The Countermajoritarian Complaint

This Article, part one in a series of two, offers an argument against the proposition that binding judicial review is inconsistent with democracy. The first section considers three versions of this countermajoritarian complaint, and concludes that the only potentially defensible version is the "respect complaint," associated with the popular constitutionalists, according to which constitutional courts impermissibly override popular legal judgments. The second section offers an argument against the respect complaint, centered on the notion that courts express rather than override popular legal judgments. The third section draws on the second to argue that "weak judicial review systems," in which legislatures may override constitutional rulings, function the same way as "strong judicial review systems," such as the U.S, because the courts in each system can wield power over legislatures only to the extent they can generally recruit popular support. Since, empirically, the extent to which legislatures defer to constitutional courts varies widely in weak judicial review systems, the Article concludes that the question of the relationship between judicial review and democracy is really a fine-grained problem of institutional design, not the simple binary choice to have or not have what critics of the U.S. system have misguidedly named "judicial supremacy." In the constitution of Great Britain--where the people carry on about their constitution as if it were the model for the whole world--we nevertheless find that it is quite silent about the authorization belonging to the people in case the monarch should transgress the contract of 1688, so that if he wanted to violate the constitution, there being no law about such a case, the people secretly reserves to itself rebellion against him. For, that the constitution should contain a law for such a case authorizing the overthrow of the existing constitution, from which all particular laws proceed (even supposing the contract violated) is an obvious contradiction; for then it would also have to contain a publicly constituted opposing power, so that there would have to be a second head of state to protect the people's rights against the first, and then yet a third to decide between the two, which of them had right on its side. Kant