• About
    • Login
    View Item 
    •   Institutional Repository Home
    • Law School
    • Vanderbilt Law School Faculty Works
    • View Item
    •   Institutional Repository Home
    • Law School
    • Vanderbilt Law School Faculty Works
    • View Item
    JavaScript is disabled for your browser. Some features of this site may not work without it.

    Browse

    All of Institutional RepositoryCommunities & CollectionsBy Issue DateAuthorsTitlesSubjectsDepartmentThis CollectionBy Issue DateAuthorsTitlesSubjectsDepartment

    My Account

    LoginRegister

    Too Clever By Half: The Problem with Novelty in Constitutional Law

    Sherry, Suzanna
    : http://hdl.handle.net/1803/6548
    : 2001

    Abstract

    As Robert Bennett's article illustrates, the "counter-majoritarian difficulty" remains--some forty years after its christening--a central theme in constitutional scholarship. [See Robert W. Bennett, "Counter-Conversationalism and the Sense of Difficulty", 95 NW. U. L. Rev. 845 (2001) ] Indeed, one might say that reconciling judicial review and democratic institutions is the goal of almost every major constitutional scholar writing today, including Bennett himself. I have suggested elsewhere that scholars as diverse as Richard Epstein, Antonin Scalia, and Robert Bork on the one hand, and Akhil Amar, Bruce Ackerman, and Ronald Dworkin on the other, are all motivated by a desire to overcome the counter-majoritarian difficulty. Bennett seeks to corral the difficulty by describing a difference between courts and other actors, which he finds more meaningful than references to "majoritarianism." Bennett suggests that the academic fascination with the "countermajoritarian difficulty" arises out of a mistaken view of democracy. Barry Friedman suggests that it comes from a combination of factors, including the rise of legal realism, the stature of many of the early counter-majoritarian theorists, and the dilemma faced by liberals when the 1930s Court's obstructionist interference with democratic processes gave way to the Warren Court's laudable interference with democratic processes. All these explanations--especially Friedman's last--probably contain some truth.
    Show full item record

    Files in this item

    Thumbnail
    Name:
    Too Clever by Half.pdf
    Size:
    838.4Kb
    Format:
    PDF
    Description:
    published article
    View/Open

    This item appears in the following collection(s):

    • Vanderbilt Law School Faculty Works

    Connect with Vanderbilt Libraries

    Your Vanderbilt

    • Alumni
    • Current Students
    • Faculty & Staff
    • International Students
    • Media
    • Parents & Family
    • Prospective Students
    • Researchers
    • Sports Fans
    • Visitors & Neighbors

    Support the Jean and Alexander Heard Libraries

    Support the Library...Give Now

    Gifts to the Libraries support the learning and research needs of the entire Vanderbilt community. Learn more about giving to the Libraries.

    Become a Friend of the Libraries

    Quick Links

    • Hours
    • About
    • Employment
    • Staff Directory
    • Accessibility Services
    • Contact
    • Vanderbilt Home
    • Privacy Policy