240 Pages Posted: 18 Feb 1998
Despite the fact that the countermajoritarian difficulty has been the preeminent preoccupation of constitutional theory for several decades, precious little work has been done to understand why this problem became so pressing for scholars in the latter half of the twentieth century. This paper is the first in a series of three to answer two sets of questions: when and why are courts criticized as countermajoritarian? When and why did the countermajoritarian difficulty become the problem for scholars that it did?
This first paper offers a theory to explain why countermajoritarian criticism of the courts will emerge. It identifies four pertinent factors: the extent to which courts are interfering with popular will, the extent to which the public favors a relatively direct or popular form of democracy, the extent to which the public perceives the Constitution as having a fixed meaning, and -- most important to this first paper -- the extent of judicial supremacy. The paper argues that generally speaking there cannot be a countermajoritarian problem without judicial supremacy. The remainder of the paper examines criticism of the courts and the rise of judicial supremacy throughout the nation's first century, focusing on the Jeffersonian attack on the courts, the Era of Good Feeling and Jacksonian Democracy, and the aftermath of the Dred Scott decision.
The second paper in the series will detail attempts to curtail judicial power (such as court-packing and jurisdiction-stripping) in the face of growing judicial supremacy. Part Three will be devoted entirely to the academic obsession with the countermajoritarian difficulty, explaining, in somewhat novel terms, why it became the problem it did when it did.
Suggested Citation: Suggested Citation
Friedman, Barry, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy. New York University Law Review, May 1998. Available at SSRN: https://ssrn.com/abstract=60449 or http://dx.doi.org/10.2139/ssrn.60449