Collective decision is not possible in indirect democracy in the present day because
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Answer:
Around the world, traditional barriers to judicial engagement with the structure of
democratic politics have fallen remarkably as courts increasingly entertain fi rst-order
questions about the structures of governance. This article explores judicial responses
to a particularly vexing problem: who should be the polity that decides fi rst-order
political issues?
The most famous such judicial encounter is that of the Canadian Supreme Court in a
case involving whether Quebec had a right to secede based on a referendum of its own
population. The discussion places the Canadian Court’s resolution of that issue in the
context of how numerous courts around the world, including the United States Supreme
Court, have addressed similar questions, though generally in cases not so freighted as
the potential dissolution of the national federation.
Concluding from a review of such cases that courts forced (or willing) to engage such
issues are likely to fi nd little mooring for their resolution in either legal doctrine or
political theory, the article warns that courts should be wary of following their impulses
to treat such fi rst-order confl icts about the structure of political systems as familiar
claims of individual rights, even if that is the posture in which the issues are litigated.
Much of the literature on the legal regulation of voting turns on the issue of
who holds the franchise and what institutional arrangements should control
the selection of offi ceholders. Ultimately, democracy is the process of aggregating preferences revealed as votes. At some level, the majority should prevail and, at some correspondingly high level of abstraction, there must be set
institutional arrangements that confer legitimacy on the manner in which
the collective choice is adduced. Within this framework there are a huge
number of moving parts, dealing with the basic rights of participation and
moving outward to the complicated role of political parties, campaign fi nance,
rules governing the aggregation of votes, and an expanding universe of strategic interactions between all of these. Taken together, these make up the
* Reiss Professor of Constitutional Law, New York University School of Law. I benefi ted from comments on an
early version of this paper at the Conference on Democracy and Rationality at Hebrew University in Jerusalem
and at a faculty workshop at NYU School of Law. I am indebted to specifi c comments from Erin Delaney,
232 I•CON April 2008 Vol. 6: 231
complicated law of democracy, as it both channels and informs the ability of
the polity to reach decisions on governance within the bounds of political
legitimacy.
The question of political legitimacy provides an interesting divide in the theoretical and legal literature. There are two dominant approaches for assessing
the success of a democracy in terms of basic political legitimacy. Democracy
may be thought of as primarily forward looking, offering to the desires of the
electorate the prospect of representation. Or it can be defi ned retrospectively,
by its ability to enforce accountability through the capacity to hold governors
to task for their actions, most critically by removing them from offi ce for failure
to discharge the public interest. The prospective view evinces a greater concern for minority access in the process of ensuring some representation for all
sectors of society. The retrospective view is more concerned with the capacity
of majorities to form and reform, compelling government to anticipate and
respect shifting political sentiments.
Both the prospective and retrospective views of democracy assume, as they
must, the preexistence of a fi xed polity against whose political aspirations