Counter-majoritarian difficulty
The counter-majoritarian difficulty (sometimes counter-majoritarian dilemma) is a perceived problem with judicial review of legislative (or popularly-created) laws. As the term suggests, some oppose or see a problem with the judicial branch's ability to invalidate, overrule, or countermand laws that reflect the will of the majority.
The counter-majoritarian difficulty is often raised in discussions of United States constitutional law, particularly to discuss the relationship between federalism and fundamental rights.[1]
Origins
Alexander Bickel, a law professor at Yale Law School, coined the term counter-majoritarian difficulty in his 1962 book, The Least Dangerous Branch. He used the term to describe the argument that judicial review is illegitimate because it allows unelected judges to overrule the lawmaking of elected representatives and thus to undermine the will of the majority. The problem stems from the understanding that a democracy's legitimacy arises from the fact that it implements the will of the majority (majoritarianism).
Responses
Majoritarianism is based on the view that a democracy can be defined by only its procedural aspects. However, the definition of democracy is contentious. The argument is often made that substantive rights must be protected in a democracy to truly have a democracy, even when those undermine the majoritarian nature of the democracy. Under this view, when judges enforce such substantive rights, such as those agreed upon in a constitution, the judges are actually engaged in furthering democracy.
Political theorists have also argued that in some cases, elected representatives pass laws that do not reflect the will of the people, and in those cases, judicial review is a valid means by which to correct the democratic process.[2]
On the other hand, in 2008, Judge John E. Jones III, a Republican serving on the United States District Court for the Middle District of Pennsylvania, stated that Article Three of the United States Constitution "is counter-majoritarian," adding: "The judicial branch protects against the tyranny of the majority. We are a bulwark against public opinion. And that was very much done with a purpose, and I think that it really has withstood the test of time. The judiciary is a check against the unconstitutional abuse and extension of power by the other branches of government." Judge Jones is the author of the landmark decision Kitzmiller v. Dover Area School District, which found intelligent design to be a form of creationism that may not be taught in public school science classes under the Establishment Clause of the First Amendment and separation of church and state established by the Founding Fathers of the United States.[3]
See also
- Judicial interpretation – Ways courts interpret laws, especially Constitutional laws
- Judicial activism – Controversial judicial practice
- Separation of powers – Division of a state's government into branches
- Supreme Court Reform in the United States
References
- ^ Barrett, Amy Coney. "Countering the Majoritarian Difficulty". Constitutional Commentary.
Because the Court's holding on a constitutional question stands as a national rule that precludes local variation, battles in high profile cases are incredibly pitched and their results can be politically polarizing. The Court's reluctance to disturb statutes that do not involve fundamental rights or suspect classifications limits the number of such battles that play out before it; insofar as state laws are concerned, the Court's deferential approach errs on the side of permitting local variation. More vigorous enforcement of federalism might decrease the risk of over-nationalizing policy preferences at the hands of Congress; at the same time, more vigorous enforcement of the Due Process and Equal Protection Clauses may increase the risk of overnationalizing policy preferences at the hands of the Supreme Court. Once the Supreme Court weighs in on a constitutional question, the entire nation is bound, and the opportunity for regional differences is extinguished.
- ^ Ghosh, E. (1 June 2010). "Deliberative Democracy and the Countermajoritarian Difficulty: Considering Constitutional Juries". Oxford Journal of Legal Studies. 30 (2): 327–359. doi:10.1093/ojls/gqq011.
- ^ Judge John E. Jones III, Inexorably toward Trial: Reflections on the Dover Case and the “Least Dangerous Branch,” The Humanist, January/February 2009. "The Humanist - a magazine of critical inquiry and social concern". Archived from the original on 2011-06-13. Retrieved 2010-08-29..
Notes and references
- Political Ignorance and the Counter-majoritarian Difficulty: A New Perspective on the “Central Obsession” of Constitutional Law
- "The Counter-Majoritarian Difficulty", Legal Theory Blog.
- Gabriel J. Chin & Randy Wagner, The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, 43 Harvard Civil Rights-Civil Liberties Law Review 65 (2008)