Countermajoritarian Difficulty Research Articles

A dialogical model of human rights adjudication

Abstract This article presents the contours of a “dialogical model” of adjudication arising from the practice of the European Court of Human Rights that is profoundly transforming inherited notions of rights, legal reasoning, legal authority, and the rule of law more generally. The dialogical model is characterized by a form of reasoning that is not self-reliant or autonomous, but internally constituted by the interaction of multiple voices, normative perspectives, and institutional standpoints. What is defined as dialogical, however, is not the inclusion of this or that discrete voice, but the entire process of adjudication, including: how issues are framed; the need to consider cases as a whole; their embeddedness in large swathes of normative magma; the self-reflexive assessment of the Court’s position and trajectory; the relational understanding of the Court’s authority; and the fact that each and every decision constitutes a notion of democracy that is plural, many-voiced, and inherently in tension. Beyond a mere polyphony of voices, therefore, this is an entirely new paradigm to conceive the Court’s task, which differs markedly from the two main paradigms of understanding human rights adjudication, namely the rights-based model and proportionality analysis. After describing the shortcomings of the latter two paradigms fully to account for the Court’s practice, the article presents the features of the dialogical model. Ultimately, this is a judgment about the collective self-definition of democratic societies, which necessitates a reassessment of the countermajoritarian difficulty to account for the democracy-constituting role of the Court.

Passiveness, Activism and Constitutional Bullying: The Supreme Federal Court and Brazil’s Fragile Rule of Law

Abstract The paper identifies the different roles played by the Brazilian Supreme Federal Court under the 1988 Constitution, adopted after 21 years under authoritarian rule. The aim is to shift the focus of the discussion regarding the counter-majoritarian difficulty, which insists on the illegitimacy of judicial review, to the difficulty of being counter-majoritarian, examining the institutional obstacles and limitations attendant upon judicial independence.

Is There a Way Out of the Counter-majoritarian Difficulty?

Is There a Way Out of the Counter-majoritarian Difficulty?

The constitutional test of necessity: problem statement

The subject-matter of the research is the constitutional test of necessity. This element of proportionality could be found in doctrine and case-law in the form of metaphors. The necessity as a prong of proportionality consists in testing the available alternatives in comparison with the measures that the legislator has chosen to achieve public aims. The notion of a least restrictive means can be used as a synonym for this element of proportionality. Although this term is cumbersome, it more precisely defines the nature of constitutional litigation, where the admissibility of interference with fundamental rights is assessed.The purpose of the research is to argue that this element of proportionality implies the assessment of the least restrictive alternatives for the rights-holder in order to achieve the goal chosen by the legislator.The methodology of research includes the method of analogy. Accordingly, the analogical reasoning is used in constitutional adjudication when testing necessity of legislative measures, but not the methods of logical subsumtion or judicial balancing. The sources of such analogy can be the rules of international law, ordinary legislation and comparative legal materials.The main results of the research and the scope of their application. The expression necessity is widely used in international law and ordinary legislation. Such approaches are relevant to constitutional adjudication. Thus, the ultima ratio principle, which initially appears in criminal and administrative law, acquires universal application in constitutional justice. This criterion, which requires the use of the most severe legal measures only as a last resort, with the ineffectiveness of softer alternatives, can be extended to the constitutionalization of other branches of legislation.The test of necessity, which is often expressed in metaphors, in the case-law of constitutional justice is based on the method of analogy. In the decisions of the constitutional justice bodies, the least restrictive means are often mentioned in comparison with those which were originally chosen by the legislator. At the same time, the discovered alternatives should be equally or at least minimally suitable in comparison with the existing legislative solutions. Comparative law, international law, or ordinary legislation are often an auxiliary source for constitutional judges to identify and formulate least restrictive alternatives.Conclusions. The value of the analogical reasoning, including the appeal of constitutional justice to comparative law materials, lies in the possibility of identifying some experimental legal regimes. Moreover, the perception of specific alternatives, their clarification or modification remains within the discretionary powers of the legislature. Thus, avoiding the well-known counter-majoritarian difficulty, constitutional justice conducts a dialogue with the parliament, and in the end, contributes to the optimal implementation of fundamental rights.

Constitutional Courts as Majoritarian Instruments

Abstract Constitutional courts are portrayed as counter-majoritarian institutions empowered to strike down ordinary legislation that is inconsistent with the constitution. This power is to be used sparingly, since it is seen as being in tension with basic democratic principles. Judicial review in these circumstances should be limited to minority rights protection and the enforcement of structural limitations that prevent majority rule excess. But this is only half the story. Depending on the democratic credentials of the particular constitution, courts that strike down legislation as inconsistent with the constitution can also be said to be engaging in majoritarian action. The characterization of constitutional courts as counter-majoritarian institutions is premised on: (1) the status of ordinary legislation as the quintessential majoritarian instrument, (2) the un-elected nature of judges, (3) a narrow understanding of the concept of the ‘negative legislator’, and (4) the democratic deficit that results when judges impose their views over those enacted by parliament. This Article challenges these assumptions. First, this Article demonstrates that ordinary statutes adopted by elected legislatures are not necessarily the superior articulation of popular will. On the contrary, the democratization of modern constitution-making allows the constitution to acquire ultimate majoritarian status. Because of popular skepticism about the ability of ordinary politics to adequately reflect society’s views on important substantive policy matters, the People have repeatedly decided to bypass the legislative process and directly entrench these policy views in the constitutional text. As a result, it is the constitution that embodies popular will. Second, this Article dissects the so-called counter-majoritarian difficulty, in order to distinguish between illegitimate counter-majoritarian review and legitimate counter-majoritarian review. The former occurs when the constitutional court substitutes the legislature’s policy views with its own, thus generating an impermissible democratic deficit. The latter occurs when the constitutional court invalidates ordinary legislation that violates minority rights or exceeds the structural limits imposed by the constitution. In both instances, counter-majoritarian intervention is warranted, precisely, to make sure that democratic self-government through ordinary politics can be adequately carried out. Third, this Article suggest the existence of a third class of judicial review: legitimate majoritarian review. This is when a constitutional court invalidates ordinary statutes because the legislature attempted to substitute the will of the constitutional drafters with their own. In other words, in instances when the legislative body carries out an anti-majoritarian act by ignoring the policy choices made by the People and entrenched in the constitutional text. When a court strikes down legislation of this sort, it is actually re-establishing majoritarian self-rule by making sure that the constitution’s policy commands are respected. In that sense, the court is not exercising independent judgment. Instead, it becomes the enforcement instrument of the majoritarian constitution to avoid legislative usurpation. This makes the un-elected nature of courts an almost irrelevant factor. Finally, this Article explores how the majoritarian potential of judicial review on constitutional matters interacts with the ‘negative legislator’ role of constitutional courts. In particular, how the ‘negative legislator’ should not be characterized, necessarily, as a limited one.

The Colombian Constitutional Court from a Prodemocratic Reading

This article has four parts. The first one shows the reception of the “Countermajoritarian Difficulty” (CMD) in Colombia, it is to say, how the tension between judges an democracy,a constitutional topic created by Alexander Bickel in America, was received. The second part explains the answer that constitutional judges in Colombia gave to the tension with thedemocratic principle by promoting dialogical rulings. The third one describes, in a general way, the LGTBI movement in Colombia and dialogues it generated in the Constitutional Court to achieve the protection of their rights against majorities. Finally, in the fourth part, some jurisprudence lines of the Colombian Court are shown to demonstrate how it promotes, collaborates, and aids democracy when this is not granted by the representatives.

Democratic Dilemmas of Elite Institutions: Comparing the Court and the Fed

The Supreme Court and the Federal Reserve, twin pillars of the liberal market order, have never been systematically compared. Yet, as elite institutions in a democratic political world, they face parallel problems in carrying out similar functions of maintaining the precommitments to a stable rule of law and a stable value of money respectively. Both face a countermajoritarian difficulty of justifying their decisions on occasion to go against popular will. In response, both tie themselves to rules in order to cabin their own discretion and to prevent epistemic mistakes common in small groups of insulated decisions makers. Yet as a descriptive matter in emergencies both transcend rules to keep the republic steady. The comparison illuminates parallel dilemmas sometimes recognized in the context of one institution yet denied or ignored in the other. For instance, commentators appreciate the epistemic difficulty of small-group decision making as a major problem for the Fed, while this is not often seen as an issue for the Court. Moreover, the Fed admits it acts differently based on its own evaluation of an emergency, but the Court often does not acknowledge altering its jurisprudence in an emergency. Yet decisions like Bush v. Gore and Wickard v. Filburn are best explained as rooted in emergency judgments similar to the Fed’s. More transparent acknowledgment of the decisiveness of such emergent circumstances would make it easier for the Court, like the Fed, to unwind from its prior judgments in non-emergent circumstances. In addition, the parallel independence of these entities is not only necessary for their purposes but also face similar perils in a time of polarization like our own. Today, the central bank is considering whether it should engage in new forms of activism to address such problems as climate change and inequality. The Supreme Court’s history shows the substantial risk that such activism will undermine the diffuse support among elites. That loss of support leads to political movements, like court packing or favoring structural change for the Fed, that make it more difficult for such institutions to preserve their independence and sustain their precommitments.

The counter-majoritarian difficulty in a neoliberal world: Socio-economic rights and deference in post-2008 austerity cases

Abstract:In the aftermath of the 2008 financial crisis courts and rights took a backseat to demands of markets and international financial institutions for austerity. Deference and judicial restraint were prevalent in austerity litigation across various European jurisdictions. This article argues that the traditional view of deference to political branches on socio-economic rights should be revised in our political-economic context. Drawing on the work of German sociologist Wolfgang Streeck on representation failures of democratic institutions in our neoliberal era, the article argues that law’s abnegation in this sphere has the effect of securing and legitimising neoliberal hegemony and serves the interests of owners of financial capital. Deference in order to avoid judicial overreach does not entail deference to democracy as legislatures have come to view financial markets as their constituency alongside the general citizenry. As public finances have become marketised, deference to legislatures amounts to deference to markets. Judicial minimalism creates not more democracy but a specific set of winners and losers. In light of severe representation failures where legislatures become tools of market justice we might, subject to various caveats, view a more active judicial role as democracy-enhancing and as a potential counterweight in favour of social justice.

Alexander Somek'sThe Cosmopolitan Constitution

The Cosmopolitan Constitutionis an intriguing and puzzling book. In particular, the book has the uncanny ability to render fresh what is for the constitutional theorist familiar territory such as the debate on judicial supremacy and the counter-majoritarian difficulty, the expansion of the proportionality principle, etc. In fact, one of the most interesting aspects of its overarching argument is that given our present conditions—such as those of the cosmopolitan constitution or constitutionalism 3.0—we should be increasingly plagued by self-doubt, at least to the extent that we are to remain committed to the tenets that once animated our constitutional traditions. This implies that the partial sense of disorientation with which one is left after reading the book is deliberately provoked precisely because of the main insights it has to offer.

U.S. Supreme Court in the civil rights era: Deliberative Democracy and its educative institutional role, 1950s–1970s

This article examines the U.S. Supreme Court’s lesser-known educative role as an egalitarian institution within a broader deliberative democratic process. Scholars have argued that the Court’s long asserted power of judicial review, especially in the equal protection and civil rights context, has been an over-reach of the judicial branch’s constitutional authority and responsibilities. Normative and empirical critiques have been centered on the aims of judicial review, and the challenges it poses in American political life. A core issue surrounding these critiques is that Justices are appointed not elected, and thus undermine the principle of majority rule in the U.S. constitutional democratic order. Although these critiques are legitimate in terms of claims about unelected Supreme Court Justices’ seemingly discretionary powers over elected legislative bodies, and the uncertain policy implications of judicial pronouncements on the broader society, there is, nevertheless, a positive application of judicial review as a tool Justices use as part of their educative role overcoming the so-called “counter-majoritarian difficulty.” Through a close reading of oral arguments in Brown vs. Board of Education (1954) and San Antonio vs. Rodriguez (1973)—two landmark cases invoking the Equal Protection Clause of the 14th Amendment to the federal Constitution—the article shows how appointed Justices adjudicate individual cases on appeal and attempt to educate (through an argumentative, reason-based and question-centered process) citizenlitigants and their legal representatives about the importance of equality, fairness and ethical responsibility even prior to rendering final decisions on policy controversies that have broader national social, political and economic implications.

Interpretación conforme, clave para la legitimidad democrática en el control constitucional normativo

This research is about the tension between democracy and constitutionalism, which derives from judicial review of legislative (or popularly created) laws, i.e. from normative constitutional control of acts. The counter-majoritarian difficulty or dilemma lies on the principle that legitimacy of the State and that of authority in general, resides on the respect of the majority's will. I propose refute that difficulty or dilemma, through what I call “non objection triad”, which implies that constitutional judges begin the review assuming the constitutionality of legislative law under review (presumption of constitutionality), so they can only declare its unconstitutionality if it contradicts Constitution clearly and unquestionably (deference to legislator), and if one cannot interpret the law under scrutiny in a way it does not contradicts Constitution (consistent interpretation). This last duty is not only about law and constitutional technique, but, and above all, a consequence of respecting majority's will.

Judicial Federalism and Representation

AbstractI examine the relationship between judicial federalism and state-level representation. I develop a framework in which federal courts establish a federal “floor” in a policy area, thus creating an asymmetry—states with lower levels of policy must shift policy to the floor, whereas states with higher levels of policy above the floor are unaffected. I use the framework to recast the “countermajoritarian difficulty” as an issue of federalism. To illustrate the framework, I present a quantitative analysis of the legalization of same-sex marriage in all 50 states, using data on public opinion, federal and state judicial decisions, and state-level policy.

Temporary Constitutional Amendments as a Means to Undermine the Democratic Order - Insights from the Israeli Experience

This paper focuses on the employment of temporary measures within the generally-rigid constitutional sphere. Commentators frequently contemplate the extent to which temporary constitutional measures are adequate and necessary within an intended-to-perpetuate constitution. On one hand, some writers praise temporary constitutionalism, claiming that it allows flexibility and relieves the counter-majoritarian difficulty. Others however emphasize the devastating impact on the constitution’s status and legitimacy as a result of intense implementation of temporary measures. This paper contends that however beneficial it may be in some cases, temporary constitutionalism should be scrutinized with great suspicion, especially when it is employed in weak constitutional regimes. Through outlining the history of temporary constitutionalism in the state of Israel, this paper illustrates how temporary constitutional amendments can be harnessed to undermine the democratic order. The Israeli employment of temporary constitutionalism since 2009 reveals a new underexplored manifestation of “abusive constitutionalism”, called here “abusive temporary constitutionalism”. With abusive temporary constitutionalism, incumbents can entrench their power against their opponents, while avoid both horizontal and vertical accountability for their actions. Finally, by drawing conclusions from the Israeli experience, the paper outlines several signifiers and preventive measures allowing future constitution drafters and judges to monitor and suppress the development of abusive employment of temporary constitutional amendments.

What Counter-Majoritarian Difficulty? Experimentally Evaluating Citizens' Views of the Democratic Nature of the Supreme Court

Scholars have long debated the democratic credentials of courts. Some view the judiciary as a positive force for democracy (Zemans 1983, Kelemen 2012b, Almendares and Le Bihan 2015), while others claim it can get in the way of truly democratic governance (see, for example, Tushnet 1999, Kramer 2004, Hirschl 2004, Waldron 2006). One often-cited problem with courts is what Alexander Bickel (1962) called the difficulty. Put simply, in a democracy how can it be that a group of unelected, unrepresentative judges is free to overrule the will of the people? Our paper addresses this dilemma from a novel angle. Specifically, we use a survey experiment to test whether or not Americans actually care about the counter-majoritarian nature of their Supreme Court. We present respondents with a fictitious Supreme Court ruling and test whether they react differently when it is framed as overruling majorities, either elected or public, of different sizes. We find that in general people do not care about the counter-majoritarian dilemma on its own. What often does matter to how Americans react to counter-majoritarian decisions is what they think about Congress, the institution the Court overrules whenever it strikes down a law. Most of the time, citizens’ trust and confidence in Congress interacts with their views about the policy in question to determine their levels of support for the decision.

Proportionality and 'Deference' in Contemporary Constitutional Thought

This chapter proposes that proportionality as a mode of legal reasoning is implicated in no fewer than three phases of the decision of ‘hard cases’ of judicial review of statutes. First, at the level of legal ‘substance,’ the jurist faces the situation of contemporary legal thought characterized by the rise of proportionality, institutional competence arguments, and the ‘hermeneutic of suspicion’ that ideology corrupts legal judgment. Second, it is arguably appropriate for the judge to decide whether or not to uphold a statute, in spite of his good faith opinion against it, on the basis of a proportional weighing of the counter-majoritarian difficulty against the bad consequences of deference. Third, the judge may have to decide proportionally whether to present his reasons for striking a statute in their true proportional form or rather to violate his duty of candor by presenting himself as a legal formalist. The judge, inescapably a political actor, is subject to the decisionist ethical calculus of Max Weber’s Politics as a Vocation.

Evolving Democratic Constitutionalism

In its Eighth Amendment cases, the Supreme Court has often cited counter-majoritarian considerations as the basis for exercising judicial restraint. As a result, excessive and draconian punishments persist in the United States, with the Court being hesitant to use the Constitution to bar state punishment practices. The Court’s evolving standards of decency doctrine, however, is majoritarian. As this Article argues, the doctrinal framework of the Court alleviates the counter-majoritarian difficulty, as the Court’s applications of the Eighth Amendment mirror majoritarian practices and only strike down outlier punishments. Given the lack of justification for judicial restraint under the Eighth Amendment, the Article maps a series of possible applications of the Constitution in this area, both on a micro-level—to limit punishments in certain circumstances—and on a macro-level—to bar certain punishments altogether. In particular, the Article reveals the current ability of the Court to apply its Eighth Amendment doctrine to abolish the death penalty and juvenile life-without-parole sentences. In short, the Article demonstrates that society’s standards with respect to criminal punishments have evolved. The question remains whether the justices themselves will evolve accordingly.

Judicial Federalism and Representation

This paper evaluates how the power of courts in a system of dual federalism affects state-level representation. I develop a framework in which courts establish a federal in a given policy area, thus creating an asymmetry -- states in which the legislature has chosen a lower level are compelled to shift policy to the floor, whereas states in which legislatures or voters prefer levels above the floor are unaffected. I develop versions of the framework in which the status quo at the state level may lag behind changes in public opinion, and in which cross-state moral externalities exist. In doing so, I use the framework to recast the familiar counter-majoritarian difficulty -- the problem of unelected judges striking down legislation enacted by elected legislatures -- as an issue of federalism. To illustrate the framework, I present a quantitative analysis of the path to the legalization of same-sex marriage in all 50 states, using both original and existing data on public opinion, and state judicial decisions, and state-level policy.

Judicial Review as a Limit on Government Domination: Reframing, Resolving, and Replacing the (Counter)Majoritarian Difficulty

For centuries, politicians, activists, and academics have criticized the American system of judicial review as democratically illegitimate. In response, dozens of scholars have striven to justify the institution’s place in a democratic political system. A compelling justification for judicial review must provide a realistic description of its function and a normatively attractive understanding of that function. Unfortunately, the most prominent justifications suffer from empirical or theoretical problems. However, recent empirical evidence suggests an “acquittal theory” that meets both criteria. On this view, courts armed with judicial review can thwart majority will by relieving individuals from government sanctions, but they lack the power to independently impose sanctions. This asymmetry suggests a resolution to the countermajoritarian difficulty that does not rely on judicial wisdom or behavior: the nature of judicial power ensures that judicial review reliably promotes a core democratic value—freedom from government domination—without seriously threatening other democratic values.

Public Choice Originalism: Bork, Buchanan and the Escape from the Progressive Paradigm

In this essay I explore the connections between public choice and originalism, arguing that public choice is crucial to development of the originalism both in its diffuse popular and more academic form. As Robert Bork’s famous article, Neutral Principles and Some First Amendment Problems, illustrates, originalism begins as a reaction to the Warren Court, but it is a reaction that largely accepts the primacy of democratic majoritarianism that had begun in the Progressive era. It is public choice more than any other theory of politics that loosens the straightjacket that majoritarianism has on constitutional theory. In its more diffuse form, public choice with its emphasis on the self- interested nature of politicians, the power of interest groups, and the pathologies of collective choice made majority rule less attractive. James Buchanan’s contribution with Gordon Tullock in The Calculus of Consent has particular relevance to originalism, because it decisively breaks from the idea that majority rule should be the presumptive norm in constitutional republics. If constitutions are best made by supermajority rules, as Buchanan and Tullock imply, originalism can be justified as a way of protecting the results of supermajoritarian constitutionmaking from change by either majorities or the peculiar submajorities that are comprised by the justices of the Supreme Court. As important as are the interpretive disputes within originalism, like that between original intent and public meaning, public choice’s inflection point may be more important because it moves originalism from a theory that was concerned primarily with protecting democratic majorities to a theory that was concerned with preserving a republican regime that was in its formation and essence nonmajoritarian. That shift in turn empowered originalism to become a much more aggressive theory of judicial review of legislation, creating more potential conflict between the judiciary and legislative majorities. The essay also briefly critiques some constitutional theorists who have stayed within the Progressive Paradigm, because their theories fail to solve the countermajoritarian difficulty at its heart. It ends with a description of four problems that public choice originalism has yet fully to address.

Empirically Evaluating the Countermajoritarian Difficulty

AbstractI conduct a quantitative evaluation of the “countermajoritarian difficulty” by examining the relationship between public opinion, state policy, and judicial review in constitutional challenges to state abortion statutes in the period before Roe v. Wade. I find that state and lower federal court judges tended to invalidate statutes in states with high levels of public support for moving policy away from the status quo, and judges did not strike down statutes in states where majorities firmly supported the status quo. These results suggest the importance of creating a role for state and lower federal courts in evaluating the countermajoritarian difficulty.