jeffrey Goldsworthy points out that structural review offers a necessary mechanism for maintaining judicial independence and for settling disputes about which representative majority’s decision should prevail in a dispute about federalism itself. The structural justification is also reflected in the High Court’s most advanced constitutional innovation, the implied freedom of political communication, which is a limitation on Parliamentary power directed at securing political participation and deliberation in order to maintain the “constitutionally prescribed system of representative and responsible government”. Such uses of judicial review paradoxically align with Waldron’s faith in deliberative democracy, rather than with Dworkin’s moral constitutionalism.

The Separation of Powers

The structural justification also applies to the maintenance of an independent federal judiciary which is implied from the structure of Chapter III of the Australian Constitution. The traditional structural view of the constitutional doctrine of separation of powers is commonly expressed in two limbs: first, that the judicial power of the Australian Commonwealth (including the exclusive power to review the constitutionality of legislation) must be exercised by an independent federal judiciary, and secondly, that such courts may not exercise non-judicial powers. This structural principle was considered to protect the interests, and police the legal limitations, of the Commonwealth and state governments. It also ensured the independence and integrity of the federal judiciary, which is necessary for the maintenance of the rule of law. Crucially, it was not considered to protect the rights of individuals.

This has, however, changed, and a moral justification has taken hold. Since the late 1970s, the dominant view is that Chapter III creates a “general guarantee of due process” and reveals a constitutional vision of “law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive”. Indeed, one sophisticated reading of Chapter III suggests that the structural separations between the various arms and levels of government exist only to protect “personal interests rather than structural interests”.

This constitutional vison is not yet fully realised. The High Court’s jurisprudence on Chapter III shows that its rights-protecting function involves plenty of “interpretive gymnastics” and that rights often need to be discovered within the “deep, complex and technical” jurisprudence. Yet, attempts have been made to entrench a blanket guarantee of procedural fairness within Chapter III. Such entrenchment would have implicitly resulted in the guaranteed protection of certain aspects of individual dignity which are explicitly protected in the United States Constitution (such as a right to a fair trial and limitations on ex parte proceedings). Similarly, substantive due process protections (such as limitations on indefinite detention, unreasonable searches and seizures, and the admission of self-incriminating speech) may also arise from the principle of separation of powers. Structural separation is also said to form (per Gaudron J) the basis for a guarantee of equality before the courts.

The Moral Justification

The preceding section on the separation of powers demonstrates three points. First, that the absence of rights in a structural constitution does not preclude a moral reading. Second, that structural separations in constitutional design themselves serve the moral purpose of protecting rights. Third, that a court, in fulfilment of the moral imperative of democracy, may extend these protections towards a guarantee of equality and dignity. This provides the moral justification for judicial review in the context of a structural constitution such as Australia’s. Structural separations such as federalism and judicial independence do not exist simply to settle disputes between majorities or to maintain legal order. Rather, structural separations, especially the separation of judicial power, exist for the purpose of protecting individual rights, even in otherwise rights-neutral contexts. The High Court’s role as final arbiter is justified only on the basis that it applies a constitution which, upon a moral reading, guarantees that collective action is enacted with equal respect and concern for each person’s dignity. A moral reading would allow for the development of a constitutional guarantee of equality and non-discrimination which is akin to United States Constitution’s equal protection clause. Absent a moral reading of the Australian Constitution’s structural provisions, the High Court’s judicial review function cannot be justified and could be democratically illegitimate even though it enforces only ostensibly structural provisions.

Conclusion

Democracy is a political order in which the legitimacy of collective action is predicated on a moral imperative that equal respect and concern is given to each person’s dignity. This moral imperative manifests as a constitutional limit on legislative power and is enforced by a judiciary. While this moral imperative is not fully realised in Australia, a moral reading of the Australian Constitution’s structural provisions would allow for the development of a constitutional guarantee of equality and dignity which the integrated conception of democracy requires.

Salman Shah is a graduate of the University of Tasmania and a commercial litigation lawyer in a national law firm in Sydney. This is an edited version of Salman’s 2019 Sir Anthony Mason Constitutional Law Prize winning essay. Salman wishes to thank Anja Hilkemeijer and the AUSPUBLAW editorial board for their comments and feedback incorporated into earlier drafts of this piece, and their encouragement in preparing it.

Suggested citation: Salman Shah, Democracy as the moral justification for judicial review, on AUSPUBLAW (15 April 2020) <https://auspublaw.org/2020/04/democracy-as-the-moral-justification-for-judicial-review>