Countermajoritarian difficulty
Encyclopedia
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 in discussing the powers of the three branches of the Federal government of the United States
.
, a law professor at Yale Law School
, coined the term counter-majoritarian 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
).
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
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
.
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
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
United States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...
; particularly in discussing the powers of the three branches of the Federal government of the United States
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
.
Origins
Alexander BickelAlexander Bickel
Alexander Mordecai Bickel was a law professor and expert on the United States Constitution. One of the most influential constitutional commentators of the twentieth century, his writings emphasize judicial restraint....
, a law professor at Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
, coined the term counter-majoritarian difficulty in his 1961 book, The Least Dangerous Branch. He used the term to describe the argument that judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
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
Majoritarianism
Majoritarianism is a traditional political philosophy or agenda which asserts that a majority of the population is entitled to a certain degree of primacy in society, and has the right to make decisions that affect the society...
).
Responses
MajoritarianismMajoritarianism
Majoritarianism is a traditional political philosophy or agenda which asserts that a majority of the population is entitled to a certain degree of primacy in society, and has the right to make decisions that affect the society...
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
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
, 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
John E. Jones III
John Edward Jones III is an American lawyer and jurist from the U.S. state of Pennsylvania. A Republican, Jones was appointed by President George W. Bush as federal judge on the United States District Court for the Middle District of Pennsylvania in February 2002 and was unanimously confirmed by...
, a Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
serving on the United States District Court for the Middle District of Pennsylvania
United States District Court for the Middle District of Pennsylvania
The United States District Court for the Middle District of Pennsylvania is district level federal court with jurisdiction over approximately one half of Pennsylvania...
, stated that Article Three of the United States Constitution
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
"is counter-majoritarian," adding: "The judicial branch protects against the tyranny of the majority
Tyranny of the majority
The phrase "tyranny of the majority" , used in discussing systems of democracy and majority rule, is a criticism of the scenario in which decisions made by a majority under that system would place that majority's interests so far above a dissenting individual's interest that the individual would be...
. 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
Kitzmiller v. Dover Area School District
Tammy Kitzmiller, et al. v. Dover Area School District, et al. was the first direct challenge brought in the United States federal courts testing a public school district policy that required the teaching of intelligent design...
, which found intelligent design
Intelligent design
Intelligent design is the proposition that "certain features of the universe and of living things are best explained by an intelligent cause, not an undirected process such as natural selection." It is a form of creationism and a contemporary adaptation of the traditional teleological argument for...
to be a form of creationism
Creationism
Creationism is the religious beliefthat humanity, life, the Earth, and the universe are the creation of a supernatural being, most often referring to the Abrahamic god. As science developed from the 18th century onwards, various views developed which aimed to reconcile science with the Genesis...
that may not be taught in public school science classes under the Establishment Clause of the First Amendment
Establishment Clause of the First Amendment
The Establishment Clause is the first of several pronouncements in the First Amendment to the United States Constitution, stating, Together with the Free Exercise Clause The Establishment Clause is the first of several pronouncements in the First Amendment to the United States Constitution,...
and separation of church and state
Separation of church and state
The concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation state....
established by the Founding Fathers of the United States
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...
.
See also
- Judicial interpretationJudicial interpretationJudicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...
in the court - Judicial activismJudicial activismJudicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
- Separation of powersSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...