My final substantive Balkinization guest-blogging post about Democracy and Political Ignorance focuses on the implications of widespread political ignorance for judicial review and the “countermajoritarian difficulty.”
I agree with most of what co-blogger Randy Barnett says in his recent post responding to critics who claim that lawyers and judges cannot determine the original meaning of the Constitution. But I think we should also pay attention to the opposite question of whether lawyers can figure out the meaning of the living Constitution.
The main alternative to originalism, after all, is some form of living constitution theory. People who claim that originalism is too difficult to apply often implicitly assume that applying living constitution theory is, by contrast, relatively easy. Much of the time, that is not so. Consider, for instance, the famous Carolene Products claim that courts should give special protection to the rights of “discrete and insular minorities.” It is often hard to figure out which groups really are discrete and insular minorities, and which policies discriminate against them or inflict disproportionate harm on them. Bruce Ackerman’s classic article “Beyond Carolene Products“ is a good discussion of some of these problems.
Or consider John Hart Ely’s famous theory that judicial review should be “representation-reinforcing,” by striking down laws that seriously undermine people’s ability to participate in the democratic process effectively. Justice Stephen Breyer similarly argues that judicial review should promote democratic participation. Often, figuring out what is or is not representation-reinforcing turns out to be a complex question that requires understanding of empirical social science and normative democratic theory to answer intelligently. There are serious representation-reinforcement rationales for some forms of judicial review that Ely and Breyer consider to be clearly anti-democratic. I give some examples here.
Other forms of living constitution theory have similar complexities. Even if your approach is to simply rely on precedent and try to build on its logic when novel cases arise, there are going to significant challenges. As [...]
Georgetown law professor Larry Solum has an excellent post summarizing the ongoing debate over the “countermajoritarian difficulty,” one of the most common criticisms of judicial review. Solum summarizes the “difficulty” as follows:
The counter-majoritarian difficulty may be the best known problem in constitutional theory… 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 electedexecutives 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 [Alexander] Bickel’s naming of this problem [in 1962], it dominated constitutional theory.
In the rest of the post, Solum provides a very helpful summary of the major answers various legal theorists have developed to address the problem. I recommend the post to students and others who want to get a quick but helpful summary of the issue, along with some useful cites to the literature. It is a worthy addition to Solum’s extremely useful series of “Legal Theory Lexicon” posts.
My only reservation about the post is that it omits one of the most important and influential answers to the difficulty: John Hart Ely’s “representation-reinforcement” theory, outlined in his famous 1980 book Democracy and Distrust. Ely argued that judicial review can, in some cases, actually promote democracy by facilitating political participation. Obvious examples include judicial protection of the right to vote and the right to freedom of political speech. Such representation-reinforcing judicial decisions are not, Ely argues, countermajoritarian, because they ensure that the people can participate in the political process, which is what makes that process majoritarian in the first place.
Ely’s book has [...]