The Countermajoritarian Problem in American Judicial Review

This essay delves into the countermajoritarian problem inherent in the American judicial review system. It begins by defining countermajoritarianism and explores its presence within judicial review, using the thesis that the difficulty arises because court decisions often diverge from the majority's views. The essay traces the origins of judicial review back to Marbury v. Madison, highlighting the debates at the Federal Constitutional Convention and the differing viewpoints of figures like Thomas Jefferson and Alexander Hamilton. It examines the evolution of judicial review, the expansion of judicial power, and the consequences of judicial activism, particularly in the post-Civil War era. The essay also discusses the impact of judicial intervention on social progress and the role of the Supreme Court in pivotal cases such as Bush v. Gore. Ultimately, the essay concludes that countermajoritarian difficulty is inherent in judicial review, since judges are not elected by the people, potentially leading to decisions that do not fully reflect the people's needs.

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American Judicial Review System
Student’s Name
Institution
Date

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The essay focuses on concept of countermajoritarian problem in judicial review. The goal
of the essay is to demonstrate whether countermajoritarian difficulty is inherent in judicial
review. To achieve this, the paper will describe what countermajoritarian doctrine means and the
explore whether this doctrine in inherent in judicial review. I will base the essay on thesis
statement that states that countermajoritarian difficulty is inherent in judicial review because
most of court’s decision does not reflect the views of majority.
In the doctrine of constitutional law, counter-majoritarianism is one of the central
problems of modern Western legal discourse, as a rule, it is discussed in connection with the
special role of the constitutional court in the system of public authorities: how did it happen that
a handful of lawyers, judges of such courts, have the right to repeal laws, adopted by
representative bodies elected in parliamentary elections
Judicial review began in the United States in Marbury v. Madison1 case, but before the
North American colonial era, there is no real judicial review system. At the Federal
Constitutional Convention, constitutionalists debated the system of power separation and mutual
restraint. Thomas Jefferson, the drafter of the Declaration of Independence, after preserving the
value of legislation and democracy, after comparing the democratic values embodied in the
legislative, judicial, and administrative powers, he believed that the most republican democracy
in the state was the House of Representatives. The executive branch is less democratic, because
they are not directly elected by the people, and the judiciary reflects the least democracy because
they are lifelong. According to Jefferson, if the US Constitution reflects the will of the people,
then the final decision and interpretation power on the constitutional issue should undoubtedly
belong to the parliament. The Federalists headed by Hamilton, out of fear of democracy that may
1 Marbury v. Madison, 5 U.S. 137 (more)1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352

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lead to tyranny of the majority, have established a judicial review system based on judges to
solve the problem of the abuse of legislative power in reality. The claims of the Federalists
sparked heated debates at the Constitutional Convention, forming a sharp opposition between
Democrats such as Thomas Jefferson, Benjamin Franklin, and Federalists headed by Hamilton.
In subsequent votes, the idea of establishing a constitutional review was repeatedly rejected and
eventually shelved. In 1801, the famous Marbury v. Madison case occurred in the United States,
providing an opportunity for the formation of judicial review system. At that time, the Federal
Supreme Court Justice John Marshall faced a dilemma: either constitutional control legislation or
legislation to change the constitution. In the end, Judge Marshall demonstrated the ultimate
power and supreme authority of the judiciary through strict logical reasoning and intricate legal
interpretation. This judgment truly established the judicial review system and was therefore
recognized as the source of judicial review.
However, this historic judgment did not really quell the debate over the democratic
paradox of judicial power. In the view of Marshall and his supporters, the people need
representatives, and the tyranny risks contained in public opinion also require the restriction and
prevention of judicial power. The "people" in the preamble of the US Constitution is not a
natural indivisible whole, but is divided into two subjects with the separation of powers: one is
the legislature and the other is the judiciary. The Federalists advocated that in order to protect
individual rights from democratic violations, the courts must be given greater power to restrict
legislation, which constitutes strong support for judicial review.
It believes that the Constitution itself already contains the purpose of legal restrictions.
The legislature naturally has the best ability to judge the constitutionality of the law. With the
enrichment of social development and judicial practice, the scope of the debate on judicial

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review has begun to expand, and the legal interpretation method has gradually evolved from the
initial legitimacy. However, the fears of Jefferson are not completely unreasonable, the
expansion of judicial power and the legislation limitations create a series of real problems that
require theoretical explanation.
After the Civil War, the United States entered a new stage dominated by progressiveism
and reform, gradually becoming the most powerful empire in the world, and undergoing
tremendous changes in politics, economy, and law. However, the US Supreme Court of this
period adhered to the philosophy of judicial activism. From the power structure of defending the
Constitution, on the grounds of individual rights—freedom of contract and freedom of property,
it actively intervened and restricted many legislative activities and brought the United States into
the judiciary. The "Locker Age", where power was greatly expanded, continued into the mid to
late 1930s. The excessive expansion of judicial power has brought many unintended
consequences. According to scholars' statistics, at this stage, the US Federal Supreme Court
exercised judicial review and rejected a series of legislation passed by the parliament, such as the
Bank Reform Act, the Minimum Wage Act, the Child Labor Protection Act2, the Insurance Act,
and the Traffic Management Act.
The public strongly appeals to emerging legislation that adapts to the needs of society.
The negative effects of excessive judicial review began to be gradually recognized by the
society. The judges of the Federal Supreme Court became the spokespersons of conservative
political philosophy. "The judges of the Federal Supreme Court still live in the era of horse-
drawn carriages", becoming the most conservative to hinder the progress of American society.
2 Child Labor Protection Act

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Although judicial review provides institutional support for the stability of the US
Constitution, its obstacles and influence on social progress are increasingly being valued. The
frequent constitutional crisis has made the Federal Supreme Court a very powerful political force
that can even directly determine the democratic structure of the United States at certain times,
such as the presidential candidate. The most typical case is the case of Bush v. Gore, which was
tried by the Federal Supreme Court in the 2000 US election. Although the results of the 5 to 4
referee finally helped Bush to reach the presidency, the judicial intervention of the federal court
caused strong criticism from the public. Because the federal courts have gone further and further
on the path of judicial neutrality, trampling on the democratic rights of the people.
Evidently, I have demonstrated that indeed countermajoritarian difficulty is inherent in
the judicial review. It is also evident that countermajoritarian is difficult because court judges
are not chosen by people. This means that they may not understand all needs of the people.

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Bibliography
Marbury v. Madison, 5 U.S. 137 (more)1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352
Bank Reform Act
Child Labor Protection Act