Disenfranchising Hurley

In Chapter 1, Brettschneider argues that the standard way of framing democracy as either purely procedural or constrained by external standards leads to what he calls the “problem of constraint” (8). If democratic legitimacy depends only on one procedure, then a majority could vote to undermine the conditions of democracy (e.g., disenfranchising a minority). But if procedures must be constrained by independent standards, we (liberals) face what Brettschneider calls the task of “demonstrating that substantive rights are more fundamental than democracy in order to justify a constraint on democratic procedures” (10). 

Brettschneider’s solution is to reject the divide between procedure and substance. Democracy, he argues, has both procedural and substantive components. Its legitimacy rests on citizens’ “status as rulers,” which entails commitments to his 3 values: political autonomy, equality of interests, and reciprocity (23). Rights, in this view, are internal to the democratic ideal, not imposed upon it from the outside.

Consider Brettschneider’s own admission in ch. 7 that when democratic procedures produce outcomes threatening basic rights, Justice Tension must determine “which decision least harms democracy by balancing the intrinsic weights of democratic procedures and democratic rights.” (140).  This balancing act sounds reasonable. But, what if we ask: who decides what autonomy, equality, or reciprocity demands in a contested case? Who exactly even is Justice Tension?

Imagine: We, the Sexton cohort (majority), votes to disenfranchise Prof. Hurley (minority). We genuinely believe this promotes the common democratic good because it’ll improve deliberation, stability, whatever. Under Brettschneider’s view, this vote is illegitimate because it violates autonomy, equality, or reciprocity. But, if we sincerely think that we’re acting democratically, something has to override that judgement. And that something, or someone, has to interpret what autonomy, equality, and reciprocity require. And whoever plays that interpretive role must have authority to declare that we (majority) are mistaken. Where does that overriding authority come from?  If it doesn’t come from the vote itself, it must come from something else, and doesn’t that begin to resemble the kind of independent standard Brettschneider aimed to avoid?

Comments

  1. Paul HurleyFebruary 19, 2026 at 9:48 AM

    Right. Hurley is undermining reciprocity, let's say, through his activities, hence threatening the effective functioning of the procedure, so we disenfranchise Hurley. Their is the intrinsic value of our equal status as rules, which this vote seems to violate, but also the integrity of our status as rulers, which this vote seems to protect from being undermined by the wretched Hurley.

    I do wonder, when you pivot to ch. 7, if your real challenge is to the doctrine of judicial supremacy. If so, I think B might actually agree with you.

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  2. Michelle LeeFebruary 19, 2026 at 11:11 AM

    I agree with your point! Although Brettschneider does foresee the worry you present, he still does not fully resolve it. Brettschneider says the authority to interpret and enforce comes from democracy itself and not another moral standard. However, someone still has to make the decision in contested cases.

    If the people decide, it is still a majority rule. If the courts decide, it is an "internal" decision that nevertheless stands in a position to override democratic outcomes.

    I also believe the group of individuals who make up the courts raises further questions about interpretive authority. Even if the courts derive their authority from being a democratically authorized institution, it is true that mainly highly educated "elite" individuals are a part of these courts, making decisions.

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