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Hastings Constitutional Law Quarterly

Authors

Kenneth Ward

Abstract

This Article contends that liberal republican efforts to legitimate political authority are weakened by a tension between two benefits that liberal republicans claim arise from rights of political participation: the definition of community values, and the facilitation of individuals' deliberations about private interests. It argues that a government cannot define community values without impeding citizens' deliberations about private interests.

The Article employs Alexander Bickel's approach to judicial review. Bickel believes that we must explain how the Court can contribute to a legitimate government without undermining the majoritarian processes that ensure legitimacy by representing private interests. The liberal republicans fail to question whether the Court's enforcement of rights of political participation will protect citizens' ability to deliberate about private interests.

After briefly examining Bickel's understanding of legitimacy, the Article illustrates how the liberal republicans' quest to define community values undermines their arguments. First, it examines liberal republican criticisms of two alternative conceptions of government in order to identify the commitments of liberal republicanism. Second, it analyzes three arguments the liberal republicans can use to link the legitimacy of judicial authority to political processes that satisfy these commitments. Finally, it claims that these arguments fail because defining community values places excessive burdens on citizens' deliberations about private interests.

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