Comparative Constitutional Theory
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Comparative Constitutional Theory

Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
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Chapter 10: The counter-majoritarian thesis

David Robertson


Abstract: Counter-majoritarians are troubled by unelected, possibly unaccountable judges in a liberal democracy. They argue legal decisions risk representing class or some other social bias. They believe courts tend to make constitutional rulings irrespective of the views of other office holders or of public opinion. Evidence shows, though, that ‘the people’ trust judges more than elected officials. Recent literature accepts that judicial decisions are governed as much by the restraining impact of technical law as by ideological preference. Counter-majoritarianism is largely a product of American legal thought and political science and does not trouble European and other democracies with active constitutional courts. The American concern stems from a loss of belief in the law at all. The political nature of the appointment process and the unwieldy nature of the Constitution as a tool for judicial review feed counter-majoritarianism, but ‘taking the constitution away from the courts’ is neither desirable nor possible.

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