US Constitutional Review: Antimajoritarian but Democratic?
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In the US, a large number of politically controversial subjects, such as abortion and same-sex marriage, end up before the US Supreme Court. This often gives a simple majority of five unelected justices the power to decide for good for the entire American nation highly divisive issues through constitutional adjudication. This has posed the “counter-majoritarian” difficulty that confronts the US federal judiciary. Does that mean that US constitutional adjudication is antidemocratic? There is neither a simple nor a straightforward answer to this last question because of a series of substantive and contextual factors. American democracy depends only in part on majoritarianism or rather on a series of checks and balances among diverse clusters of majoritarian institutions. In this complex interplay of checks and balances, the US Supreme Court emerges as an unchecked checker. In spite of that Court may be more responsive than majoritarian institutions to the will of the American, and lack of institutional checker may be mitigated by its capacity to submit to checks based on principles and judicial craft. In the last analysis, whether the Court enhances or inhibits democracy depends on contextual factors, such as the degree of polarization among the US citizenry.
Abstract
In the US, a large number of politically controversial subjects, such as abortion and same-sex marriage, end up before the US Supreme Court. This often gives a simple majority of five unelected justices the power to decide for good for the entire American nation highly divisive issues through constitutional adjudication. This has posed the “counter-majoritarian” difficulty that confronts the US federal judiciary. Does that mean that US constitutional adjudication is antidemocratic? There is neither a simple nor a straightforward answer to this last question because of a series of substantive and contextual factors. American democracy depends only in part on majoritarianism or rather on a series of checks and balances among diverse clusters of majoritarian institutions. In this complex interplay of checks and balances, the US Supreme Court emerges as an unchecked checker. In spite of that Court may be more responsive than majoritarian institutions to the will of the American, and lack of institutional checker may be mitigated by its capacity to submit to checks based on principles and judicial craft. In the last analysis, whether the Court enhances or inhibits democracy depends on contextual factors, such as the degree of polarization among the US citizenry.
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