Academic journal article Northwestern University Law Review

The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship

Academic journal article Northwestern University Law Review

The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship

Article excerpt

INTRODUCTION

It seems that among some legal academics the counter-majoritarian problem simply will not go away. Despite a growing literature indicating that this particular lens on judicial review is profoundly flawed, many constitutional theorists still insist on seeing their world through it.1 It is a puzzle why the counter-majoritarian problem is so enduring in the legal academy.

The goal of this Article is to point out and explain a certain pathology to much of constitutional scholarship. Constitutional scholars cannot help being normative.2 Yet there is grave discomfort with normativity. This twin compulsion toward, and lack of comfort with, normativity is what fuels the obsession with the counter-majoritarian problem. And it is what often leads us in our own scholarship to act as if we are doing something other than being simply normative.

Robert Bennett's provocative article, featured in this symposium, plays foil here, which compels at the outset an acknowledgment of the creativity and value of the piece? Yes, Bennett has given us yet another of those articles about the counter-majoritarian difficulty. His twist, however, is a clever and interesting one. Bennett's piece is thus an excellent test of what is said here.

The first part of this Article provides a very different answer to the question Bennett purports to put: what is it that gives rise to the counter-- majoritarian problem? Part I offers an alternative answer, from history, to explain the rise in the legal academy of the counter-majoritarian problem. The role of judicial review became problematic for the legal academy in the 1940s, in the aftermath of the New Deal Court-packing fight.4 As the Supreme Court faced an individual rights agenda, having eschewed rigorous review in economic rights cases, the academy struggled to reconcile the "double standard." Academics were persuaded by the Legal Realists about the indeterminacy of constitutional doctrine, yet unable to accept this indeterminacy given rule of law concerns. Answers presented themselves, but those answers could not overcome the historical objections of former Progressives such as Felix Frankfurter and Learned Hand, the most influential figures to the academy.5 However, the scholars of the 1940s differed fundamentally from their Progressive ancestors. The Progressives believed in democracy but disdained judicial review. These later legal academics, however, writing after the havoc wreaked by totalitarianism had proven the value of protecting individual liberty, believed firmly in both halves of the counter-majoritarian equation: democratic governance and judicial review. Thus, the counter-majoritarian problem was a dilemma first experienced internally by these later scholars. Their discomfort endures today.

Part I demonstrates that this historical understanding of the counter-- majoritarian difficulty goes far in explaining why constitutional scholars today are afraid of their normative shadow. The tension between the seeming indeterminacy of constitutional standards and the need to ground the rule of law in something neutral and determinate plagues us still. Legal scholars, thus, make normative prescriptions, but are driven to claim neutrality for them and to minimize their normative force, calling them "descriptive."

Quite unable to accept the problem on its own terms, Bennett reimagines it as a "counter-conversational difficulty." The second part of this Article turns to Bennett's re-imagined counter-conversational problem. Bennett argues that democracy is best understood as a "conversation" and that according to that description judicial review falls short. Yet, his "description" of democracy itself is deeply flawed. And even if his conversational metric for democracy were the appropriate one, it is apparent that judicial review succeeds admirably by it.

The theme of Part II is that Bennett's argument about democracy and judicial review is inevitably a normative, not a descriptive, one. …

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