It has not been shown either that fundamental rights and interests are better protected in polyarchies with judicial quasi guardianship than in polyarchies without it

Some Processes

4. It has not been shown either that fundamental rights and interests are better protected in polyarchies with judicial quasi guardianship than in polyarchies without it

Presumably in a country without quasi guardians the demos and its representatives would have to exercise more selfrestraint. In such a country, a fundamental right or interest would have to be recognized as a norm, and the norm would have to be enforced by social and political processes rather than by legal restraints imposed on the parliament by judicial guardians. Quasi guardianship may therefore require less selfrestraint on the part of the demos and its representatives and more externally imposed restraint by judicial guardians. Over time, the political culture may come to incorporate the expectation that the judicial guardians can be counted on to fend off violations of fundamental rights, just as greater selfrestraint on the part of the demos and its representatives may become a stronger norm in the political culture of polyarchies without judicial guardianship.

5. Judging from the whole history of judicial review in the United States, judicial guardians do not in fact offer much protection for fundamental rights in the face of persistent invasions by the national demos and its representatives. The reputation of the U.S. Supreme Court for doing so rests mainly on a period of judicial activism beginning in 1954 when the Court was presided over by Chief

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Page 190

Justice Earl Warren. Yet most of the famous cases of the Warren Court involved state or local laws, not acts of Congress.

Over against these decisions are a substantial number of cases in which the Court used the protections of the Bill of Rights, or the constitutional amendments enacted after the Civil War to protect the rights of the newly freed blacks, not to uphold the rights of those who were too weak politically to protect themselves through electoral politics but quite the reverse. Tbe victors were chiefly slaveholders at the expense of slaves, whites at the expense of nonwhites, and property holders at the expense of wage earners and other groups. Unlike some of the relatively unimportant cases mentioned earlier, these cases all involved rights and interests of genuinely fundamental importance, where an opposite policy would have meant basic shifts in the distribution of rights, liberties, and opportunities in the United States.

6. That, despite its reputation, the U.S. Supreme Court has not regularly stood as a bulwark against violations of fundamental rights and interests by congressional legislation (as distinct from state and local laws or ordinances) is accounted for by a fact of great relevance to the broader issues of quasi guardianship: The Supreme Court inevitably becomes a part of any national political coalition that steadily wins majorities in national elections. Jurists known to be sharply at odds with the basic outlook of the president or a majority of senators are not nominated by the president and confirmed by the Senate. Thus the views of a majority of the justices of the Supreme Court are never out of line for very long with the views prevailing among the lawmaking majorities of the country. To suppose that it might be otherwise is highly unrealistic. The quasi guardians of the Supreme Court rarely hold out more than a few years at most against major policies sought by a lawmaking majority.

What the American experience indicates, then, is that in a democratic country, employing quasi guardians to protect fundamental rights from invasion by the national legislature (as distinct from state, provincial, cantonal, or municipal legislatures) does not provide a promising alternative to democratic processes, except perhaps in the short run.

It is easy to see why. Either the quasi guardians are so insulated from prevailing public opinion and can mobilize such great resources for coercion that they can impose their views despite opposition from national electoral majorities and their representatives or they cannot and at most can only fight a rearguard delaying action until they are overwhelmed by the dominant coalition of nationally elected officials. Is the first politically possible in any democratic country? American experience argues that it is not. ⁷ And if it were possible, would not the legitimacy of the quasi guardians ultimately be undermined? If, on the other hand, the function of quasi guardians is only to delay changes in national policies, it would surely be possible to design a more feasible and less arbitrary means for doing so. ⁸

7. If nonetheless the solution of judicial quasi guardianship is adopted, it can be made consistent with the democratic process if the authority of the judicial guardians is sufficiently restricted. To see how judicial review and the democratic process might be reconciled, we need to consider once again the distinction be

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tween interests or rights integral to the democratic process, those external but nonetheless necessary to it, and those external and not necessary to it, yet necessary if the Idea of Intrinsic Equality and the Principle of Equal Consideration of Interests are to be respected. The criteria for the democratic process do not specify how the process itself is to be maintained. For a court to strike down laws that violate the criteria themselves would surely not be inconsistent with those criteria. Consequently a court whose authority to declare laws unconstitutional was restricted to rights and interests integral to the democratic process would be fully compatible with the democratic process. ⁹

As we move away from the first category, the role of the quasi guardians grows more doubtful. Even so, for an independent body to strike down laws that seriously damage rights and interests that while external to the democratic process are demonstrably necessary to it would not seem to constitute a violation of the democratic process. With the third category, however, the conflict is irreconcilable. Once the rights and other interests necessary to the democratic process have been effectively secured, then the more the quasi guardians extend their authority to substantive questions, the more they reduce the scope of the democratic process.

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What are we to conclude from this examination of alternative arrangements for protecting fundamental rights and interests in a democratic order?

We have seen that it is wrong to pose the problem of protecting fundamental rights and interests as if the issue were one of substance versus process, of fundamental rights and interests against mere procedures. The democratic process not only presupposes a broad array of fundamental rights: It is itself a form of distributive justice, since it directly influences the distribution of power and authority over the government of the state and, because of the importance of the decisions made by the government of the state, over other substantive goods as well.

It is therefore a mistake, as we have seen, to interpret a conflict between substantive claims and the democratic process as a conflict between fundamental rights on the one hand and mere procedures on the other. If such conflicts occur, they are conflicts between one right or interest and another right that is one of the most

fundamental rights human beings possess, a right so basic that it has been called inalienable: the right of people to govern themselves.

It follows also that to assert that a particular right or interest should be inviolable by the democratic process is not, as is sometimes said, to assert a right against "the state," as if "the state" were any state. It is rather to assert a right against the democratic process in the government of a democratic state, presumably therefore a good state, and possibly the best feasible type of state.

Moreover, it would be wrong to limit the democratic process solely on the ground that it might be or is in fact employed to harm fundamental rights and interests. For any such limitation would require an alternative process for making collective decisions, and presumably therefore a nondemocratic process. If it would be wrong for the democratic process to violate a fundamental right or

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Page 192 interest, then it would also be wrong for any other process to do so. Therefore the democratic process ought not to be displaced by a nondemocratic process unless (at the very least) a convincing showing is made that over the long run the nondemocratic process will be superior to the democratic process.

It is misleading to suggest that there is one universally best solution to the problem of how best to protect fundamental rights and interests in a polyarchy. Although American lawyers typically assume that the solution must include a supreme court with the authority to strike down national legislation that violates fundamental rights and interests, such a system of quasi guardianship is neither necessary nor, on American experience, sufficient. In the absence of a universally best solution, specific solutions need to be adapted to the historical conditions and experiences, political culture, and concrete political institutions of a particular country. Quasi guardianship in the form of a supreme court with the power of judicial review is a solution that Americans have accepted as desirable. It cannot be shown to be generally desirable in polyarchies. Obviously, then, to make a reasonable decision about the tradeoffs requires not only an empirical assessment of the probable consequences of alternative processes in the concrete setting of a particular country, but also a judgment about the relative weight to assign to the democratic process in comparison with other values.

A heavy burden of proof should therefore be required before the democratic process is displaced by quasi guardianship. It should be necessary to demonstrate that the democratic process fails to give equal consideration to the interests of some who are subject to its laws; that the quasi guardians will do so; and that the injury inflicted on the right to equal consideration outweighs the injury done to the right of a people to govern itself.

This judgment should depend partly on one's view of the potentialities for collective moral responsibility and growth in a good political order. If a good political order requires that the demos must in no circumstances have the opportunity to do wrong, at least with respect to fundamental rights and interests, then one may be tempted to suppose that the demos and its representatives ought to be restrained by quasi guardians who, like true guardians, possess superior knowledge and virtue. If however the best political order is one in which the members individually and collectively gain maturity and responsibility by confronting moral choices, then they must have the opportunity to act autonomously. Just as individual autonomy necessarily includes the opportunity to err as well as to act rightly, so too with a people. To the extent that a people is deprived of the opportunity to act autonomously and is governed by guardians, it is less likely to develop a sense of responsibility for its collective actions. To the extent that it is autonomous, then it may sometimes err and act unjustly.

The democratic process is a gamble on the possibilities that a people, in acting autonomously, will learn how to act rightly.

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Dalam dokumen Robert A. Dahl - Democracy and Its Critics-Yale University Press (1989) (Halaman 188-192)