Larry Solum on the Countermajoritarian Difficulty

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 spawned a vast literature analyzing the concept of representation-reinforcement and its applications to specific legal issues, including my own 2004 article analyzing the implications of widespread political ignorance for Ely’s theory. Solum generously includes my article in his list of recommended readings in the post. But it would have helped to discuss Ely’s far more significant contribution, which was a major milestone in the debate over the countermajoritarian difficulty.

I should perhaps add that I am far from uncritical of Ely. I disagree both with his argument that representation-reinforcement is the most defensible (if not the only) possible justification for judicial review, and with some of his applications of representation-reinforcement to specific constitutional issues. Nonetheless, Ely’s work had a major influence on me. More importantly, it also had a huge impact on many others who have written about the countermajoritarian difficulty since 1980.