Countermajoritarian difficulty

The countermajoritarian difficulty is a perceived problem with judicial review of legislative or popularly created laws. As the term suggests, some oppose or see a problem with the judicial branch's ability to invalidate, overrule or countermand laws that reflect the will of the majority.

The countermajoritarian difficulty is often raised in discussions of United States constitutional law; particularly in discussing the powers of the three branches of the Federal government of the United States.

Origins

Alexander Bickel, a law professor at Yale Law School, coined the term "countermajoritarian difficulty" in his 1961 book, "The Least Dangerous Branch". He used the term to describe the argument that judicial review is illegitimate because it allows unelected judges to overrule the lawmaking of elected representatives, thus undermining the will of the majority. The problem stems from the understanding that a democracy's legitimacy arises from the fact that it implements the will of the majority (majoritarianism).

Responses

Majoritarianism is based on the view that a democracy can be defined by only its procedural aspects. However, the definition of democracy is contentious. The argument is often made that substantive rights must be protected in a democracy to truly have a democracy, even when those undermine the majoritarian nature of the democracy. Under this view, when judges enforce such substantive rights, such as those agreed upon in a constitution, the judges are actually engaged in furthering democracy.

Political theorists have also argued that in some cases, elected representatives pass laws that do not reflect the will of the people, and in those cases, judicial review is a valid means by which to correct the democratic process.

ee also

*Judicial interpretation in the court
*Judicial activism
*Separation of powers

Notes and references

* [http://www.law.gmu.edu/faculty/papers/wpDetail.php?wpID=182 Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the “Central Obsession” of Constitutional Law]
* [http://legaltheorylexicon.blogspot.com/2005/06/legal-theory-lexicon-047-counter.html Introduction to the Counter-Majoritarian Difficulty]
*Gabriel J. Chin & Randy Wagner, "The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty," [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=963036&high=%20Gabriel%20CHin 43 Harvard Civil Rights-Civil Liberties Law Review 65 (2008)]