Democratic exclusions: Disenfranchising all those affected and the legitimacy of judicial review

Democracies across the globe have granted constitutional courts an increasingly important role in their policy-making process -- in particular by permitting courts to review the constitutionality of acts of the legislature.;Yet despite the staggering expansion of the power of judges to shape public policy, there is no coherent theoretical account why a democratic regime should have a constitutional court. After all, doesn't a commitment to democratic governance imply that all fundamental policy decisions must be made by the people's elected representatives rather than by tenured and electorally unaccountable judges? Isn't democracy at peril if courts rather than legislatures decide high-stakes policy disputes?;The usual rationales in defense of constitutional courts (as defenders of fundamental/minority rights enshrined in the constitution, as functional prerequisites of democratic self-governance, as enforcers of constitutional pre-commitments) are rather unconvincing: they are either openly anti-democratic (by assuming that the purpose of a constitutional court is to restrain a people incapable of self-governance), or they ignore the crushing historical evidence that constitutional courts cannot be expected to act as reliable protectors of fundamental rights against a determined political majority, or they rest on dubious ontological assumptions (e.g. about inter-generational identity and consent, by suggesting that interpreting the constitution is not an act of political decision-making).;I develop a defense of constitutional courts that rejects the common assertion that courts 'know better' than legislatures when rights are at stake and instead builds on the fact that courts exclude stakeholders from participating in decision-making. What sets courts apart from other public decision-making institutions is their considerable institutional isolation from stakeholder pressures. I aim to establish a case for constitutional courts based on their capacity for impartial decision-making as their unique procedural virtue.;The challenge of basing a defense of judicial review on the ideal of impartiality is that this ideal is often thought to conflict with democracy: impartial decision-making will in practice always require the exclusion of 'all those affected' from collective decision-making as interested and hence biased parties, whereas democratic decision-making is usually understood as requiring the unconditional inclusion of 'all those affected' in all decisions over public policy.;I set out to resolve this tension by means of a two-pronged argument for the conceptual compatibility of impartial and democratic decision-making.;First, I examine whether democracy truly always requires inclusion and always prohibits exclusion of stakeholders. I defend the view that many conceptions of democracy are in fact capable of accommodating certain exclusions as normatively desirable (namely those that aim at securing the conditions for impartial decision-making). I argue that democratic theorists of all stripes commonly draw upon the normative force of impartiality by employing a double-standard for legitimacy: for collective decisions to count as legitimate, they must be shown to be not merely acceptable from within (i.e. when considered from the stakeholder perspective of all those affected), but also acceptable from without (i.e. when considered impartially). By emphasizing this often underplayed second impartialist dimension of democratic legitimacy, I show that the ideal of democracy entails not merely the familiar demand for inclusion and consent, but also a concern for impartiality.;Second, I develop a formal conception of impartiality centered around the notion of treating like cases alike. I show that such an understanding of impartiality is not vulnerable to the common criticisms of impartiality as an impossible, undesirable, empty or disingenuous concept and I illuminate the fact that on this understanding, impartiality refers not to the epistemically superior judgment of some uninvolved third party, but instead to the citizens' evolving considered shared opinions and values. Impartial decision-making hence aims at keeping the distorting influences of stakeholder bias at bay and at bringing the citizens' shared societal normative background consensus to bear on collective decision-making. Such a formal understanding of impartiality is democracy-compatible and can provide an attractive normative justification for exclusion that is acceptable to a committed democrat.;In my view, both inclusion as well as exclusion should be regarded as fallible mechanisms in the service of the goal of democratic governance. My formal conception of impartiality illustrates that excluding stakeholders can be democratically desirable and that supplementing the ordinary inclusive democratic process with the stakeholder-excluding mechanism of judicial review can under the right circumstances promote rather than undermine the ideal of democratic governance.;I define the conditions under which stakeholder exclusion can qualify as normatively desirable. I also spell out a number of important implications for the institutional design of constitutional courts that follow if we regard them as impartial counter-weight to the partiality-driven legislative process.