Mediated Popular Constitutionalism

There are divergent views in the legal academy concerning judicial review, but at their core these views share a common (and possibly flawed) premise. The premise is that the exercise of judicial review is countermajoritarian in nature. There is a regrettable lack of clarity in the relevant scholarship about what “countermajoritarian” actually means. At bottom it often seems to be a claim, and perhaps must be a claim, that when judges invalidate governmental decisions based upon constitutional requirements, they act contrary to the preferences of the citizenry. Some variation on this premise seems to drive most normative scholarship regarding judicial review. Some scholars laud judicial review precisely because of its countermajoritarian character. Those of this view believe constitutional strictures exist to constrain the majority, that constitutional rights are not to be subject to majority will. For those who hold this view, countermajoritarian judicial review is normatively desirable, although these theorists may diverge when it comes to precisely how judicial power should be exercised. Other scholars criticize judicial review precisely because it interferes with the popular will. Under this view, representative government – such as what we enjoy in the United States – is intended to reflect majority preferences. When judges invalidate government acts, they inappropriately interfere with democracy.