The Countermajoritarian Complaint

Paul A. Gowder Jr.

University of Iowa - College of Law

June 3, 2013

U Iowa Legal Studies Research Paper No. 13-27

This essay, part one in a series of two, offers an argument against the proposition that binding judicial review is inconsistent with democracy. The first section considers three versions of this countermajoritarian complaint, and concludes that the only potentially defensible version is the “respect complaint,” associated with the popular constitutionalists, according to which constitutional courts impermissibly override popular legal judgments. The second section offers an argument against the respect complaint, centered on the notion that courts express rather than override popular legal judgments. The third section draws on the second to argue that “weak judicial review systems,” in which legislatures may override constitutional rulings, function the same way as “strong judicial review systems,” such as the U.S., in virtue of the fact that the courts in each system can wield power over legislatures only to the extent they can generally recruit popular support. In light of the empirical fact that the extent to which legislatures defer to constitutional courts varies widely in weak judicial review systems, I conclude that the question of the relationship between judicial review and democracy is really a far more fine-grained problem of institutional design, not the simple binary choice to have or not have what critics of the U.S. system have misguidedly named “judicial supremacy.”

Number of Pages in PDF File: 29

Keywords: judicial review, democracy, rule of law, popular constitutionalism, popular sovereignty, constitutional law, supreme court, judicial supremacy

JEL Classification: H11

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Date posted: June 4, 2013 ; Last revised: July 3, 2013

Suggested Citation

Gowder, Paul A., The Countermajoritarian Complaint (June 3, 2013). U Iowa Legal Studies Research Paper No. 13-27. Available at SSRN: http://ssrn.com/abstract=2273848 or http://dx.doi.org/10.2139/ssrn.2273848

Contact Information

Paul A. Gowder Jr. (Contact Author)
University of Iowa - College of Law ( email )
Melrose and Byington
Iowa City, IA 52242
United States
HOME PAGE: http://paul-gowder.com
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