Wednesday, July 08, 2009

The Important Countermajoritarian Difficulty

Constitutional law scholars have long fretted over the "countermajoritarian difficulty" (CMD) a term coined by Alexander Bickel for an old issue: The fact that, except in the extraordinarily rare case of a blatant and obvious violation of the Constitution, judicial invalidation of legislative and executive action substitutes the views of unelected judges for those of officials who are accountable to the people. Within constitutional theory, there are various responses, ranging from those that offer interpretive methods deemed legitimate in light of the CMD to those that say that the CMD is not worth worrying about.

Meanwhile, I and others have previously noted that whatever one thinks of the CMD created by judicial review, its scope is not all that great, because the courts do not use the Constitution to interfere with the decisions of the political branches on such great matters as war and peace, taxation, and spending. Lately, that fact has become painfully obvious, even as it has--or should have--focused our attention on another CMD.

Here is my list of the top five policy questions currently facing the U.S., not necessarily in order:

1. Reviving the economy in the short run and developing a regulatory regime that, over the long run, does not lead to bubbles that burst, wreaking economic havoc and leaving taxpayers on the hook for bailing out institutions that are too big to fail.

2. Slowing global warming.

3. Bringing down the cost of health care while moving towards universal coverage.

4. A host of foreign policy challenges, from dealing with North Korea's bellicosity and Iran's indifference to its own popular will, to stabilizing Afghanistan and Iraq without maintaining large permanent troop presences.

5. Funding state and local programs, including primary, secondary and higher education, despite falling revenues.

It's notable that the courts have either nothing (e.g., item 4) or only marginal things to say about anything on this list. It's also clear that many of these items themselves include multiple important items, and the list isn't even complete. For example, it doesn't include domestic counter-terrorism or public health challenges (beyond matters of cost) such as responding to pandemics. Despite the fact that the courts will not block political action on these major issues of our day, non-judicial mechanisms frustrate efforts to act on the majoritarian will on most of these items.

One such non-judicial CMD is our system of campaign finance, which permits lobbyists for Wall Street, private health insurance firms, industries with sunk costs in high-pollution equipment, and arms manufacturers, among others, to exert outsize influence over these matters.

Another non-judicial CMD mechanism comprises super-majoritarian requirements--2/3 vote to raise taxes in California; 60 votes to break a filibuster in the Senate; the practice of allowing a single Senator to place a "hold" on a nomination; etc.--that permit small legislative minorities to block majority sentiment. The Senate itself is a gigantic CMD, insofar as it vastly over-represents residents of low-population states, which tend to be disproportionately agricultural and rural.

John Hart Ely, author of what is still the most influential book on constitutional interpretation, Democracy and Distrust, had a famous response to this sort of argument. To paraphrase from memory, he said something like this: We can point out until we're blue in the face that our system of representative democracy is not perfectly representative of popular will, but it's still more representative than the judiciary. I'll concede that, but it's only a response on issues where we're trying to determine whether judicial review is legitimate. Where the courts are largely out of the picture--as they are on our most important issues of the day--the comparative point has no bite. My point isn't that the elected branches are gridlocked and therefore the courts should step in; my point is simply that non-judicial CM mechanisms are blocking needed and likely popular options. E.g., there is consistent majority support for a "public option" as part of a health care reform package; yet we may not get one.

So, to quote another (less democratic) theorist, what is to be done? That's a topic for another day. For now, I'll conclude by noting the irony of any hand-wringing about the judicial CMD in the upcoming Sotomayor hearings: Some Republican Senators who are themselves using the CM features of the Senate to block the popular will on the really important issues will fret over the marginal influence Judge Sotomayor will have on second-order issues, if confirmed.

Posted by Mike Dorf


Caleb said...

How about the Senate itself -- why should California and Rhode Island (or Delaware) have the same number of Senators?

Sam Rickless said...


Good point, but MD already made it by noting that "the Senate itself...vastly over-represents residents of low-population states".


I completely agree with the general thrust of your comments. I think it's worth noting, though, that one reason why SCOTUS has at best only marginal things to say about Items 1-5 *now* is that it once said non-marginal things about at least some of these items in the past. Regulation of capitalism (through maximum hour, minimum wage, occupational health and safety, child labor, etc.) was a big deal on the SCOTUS docket at the time of the last big economic bubble. It was only because of the famous "switch in time" that we are where we are today on Item 1 (which is also tightly connected to Items 2, 3, and 5).

On the issue of pandemics, the Court did weigh in on the question of mandatory vaccination in Jacobsen v. Massachusetts in the late 19th century (if memory serves). If it hadn't weighed in, where would we be now?

On the question of campaign finance, it could be argued that the reason why lobbyists are allowed the kind of influence that frustrates majority will is that the majority, speaking through their representatives, prefer it that way. Union members want their lobbyists to have better access, doctors want AMA lobbyists to have better access, farmers want.... and so on. This is a situation in which the majority ends up acting against the best interests of the majority. It's not just "What's the matter with Kansas?" any more.

It's also worth noting that not all of the supermajoritarian CMD mechanisms are created equal. Some of these mechanisms (e.g., 2 senators per State) are enshrined in the Constitution as a result of a supermajoritarian ratification process. Others (e.g., cloture in the Senate) are the result of rules adopted by the representative bodies themselves. And yet others are the result of majority vote through the initiative process (CA's supermajority rule to pass a budget)! In at least one of these cases, majority vote resulted in the hamstringing of future majorities.

Michael C. Dorf said...

All good points by Sam, and I'm not actually opposed in principle to all super-majoritarian or counter-majoritarian forms of decision making. But I do think that on the whole, it's easier to justify the cm features of the courts than of our national legislative process.

michael a. livingston said...

Michael, just to be playful, aren't the differences between the US and Iran merely a matter of degree:

1. We both have a group of old men (OK, two women) who review legislation and decide if it is consistent with our values

2. It's almost impossible for candidates not approved by a major party to get on the ballot in either country

3. A minority candidate has gotten elected in both countries within the last 10 years with the help of #1, above

More seriously, even if we admit the enormous differences in scale, don't all countries have certain "countermajoritarian" institutions that seem ridiculous to outsiders but are accepted as normal by people inside the system?

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