Democratic decision-making has intrinsic value – consequentialist approaches are anti-democratic.

[*281] I. WHY DEMOCRACY? A. Debate Among Democratic Theorists Among democratic theorists, there is a long-running debate about how to justify democracy--in short, what is democracy good for? The justification matters in practical terms, as the discussion in Part III of this Article will show. If democracy is a moral imperative--that is, there are rules and norms of decision making that must be followed without regard for results because, for example, shared decision making is required to respect equality-then sufficiently democratic procedures might be required regardless of the outcomes these procedures produce. 31On the other hand, if democracy is instrumental, then it is best measured by reference to the objectives it is oriented towards achieving, and by this view if democratic procedures fall short in terms of results then other less democratic procedures might be preferable. 32 The deontological justifications for democracy see its shared decision making and self-governance as required in order to, for example, protect individuals' liberty, allow for public reasoning among the governed, and to ensure equality among citizens. 33The democracy avoidance techniques addressed in Part III offend this justification for democratic decision making--they propose to compromise (or, from the current workings of Congress, further compromise) democratic norms in the name of specific tax policy goals. This approach discounts values like liberty and equality, rather than treating them as fundamental to humanity and uniquely intrinsic to democratic selfgovernance. As an alternative, other democratic theorists subscribe to consequentialist justifications for democracy. From the consequentialist perspective, democracy is good to the extent it delivers the best available [*282] outcomes. 34The broadest consequentialist approach accommodates some of the deontological justifications by attributing some value to things that flow from democratic decision making itself. This might include, for example, that democracy "enhance[s] the moral qualities of its citizens" by making them participate in decision making and causing them to be attentive to their fellow citizens' perspectives. 35There are also a host of consequentialist justifications that attribute value to the ways that democracy might enhance substantive outcomes. For example, some argue that the democratic process can organize diverse inputs from a broad range of people, or that in a representative system, democracy prompts the decision makers to "respond to the expressions of needs" of the population. 36These deontological justifications for democracy can be integrated into the consequentialist framework, so that if democracy has or produces independent value, that value can be considered along with other objectives. 37 But there is a more strict consequentialist approach as well, and this is the one with which the proposals critiqued in Part II are aligned. In this narrower version of consequentialism, the instrumental focus of democratic decisions is entirely turned toward external objectives. For example, Amartya Sen famously observed that there has never been a famine in a democracy. 38From a narrow consequentialist perspective focused on nourishment, this fact alone might justify democracy, but if an aristocracy could also avoid famines, or perhaps could produce consistently better nutrition outcomes, then perhaps aristocracy would be preferable to this imaginary and highly particular narrow consequentialist. Similarly, if a democratic structure yields the most efficient tax policies (a standard concern among tax experts), it might be judged [*283] through a narrow consequentialist lens to be the best decision making structure for tax policy. But if a different structure--say, a small group of experts-could develop more efficient tax policies, then that alternative decision making process would be justified. This approach focusing on efficiency without regard to the process does not attribute any intrinsic value to democratic structure. The predominant view among democracy scholars and legal scholars focused on democracy is that democratic decision making has intrinsic value and good consequences. 39Thus, among democratic theorists, a narrow consequentialist approach may be defensible but it is normatively freighted--the exclusion of democratic values and disregard of any intrinsic value in democratic decision making in this sort of evaluation is salient. As discussed in Part II, tax scholars focused on efficiency and equity have perhaps inadvertently removed democracy from their latent consequentialist equation, and mostly disregarded deontological justifications that would require democratic engagement.