Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the 'Central Obsession' of Constitutional Theory
George Mason University - Antonin Scalia Law School, Faculty
Iowa Law Review, Vol. 89, No. 4, pp. 1287-1371, April 2004
George Mason Law & Economics Research Paper No. 03-47
This Article is the first ever to assess the significance of widespread political ignorance in the American electorate for the countermajoritarian difficulty. It argues that voter ignorance greatly reduces the extent to which judicial review should be considered countermajoritarian, because most legislation is passed without even the knowledge of the majority of voters, much less their active support. It also contends that political ignorance shows several new ways in which judicial review can actually reinforce majoritarian democracy rather than undermine it.
The countermajoritarian difficulty holds that judicial review of laws enacted by legislatures is problematic because it subverts the will of electoral majorities. My Article shows that this claim rests on the assumption that a majority of voters have at least a basic level of political knowledge. Several decades of political science research has found that the political knowledge levels of the American electorate are uniformly low. This Article extends this finding with recent evidence from the 2000 National Election Study (NES). The Article shows that average levels of voter knowledge are so low that they fall well below the thresholds required by even the least demanding theories of democratic representation. For this reason, judicial review has far less countermajoritarian effect, in most cases, than is usually supposed. Moreover, to the extent that judicial review limits the scope of government power, it may actually strengthen majoritarian democracy by reducing the knowledge burden on voters. If the scope and complexity of government is reduced by judicial review, voters will have fewer policy areas to keep track of, enabling them to better control the remaining functions of the state.
The last two Parts of the Article consider the implications of my argument for judicial review of federalism and judicial review of legislation discriminating against women and African-Americans. Judicial review of federalism is often criticized on countermajoritarian grounds. I argue that this criticism is misguided in light of widespread political ignorance, and that judicial limits on federal power might actually strengthen majoritarian control of government by enabling citizens to vote with their feet as well as at the ballot box. In Part VI, I contend that theories of the countermajoritarian difficulty must take account of the large gap in political knowledge between men and women and whites and African-Americans. Disproportionately low political knowledge levels among African-Americans and women severely disadvantage them in the political process and justify heightened judicial scrutiny of legislation intended to discriminate against these two groups, especially given that their knowledge deficits are in part a result of past discrimination.
This Article is not a comprehensive theory of the countermajoritarian difficulty, nor does it provide a complete theory of federalism or race and gender issues in constitutional law. It does however show the importance of voter ignorance to all three subjects, an importance that the existing literature has neglected.
Number of Pages in PDF File: 87
Date posted: October 21, 2003