Beyond the “Countermajoritarian Difficulty”: Lessons From Contemporary Democratic Theory

Abstract

The “countermajoritarian difficulty,” first formulated by Alexander Bickel almost fifty years ago, has been a profoundly influential starting point for those who critically examine the relationship between democracy and constitutional judicial review. However, the inadequacies of this framework are manifest. This framework rests, first, on unwarranted empirical assumptions about the “majoritarianism” of legislative action and the “countermajoritarianism” of courts. It also rests on unwarranted theoretical assumptions about the relationship between democracy and majoritarianism. Virtually all sophisticated approaches to democratic theory do not simply equal democracy with majoritarianism, although this is often forgotten when discussing judicial review. Using the “democracy-against-domination” approach, we assess the democratic status of judicial review, and conclude that judicial review has the potential to make a modest and contingent positive contribution to democracy.