The liberties guaranteed by the Constitution of the United States—including freedom of speech, freedom of association, the free exercise of religion, and the guarantees of due process and equal protection under law—are designed to ensure to each individual the ability to pursue his or her own interests free from improper interference by the government. Since the government in a democracy is directed by the preferences of the majority, another way of describing the function of the entrenched liberty protections in the Constitution is to say that they protect the minority against the abuse of political power by the majority. The Constitution’s liberty guarantees are enforced by the federal courts through the exercise of the power of judicial review. In exercising this power, the federal courts therefore perform an essential role in securing the liberties that are fundamental to the democratic political tradition. If it is true that even a majority vote cannot justify the legitimacy of legislation inconsistent with respect for these liberties, then the exercise of the power of judicial review to enforce constitutionally protected rights is essential to ensure that the power of the majority is exercised legitimately.

In a democracy, what considerations can justify or count in favor of a judicial decision in favor of one party rather than another? In order to resolve questions of this sort, legal theory requires (i) a justifiable method for assigning relative weight to competing legal considerations and resolving conflict in cases in which the considerations favoring both sides are closely balanced, (ii) an approach to reasoning in the context of disagreement regarding basic foundational assumptions, and (iii) an account of the fundamental character of a legal judgment within that structure. The most plausible strategy for satisfying these requirements is to require that legal judgments must be grounded in foundational assumptions regarding the requirements of law that are acceptable to all members of society and justified on the basis of arguments from those foundations that are, collectively, acceptable to and persuasive for all members of society. Since it will be virtually impossible to justify decisions that fail to treat like cases alike, courts can only satisfy the justification requirement imposed upon them by democratic values by aspiring to honor the requirement that like cases must be treated alike—courts honor democratic values, that is, by aspiring to principled consistency.

A careful examination of the idea of democracy suggests that democracy is not best understood as a form of government that is unconditionally responsive to the preferences of the majority. In particular, a will-based conception of democracy—which assigns effectively unlimited power to the majority—can claim support neither in the intellectual history of democracy nor in a plausible interpretation of the idea of democracy. The western democratic tradition is contractualist, and that tradition works from the foundational intuition that legitimate power derives from the consent of the governed. That intuition justifies majority rule as an important element of social choice, but it also requires the entrenchment of rights protections as an element of any acceptable set of political institutions. If entrenched rights are to provide effective protections to liberty interests, they must be enforced by an institution that is not subject to majority control; a “constraint” on the will of the majority that is controlled by the majority is no constraint. Democratic institutions must therefore include an institution independent of majority control whose purpose is to enforce rights protections against the majority.

The “democratic” character of the representative legislature is routinely contrasted with the undemocratic character of courts administered by unelected judges. Since the legislature allegedly possesses a democratic pedigree while the courts allegedly lack such a pedigree, it is argued that the courts should defer to the legislature on questions regarding fundamental social values. I argue that this view does not survive a careful examination of the history and character of representative government and the judiciary. Representative government was designed to assign decisive political power to elites whose qualities distinguish them from the average citizen. The legislature, therefore, hardly possesses an impeccable democratic pedigree. The democratic pedigree of courts exercising the power of judicial review, on the other hand, is stronger than has been generally appreciated. The democratic pedigree of the Constitution is superior to that of statutory law because the Constitution represents a more fundamental and direct expression of the public will than statutory law. The courts, in exercising the power of judicial review to enforce constitutional requirements, can therefore plausibly claim a democratic pedigree—within their areas of competence—at least equal to that of the legislature.

A theory that takes seriously Waldron’s intuition that a majority is not "entitled to impose a decision on others, simply on the ground that there are more individuals in favor of the decision than against it" requires an account of the conditions under which majority support does constitute adequate justification for the legitimate exercise of political power. If this claim is true, however, then it would seem that a legitimate democratic form of government must regulate the influence on social choice of preferences inconsistent with the foundational commitments of democracy. Only if political institutions—in particular, rights—perform such a function will it be possible to "mak[e] sense of the democratic quality of public will." It is therefore implicit in Waldron’s own view that regulation of the relation between preferences and the community’s political choices is a constitutive condition of democracy. In offering an account of the institutional arrangements necessary to regulate the relation between preferences and social choice, then, the constitutionalist view is more responsive to the theoretical challenges raised by the fact of pluralism than the interpretation offered by majoritarians.

The majoritarian critique of judicial review asserts that democracies should assign the power to resolve questions regarding the nature and extent of individual rights to the majority and their representatives. The literature addressing these issues, however, suffers from a consistent failure to examine carefully basic questions about the nature of democracy. The western democratic tradition works from the foundational intuition that legitimate power derives from the consent of the governed. That intuition justifies majority rule as an important element of social choice, but it also requires the entrenchment of rights protections as an element of any acceptable set of political institutions. If entrenched rights are to provide effective protections to liberty interests, they must be enforced by an institution that is not subject to majority control. Democratic institutions must therefore include an institution independent of majority control whose purpose is to enforce rights protections against the majority. While this argument does not establish that the judiciary is the only institution appropriate for this role, it does demonstrate the essential role played in democratic institutions by a rights-enforcing institution that is independent of majority control.

Democracy is a contested concept; utilizing four rounds of national survey data, this chapter elucidates the characteristics of the Chinese public’s perception of democracy and its longitudinal changes over the past few decades. The findings indicate a growing percentage of individuals who understand democracy in procedural terms. This popular perception of democracy holds significance, as those who adopt a substantive view tend to perceive democracy as less compatible with China and to overestimate the democratic nature of the current regime, compared to those who approach democracy procedurally.

If a healthy democracy requires entrenched protections of fundamental liberties, what form of institutions is required to realize these protections? The mere idea of entrenching institutional protections of liberties in a democracy suggests the necessity of certain institutional features. First, since liberty protections in a democracy are protections against the will of the majority, an institution designed to protect liberties must be insulated from majority control. Second, since the officials of the institution chosen to enforce these protections must understand both the substance of the liberties protected and the potential political and institutional threats that may undermine those liberties, the members of that institution must possess expertise in the analysis of legal and political concepts and of institutional arrangements. Third, since the institution must be designed to resist partisan pressures, the members of this institution must be disciplined by shared professional norms and standards that are independent of partisan connections. Finally, it is desirable that members of the institution include a diverse group that encompasses a representative sample of those groups that make up the society. I argue that the protection of rights by courts exercising the power of judicial review possesses these features more fully than the feasible alternatives.

The Revolution is often remembered in the public consciousness for doing away with censorship, yet the reality was somewhat different, especially when it came to remembering the decade of 1789–99. This chapter analyses how such representations across genres from ballet to fait historique were censored both laterally and bureaucratically from the calling of the Estates General in 1788 through to the coup of 18 Brumaire in November 1799, passing through cities like Nîmes, Brussels, Dijon, Tours, and Bordeaux, alongside Paris. After the initial relaxation of censorship in the early 1790s, it soon returned and there was a stark rise in bureaucratic censorship during the Directory. However, audiences, playwrights, and theatres throughout the Revolution were prepared to use the stage to reject the official view of political progress, at times leading to an overt rejection of the regime in place and bringing major cities to the brink of rebellion.

Chapter 6 uses this new understanding of chilling effects to elaborate the dangers of chilling effects both on an individual level and societal scale. The chapter elaborates the two dimensions of chilling effects – repressive and productive. The former speaks to how chilling effects today can repress speech and other rights on a mass scale; the latter speaks to how chilling effects are conforming effects, and thus produce conforming and compliant behavior on a societal scale, which has critical implications for individual identity, development, autonomy, and equality, but is also corrosive to democracy and democratic societies.