The counter-majoritarian difficulty (sometimes ''counter-majoritarian dilemma'') 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 counter-majoritarian difficulty is often raised in discussions of
United States constitutional law, particularly to discuss 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 ''counter-majoritarian difficulty'' in his 1962 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 and thus to undermine 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
Majoritarianism is a traditional political philosophy or agenda that asserts that a majority (sometimes categorized by religion, language, social class, or some other identifying factor) of the population is entitled to a certain degree of prim ...
).
Responses
Majoritarianism
Majoritarianism is a traditional political philosophy or agenda that asserts that a majority (sometimes categorized by religion, language, social class, or some other identifying factor) of the population is entitled to a certain degree of prim ...
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.
On the other hand, in 2008, Judge
John E. Jones III, a
Republican serving on the
United States District Court for the Middle District of Pennsylvania, stated that
Article Three of the United States Constitution "is counter-majoritarian," adding: "The judicial branch protects against the
tyranny of the majority. We are a bulwark against public opinion. And that was very much done with a purpose, and I think that it really has withstood the test of time. The judiciary is a check against the unconstitutional abuse and extension of power by the other branches of government." Judge Jones is the author of the landmark decision
Kitzmiller v. Dover Area School District, which found
intelligent design to be a form of
creationism
Creationism is the religious belief that nature, and aspects such as the universe, Earth, life, and humans, originated with supernatural acts of divine creation. Gunn 2004, p. 9, "The ''Concise Oxford Dictionary'' says that creationism is 't ...
that may not be taught in public school science classes under the
Establishment Clause of the First Amendment and
separation of church and state established by the
Founding Fathers of the United States.
[Judge John E. Jones III, Inexorably toward Trial: Reflections on the Dover Case and the “Least Dangerous Branch,” The Humanist, January/February 2009. {{cite web , url=http://www.thehumanist.org/humanist/09_jan_feb/Jones.html , title=The Humanist - a magazine of critical inquiry and social concern , accessdate=2010-08-29 , url-status=dead, archiveurl=https://web.archive.org/web/20110613225327/http://www.thehumanist.org/humanist/09_jan_feb/Jones.html , archivedate=2011-06-13 .]
See also
*
Judicial interpretation
Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United Stat ...
in the court
*
Judicial activism
*
Separation of powers
References
Notes and references
Political Ignorance and the Counter-majoritarian Difficulty: A New Perspective on the “Central Obsession” of Constitutional Law
''Legal Theory Blog''.
*Gabriel J. Chin & Randy Wagner, ''The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty,'
43 Harvard Civil Rights-Civil Liberties Law Review 65 (2008)
Constitutional law