Countermajoritarian difficulty
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[edit] Origins
Alexander Bickel, a law professor at Yale Law School, coined the term countermajoritarian difficulty in his 1961 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, thus undermining 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).
The countermajoritarian difficulty is often raised in discussions of United States constitutional law; particularly in discussing the powers of the three branches of the Federal government of the United States.
[edit] Responses
[edit] Relationship of Majoritarianism to Democracy
Majoritarianism 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.
[edit] Discrete and Insular Minorities
[edit] Pre-Commitment Theory
[edit] Elected Representatives and the Will of the People
Political theorists have also argued that in some cases, elected representatives pass laws that do now reflect the will of the people, and judicial review is used by judges to rectify that situation.
[edit] See also
[edit] Notes and references
Introduction to the Counter-Majoritarian Difficulty
The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty
