Jason Samuel as Judge Poser

Originalism Continued

As I had asserted in my De Novo post on originalism, I believe the debate over originalism/textualism will continue, but with added vigor and persuasiveness to the originalist side.  T. at Ex Post has just posted a nicely written post on some shortcomings of Professor Leiter's recent criticism of the originalist project. 

Professor Leiter "repeats his demand for a "principled" case for being bound by the original meaning."  T. responds:

The principle is inherent, though, in writing laws down in the first place--it is the principle that the law (not any given human being, such as a judge or a chancellor or a prince or a Guardian) is the rule. Originalism is all about the rule of law. And it is simply not intelligible to speak of the law ruling when (a) the law is written but (b) the meaning of what was written bears no necessary relationship to its future application.

 

Legal Theory Lexicon: The Counter-Majoritarian Difficulty

Link: Legal Theory Lexicon.

The counter-majoritarian difficulty may be the best known problem in constitutional theory. The phrase is attributed to Alexander Bickel—a Yale Law School Professor—who is said to have introduced it in his famous book The Least Dangerous Branch. Whatever Bickel actually meant by the phrase, it has now taken on a life of its own. The counter-majoritarian difficulty states a problem with the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to “majority will” as expressed by representative institutions. If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic. For at least two or three decades after Bickel’s naming of this problem, it dominated constitutional theory.

 

This entry in the Legal Theory Lexicon explores the counter-majoritarian difficulty, efforts to solve the problem and to dissolve it. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. As is frequently the case with the Lexicon, we will explore a very big topic in just a few paragraphs. Many articles and books have been written about the counter-majoritarian difficulty; we will only scratch its surface. Moreover, any really deep discussion of the counter-majoritarian difficulty would lead (sooner or later) to almost every other topic in constitutional theory. The Lexicon is “quick and dirty,” and definitely not deep, comprehensive, or authoritative.