Legal Theory Lexicon 047: The Counter-Majoritarian Difficulty

Introduction The counter-majoritarian difficulty may be the best known problem in constitutional theory. The phrase is attributed to Alexander Bickel—a Yale Law School Professor—who is said to have introduced it in his famous book The Least Dangerous Branch. Whatever Bickel actually meant by the phrase, it has now taken on a life of its own. The counter-majoritarian difficulty states a problem with the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to “majority will” as expressed by representative institutions. If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic. For at least two or three decades after Bickel’s naming of this problem, it dominated constitutional theory.
This entry in the Legal Theory Lexicon explores the counter-majoritarian difficulty, efforts to solve the problem and to dissolve it. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. As is frequently the case with the Lexicon, we will explore a very big topic in just a few paragraphs. Many articles and books have been written about the counter-majoritarian difficulty; we will only scratch its surface. Moreover, any really deep discussion of the counter-majoritarian difficulty would lead (sooner or later) to almost every other topic in constitutional theory. The Lexicon is “quick and dirty,” and definitely not deep, comprehensive, or authoritative.
Democracy and Majoritarianism The counter-majoritarian difficulty is rooted in ideas about the relationship between democracy and legitimacy (see the Legal Theory Lexicon entry on Legitimacy ). We all know the basic story: the actions of government are legitimate because of their democratic pedigree, and democratic legitimacy requires “majority rule.” Of course, it isn’t that simple. Among the complexities are the following:
• There are many different theories of democratic legitimacy, and only some of them emphasize “majoritarianism” as the key factor.
• Some theories of democratic legitimacy rely on the idea of “consent of the governed,” but it is very difficult to mount an argument for actual consent to existing majoritarian institutions or their actions.
• The idea of “legitimacy” is itself deeply controversial and might even be called obscure. What legitimacy is and why it is important are themselves deep and controversial questions.
Despite these complexities, most of us have a rough and ready appreciation for the idea that actions by democratic majorities have some kind of legitimacy that is lacking in the actions of unelected judges. At any rate, that idea is the normative foundation of the counter-majoritarian difficulty.
Constitutional Limits on Majoritarianism The counter-majoritarian difficulty is sometimes characterized as a problem with the institution of judicial review, but it could also be understood as a difficulty for any constitution that constrains majority will. Of course, there could be constitutions that impose no limits at all on the will of democratically elected legislatures. For example, a regime of unicameral parliamentary supremacy might be said to have a constitution that allows a parliamentary majority to pass any legislation that it pleases and to override the courts or executive whenever the legislature is in disagreement with their actions. Of course, even this simple constitution might constrain the legislature in a certain sense. For example, legislation that attempts to constrain the action of a future legislature might be “unconstitutional.” Another example might be legislation that abolishes elections and substitutes a system of self-perpetuating appointments. Similarly, a legislature might pass a “bill of rights” that purports to bind future legislatures, even in the absence of an institution of judicial review.
The Institution of Judicial Review Even though the counter-majoritarian difficulty might be a feature of any system with a binding constitution, the difficulty is especially acute for a regime that incorporates the institution of judicial review incorporating judicial supremacy. In the United States, for example, the courts have the power to declare that acts of Congress are unconstitutional, and if the Supreme Court so declares, the Congress does not have the power to override its decision.
The institution of judicial review is counter-majoritarian in part because federal judges are not elected and they serve life terms. Presidents are elected every four years; members of the House of Representatives every two years; and Senators serve staggered six year terms. Of course, judges and justices are nominated by the President and confirmed by the Senate and these features create some degree of democratic control of the judiciary. Nonetheless, on the surface, it certainly looks like judicial review is an antidemocratic institution. Unelected judges strike down legislation enacted by elected legislators: that is certainly antidemocratic and antimajoritarian in some sense.
The counter-majoritarian difficulty is compounded by the nature of judicial review as it has been practiced by the modern Supreme Court. If the Supreme Court limited itself to enforcing the separation of powers between the President and Congress or to the enforcement of the relatively determinate provisions of the constitution that establish the “rules of the game” for the political branches, then the counter-majoritarian difficulty might not amount to much. But the modern Supreme Court has been involved in the enforcement of constitutional provisions that general, abstract, and seemingly value laden—examples include the freedom of speech, the equal protection clause, and the due process clause of the constitution. The counter-majoritarian difficulty seems particularly acute when it comes to so-called “implied fundamental rights,” like the right to privacy at issue in cases like Griswold v. Connecticut and Roe v. Wade.
Answering the Countermajoritarian Difficulty How have constitutional theorists attempted to answer the counter-majoritarian difficulty? The problem with answer that question is that there are so many answers that it is difficult to single out three or four for illustrative purposes. So remember, the “answers” that are discussed here are arbitrary selections from a much longer list.
Discrete and Insular Minorities One famous answer to the counter-majoritarian difficulty focuses on the idea of “discrete and insular minorities.” The background to this answer is the premise that in the long run, most individuals win some and lose some in the process of democratic decision making. Shifting coalitions among various interest groups “spread the wealth” and the pain—no one wins all the time or loses all the time. Or rather, normally wins and losses are spread across the many different groups that constitute a given political society. However, there may be some groups that are excluded from the give and take of democratic politics. Some groups may be so unpopular (or the victims of such extreme prejudice) that they almost always are the losers in the democratic process. The famous “Footnote Four” of the United States Supreme Court’s decision in the Carolene Products case can serve as the germ of an answer to the counter-majoritarian difficulty. Judicial review is arguably legitimate when it serves to protect the interests of “discrete and insular minorities” against oppressive actions by democratic majorities.
Anti-Democratic Political Theory Another answer to the counter-majoritarian difficulty admits that judicial review is antidemocratic but seeks to justify this feature by appeal to some value that trumps democratic legitimacy. This isn’t really just one answer to the difficulty—it is a whole lot of answers that share a common feature—the appeal to anti-democratic political values. For example, it might be argued that “liberty” is a higher value than “democracy” and hence that judicial review to protect liberty is justified. Or it might be argued that “equality” is a higher value, or “privacy,” or something else. Obviously, there is a lot more to be said about this kind of answer to the counter-majoritarian difficulty, but for the purposes of this Lexicon entry, this incredibly terse explanation will have to suffice.
Dualism and High Politics Yet a third approach to the counter-majoritarian difficulty attempts to turn the problem upside down—arguing that judicial review is actually a democratic institution that checks the antidemocratic actions of elected officials. Whoa Nelly! How does that work? This third approach is strongly associated with the work of Bruce Ackerman—perhaps the most influential constitutional theorist since Alexander Bickel. Ackerman’s views deserve at least a whole Lexicon entry, but the gist of his theory can be stated briefly. Ackerman argues for a view that can be called “dualism,” because it distinguishes between two kinds of politics—“ordinary politics” (the kind practiced every day by legislators and bureaucrats) and “constitutional politics.” What is “constitutional politics”? And how is it different from “ordinary politics”? Ackerman’s answers to these questions begin with the idea that ordinary politics isn’t very democratic. Why not? We all know the answer to that question. Ordinary politics are dominated by self-interested politicians and manipulative special interest groups. The people (or “We the People” as Ackerman likes to say) don’t really get involved in ordinary politics, and therefore, ordinary politics are not really very democratic. Constitutional politics, by way of contrast, involve extraordinary issues that actually “get the attention” of the people. For example, the ratification of the Constitution of 1789 caught the attention of ordinary citizens, as did the Reconstruction Amendments (the 13th, 14th, and 15th) following the Civil War. When “We the People” become engaged in constitutional politics, we are giving commands to our agents—Congress and the President—and the Courts are merely enforcing our will when they engaged in judicial review—so long as they are faithful to our commands.
Whew! That was a lot of “We the People” talk. I need a break from channeling Ackerman, before I can finish this entry! OK. I’m back!
Ackerman’s theory emphasized the idea of distinct regimes that resulted from “constitutional moments”—periods of intense popular involvement in constitutional politics. Recently, Jack Balkin and Sandy Levinson have advanced a similar theory—which emphasizes that idea of “high politics”—the great popular movements that seek to influence the decisions of the Supreme Court on issues like abortion or affirmative action. I can’t do justice to their theory here, but the idea is that the Supreme Court may be responding to democratic pressures when it makes the really big constitutional decisions.
Dissolving the Counter-Majoritarian Difficulty So far, I’ve been discussing responses to the counter-majoritarian difficulty that operate within normative constitutional theory. There is another important line of attack, however. The counter-majoritarian difficulty rests on a positive (factual) assumption—that the Supreme Court does, in fact, act contrary to political majorities. Some political scientists have argued that this positive assumption is incorrect—that the Supreme Court rarely, if ever, acts contrary to the wishes of the dominant political faction. There could be many reasons for that—one of them being the Supreme Court’s awareness that if it were to buck Congress and the President, it is vulnerable to a variety of political reprisals. Congress might strip the Court of jurisdiction. Ultimately, the President might simply refuse to cooperate with Court’s decisions.
There is another side to this story. There may be reasons why elected politicians prefer for the Supreme Court to “take the heat” for some decisions that are controversial. When the Supreme Court acts, politicians may be able to say, “It wasn’t me. It was that darn Supreme Court.” And in fact, the Supreme Court’s involvement in some hot button issues may actually help political parties to mobilize their base: “Give us money, so that we can [confirm/defeat] the President’s nominee to the Supreme Court, who may cast the crucial vote on [abortion, affirmative action, school prayer, etc.].” In other words, what appears to be counter-majoritarian may actually have been welcomed by the political branches that, on the surface, appear to have been thwarted.
Conclusion Once again, I’ve gone on for too long. I hope you will forgive me, and I hope that this Lexicon entry has given you food for thought about the counter-majoritarian difficulty. Below, I’ve included a list of references to articles that focus on the difficulty itself and also to some of the authors who have attempted to give answers to Bickel’s famous problem.
References This is a very incomplete list, emphasizing the works that are focused on “the counter-majoritarian difficulty” in particular and omitting many important works of constitutional theory that deal with the counter-majoritarian difficulty as part of a larger enterprise.
Bruce Ackerman, We the People: Foundations (1993) & We the People: Transformations (1998).
Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045 (2001).
Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16-18 (2d ed. 1986).
Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 Geo. Wash. L. Rev. 1373 (1998); Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship, 95 Nw. U. L. Rev. 933 (2001).
Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333, 334 (1998).
Barry Friedman, The History Of The Countermajoritarian Difficulty, Part II: Reconstruction's Political Court , 91 Geo. L.J. 1 (2002).
Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Three: The Lesson Of Lochner, 76 N.Y.U. L. Rev. 1383 (2001).
Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. Pa. L. Rev. 971 (2000).
Barry Friedman, The Birth Of An Academic Obsession: The History Of The Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153 (2002).
Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004).
Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245 (1995).