Public Consensus as Constitutional Authority
24 Pages Posted: 7 Feb 2010 Last revised: 19 Jul 2010
Date Written: July 16, 2010
Barry Friedman's new book "The Will of the People" attempts to dissolve constitutional law's countermajoritarian difficulty by showing that in practice the Supreme Court does only what the public will tolerate. His account succeeds if "the countermajoritarian difficulty" refers to the threat that courts will run the country in ways that contravene majority preference but not if the "the countermajoritarian difficulty" is the name of the need to explain the legitimate sources of judicial authority in those cases where decisions do contravene majority preference. Friedman's book does not pursue the second possibility and may suggest that doing so is unimportant, in part because of the limited latitude that public opinion gives the Court and in part because of skepticism about the enterprise of constitutional interpretation. This essay argues that Supreme Court decisionmaking is important despite being constrained by public opinion and that the constraint of public opinion should sometimes be understood as an aspect of constitutional interpretation rather than as an alternative to it. Public opinion that approaches consensus is better understood as a contributing factor in the calculus of arriving at correct constitutional outcomes than as a force demonstrating the limits (or impossibility) of authentic constitutional interpretation.
Keywords: countermajoritarian difficulty
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