The New Countermajoritarian Difficulty

This article is a part of the 2020 Jorde Symposium. The other three pieces are linked below: The New Pro-Majoritarian Powers Countering the Real Countermajoritarian Difficulty The Real Enemies of Democracy     Introduction The “countermajoritarian difficulty” was a central preoccupation for twentieth-century constitutional law scholars.[1] Alexander Bickel, who coined the phrase in The Least […]

The Transformation of Judicial Self-Restraint

In his Jorde Symposium Essay, Judge Richard Posner identifies three forms of judicial restraint. He then argues that the third type, Thayerian judicial restraint characterized by a strong reluctance to declare legislative or executive action unconstitutional unless the unconstitutionality is so clear that it is not open to rational question, has disappeared because constitutional theory […]