Erwin Chemerinsky is Dean and Distinguished Professor of Law at the University of California, Irvine, School of Law.
Modern constitutional theory began with Alexander Bickel’s The Least Dangerous Branch and its declaration that judicial review is a “deviant institution” in American democracy and that there is a “counter-majoritarian difficulty” in having an unelected judiciary with the power to invalidate the acts of popularly elected officials.
The focus of constitutional theory ever since has been on trying to solve the counter-majoritarian difficulty identified by Bickel and on reconciling judicial review with democracy. Unfortunately, this is a misguided and impossible quest, but one that has had profound consequences for constitutional law ever since.
To be clear, constitutional theory did not begin with Alexander Bickel. John Marshall in cases like Marbury v. Madison (1803) and McCulloch v. Maryland (1819) presented a constitutional theory. James Bradley Thayer articulated a theory of judicial review, and of judicial restraint, in the late nineteenth century. The Lochner (1905) era caused an intense debate about the appropriate role of the judiciary.
It began with Bickel
But the focus on the counter-majoritarian difficulty, and of reconciling judicial review with democracy, really can be traced to The Least Dangerous Branch. It has been the obsession of constitutional theory ever since. In 1971, less than a decade after publication of Bickel’s book, Professor Robert Bork wrote an influential article defending an originalist approach to constitutional interpretation as a way of defining the proper role for an unelected judiciary in a democratic society. In 1980, John Hart Ely published Democracy and Distrust, one of the most important and influential works of constitutional theory, which expressly set out to develop an approach for reconciling judicial review with majoritarian democracy.
Countless books and articles have developed constitutional theories based on the need to justify judicial review in a democratic society. Even Judge J. Harvie Wilkinson’s new book, Cosmic Constitutional Theory (2012), which argues against developing a comprehensive constitutional theory, repeatedly argues for judicial restraint because judges are unelected and should be very hesitant to overturn the choices of elected government officials.
I reject the premise that Bickel and Ely and Wilkinson and so many others begin with: that democracy means majority rule and that there is a need to reconcile judicial review with majority rule. Ely, for example, expressly defines democracy as majority rule and defends his process-based approach to judicial review on the grounds that it is representation reinforcing.
Our anti-majoritarian Constitution
The United States, however, is a constitutional democracy; the system of government created by it cannot be equated with majority rule. The Constitution, itself, is profoundly anti-democratic. No one alive today participated in its drafting or ratification, and most of us did not have ancestors who did. Even if the majority loathes it, or a part of it, that majority cannot change it unless a super-majority (as reflected in an action of two-thirds of both houses of Congress and three-fourths of the states) agrees.
Nor is this coincidental or incidental to the American Constitution. It is meant to put the country’s most important commitments in a document that is very difficult to change. Indeed, so much of the Constitution was inherently anti-majoritarian. The President is chosen by the Electoral College, not the popular vote. The members of the Senate were chosen by state legislators. Supreme Court Justices and federal judges are chosen by the President and confirmed by the Senate. Of the four institutions of the federal government, only one, the House of Representatives, was elected by the people.
In other words, Bickel’s error was in not recognizing that it is the Constitution, rather than judicial review, that is the deviant institution in a system where democracy is defined as majority rule. By definition, any enforcement of the anti-majoritarian constitution will be anti-majoritarian.
In fact, if democracy is defined as majority rule, there never will be a way to reconcile judicial review with democracy. Whether the courts are following the framers’ intent or perfecting the process of government or adhering to traditions, it still is unelected judges invalidating choices by elected branches of government. Bickel directed constitutional theory on a futile quest.
Bickel provided a way to criticize any decision in which the judiciary invalidates the choices of elected government officials. Not surprisingly, conservatives attacked Roe v. Wade (1973) on this basis. But so could liberals criticize Citizens United v. Federal Election Commission (2010) on the same grounds. The reality, of course, is that both conservatives and liberals at times want the judicial to defer to elected government officials and at times to overrule them. They just disagree as to when.
Move on . . . beyond Bickel
After all these years and all of these words, it is time to get past Bickel and the counter-majoritarian difficulty. It is time to accept that the Constitution is anti-majoritarian and that, of course, judicial review to enforce it also will be counter-majoritarian and that is a good thing. The focus of constitutional theory must be on the meaning of the Constitution’s provisions. What should be the content of equal protection or cruel and unusual punishment or due process of law? These phrases must be given content and that is the proper role of constitutional theory. It must be a substantive discussion about the values of the Constitution and how they are to be applied.
The reality is that Justices and judges must make substantive value choices all the time in interpreting and applying the Constitution, and no theory can eliminate the need for this. The Fourth Amendment requires a determination of what is “reasonable.” Cases involving individual liberties and equal protection require courts to decide what is a “compelling” or an “important” or a “legitimate” government interest. Those who seek a constitutional theory that avoids judges and Justices making value choices are engaged in an impossible quest.
It is long overdue for constitutional discussions to focus on the underlying value choices. In District of Columbia v. Heller (2008), both Justice Antonin Scalia’s majority opinion and Justice John Paul Stevens’s dissent make persuasive arguments as to the original understanding of the Second Amendment. But in reality these were just covers for the fact that the conservative majority favors gun rights over gun control, while the liberal dissenters favor allowing gun control over gun rights. It would have been far preferable for each side to defend its view of the Second Amendment on the merits, rather than masking its position in a discussion of what people thought in 1791.
Because of the elegance of the prose and the power of the reasoning, The Least Dangerous Branch is a classic work about the American judiciary. Yet, a core aspect of the book – the claim that judicial review is a deviant institution – set constitutional theory on an undesirable path for a half century. It is time to finally move past it.