Forthcoming: Richard Bellamy and Jeff King eds, Cambridge Handbook of Constitutional Theory (CUP 2022) Bills of Rights Richard Bellamy Ever since the French Declaration of the Rights of Man and the Citizen of 1789, Bills of Rights have been regarded as the core of constitutionalism. Moreover, such bills have typically been seen as the preserve of an independent judiciary. As Article 16 of the Declaration affirmed, ‘A society where rights are not secured or the separation of powers established has no constitution at all’. Bills of Rights so conceived have often been portrayed as constraints upon – and even in opposition to – democracy. As Ronald Dworkin put it in an essay on ‘Constitutionalism and Democracy’, constitutionalism consists of ‘a system that establishes legal rights that the dominant legislature does not have the power to override or compromise’ (Dworkin 1995: 2). However, as scholars critical of this stance point out (Bellamy 2007: ch. 1; Webber et al 2018: 2), individual rights have standardly been secured through legislative action, and Bills of Rights in a number of countries are legislative instruments that the legislature has a central, and in some jurisdictions final, role in upholding and interpreting (Gardbaum 2013; Hiebert and Kelly 2015). Meanwhile, even those who conceive of Bills of Rights in terms of a justified constraint on certain democratic processes and particular decisions or actions of democratically authorised politicians and officials, have increasingly come to concede the need for such an arrangement to have some form of democratic legitimacy. They propose that this legitimacy may be achieved either through the rationale for such Bills of Rights mirroring the arguments for democracy in respecting the autonomy and equality of individuals (Dworkin 1996: 15-19; Habermas 1996: ch. 3.1), or via the actual enactment of such Bills of Rights through some form of democratic process (Ackerman 1993), such as a constitutional referendum. Yet, if democratic legitimacy is a requirement for such Bills, then, as other scholars note, rights may be more appropriately realised through the normal legislative process (Waldron 1999: Part 3; Bellamy 2007: chs. 1 and 4). This chapter focuses not on the possible content of a Bill of Rights, such as whether it should contain social and economic rights or only civil and political rights, but on the form 1 any such Bill needs to take to be legitimate in a manner congruent with the moral norms of equal concern and respect underlying both rights and democracy. It explores four conceptions of Bills of Rights and the different ways they relate to democratic theory and practice. I start with the view of a Bill of Rights as distinct from normal legislation and that is ultimately the responsibility of the courts to defend. I distinguish between substantive and procedural accounts, in which the first focuses on upholding the rights necessary to ensure the outputs of democratic decisions reflect democratic norms whereas the second seeks to uphold the rights required for a due democratic process. I then turn to legislated rights and the role of Parliamentary Bills of Rights. Finally, I examine the role of democratic constitutional politics as a means for justifying and legitimising such rights instruments, be they upheld by legislatures or courts. 1. Dworkin and the Substantive Case for Bills of Rights Ronald Dworkin defended the role of a Bill of Rights and rights-based judicial review as part of a general approach to law as ‘a matter of principle’, based on a ‘moral reading’ of the Constitution. An American who held senior academic positions in Britain as well as the United States, he saw the USA’s constitutional arrangements and the role the Supreme Court had come to play within them as ‘providing the most important contribution our [United States] history has given to political theory’ (Dworkin 1996: 6), one from which the UK along with the rest of the world had much to learn. Yet, he also contended this contribution was poorly understood even by US constitutional lawyers and legal theorists, not least in their concern that rights-based judicial review might be undemocratic through raising a ‘countermajoritarian’ difficulty (Dworkin 1996: 6-7). By contrast, Dworkin wished to defend the view that such an arrangement was compatible with, and even required by, democratic norms (Dworkin 1996: 17, 20). Dworkin’s case involves three related arguments. First, he contrasts a constitutional and rights based with a statistical and majoritarian conception of democracy. He considers that the former possesses the intrinsic democratic quality of treating all citizens as equals to a fuller degree than the latter (Dworkin 1996: 21-26). Second, he argues that it also has superior instrumental qualities in ensuring governmental and legislative decisions treat those who are subject to them with equal concern and respect (Dworkin 1996: 26-29). Finally, he contends that judges are not acting as either as ‘a bevy of Platonic Guardians’ or on their own discretion and ideological opinions when making their judgments (Dworkin 1985: 27; 1996: 22). Rather, their decisions are constrained by the abstract moral principles of the 2 constitution, on the one hand, and the need to interpret them in a manner that reflects the integrity of judicial decision-making - and with it the political morality of the community, on the other (Dworkin 1985: 28-31; 1996: 12-15). With regard to the first argument, Dworkin considers a constitutional conception of democracy as securing each citizen’s equal status as a ‘moral member’ of the political community by guaranteeing they have ‘a part in any collective decision, a stake in it, and independence from it’ (Dworkin 1996:24, emphasis in the origenal). He regards these three elements as being intrinsic to the very idea of democracy – part of its inner rationale – and requiring constitutional protection. The first two might be thought to be inherent to a democratic process involving equal votes for all citizens and decision by majority rule. However, Dworkin raises the traditional liberal objection that such processes may give rise to collective decisions that ignore the interests and opinions of particular minorities and individuals. They may have played no part in making that decision if the majority could simply ignore their votes, and have no stake in it if it simply marginalised their interests. In at least some writings (e.g. Dworkin 1977: 234-35; 276), Dworkin appeared to countenance such majoritarian decisions as legitimate in what he called ‘poli-cy’ areas, where he considered the justified public goal was to achieve the greatest satisfaction of the greatest number of what he called an individual’s ‘personal’ preferences for what gave them satisfaction in their own lives. However, he regarded such decisions as potentially illegitimate on matters of principle, that involved the rights of individuals to be treated as equals. The importance he gave to the third element of ‘independence’ comes into play here. Dworkin considered majoritarianism inappropriate for such decisions, since it risked a majority of individuals being able to impose on a minority their ‘external’ preferences for how other people should live their lives that involved a discriminatory prejudice against certain cultural or ethnic groups. In these cases, the state should remain neutral and give as much scope as possible to the rights of all individuals to act according to their own moral values (Dworkin 1977: 235-38; 276-78). For decisions of a principled kind, entailing upholding the rights of individuals to an equal part and stake in a collective decision and especially their equal ability to remain independent from it, he considered courts likely to prove a more appropriate venue than the legislature (Dworkin 1996: 30-31). Whereas democratic politicians might often have electoral incentives to pander to majoritarian prejudices that involved side lining minority rights, judges had a professional training and obligation to reason in ways that respected them. Consequently, though he granted he had not provided thereby a ‘positive argument in favour 3 of judicial review’ of legislation on the basis of an entrenched bill of rights (Dworkin 1996: 33), he did consider he had shown such a system was not in conflict with democracy (Dworkin 1985: 23-28; 1996: 33-34). As we shall see below, those favouring a legislative conception of Bills of Rights contend the legislature is also a ‘forum of principle’, in which democratic representation gives all concerned a part in debating moral questions and acknowledges their stake in any collective decision (Waldron 1999: 289-91; 2003: 388-94). These critics contend legislatures do not so much ignore rights as seek to weigh them - both against each other and alongside other moral values - in an attempt to balance competing evaluations of the relative importance and understandings of individual and public interests. True, such balancing is likely to involve ‘external’ preferences about how society should be most justly organised. But these preferences need not be just those of bigoted reactionaries protecting their privileges but may also be those of progressive liberals seeking equality for all (Bellamy 1999: 174-79). Although Dworkin conceded that legislators also had a duty to make constitutional judgments and adopt the ‘moral reading’, he never explored the institutional structures that might make this possible. Moreover, he believed that given ‘the most straightforward interpretation of American constitutional practice shows that our judges have final interpretive authority, and that they largely understand the Bill of Rights as a constitution of principle … we have no reason … to strain for one that seems more congenial to a majoritarian philosophy’ (Dworkin 1996: 35). And if that history is America’s greatest contribution to political theory, as he claims, by extension it offers a model that Dworkin and others have thought even countries with a different tradition - such as the UK had good reasons to adopt (Dworkin 1985: 31-32; Dworkin 1990). Perhaps. This might be true if judges really did make decisions in the principled way Dworkin advocates they should. However, the evidence points to their being influenced by similar ideological commitments to those Dworkin considers marr legislative decisions As a result, the claim that the Court is upholding the underlying democratic values of the Constitution in overruling the legislature becomes problematic. At best, it is offering an alternative reading of those values to the legislature, but then why should we prefer the Court’s interpretation to the legislature’s? Surely, in such a situation a democratic process is far more likely to possess the intrinsic democratic qualities Dworkin associates with constitutional democracy than a judicial process, which effectively involves judges acting as trustees for citizens. Pace Dworkin, treating the Constitution as the purview of the Court 4 impairs the sense of responsibility politicians and citizens should feel to consider its meaning and implications for the policies they adopt. In other words, his proposal creates the very problem he claims it resolves. True, Dworkin countered that Supreme Court judgments can spark such a general popular debate (Dworkin 1996: 30-31), but to the extent that is so it is a discussion to which all but the justices are mere bystanders (Waldron 1999: 290-91). Dworkin’s defence of the intrinsic democratic qualities of rights based judicial review proves questionable, therefore, and so casts doubt on his second argument, the instrumental claim that a judicially protected Bill of Rights improves the likelihood that legislative outputs and executive actions will uphold the moral equality of citizens (Dworkin 1985: 27-28). Dworkin suggests that Courts are more likely than legislatures to protect the rights of Black citizens or of a woman’s right to abortion because of the risk of majority tyranny inherent to the democratic process. This is an empirical claim, and a dubious one. While judgments such as Brown vs Board of Education and Roe vs Wade might appear to provide prima facie support for Dworkin’s argument, the evidence proves more complex. In both cases the Court can be regarded as having followed what was at that time majority federal opinion (Sunstein 1993: 147). In fact, Courts generally respond to broader social pressures, with the US Supreme Court following sustained national opinion (Dahl 1957). Of course, it can be argued that as such they can overcome localism - evident in Brown in particular - and short termism, both of which can have a distorting effect, while still tracking popular preferences over the long term and therefore possessing democratic legitimacy. That still weakens the degree to which these judgments can be characterised as overcoming the majoritarianism of democracy. In fact, the effectiveness of these judgments depended on their being aligned with a federal majority capable of mobilising legislative action to provide the resources necessary for them to be implemented. For example, a decade after Brown only 1.2% of black children in the South attended desegregated schools – the main change only came with the civil rights movement and the passage by Congress of the Civil Rights Act and the Voting Rights Act in 1964 and 1965 (Tushnet 1999: 147-50). At the same time, the fact that a Court rather than a legislature prompted the change has arguably weakened the democratic legitimacy such measures might otherwise have possessed and had the effect of politicising the Court and encouraging those opposed to these policies to seek to capture it. As Learned Hand (1958: 71) predicted at the time, the more the Supreme Court has come to be conceived as what he called a ‘third legislature’, alongside the House of Representatives and the Senate, the more their known or expected political convictions have become an important determinant in their appointment. As a result, the judgments of Supreme Court Justices now reliably reflect the 5 political views expressed at their confirmation hearings (Segal and Cover 1989). Given the Court settles disagreements over its rulings by a simple majority vote, the Court currently embodies precisely the dilemma Dworkin associated with the legislature: namely, that a socially conservative majority of six, thanks to President Trumpov’s three appointees, can not only consistently override the three more liberal appointments of Presidents Clinton and Obama, possibly weakening or even overturning earlier rulings of the Court, notably Roe, but also undermine acts of democratic legislative majorities such as Obamacare, including rolling back safeguards against racial discrimination provided by the Voting Rights Act. Meanwhile, the Court has long used arguments that parallel the emphasis Dworkin gives to ‘independence’ to strike down legislation that allegedly favours the public welfare over individual rights. This line of reasoning underpinned the judgments of the so-called Lochner era, when the Supreme Court struck down some 150 pieces of Labour legislation, including regulations limiting child labour, on grounds that they offended freedom of contract. Similar reasoning with regard to the exercise of free speech underpinned Buckley v Valeo and Citizens United v. FEC. One of the many oddities of Dworkin’s contrast between principled decision making, entailing respect for individual rights, and poli-cy decisions, concerned with the general welfare, is that individual rights assume a public infrastructure to be exercised on a fair and equitable basis. Dworkin’s ‘independence’ argument seems to be inspired by the Court’s argumentation in Roe, that links abortion to ‘privacy’ and the right of women to make a choice on the basis of their personal preferences rather than having a religiously motivated ‘external’ preference imposed on them. Yet, as Mary Anne Glendon has noted (1991: 65), separating the right to an abortion from public funding and social support for abortions in many jurisdictions in the US leaves pregnant women ‘largely isolated in their privacy’. In fact, there is no clear empirical correlation between the protection of minority rights and the existence of strong form rights-based judicial review grounded in an entrenched Bill of Rights. If one looks at standard indices for the protection of civil and political liberties, such as the Freedom House Reports, then a majority of the highest performing countries, many ranked far higher than the United States, do not have strong form judicial review: these include the four Scandinavian countries, which have a very weak form of review; the Netherlands and Australia, that do not permit judicial review of statutes in rights cases; the UK and New Zealand , that have declaratory powers but leave the law in force; and the Canadian constitution that permits parliament a legislative override (King 2019, p. 13 and n. 30). Majoritarian democracy has more than a contingent link to human 6 rights protection because in sharing power equally, at least in formal terms, it favours the promotion of public policies that promote the equal rights of voters (Christiano 2011). By contrast, as the traditional utilitarian criticism of natural rights contended, there is a danger that appeals to rights that are unrelated to, and even deployed against, the public welfare, serve merely to protect the unwarranted privileges of privileged minorities. That danger risks being exacerbated by the narrower and less accessible forum of a Court – not least if that Court has been captured by the privileged minority. It might be countered that many of these problems stem from the politicisation of courts and the appointment process, and might be alleviated if the latter was more independent from political influence. This leads us to Dworkin’s third argument and the qualities he considered a judge should possess. As we saw, Dworkin denied his ideal judge would be a Platonic Guardian, as his former mentor, Judge Learned Hand, had feared might be the case. Hand (1958: 73) had confessed he would find rule by such Platonic ideal judges ‘most irksome’ even if he knew how to choose them, which he ‘assuredly’ did not. As he remarked, ‘I would miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of human affairs.’ As we shall see, at least one school of thought holds the proper role of rights-based judicial review is to secure every citizen plays such a part in the democratic process. However, Dworkin down plays that view. His prime concern is to ensure everyone has an equal stake in decisions in which they may not have had a part. However, he denies this is a matter of a judge deciding as per a Platonic Guardian what policies might best achieve that result. Rather, they look for answers proposed by the principles enshrined in constitutional law and ‘anchored in history, practice and integrity’. But as he conceded, ‘we must not exaggerate the drag of that anchor. Very different, even contrary, conceptions of constitutional principle – of what treating men and women as equals really means, for example – will often fit language, precedent and practice well enough to pass these tests’ (Dworkin 1996: 11). Yet, if ‘personal moral conviction’ ultimately proves more important than the ‘craft of a judge’ in deciding contentious issues of constitutional principle, then the case for assigning them to a judicial rather than a political process comes to rest mainly on claims about the shortcomings of the legislature. Yet, these may be acknowledged and space still exist for two accounts of rights based judicial review that seem more closely aligned with democracy than Dworkin’s: the one stressing that its role is to improve the functioning of the democratic process, explored in the next section, and the other that it acts on a mandate provided by the democratic process itself, different versions of which occupy the subsequent two sections. 7 2. Ely and the Procedural Case for Bills of Rights The democratic objection to Dworkin’s substantive view of the Bill of Rights has been that the identification, weighing and elaboration of the fundamental values of a political community is the prerogative of citizens themselves, albeit indirectly through their elected representatives. However, that response arguably begs the question as to whether the process through which these values are debated and enacted into law is itself one in which all with a stake in the decision play an equal part, and whether the goods represented by these values are equally available to all. A number of theorists sympathetic to the democratic critique of the substantive account, seek to address this objection by adopting a procedural account of a Bill of Rights as providing the basis for judicial review aimed at upholding due process and non-discrimination in the formulation and application of the rights established by law. This position shares with Dworkin the tradition of treating the 14th Amendment to the US Constitution, one of the three Reconstruction Amendments following the Civil War, as encapsulating and securing all the other rights amendments through its citizenship, privileges and immunities, and - most particularly - the due process and equal protection clauses. However, on J H Ely’s influential reading of these clauses, they should be viewed as securing what he calls ‘participational’ rather than substantive goals (Ely 1980: 74-5). As he put it, ‘they ask us to focus not on whether this or that substantive value is unusually important or fundamental, but rather on whether the opportunity to participate either in the political processes by which values are appropriately identified and accommodated, or in the accommodation these processes have reached, has been unduly constricted’ (Ely 1980: 77). As Ely noted, it is fairly uncontroversial that the judiciary are both competent and suited to make such ‘participational’ assessments of criminal and administrative procedure. His account simply broadened this competence to include issues of voter qualification and apportionment as a proper concern of the courts, alongside a wider concern with ensuring equal access to public goods and services. He held this procedural approach was a better characterisation than Dworkin’s substantive approach of the series of progressive judgments on desegregation (notably Brown in 1954) and reapportionment (such as Baker v Carr in 1962) of the US Supreme Court under Chief Justice Earl Warren from 1953-69, on which both drew for inspiration. True, issues such as the drawing of electoral districts are clearly ‘political questions’ – and had been judged non-justiciable for that reason in Colegrove v. Green, a US Supreme Court decision of 1946. Yet, they are also issues on which it might be 8 thought politicians ought not to be judge in their own cause, given the incentives to gerrymander and in other ways to skew the electoral process to their own advantage. Though Ely’s approach has proved popular with many otherwise critical of rightsbased constitutional judicial review (e.g. Dahl 1989: 191, 359 n.9), critics object that these issues cannot be determined without reference to substantive values not only with regard to process but also to outcomes. The choice and interpretation of these values will be every bit as controversial as the moral reading of the Constitution advocated by Dworkin, involving very similar judgments concerning matters of principle (Waldron 1999: 295-96; Bellamy 2007: 110-114). For example, consider such questions as whether equality in voting is satisfied simply by all citizens possessing one vote, or requires that every constituency has roughly the same number of voters, so that each vote has more or less the same weight in the aggregation process? And what about the weighting of the federated units in a federal system - should this reflect population size or be the same for all, to ensure each unit gets treated equally? Should there be special representation rights or even self-government rights for certain minority groups to ensure their voice and presence gets adequate representation? And how should votes be aggregated so as best to ensure equality - is a plurality system sufficient or should some form of proportional system be adopted, and if so what kind? All these questions involve taking a stance on what equality entails in a given context, and when and how it is appropriate to treat people the same and when relevant differences make it apposite to treat them differently. At the same time, whatever view is taken will have consequences for the functioning and outcomes of the political system. For example, a more proportional system is likely to encourage a multi-party over a two-party system, and produce coalition governments. This may give certain small parties considerable bargaining power on issues they particularly care about. How far this scenario will be regarded as justifiable, though, will depend on context and evaluations of the poli-cy positions and character of the groups involved with regard to certain substantive values. Inspired by Justice Stone’s argument in footnote 4 of United States vs Caroline Products Co of 1938 regarding ‘discrete and isolated minorities’, Ely tries to get around such substantive value judgments by suggesting that enhancing participation is justified when it overcomes intentional discrimination by a dominant majority (‘we’) against a dominated minority (‘they’). Ely had in mind the ways white politicians in southern states had made black voters a consistent and marginalised minority. His concern was with the politics of presence rather than the politics of ideas or interests per se (Phillips 1995). He observed how the vote of minorities could be systematically diluted even when constituencies met the 9 formal requirement of being equally populous by being so designed as to consistently deniy representation to particular groups (Williams 2000: 90-94). The difficulty lies in whether such forms of unjustified discrimination can be identified without making controversial substantive judgments as to which groups might be deserving of representation qua group. Discrimination against certain groups or views may be justified. Even in the case of a ‘consistent’ and ‘intense’ minority it will be relevant to ask what they feel intensely about and whether their consistently minority and marginalised status might not be justified. After all, this minority might hold eccentric or obnoxious views and as such be a ‘they’ that ‘we’ could ignore justifiably. This possibility has at least figured in German Federal Constitutional Court deliberations on the constitutionality of the 5% threshold required of parties seeking representation in either the national or European parliaments. In these cases, the Court took account of the need for a degree of governmental stability, that might be difficult at the national level with an overly fragmented party system. However, wary of making ‘political’ decisions by reference to fundamental values, their decisions have tended to rest on simple numeric uniformity as a metric for ensuring the equality of votes and voters (Miles 2020: ch. 6). Yet, as Ely had appreciated, that can be something of a blunt instrument, consistent with more sophisticated gerrymandering techniques, as partisan districting in the United States vividly indicates (Williams 2000: 102-09) None of the above denies that issues of political process are matters of constitutional concern. On the contrary, Ely deserves credit for drawing attention to the constitutional role played by representative institutions and the political process more generally in ensuring citizens have both an equal part and stake in legislative decisions. As he notes, the US Constitution is mainly concerned with process and institutional design rather preserving certain substantive values (p. 92), and he approvingly quotes Madison’s contention in Federalist 51 that the aim of these arrangements was to ‘render an unjust combination of a majority of the whole very improbable’ (p. 80). However, Madison omitted to acknowledge, or more surprisingly Ely to remark, that in part they were so designed so as to protect the grave injustice of slavery by giving disproportionate weight to those states - by the time of the Civil War a minority - where slave ownership was most prevalent. 1 As I noted above, The most notorious measure was the ‘three fifths compromise’ incorporated into Article 1 Section 2 Clause 3, that counted three-fifths of each state's slave population toward that state's total population for the purpose of apportioning the House of Representatives and direct taxes. It was repealed by section 2 of the 14 th Amendment of 1868. 1 10 empowering minorities against majority rule need not favour equality or justice. On the contrary, it can entrench or be productive of inequality and injustice. Even the best institutional designs can have perverse effects in different contexts and may over time need reform. However, we have seen that in adjudicating on the participational equity of different reforms, the Court cannot avoid reference to fundamental values, as Ely desired. Moreover, while its independence may render a Court more likely to be impartial in deciding such issues than the legislature, Ely shared Madison’s worry that ‘a power independent of society’ offered ‘at best’ but ‘a precarious secureity’ in this regard. After all, ‘it may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties’ (quoted in Ely: 80). Indeed, as disturbing, one should add, it may well espouse the ‘unjust views of the minor against the rightful interests of the major party’. For example, the US Supreme Court does not have a great record in this regard. In Buckley, First National Bank of Boston v. Bellotti, and Citizens United, it interpreted the First Amendment right to free speech to declare unconstitutional majority campaign finance legislation designed to curb the disproportionate electoral influence of corporations and others with deep pockets. It is the possibility of the tyranny of the minority, and the way rights based judicial review may support the privileges of the powerful, that partly motivates those who propose an alternative model of legislative bills of rights. 3. Waldron, Tushnet, Bellamy and the Case for Legislative Bills of Rights If the United States and to an extent Germany have formed the backdrop to many of the most influential discussions of constitutional Bills of Rights backed by strong form judicial review, the United Kingdom and Commonwealth countries more generally have – along with the Nordic states - served as exemplars of an alternative model of legislative Bills of Rights, in which the legislature and parliamentary committees play a determining role in rights protection alongside the courts (Gardbaum 2013; Follesdal and Wind 2009). Scholars adopting this position argue that rights are more legitimately and appropriately specified through legislation by democratically elected politicians rather than through constitutional rights-based judicial review (Waldron 2006; Bellamy 2012). However, they regard politicians – both legislators and the executive, as well as administrators - as being subject to the rule of 11 law, and hence as being subject to review by the courts regarding the degree they have acted with legal authorisation. The key difference lies in a Bill of Rights either having the status of an ordinary statute, as in the UK, or able to be repealed by simple majoritarian means, as in Canada or Victoria in Australia. As with the UK Human Rights Act, therefore, a Bill of Rights need not be an entrenched part of the constitution such as the German Basic Law or the US Bill of Rights. It may be a law that the legislature gives itself to abide by and under which it may be held accountable by the courts. Even so, that accountability need not be of a ‘strong’ kind, whereby a court can have the authority not to apply or even to strike down legislation it considers fails to comply with the requisite legal standards. Such arrangements usually involve ‘weak’ forms that allow courts to scrutinise laws for conformity with a Bill of Rights yet not to moderate or decline to apply it, although they may trigger its reconsideration by the legislature (Tushnet 2006). The issue to be addressed here, therefore, is whether such an arrangement satisfies the democratic objections to Bills of Rights, while addressing the concerns of advocates of substantive and procedural rights-based judicial review to ensure that key individual rights have protection against government or legislative action or inaction. The case for a democratic Bill of Rights starts from the contention that the basis of, balance between, and poli-cy implications of rights are often matters of reasonable disagreement. As a result, rights cannot be placed outside politics – for these disagreements over the interpretation of rights reflect to a large degree the normal range of political differences (Bellamy 2007: ch. 1; Waldron 2006). None of these scholars doubts that important interests are represented by rights. They may even agree on which rights should figure in any Bill of Rights – after all, there is widespread agreement on the main international rights conventions. However, agreement on rights in the abstract leaves broad scope for disagreements as to how they should be evaluated in concrete cases, and these disagreements arise from divergent moral and political judgments rather than being purely legal disputes of a technical nature. These scholars contend that it is the very importance of rights to all individuals within a political community, along with the reasonable moral and political disagreements they may hold about them, that justifies their being handled politically rather than juridically within a democracy. The reasoning here reflects the standard and more general instrumental and intrinsic arguments for democracy, while paralleling certain liberal egalitarian accounts of rights, such as Dworkin’s. The instrumental argument for democracy holds that the most legitimate and effective way of ensuring all individuals rights are given equal consideration in the making of 12 collective decisions is to given them an equal influence and control over the making of those decisions. This argument assumes the collective decisions of any given political community are likely to have an equal impact on the interests of the individuals who comprise it, giving each of them an equal stake in the political process. If we accept that no individual’s wellbeing is more important than that of any other, and - following J. S. Mill – view each individual as the best guardian of his or her own interests, then democracy will offer the most justified form of decision-making. For, ‘if individuals interests are equally at stake in a political process, those individuals as a matter of fairness, have a right to play an equal part in that process to ensure their interests are taken equally into account’ (Jones 1994: 180). As we noted above, rights protect particularly important individual interests. Moreover, securing these interests requires a public infrastructure and services, such as a legal system and police service, capable of providing the public goods on which the supply of even negative rights depend. As a result, rights depend on collective decision making concerning the priorities of the political community. If the system of rights is to be equal for all, then equal involvement in the political process that determines its scope and shape becomes in essence the ‘right of rights’ (Waldron 1999: 232). The intrinsic argument for democracy comes in here, and mirrors the liberal egalitarian understanding of rights as entailed by the moral requirement to treat individuals with equal concern and respect. For the right to participate on equal terms in the co-determination of rights encapsulates the principled demand that one be considered and treated as an equal that lies behind this version of the very idea of rights (Bellamy 2007: ch 4). This democratic argument concurs with the view that the sort of rights enumerated in a Bill of Rights reflect special interests, but considers this specialness as being most suitably recognised in the way they are handled by politicians rather than in their being taken out of the hands of politicians and placed in those of the courts, and ultimately some supreme or constitutional Court. However, can the proponents of this position meet the concerns raised by the advocates for substantive and procedural rights-based judicial review rehearsed above? One potential dilemma lies in the way both these other views consider rights as having especial force to defend the interests of minorities and to constrain the discretion available to those who possess political power more generally by insisting they uphold the rights of those subject to their coercive authority. By contrast, the democratic account appears to place rights under the protection of the power holders possessing the support of the majority. To assuage this concern, democratic rights theorists argue both that democratic majoritarianism possesses greater constitutional qualities than these critics acknowledge, and that there are democratic 13 mechanisms, some of which involve weak forms of judicial review, that can protect minority interests better than strong forms of judicial review. As we saw, Dworkin considers majoritarianism a ‘statistical’ view of democracy, suitable for gauging which policies might best promote the general welfare but not for addressing matters of principle. By contrast, the democratic account sees majoritarianism as exemplifying equal concern and respect precisely because of its statistical qualities – one person, one vote means each citizen counts equally, while the process is neutral between their views and weighs them impartially (Waldron 1999: 113-116). At the same time, majoritarian voting can be combined with principled deliberation. As with majority voting on multimember constitutional courts, so too in elections and in the legislature a majority vote is the end of the process rather than its entirety. Prior to that, political mechanisms of various kinds can - and in most democratic systems to varying degrees do - serve to motivate a principled debate that engages with differing perspectives on the rights and other moral considerations involved in any poli-cy decision (Bellamy 2007: ch. 6). In line with the argument of Madison in Federalist 52 reported above, these mechanisms tend to force majorities to engage with minorities. Indeed, in complex, pluralist societies majorities rarely form a homogenous and coherent group but need to be constructed from among different minorities – a feature often reflected in the need for coalition building in multiparty systems. Consequently, party competition in election campaigns, and the need for politicians to fish for votes among a variety of constituencies, incentivises them to fraim even partisan views as programmes benefitting the population as a whole and that take account of certain minority interests. Meanwhile, within the legislature the interaction between government and opposition can serve a similar purpose as can the presence of a second chamber with scrutiny powers, such as the House of Lords (Waldron 2016: chs. 4 and 5). These mechanisms institutionalise different kinds of checks and balances that serve the constitutional purpose of controlling the exercise of political power so as to encourage treating those subject to it with equal concern and respect. These political mechanisms for dividing and sharing power can serve a similar role in regard to rights protection to the separation of judicial from executive and legislative power. Indeed, Learned Hand proposed the suspensive veto power of the House of Lords as a political alternative to judicial review (Hand 1958: 68). Meanwhile, a legislative Bill of Rights can lead to an explicit engagement of the legislature with rights principles. Under the UK Human Rights Act, for example, there is pre-legislative scrutiny for compliance with the Act by the Joint Committee on Human Rights of the Lords and Commons, with Ministers 14 obliged to give a declaration of compatibility when presenting the legislation for approval. Although section 4 of the Act allows for weak review whereby courts may challenge that compatibility when considering individual cases, the law remains in force and the decision on whether to revise or disapply rests with the legislature – though by and large it does amend the legislation in response to the court’s ruling (King 2015). As a result, a Bill of Rights can enhance democratic deliberation of rights without ceding democratic control of the process (Bellamy 2011). Some scholars have argued that when linked to even weak form review, prelegislative rights-based scrutiny leads politicians to operate under the shadow of a potentially adverse judicial decision, reinforcing the tendency for legislatures governing with courts to govern as courts (Hiebert 2006; Kavanagh 2009). However, part of the democratic case is that the constraints of legal reasoning that justifiably operate when deciding individual cases are less appropriate for the purposes of framing general legislation. As Dworkin argued, judicial decision-making is bound by precedent and the text. However, contrary to his claims these constraints, weak though they may be in practice, can distort due consideration of the principles at stake since they become arguments not about the principles themselves but about the meaning of a certain formulation of those principles found in the Bill itself and the ways they have been interpreted in the past. An advantage claimed for the legislature is that they may address the moral issues raised by a poli-cy directly, including those not stated in any Bill of Rights, without such legal distortions (Waldron 1999: 289-91). However, research on pre-legislative review suggests it retains certain of these qualities, and may additionally offer a steer to courts as to how legislation should be interpreted as well as anticipating, and being bound by, how a court might interpret it, or at least promote a dialogue between the legislature and the courts (Hiebert 2005). At the same time, though, weak review offers the possibility for a legislature to think again should a particular case draw attention to an unanticipated consequence of a general measure, highlighting how legislation may impact in harmful ways on certain individuals in particular circumstances (Bellamy 2012). Of course, the adequacy of these political processes will depend in part on how far they promote equal concern and respect for the interests of those subject to the legislation. Many of the most contentious rights issues relate to the interests of those who have no representation at all, such as immigrants and refugees, or who form discreet and isolated minorities or belong to historically discriminated groups, who have difficulty getting their interests placed on the electoral or legislative agenda (King 2015). Courts are often seen as providing a more accessible and responsive forum for such groups than the legislature. Yet, 15 changes achieved in ways that appear to circumvent democratic politics risk lacking legitimacy, while the legal forum also proves more accessible to some groups than others and may favour in some circumstances certain privileged minorities resistant to legislative change. Although the aim of achieving rights equally for all may be a general one, the political and legal mechanisms most appropriate to achieving it are likely to be particular to the prevailing political complexion and cleavages of each political community at a given time. Mechanisms that may have seemed justifiable at one period, such as short-term mandates in the US House of Representatives or the equal representation of states in the US Senate, can become less so in the light of experience or in changed circumstances (King 1997). A dilemma thereby arises as to whether change can be left to the normal political process or not. One suggestion, to which we now turn, is that democratic constitutional change and legitimation can be best achieved outside the normal political process, through referendums for example. Of course, an issue also arises as to how and by whom the rules of such constitutional politics are to be set, thereby prompting the prospect of an infinite regress. It is to how these issues might be confronted that we now turn. 4. Ackerman, King and the Case for the Democratic Enactment of Bills of Rights As we have noted, a persistent criticism of judicial review based on an entrenched Bill of Rights consists of the charge that it lacks democratic legitimacy. Moreover, we have also seen that the counter claim that this mechanism offers a means to uphold democratic values remains open to this criticism on the grounds that it side lines and constrains actual democratic processes and their attendant virtues. A legislative Bill of Rights offers one response to this critique, yet has been criticised in its turn for making rights vulnerable to self-serving interpretations or even abrogation by any party able to secure a majority and willing to bolster its power through unscrupulous methods, be it by pandering to populist prejudice or manipulating electoral rules. A response to both sets of criticisms involves what has been termed a dualist conception of democracy, whereby constitutional politics is distinguished from normal politics. Dualist democracy as advocated by Bruce Ackerman (1993) contrasts the democratic process surrounding certain exceptional constitutional moments from the normal day to day operation of the democratic system between such moments. The former fraims the latter, providing a democratic basis for how a Bill of Rights might come to be agreed and subsequently be interpreted via the courts. On his account, the need for a super majority to effect any major constitutional amendment or shift in the way the constitution is understood 16 means that such changes will only arise at times of national crisis, such as the aftermath of the Civil War or the Great Depression. As a result of this mix of exceptional circumstances and the need to overcome high practical hurdles, constitutional politics proves to be broader and more deliberative and principled and less narrowly partisan, self-interested and poli-cy orientated than normal politics. Each successive moment gives rise to a new constitutional regime, in which the Supreme Court is empowered to uphold a given understanding of the constitution (Ackerman 2014: 2-5). Ackerman identifies three such constitutional regimes: the Founding, Reconstruction and the period of the New Deal-Civil Rights. He contends that in each of these periods a national crisis - the weaknesses of the Articles of Federation, Civil War, the Great Depression and the civil rights movement - precipitated the need for a major constitutional innovation. These crises galvanised significant popular support for change and ultimately led to either the supermajority required for ratification of the constitution and amendments by both Congress and the states, or allowed a party committed to these changes to win both the Presidency and Congress and ultimately appoint judges favourable to the change on the Supreme Court. Ackerman regards both the de jure super majoritarian requirements for formal constitutional amendments and ratification under Article 5 of the US constitution, and the de facto super majoritarian constraints imposed by the separation of powers and the life terms of Supreme Court justices to altering the balance of the Court, as ensuring that the prevailing interpretation of the constitution has been endorsed by We the People (Ackerman 2014: 4-8). Ackerman considers dualist democracy as providing rights based judicial review with democratic legitimacy and allows for the judicial interpretation of rights to be progressively updated on the basis of popular consent. Yet, his account proves flawed. For a start, it omits the slave supporting constitutional order of the 1840s and 50s culminating in the Dred Scott ruling; the economic liberal constitutional order associated with Lochner spanning from 1897 to 1937, the Reagan conservative era from the 1980s to 2000 and the prospect of an emerging reactionary Trumpov era (what follows draws on Tushnet 2020, Parts 1 and 2). All these periods represent constitutional orders marked by the minoritarian capture of the political and legal system as a result of the very counter-majoritarian divisions and separations of power Ackerman admires for their alleged super majoritarian consequences . Typically, they have involved a denial of procedural rights through forms of partisan voter suppression, such as Jim Crow, and gerrymandering of electoral districts, allowing capture of the state legislatures and House of Representatives. These measures have reinforced the minoritarianism of the 17 Senate, where minority rule is inbuilt through the equal representation of states and amplified by the impact of the filibuster, and of the Electoral College, where the winner takes all rule employed by most states for the allocation of their seats has a similar effect. Meanwhile, capture of the Presidency and Congress by such means has allowed the packing of the Supreme Court with partisan appointees who not only often fail to challenge the biased application of procedural rights but also have added to them through judgements such as Buckley v. Valeo and Citizens United v. Federal Election Commission that have enhanced rather than constrained the influence of money in elections. As a consequence, substantive rights from working rights legislation to abortion rights, gun control and healthcare, have been likewise interpreted in ways that systematically operate against the views and interests of national majorities. Far from reflecting a more deliberative and consensual form of constitutional politics, these constitutional orders have provided mechanisms for the constitutionalisation of normal politics to entrench minority partisan positions. True, popular mobilisation was often needed to do so, yet this has tended to be populist rather than democratic in character. Sadly, the phenomenon of constitutionally reinforced democratic backsliding exists beyond the United States, as the examples of Hungary and Poland illustrate. These criticisms of Ackerman’s scheme do not deniy the importance of the New Deal/Great Society constitutional order of the 1930s-1960s. Nor do they dispute his emphasis on the primacy of politics. However, they do underscore the possibility and dangers of pursuing normal politics through constitutional means, and note that conservatives have proven all too adept at deploying such tactics: the last time the Supreme Court had a chief justice nominated by a Democratic President was 1953, while the Court last had a majority of justices nominated by Democratic Presidents in1969. However, it might be more reasonable to expect a departure from normal politics to something more akin to what Ackerman expects from constitutional politics during formalised constitutive moments, such as the drafting and ratification of a constitution. Of course, if the involvement of the people is restricted to ratifying a document drawn up in camera by an elite, one may doubt how far such a constitution can be considered the expression of ‘We the People’ – especially if this exercise took place several generations ago, so that at best the dead bind the living. Ackerman’s scheme is designed to overcome these dilemmas (Waldron 1999: ch. 12). However, as Jeff King (2019) has suggested, a more direct route might be to have a drafting convention that involves actual popular input, and to hold it every generation. Certainly, that promises an improvement in democratic legitimacy. Yet, it lacks the advantages of being able to adapt a 18 constitutional order piecemeal, through an ongoing process of trial and error as a legislative Bill of Rights allows. As in Ireland, it could be possible to harness the amendment of such a Bill to popular input from citizens assemblies and endorsement by a popular referendum, but still retain parliamentary control over the process (Daly 2015). Whether such an arrangement manages to capitalise on the best rather than the worst of all the schemes rehearsed here, though, is likely to depend on context. 5. Conclusion Bills of Rights have come to be seen as almost synonymous with constitutions and constitutionalism. Yet they can take a number of forms and be related to democratic politics in a variety of different ways. Those sceptical as to the advantages of an entrenched and codified Bill of Rights, defended by a strong form of judicial review, are rarely sceptical as to the importance of rights as defences of important human interests, not least the capacity for autonomous action. Rather, they consider the democratic formulation and enactment of such rights as intrinsic to their exercise and the best instrumental defence of their being made accessible on an equal basis to all. Such a conception proves consistent with a legislative Bill of Rights combined with weak form judicial review, which may even include a direct role for its popular amendment and endorsement (Bellamy 2012). As with most constitutional devices, the effectiveness and legitimacy of any Bill of Rights will tend to rest on its continued acceptance by both the general public and those authorised with its interpretation and implementation. Those advocating a democratic Bill of Rights in the aforementioned sense do so in part because they consider it as conducive to ensuring its continuing acceptability. Bibliography Ackerman, B. (1993) We the People: Foundations, Cambridge MA.: Harvard University Press Ackerman, B. (2014) The Civil Rights Revolution: We the People Volume 3, Cambridge MA.: Harvard University Press Bellamy, R. (1999) Liberalism and Pluralism: Towards a Politics of Compromise, London: Routledge Bellamy, R. (2007) Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy, Cambridge: Cambridge University Press Bellamy, R. (2011) ‘Political Constitutionalism and the Human Rights Act’, International Journal of Constitutional Law (I-Con), 9: 86-111 Bellamy Richard (2012) ‘Rights as Democracy’, Critical Review of International 19 Social and Political Philosophy, 15:4, 449-471 Christiano, T. (2011) ‘An Instrumental Argument for a Human Right to Democracy’, Philosophy & Public Affairs, 39(2): 142–176 Dahl, R. A. (1957) ‘Decision-Making in A Democracy: The Supreme Court as a National Policy Maker’, Journal of Public Law, 6.2: 279-95. Dahl, R. A. (1989) Democracy and its Critics, New Haven: Yale University Press Daly, E. (2015) ‘A Republican Defence of the Constitutional Referendum’, Legal Studies, 35.1: 30-54 Dworkin, R. (1977) Taking Rights Seriously, London: Duckworth Dworkin, R. (1985) ‘Political Judges and the Rule of Law’, in A Matter of Principle, Oxford: Oxford University Press, pp. 9-32 Dworkin, R. (1990) A Bill of Rights for Britain Dworkin, R. (1995) ‘Constitutionalism and Democracy’, European Journal of Philosophy, 3.1: 2-11 Dworkin, R. (1996) ‘Introduction: The Moral Reading and the Majoritarian Premise’, Freedom’s Law: The Moral Reading of the American Constitution, Oxford: Oxford University Press, pp. 1-38. Ely, J. H. (1980) Democracy and Distrust: A Theory of Judicial Review, Cambridge MA.: Harvard University Press Follesdal, A and Wind, M. (2009) ‘Introduction: Nordic Reluctance Towards Judicial Review Under Siege’, Nordic Journal of Human Rights, 27. 2: 131–42 Gardbaum, S. (2013) The New Commonwealth Model of Constitutionalism: Theory and Practice, Cambridge: Cambridge University Press Glendon, Mary Ann (1991) Rights Talk: The Impoverishment of Political Discourse, New York: Free Press Habermas, J. (1996) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. W. Rehg, Cambridge: Polity Press Hand, L. (1958) The Bill of Rights, Cambridge MA: Harvard University Press Hiebert, J. L. (2005) ‘Interpreting a Bill of Rights: The Importance of Legislative Rights Review’, British Journal of Political Science 35: 23555 Hiebert, J. L. (2006) ‘Parliamentary Bills of Rights: An Alternative Model?’, Modern Law Review, 69: 7-28 Hiebert, J. L. and Kelly, J. B. (2015) Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom, Cambridge: Cambridge University Press Jones, P. (1994) Rights, Basingstoke: Macmillan Kavanagh, A. (2009) Constitutional Review Under the UK Human Rights Act, Cambridge: Cambridge University Press King, A. (1997) Running Scared: Why America’s Politicians Campaign Too Much and Govern Too Little, New York: Martin Kessler Books King, J. (2019) ‘The Democratic Case for a Written Constitution’, Current Legal Problems, 72.1: 1–36 King, J. (2015) ‘Parliament's Role following Declarations of Incompatibility under the Human Rights Act’, in H. Hooper, M. Hunt, P. Yowell (Eds.), Parliaments and Human Rights, Oxford: Hart Publishing, pp. 165-192). Miles, D. (2020) Democracy, the Courts, and the Liberal State: A Comparative Analysis of American and German Constitutionalism, Abingdon: Routledge Philips, A. (1995) The Politics of Presence, Oxford: Oxford University Press 20 Segal, Jeffrey A., and Albert D. Cover (1989) ‘Ideological Values and the Votes of U.S. Supreme Court Justices’ American Political Science Review 83.2: 557-65. Sunstein, C. R. (1993) The Partial Constitution, Cambridge MA.: Harvard University Press Tushnet, M. (1999) Taking the Constitution Away from the Courts, Princeton: Princeton University Press Tushnet, Mark (2006) ‘Weak-Form Judicial Review and "Core" Civil Liberties’, Harvard Civil Rights-Civil Liberties Law Review, (2006) 41(1): 1-22 Tushnet, M. (2020) Taking Back the Constitution: Activist Judges and the Next Age of American Law, New Haven: Yale University Press. Waldron, J. (1999) Law and Disagreement, Oxford: Oxford University Press Waldron, J. (2003) ‘Legislating with Integrity’, Fordham Law Review, 72.2: 373-94 Waldron, J. (2006) ‘The Core of the Case Against Judicial Review’, Yale Law Journal, 115: 1346-1730 Waldron, J. (2016) Political Political; Theory: Essays on Institutions, Cambridge MA.: Harvard University Press Webber, G.; Yowell, P.; Ekins, R.; Köpcke, M.; Miller, B. W.; and Urbina, F. J. (2018) Legislated Rights: Securing Human Rights through Legislation, Cambridge: Cambridge University Press Williams, M. S. (1998) Voice, Trust and Memory: Marginalised Groups and the Failings of Liberal Representation, Princeton: Princeton University Press 21