Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty

James Bradley Thayer set the terms of the past century’s discussion of judicial review in The Origin and Scope of the American Doctrine of Constitutional Law. Thayer was concerned with what Alexander Bickel labeled the “countermajoritarian difficulty” with judicial review, that judicial review displaces decisions made by near-contemporaneous political majorities and therefore is open to the charge that it is undemocratic. Thayer attempted to minimize the displacement- of political majorities through his “clear error” rule, according to which courts should not overturn legislation unless “those who have the right to make laws have not merely made a mistake, but have made a very clear one, – so clear that it is not open to rational question.” The generations that succeeded Thayer found that solution unpalatable.

In this article, I explore these questions by relying on recent constitutional experience in France and Canada. Their experience helps illuminate the problems of U.S. constitutional law that Thayer and Bickel posed for us. Part I uses a recent study of the French Constitutional Council to examine the problem of policy distortion. Most of Part I is concerned with identifying the problem of policy distortion more precisely than Thayer did. It concludes with a brief suggestion that minimal judicial review might not be a full solution to that problem. Part II turns to the Canadian experience with section 33 of the Canadian Charter of Rights and Freedoms, the so-called notwithstanding clause. U.S. scholars have suggested that the notwithstanding clause is an ingenious institutional arrangement that allows more-than-minimal judicial review to coexist with a vigorous majoritarian politics. Closer examination of the Canadian experience suggests that it is not. Part II goes on to explore the reasons for section 33’s failure and speculates on the practicability of the Canadian approach to this problem of democratic debilitation generally. In conclusion, I suggest that, even as specified, the problems of policy distortion and democratic debilitation may be serious enough to confirm Thayer’s initial sense that more-than-minimal judicial review poses difficult problems for the operation of a stable and vigorous constitutional democracy.