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

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.