The Majoritarian Difficulty and Theories of Constitutional Decision Making
23 Pages Posted: 12 Feb 2013
Date Written: January 1, 2010
Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are courts that roughly follow public opinion capable of protecting minority rights against majoritarian excesses? Do American courts, in other words, have a "majoritarian difficulty?" This Article examines that question from an interpretive perspective. It asks whether there is a normatively attractive account of the practice of judicial review that takes account of the Court's inability to act in a strongly counter-majoritarian fashion. After highlighting difficulties with three of the leading approaches to constitutional interpretation -- representation --reinforcement, originalism, and living constitutionalism-the Essay concludes that accounts of the Court as a kind of third legislative chamber fit best with its majoritarian bias. However, such third legislative chamber accounts rest on libertarian premises that lack universal appeal. They also lack prescriptive force, although this may be a strength: Subordinating an interpretive theory -- such as representation -- reinforcement, originalism, or living constitutionalism -- to a view of judicial review as a form of third-legislative-chamber veto can ease the otherwise unrealistic demands for counter-majoritarianism that interpretive theories face.
Keywords: counter-majoritarian difficulty, constitutional amendment, public opinion, interpretive theory, representation reinforcement, originalism, living constitutionalism
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