ABSTRACT

Democratic contractualism reflects a commitment to respect natural rights, since the justifications of the limits on governmental power are non-instrumental. The idea that constitutional rights have intrinsic as well as instrumental importance has played an important role in the component of freedom of conscience, freedom of speech. Democratic contractualism demands that political discourse be neutral: Its content is restricted with an eye toward justifying laws to all persons seen as free and equal. Democratic contractualism offers a way to understand constitutional politics in a pluralistic democracy; it does not offer a conception of human nature. Judicial review protects that constitutional vision by injecting a strikingly philosophical tenor into the political process. Judicial review is important to contractualism because it demands that the limits imposed on popular rule by the Constitution be defended in the arena of neutral public discourse.