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International Journal of Constitutional Law Advance Access originally published online on March 28, 2008
International Journal of Constitutional Law 2008 6(2):231-266; doi:10.1093/icon/mon003
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© The Author 2008. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org.

Democracy and collective decision making

Samuel Issacharoff*

* Reiss Professor of Constitutional Law, New York University School of Law. I benefited 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 specific comments from Erin Delaney, Cynthia Estlund, Clayton Gillette, Roderick Hills, Richard Pildes, Jeremy Waldron, and Katrina Wyman. Ian Samuel and Josh Stillman provided critical research assistance on this project. Email: issacharoff{at}exchange.law.nyu.edu


  Abstract

Around the world, traditional barriers to judicial engagement with the structure of democratic politics have fallen remarkably as courts increasingly entertain first-order questions about the structures of governance. This article explores judicial responses to a particularly vexing problem: who should be the polity that decides first-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 find 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 first-order conflicts about the structure of political systems as familiar claims of individual rights, even if that is the posture in which the issues are litigated.


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