The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order

Posted: 27 Dec 2008

See all articles by Mark Graber

Mark Graber

University of Maryland - Francis King Carey School of Law

Date Written: December, 23 2008

Abstract

This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and either explain how the political system as a whole might be redesigned to better deliver those goods or accept second-best constitutional goods that can actually be delivered by some attainable combination of political institutions.

Keywords: judicial review, democracy, accountability

Suggested Citation

Graber, Mark, The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order (December, 23 2008). Annual Review of Law & Social Science, Vol. 4, December 2008, U of Maryland Legal Studies Research Paper No. 2009-25 , Available at SSRN: https://ssrn.com/abstract=1319974

Mark Graber (Contact Author)

University of Maryland - Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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