He applied the “Page 99 Test” to his new book, The Law of Freedom: The Supreme Court and Democracy, and reported the following:
Page 99 is a moment where The Law of Freedom ties together the two main themes of the book: the beautiful principle of democratic self-rule as reflective of a people’s moral freedom, and the paradox of how legitimate (that is to say, non-political) judicial review can intervene to shape it. Page 99 captures the soul of this paradox of elite judges dictating to a people the terms of their own self-rule:Learn more about The Law of Freedom at the Cambridge University Press website.If a “right” configuration of democratic rules can be legitimately externally determined and imposed on a polity…one of two conditions must apply. The first is that democratic rules do not need to conform to requirements of constituent self-determination and democratic justice. But if this is the case… then presumably electoral procedures do not have any normative weight, and are morally and politically insignificant. The second condition is that electoral rules are significant, but that the right answer can be reached through technocratic moral philosophy rather than constituent self-determination. But if this is the case, the basic premise of democracy – constituent self-rule – does not apply. If the terms of democratic procedure can be externally imposed rather than self-determined by constituents, either the animating value of democracy (constituent self-determination) is irrelevant and the entire debate devoid of significance, or the rules do not matter because they do not affect democratic determination. If democratic procedure is morally relevant as a fulcrum of constituent self-determination, constituents must exert control over it with the same (indeed, arguably even more) urgency that they do over first-order political decisions.This is passage, really, the foundation of the book. Either judicial review of democratic process is special and matters, or not. If it does matter (and its special characteristic of judicial review is rule of law neutrality, that is to say independence from politics), we need to explain why it doesn’t contravene democratic autonomy.
The rest of The Law of Freedom offers an answer. In very brief, judicial review of election law must consist of ongoing struggle over electoral process to avoid contravening popular autonomy. This is precisely what has happened on the Supreme Court, with a battle between libertarians (who think politics is a matter of private power and thus inequality is ok) and egalitarians (who think that politics is a matter of civic community and thus that inequality should be eliminated from democratic process).
--Marshal Zeringue
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