Robertson, David --- "The counter-majoritarian thesis" [2018] ELECD 102; in Jacobsohn, Gary; Schor, Miguel (eds), "Comparative Constitutional Theory" (Edward Elgar Publishing, 2018) 189

Book Title: Comparative Constitutional Theory

Editor(s): Jacobsohn, Gary; Schor, Miguel

Publisher: Edward Elgar Publishing

ISBN: 9781784719128

Section: Chapter 10

Section Title: The counter-majoritarian thesis

Author(s): Robertson, David

Number of pages: 19

Abstract/Description:

Abstract: Counter-majoritarians are troubled by unelected, possibly unaccountable judges in a liberal democracy. They argue legal decisions risk representing class or some other social bias. They believe courts tend to make constitutional rulings irrespective of the views of other office holders or of public opinion. Evidence shows, though, that ‘the people’ trust judges more than elected officials. Recent literature accepts that judicial decisions are governed as much by the restraining impact of technical law as by ideological preference. Counter-majoritarianism is largely a product of American legal thought and political science and does not trouble European and other democracies with active constitutional courts. The American concern stems from a loss of belief in the law at all. The political nature of the appointment process and the unwieldy nature of the Constitution as a tool for judicial review feed counter-majoritarianism, but ‘taking the constitution away from the courts’ is neither desirable nor possible.