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The Counter-Majoritarian Difficulty and the Road not Taken: Democratizing Amendment Rules

Published online by Cambridge University Press:  20 July 2015

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Discussions about the democratic legitimacy of judicial review of legislation are usually framed in terms of the so called ‘counter-majoritarian’ difficulty, the idea that judicial review is a deviant institution in a democracy. How can a country be considered democratic if a group of non-elected judges have the faculty to strike down laws that have been adopted by a majority of the elected representatives of the people? In framing the question in those terms, however, we tend to forget that there is nothing in the counter-majoritarian difficulty suggesting that judicial review of legislation is necessarily problematic from a democratic perspective. An institutional arrangement that gives judges the faculty to strike down laws inconsistent with the constitution only creates a counter-majoritarian difficulty if the constitution cannot be amended by simple majorities. In not paying proper attention to the role played by a rigid amendment process in the existence of a counter-majoritarian difficulty, this article argues, we have missed the opportunity of democratizing processes of constitutional reform in important ways while at the same time maintaining in place a system of constitutional review in which judges retain the ability of striking down legislation.

The idea of giving simple majorities the possibility of having the final word on the meaning and scope of rights is of course not new. In fact, it is the basic feature of the weak system of judicial review now present in several commonwealth countries. However, such a system does not go beyond courts and legislatures, and it is therefore open to the same types of critiques advanced by defenders of strong judicial review against systems of legislative supremacy. The article defends the view that in a democratic society, deliberation and decision-making about the meaning and content of the constitution should extend beyond the ordinary institutions of government. Under that conception, a more democratic approach to the counter-majoritarian difficulty would provide popular majorities (as opposed to legislatures) with the faculty of amending the fundamental law in order to respond to a judicial decision that invalidated (or validated) an ordinary law. For example, citizens could be able to engage in the activity of constitutional reform through non-constituent assemblies, triggered by popular referendum and having the specific mandate of deliberating about the judicial decision in question and the power to propose constitutional changes that would be subject to popular ratification.

Research Article
Copyright © Canadian Journal of Law and Jurisprudence 2012

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Thanks to Mark Bennett for his comments and critiques on a previous version of this article and to James Gilbert and Nicole Slight for their valuable research assistance.

1. Bickel, Alexander M, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed (New Haven, CT: Yale University Press, 1986) at 18.Google Scholar The idea of the ‘counter-majoritarian’ difficulty can be extended to any institution that somehow constrains the decisions of a legislative majority (e.g., giving the executive the power to veto bills approved by the legislature). However, I will use the phrase here to refer exclusively to the institution of judicial review of legislation and its uneasy relationship with democracy.

2. See ibid; Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980)Google Scholar; Dworkin, Ronald, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996)Google Scholar; Waldron, Jeremy, Law and Disagreement (Oxford: Clarendon Press, 1999).CrossRefGoogle Scholar

3. Unless otherwise indicated, I will use the terms constitution, bill of rights, and Charters interchangeably.

4. Because the United States, the country in which this debate has developed with more force, has a constitution which is extremely difficult to amend, it is not surprising that the counter-majoritarian difficulty has long been a pressing concern among U.S. constitutional scholars.

5. Barry Friedman has attempted to show that the U.S. Supreme Court is actually responsive to the views of the majority of the people, and that it should therefore not be seen as a counter-majoritarian institution. See Friedman, Barry, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus & Giroux, 2009).Google Scholar A democratic conception of the counter-majoritarian difficulty (as the one presented here), however, sees the counter-majoritarian character of judicial review as expressed not in its responsiveness or non-responsiveness to the views of popular majorities (i.e., a dictator can also be very responsive to what are perceived to be the views of popular majorities), but—partly—in the fact that it authorizes unelected officials to set aside the decisions of the majority of the elected representatives of the people.

6. Section 33 of the Canadian Charter of Rights and Freedoms states: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be that the Act or provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”. Such a declaration under Section 33 ceases to have any effect 5 years after it comes into force, but it is susceptible of re-enactment.

7. In New Zealand, see Moonen v Board of Film and Literature, [2000] 2 NZLR 9 (CA)Google Scholar for a judicial expression in favour of the court’s power to declare the inconsistency of a law with the New Zealand Bill of Rights. In the United Kingdom, see Section 4 of the Human Rights Act 1998.

8. Canada is considered by some authors as a system of strong judicial review for all practical matters, since Section 33 has been rarely invoked.

9. Gardbaum, Stephen, “Reassessing the New Commonwealth Model of Constitutionalism” (2010) 8 Int’l J Con Law 167 at 173.Google Scholar Not everyone agrees that weak-form judicial review dis-solves the counter-majoritarian difficulty. For example, Mark Tushnet has argued that systems of weak judicial review do not survive over time: while legislatures retain the formal power to respond to judicial interpretations, judicial interpretations generally ‘stick’. Tushnet, Mark, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton, NJ: Princeton University Press, 2009) at 47, 51.Google Scholar See also Hielbert, Janet L, “Parliamentary Bills of Rights: An Alternative Model?” (2006) 69 Mod LR 7.CrossRefGoogle Scholar While these approaches convincingly show that in systems of weak judicial review, as a matter of actual political practice, judges have the final word on the meaning of constitutional provisions, this seems to be a result of the ways in which legislators perceive the political consequences of overturning or ignoring a judicial decision. That is to say, a consequence of a political culture that appears to favour judicial interpretations of rights over legislative interpretations, not necessarily as a formal institutional defect of weak judicial review that shifts the balance of power in favour of judges.

10. While reversing a judicial invalidation of a law does not necessarily require a constitutional amendment and could take place through different means, I will primarily be concerned here with constitutional amendments.

11. Bickel, supra note 1 at 21.

12. Ely, supra note 2 at 11.

13. The distinction between ‘people’ and ‘legislature’, as it relates to the justification of judicial review—although somewhat obscured in modern constitutional theory—was already present in Bickel, supra note 1, and Ely, supra note 2 (it has in fact being present in the United States before Marbury v Madison, 5 US 137 (1803)Google ScholarPubMed), even though it was through the work of Bruce Ackerman when it moved to the centre of the debate). Ackerman, Bruce, We the People: Foundations (Cambridge, MA: Harvard University Press, 1991).Google Scholar

14. Hogg, Peter W & Bushell, Allison A, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall LJ 75 at 79.Google Scholar

15. Andrew Petter takes this point further by arguing that both courts and legislatures suffer from important deficits of democratic legitimacy (e.g., courts are not elected, and legislatures are increasingly unrepresentative and unaccountable). See Petter, Andrew, The Politics of the Charter: The Illusive Promise of Constitutional Rights (Toronto, ON: University of Toronto Press, 2010) at 14344.CrossRefGoogle Scholar

16. Roach, Kent, “Dialogic Judicial Review and its Critics” (2004) 23 Sup Ct L Rev (2nd) 49 at 99.Google Scholar

17. Bickel, supra note 1 at 16.

18. Ibid. This argument was also put forward by Black, Charles L, The People and the Court: Judicial Review in a Democracy (New York: Macmillan, 1960) at 18384.Google Scholar

19. Marbury, supra note 13.

20. Rossiter, Clinton, ed, The Federalist Papers (New York: New American Library, 1961) at note 78.Google Scholar

21. Bickel, supra note 1 at 17.

22. Ibid.

23. Ibid at 20.

24. Ibid at 21. The relevant part of Article V reads as follows: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….”

25. I use the phrase ‘non-democratic’ here simply to refer to an amendment formula that gives a legislative minority a veto over all proposed changes.

26. For the idea of a supreme legislature as a constituent assembly in permanent session, see de Tocqueville, Alexis, Democracy in America, ed by Heffner, Richard D (New York: New American Library, 1956) at 74 Google Scholar and Dicey, AV, Introduction to the Study of the Law of the Constitution, 10th ed (London: MacMillan, 1959) at 84.Google Scholar

27. Bickel, supra note 1 at 26.

28. Ibid at 24.

29. Ibid at 26 citing Eakin v Raub 12 S & R 330 at 355 (1825).Google ScholarPubMed

30. Ibid at 28.

31. Ibid.

32. This is also why there was no space in Bickel’s theory for arguing that judges of the Supreme Court should be made democratically accountable: such an approach would defeat the court’s greatest strength: its insulation from public opinion and political pressure.

33. Bickel, supra note 1 at 27.

34. Ely, supra note 2 at 4-5.

35. Ibid at 4.

36. Ibid at 8.

37. Ibid.

38. There are, of course, many arguments directed at defending non-interpretivism’s democratic pedigree. Some of these arguments were considered by Ely, and others can be found in the writings of authors like Ronald Dworkin and Wil Waluchow. See Dworkin, supra note 2; Waluchow, WJ, A Common Law Theory of Judicial Review: The Living Tree (New York: Cambridge University Press, 2007).Google Scholar

39. Ely, supra note 2 at 11.

40. Ibid.

41. Ibid at 87, 103.

42. Ibid at 73.

43. One answer might lie in the fact that Ely thought that the amendment rule of the U.S. Constitution was “certainly [not] a bad thing”, so that its modification was out of the question, ibid at 11. Another, more powerful, answer is that easing the amendment process in order to allow constitutional amendments by present day majorities would run counter with his aim of ensuring a fair political process. The response to the first answer, at least from a democratic perspective, is straightforward: the current amendment formula of the U.S. Constitution makes amendments almost impossible, even if favoured by large popular and legislative majorities. Therefore it can, and should, be democratized in important ways. The second answer is much more difficult to address. It is premised on the concern with the risk of ‘majority tyranny’, and any democratic theory that seeks to provide popular majorities with increased decision-making power is vulnerable to it. How to ensure that a popular majority will not amend the constitution in order to disenfranchise certain groups? First, like Waldron, my approach to the counter-majoritarian difficulty is directed at societies that already possess strong democratic commitments. See Waldron, Jeremy, “The Core of the Case against Judicial Review” (2006) 115 Yale LJ 1346 at 1360.CrossRefGoogle Scholar Second, I believe a constitutional amendment process (as the one that I will propose in the last section of this article) that allows for ample opportunities for deliberation and dialogue among citizens and public officials, is much more likely to procure the development of broader forms of political participation than to negatively affect the ability of certain groups to participate in the political process.

44. This does not mean that contemporary constitutional theorists have not engaged in the critique of rigid amendment formulas and in the proposal of more democratic ones, but that these critiques and proposals rarely occur in the context of discussions about the legitimacy of judicial review. See for example, Levinson, Sanford, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (Oxford: Oxford University Press, 2006).Google Scholar

45. Dworkin, Ronald, “Equality, Democracy, and Constitution: We the People in Court” (1990) 28 Alberta LR 324 at 325.Google Scholar

46. Dworkin, supra note 2 at 32.

47. Dworkin, Ronald, Is Democracy Possible Here?: Principles for a New Political Debate (Princeton, NJ: Princeton University Press, 2006) at 144.Google Scholar

48. For an elaboration of this point, see Kyritsis, Dimitrios, “Representation and Waldron’s Objection to Judicial Review” (2006) 26 Oxford J Legal Stud 733.CrossRefGoogle Scholar

49. Jeremy Waldron, supra note 2 at 213.

50. Ibid at 250.

51. Ibid at 212.

52. Waldron, supra note 43 at 1349.

53. Since Section 33 of the Charter of Rights and Freedoms is rarely used as a matter of actual political practice, Waldron considers Canada a de facto case of strong judicial review. See ibid.

54. Ibid at 1354.

55. Which is why he frequently talks of “the people or their representatives” [emphasis added]. See for example Waldron, supra note 2 at 235, 252, 264, 265, 281, 293, 301, 303.

56. Ackerman, supra note 13 at 6.

57. Ackerman, Bruce A, “Neo-federalism?” in Elster, John & Slagstad, Rune, eds, Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1993) at 168.Google Scholar

58. Ibid at 170.

59. Ibid at 171.

60. This is not to mean that Ackerman does not consider citizen involvement in politics important, but that his dualist theory and defence of judicial review does not come accompanied by a participatory approach to constitutional reform. See for example Ackerman, Bruce & Fishkin, James S, Deliberation Day (New Haven, CT: Yale University Press, 2004).Google Scholar

61. Waluchow, supra note 38 and Waluchow, Wil, “Constitutions as Living Trees: An Idiot Defends” (2005) 18 Can JL & Juris 207.Google Scholar

62. Waluchow, supra note 38 at 183.

63. Waluchow, “Constitutions as Living Trees”, supra note 61 at 209.

64. Ibid at 213.

65. Ibid.

66. Ibid at 228.

61. Ibid at 244.

68. Waluchow, supra note 38 at 167.

69. Ibid at 182.

70. Ibid at 132.

71. Ibid at 139.

72. Ibid at 69.

73. Leib, Ethan J, Deliberative Democracy in America: A Proposal for a Popular Branch of Government (University Park: Pennsylvania State University Press, 2004) at 12.Google Scholar

74. Leib is of course resting in important ways on James Fishkin’s work on deliberative polls. See Fishkin, James S, Democracy and Deliberation: New Directions for Democratic Reform (New Haven, CT: Yale University Press, 1991).Google Scholar Like Eric Ghosh, whose work I will consider shortly, Leib is also attempting to take Fishkin’s proposal to more democratic grounds. That is, instead of using deliberative polls to try to discover what would be the opinion of ‘the people’ if they were able to come together and deliberate, he attributes the deliberative body with some decision-making power. Leib, supra note 73 at 10.

75. Leib also suggests that judges at the appellate level could convene a popular assembly “to settle a popular question”, although in those cases, the popular branch would not be exercising its law-making power but making recommendations. Leib, supra note 73 at 14.

76. Ibid at 83.

77. Ibid at 17.

78. Ibid at 72.

79. Ibid.

80. Ibid at 73.

81. Ghosh, Eric, “Deliberative Democracy and the Countermajoritarian Difficulty: Considering Constitutional Juries” (2010) 30 Oxford J Legal Stud 327.CrossRefGoogle Scholar

82. Ibid at 344.

83. Ibid at 349.

84. Ibid at 346.

85. Ibid at 347.

86. Ibid at 349. For another, excellent discussion of constitutional juries, see Spector, Horacio, “Judicial Review, Rights, and Democracy” (2003) 22 Law & Phil 285.Google Scholar

87. Leib, supra note 73 at 83-88; Ghosh, supra note 81 at 346.

88. Zurn, Christopher, “Deliberative Democracy and Constitutional Review” (2002) 21 Law & Phil 467 at 535.Google Scholar Zurn also suggests the adoption of an arrangement akin to the Canadian ‘notwithstanding’ clause as well as several other proposals, including self-review panels in the legislature and regulatory agencies, mechanisms for inter-branch debate and decisional dispersal (which include, but are not limited to a ‘notwithstanding’ clause), and civic constitutional fora (which will be examined below). Zurn, Christopher F, Deliberative Democracy and the Institutions of Judicial Review (Cambridge: Cambridge University Press, 2007) at 30141.CrossRefGoogle Scholar

89. Zurn, “Deliberative Democracy and Constitutional Review”, supra note 88 at 536.

90. Zurn, Deliberative Democracy and the Institutions of Judicial Review, supra note 88 at 320.

91. Ackerman and Fishkin describe ‘Deliberation Day’ as follows: “a new national holiday [in the U.S.]. It will be held two weeks before major national elections. Registered voters will be called together in neighbourhood meeting places, in small groups of fifteen, and larger groups of five hundred, to discuss the central issues raised by the campaign. Each deliberator will be paid $150 for the day’s work of citizenship… the holiday will be a two-day affair, and every citizen will have the right to take one day off to deliberate on the choices facing the nation.” Ackerman & Fishkin, supra note 60 at 3.

92. Zurn, Deliberative Democracy and the Institutions of Judicial Review, supra note 88 at 331.

93. Ibid at 336-38.

94. Ibid at 324.

95. Ibid at 341. However, Zurn conceives an ordinary amendment procedure as equivalent to the institutionalization of “the possibility of a vertical employment of the people’s constituent power”. Zurn, Deliberative Democracy and the Institutions of Judicial Review, supra note 88 at 314. I disagree with that use of the concept of constituent power since, almost by definition, a formal amendment process is a constituted power (an ordinary power to modify the constitutional text in a way prescribed by the text itself, while at the same time respecting any explicit or implicit substantive limits contained in it). In my view, an exercise of constituent power only takes place when a new constitution is created (or when the changes adopted are so fundamental that they amount to the creation of a different constitution).

96. There is, however, a certain asymmetry between the two components of the counter-majoritarian difficulty. While eliminating the problem of a non-democratic amendment formula would dissolve the counter-majoritarian difficulty, abolishing judicial review (or providing for the election of judges) but retaining a rigid constitution would still result in a counter-majoritarian difficulty, perhaps of a different type, but nevertheless problematic from a democratic perspective. In that respect, one can say that, as a result of Article V, the United States has operated under a counter-majoritarian difficulty long before Marbury was decided. Marbury, supra note 13.

97. Zurn, Deliberative Democracy and the Institutions of Judicial Review, supra note 88 at 313.

98. Ibid.

99. For a conception of living constitutionalism that emphasises the important of a dialogue between the judicial and political branches of government, see Balkin, Jack M, “Framework Originalism and the Living Constitution” (2009) 103 Nw U L Rev 549.Google Scholar

100. For a defence of popular constitutionalism, see Kramer, Larry D, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004).Google Scholar

101. For a brief overview of different versions of originalism, see McGinnis, John O & Rappaport, Michael B, “Original Methods Originalism: A New Theory of Interpretation and the Case against Construction” (2009) 103 Nw U L Rev 751.Google Scholar For a defence of living constitutionalism see Waluchow, supra note 38.

102. See Post, Robert C & Siegel, Reva B, “Democratic Constitutionalism” in Balkin, Jack M & Siegel, Reva B, eds, The Constitution in 2020 (Oxford: Oxford University Press, 2009).Google Scholar

103. There should be a time limit for convening a non-constituent assembly after the relevant judicial decision is made. Older instances of judicial review could thus only be overturned through the ordinary amendment process which, ideally, would be as democratic as the one proposed by Zurn.

104. The assembly could be composed either of directly elected delegates (as most constituent assemblies are) or of randomly selected citizens. As noted before, Ghosh, Leib, and Zurn prefer the method of random selection for their proposed mechanism. The question here is what is the best method of assuring not only representativeness, but also heightened popular engagement. It might be true that a scientific random selection of delegates will result in a representative assembly “very unlikely to differ radically from the population”. Fishkin, James S & Luskin, Robert C, “The Quest for Deliberative Democracy” in Democratic Innovation: Deliberation, Representation and Association, ed by Saward, Michael (London: Routledge, 2000) 17 at 20.Google Scholar Nevertheless, perhaps something is lost by depriving citizens of the opportunity of selecting particular delegates that, for different reasons, they think would better represent their views in a deliberative exercise. From the perspective of deliberative democracy, however, there is no guarantee that an election of delegates will be preceded by sufficient (and intelligent) deliberation and debate. See Dryzek, John S, “Legitimacy and Economy in Deliberative Democracy” (2001) 29 Political Theory 651 at 653-54.CrossRefGoogle Scholar In this respect, Zurn’s proposal for having a ‘Deliberation Day’ as a prelude to a referendum on constitutional change would be a valuable addition to an election of delegates to a non-constituent assembly.

105. There are some historical precedents for this kind of requirement in the context of constituent assemblies. For example, the French Constituent Assembly adopted a rule proposed by Robespierre according to which the members of the assembly were banned from entering the first ordinary legislative assembly elected under the new constitution. See Arato, Andrew, “Forms of Constitution Making and Theories of Democracy” (1995-1996) 17 Cardozo LR 191 at 227Google Scholar and Elster, Jon, “Legislatures as Constituent Assemblies” in Bauman, Richard W & Kahana, Tsvi, eds, The Least Examined Branch: The Role of Legislatures in the Constitutional State (Cambridge: Cambridge University Press, 2006) 181 at 192.CrossRefGoogle Scholar A similar rule was adopted by the Colombian National Constituent Assembly of 1991. See Article 2, Transitory Provisions, of the Political Constitution of Colombia (1991).

106. Here, Waldron’s insistence on asking the people, not judges, whenever there is disagreement about the scope of a constitutional right is highly relevant, with the qualification that one would not be asking the people via the legislature, but through another mechanism that in many ways has a stronger claim to represent the people.

107. In those situations the non-constituent assembly would be engaging in constitutional review rather than in constitutional reform.

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