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<p>This essay explores majority decisions to give up majority power. In particular,
it analyzes a majority's decision to institute judicial review as a method of final
decision-making on questions of constitutional rights and contrasts that decision
with the majority's election of a dictator. Both decisions involve a majority's voluntary
transfer of power for certain matters in irreversible ways. Adopting the proceduralist
viewpoint, the essay argues that these types of decisions--involving majoritarian
renunciation of power--require a greater justification than decisions that do not
alter future decision-procedures. That greater justification requires these types
of decisions, decisions this essay terms "delegation decisions," to satisfy three
legitimacy conditions. First, the majority can only legitimately give up power over
issues that can be decided by procedures other than majority vote. Second, the procedural
mechanism the majority gives power to must be a fair procedure. Finally, the procedural
mechanism must also be appropriate for the decisions it is supposed to make. </p><p>The
essay argues that majoritarian imposition of judicial review satisfies these three
conditions. Majoritarian election of a dictator does not. First, the imposition of
judicial review hands over only one set of issues to the constitutional court--bill
of rights questions--that is capable of resolution by a nonmajoritarian procedure.
Second, judicial review as practiced by an ideal constitutional court is a fair procedure
for rights questions because it exemplifies qualities such as anonymity and neutrality
that are central to procedural fairness. Finally, a constitutional court is appropriate
for deciding constitutional rights questions because its virtues--particularly its
transparency, deliberative capacity, principled reasoning, and impartiality--are relevant
for these questions and mitigate distortions in the decision-making process concerning
rights. On the other hand, an elected despot makes decisions on questions that the
majority cannot legitimately relinquish power over, fails to instantiate values of
procedural fairness, and is inappropriate for any number of the infinite questions
that it has authority to decide. Proceduralists can thus resist the majority's election
of a dictator without also having to resist its imposition of judicial review. And
they need not abandon proceduralism in order to do so.</p>
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