The Countermajoritarian Difficulty

Quote of the Day

While supportive of Brown, the legal scholar Alexander Bickel warned—via what he famously termed “the countermajoritarian difficulty”—that courts should be especially careful when invalidating legislation, lest legislatures flout their rulings and show courts to be powerless. Because we take legislation as representative of the will of the majority, courts are required to show legislation a degree of deference. They must justify themselves when they invalidate law in the name of constitutional rights.

Caitlin B. Tully
June 25, 2023
Rethinking the Liberal Giant Who Doomed Roe

I found this to be a very profound observation. This appears to be what is going on now in our battle for gun owner rights.


10 thoughts on “The Countermajoritarian Difficulty

  1. Holy crap! What passes for scholarship in this world is amazing!
    The reason we have a supreme court is to counterbalance democracy. The court should consider the will of some majority or another like one would a hemorrhoid.
    One only need consider how many times the court has had to smack down one unconstitutional law after another, wrote by some ignorant bitchy busy bodies that managed to fool enough people to get elected. (Maxine Waters, anyone?)
    Maybe Mr. Bickel would agree that since all power is derived from the people. That we have the right to flout their rulings/laws and show legislators to be powerless?
    Or is he just authoritarian enough to be enforcer, judge and jury himself?
    Government is powerless. It only has the power we agree it should have. And what it steals from us until we get tried of them.
    If he and his legislative friends don’t like the constitutional order that was hard fought and won for us. They sure as hell aren’t going to like the shitshow comes to replaces it! (Think France, passed, present, and future. But with a lot more firearms.)

    • Yeah, that was my first thought as well… “majoritarian” is “mob rule”. Our constitution creates a republic, not a democracy, and for good reason: A democracy cannot protect individual rights against a tyrant who can bully a majority.

  2. IMO, she’s right and wrong. She’s right that the legislature should represent the majority, and that the courts should show the legislature some deference when considering the Constitutionality of a law, and that the courts should justify when a law is struck down as a violation of Constitutional rights.

    Where she errs is in practice. A modern legislature often represents a gerrymandered “majority”, not an actual majority. She also errs when she (apparently) assumes that courts do not grant deference to legislators or justify their rulings. Has she never read a judicial opinion, particularly from SCOTUS? The discussion over the legislative intent vs. reality, legal reasoning, and justification for whatever decision they make often spans dozens or hundreds of pages! (The fact judges discuss legislative intent at all is a clear show of deference.)

    But back to the “majority” thing: she reads far too much into that part. This nation was designed to be a Republic — not a democracy — with hard limits on what a government can do. It was set up that way specifically to protect individual rights from the “tyranny of the majority” … or in this case, the tyranny of a legislative majority.

    IOW, it doesn’t matter whether or not a legislature represents a majority opinion. If a law crosses the line into violating Constitutionally-protected rights, it is invalid — “null and void” — and must be struck down.

  3. Yes, we are seeing a replay of what the states did when SCOTUS in Brown v Board overturned Plessy v Ferguson.
    As seen with that – discounting the NG escorts that won’t happen – it took years, more legislation and court rulings, smacking down the recalcitrant state goobermints until they finally got the message.
    “It ain’t over yet”

  4. This argument is only ever used against the Right. The Left wields authority like a club, and cares not what others think.

    Same-sex “marriage” was never approved by voters anywhere. It happened as a result of decisions by 8 federal judges.

    • You might want to check your facts on that. Start with 2012, in Maine, Maryland, and Washington.

      • Joe: Yes, it was approved by elected legislators in less than 10% of the states. Even if these legislatures were implementing voters’ wishes instead of forging ahead of public opinion, a few states does not make a national majority.

        McChuck: But now public opinion strongly supports gay marriage. Get over it. Fussing about this only means people will ignore you when you talk about the current excesses of those who wish to go far beyond allowing men to marry men.

  5. The courts have no standing army, no arm of the court can enforce one of its rulings. If a state declines to recognize a SCOTUS ruling, it is up to the Feds to do something about it.
    Unless the Feds agree with the recalcitrant state.
    Without an Eisenhower to send the 101st Airborne to Arkansas to enforce the court order in Brown v. BoE, the Supreme Court decision would be meaningless for the citizens of Arkansas. (
    If Eisenhower had agreed with Arkansas, he could have let AK continue by offering a toothless punishment, say cutting their highway funding by 25%. Eisenhower would say he was “Working towards a non-violent resolution of the disagreement by using peaceful incentives.”

    If that had happened, what state would have any reason to follow any Federal law, Constitutional or otherwise?

    Yes, the Supremacy Clause (Article VI, Clause 2) makes it clear that states are obliged to follow Federal law. Even NYC v. Miln found that a 10th Amendment argument didn’t allow NYC to exercise rights that were “…surrendered or restrained by the constitution of the United States”.

    I don’t see how states openly defying a SCOTUS ruling (and a complicit POTUS) is anything but the start of ‘Optional Compliance’ with the Constitution and the beginning of the end of the Union. Convince me otherwise…

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