New Majoritarian Constitutionalism

Author:Joseph Landau
Position:Professor of Law, Fordham Law School
Pages:1033-1092
SUMMARY

Ever since Alexander Bickel coined the phrase "countermajoritarian difficulty," commentators have frequently described the Supreme Court as either a "majoritarian" or "counter-majoritarian" institution. In this heuristic dichotomy, the Justices either base constitutional law on their own independent and subjective interpretations or they rely on extrinsic indicators to determine constitutional... (see full summary)

 
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New Majoritarian Constitutionalism
Joseph Landau*
ABSTRACT: Ever since Alexander Bickel coined the phrase “counter-
majoritarian difficulty,” commentators have frequently described the Supreme
Court as either a “majoritarian” or “counter-majoritarian” institution. In
this heuristic dichotomy, the Justices either base constitutional law on their
own independent and subjective interpretations or they rely on extrinsic
indicators to determine constitutional meaning. In practice, however, this
dichotomy is neither clearly evident, nor clearly applied, and a third
approach—“New Majoritarian” Constitutionalism—has emerged. Under
new majoritarian constitutionalism, the Court considers (1) the actual
decisions of courts and juries; (2) legislative trends; (3) executive branch
practices; and (4) geographic disparities within various jurisdictions. This
model of majoritarianism accepts the traditional idea that consti tutional
decisions must be grounded in conventional lawmaking sources and that
interpretations of vague constitutional language should accord with broadly
held, majoritarian positions. This approach, however, creatively uses
traditional indicators to a far greater extent than others.
This Article provides a new typology of majoritarian constitutional theories
that reorients our understanding of the role of objective indicators of meaning,
with major implications for scholarship and doctrine. In addition to its
descriptive power, new majoritarianism has important normative
implications—promoting institutional process values such as stability and
transparency, while reinforcing the centrality of coordinate branch dialogue
in evolving constitutional meaning.
I.INTRODUCTION ........................................................................... 1034
II.THE DEBATE OVER MAJORITARIAN CONSTITUTIONALISM .......... 1037
A.INSIDE THE CONSENSUS CONSTITUTIONALISM DEBATE ............ 1039
*
Professor of Law, Fordham Law School. I would like to thank Olivia Chalos, Ben
Chisholm, Nestor Davidson, Deborah Denno, Howard Erichson, Pedr o Fortes, Mitchell
Friedman, Justin Giles, Abner Greene, Jeffrey Harper, Clare Huntington, Michael Klarman,
Corinna Lain, Tom Lee, Youngjae Lee, Ethan Leib, Zachary Leibowitz, Eli Meltz, David Menschel,
Henry Monaghan, Jacob Sayward, Jed Shugerman, Elizabeth Slater, Rob Smith, Richard Squire,
Juliette Todd, Brian O’Toole, and Alexander Tsesis for their comments and suggestions.
1034 IOWA LAW REVIEW [Vol. 103:1033
1.Consensus Constitutionalism and Majoritarian
Influences .................................................................... 1039
2.Critiques of the Consensus Model ............................. 1041
B.WHAT THE CONSENSUS DEBATE MISSES ................................. 1043
III. NEW MAJORITARIANISM ASCENDANT .......................................... 1045
A.THE TRADITIONAL MAJORITARIAN MODEL ............................ 1046
B.THE EXPANSIVE MAJORITARIAN MODEL ................................. 1048
C.THE NEW MAJORITARIAN MODEL .......................................... 1051
1.Law in Action Versus Law “On the Books” ................ 1051
2.Legislative Trends ....................................................... 1055
3.Geographic Disparities ............................................... 1060
IV. DOCTRINAL IMPLICATIONS OF NEW MAJORITARIANISM .............. 1064
A.NEW MAJORITARIANISM AND THE DEATH PENALTY ................ 1064
B.NEW MAJORITARIANISM AND JUVENILE LIFE WITHOUT
PAROLE ................................................................................ 1074
V.NORMATIVE IMPLICATIONS OF NEW MAJORITARIANISM ............. 1079
A.RETHINKING MAJORITARIANISM AND THE ROLE OF THE
COURT .................................................................................. 1079
1.Recalibrating the Majoritarian/Outlier
Dichotomy ................................................................... 1080
2.New Majoritarianism and Political Power ................. 1082
3.New Majoritarianism at the Political Periphery ........ 1084
B.NEW MAJORITARIANISM AND INSTITUTIONAL PROCESS............ 1086
1.New Majoritarianism and Legal Uncertainty ............ 1086
2.New Majoritarianism and Constitutional
Dialogue ....................................................................... 1089
VI.CONCLU SION .............................................................................. 1092
I. INTRODUCTION
When Yale Law Professor Alexander Bickel, in his 1962 book The Least
Dangerous Branch, coined “the counter-majoritarian difficulty,” he
dichotomized the manner in which judicial review and constitutional
interpretation are often expressed and understood.1 The first part of the
1. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE
BAR OF POLITICS 16 (2d ed. 1986) (describing the problem of unelected judges undermining the
democratic process by resolving major constitutional questions against the wishes of the
majority); see id. at 16–17 (“[W]hen the Supreme Court declares unconstitutional a legislative act
or the action of an elected executive, it thwarts the will of representatives of the act ual people of
2018] NEW MAJORITARIAN CONSTITUTIONALISM 1035
dichotomy is the counter-majoritarian view, in which the justices say “what the
law is”2 by rendering constitutional decisions through their own faculties of
interpretation. A second and opposing approach is the majoritarian view, in
which constitutional meaning is derived from extrinsic or “objective” factors
such as state legislation and other, similar criteria that reflect the “consensus”
views of the citizenry.3
In this heuristic dichotomy, the Court is either majoritarian or counter-
majoritarian; the Justices either base constitutional law on their independent
and subjective interpretations4 or they rely on extrinsic indicators to
determine constitutional meaning.5 In practice, however, this dichotomy is
neither clearly evident, nor clearly applied, and a third approach—“New
Majoritarian” Constitutionalism—has emerged. This model of
majoritarianism accepts the traditional idea that constitutional decisions must
be grounded in conventional lawmaking sources and that interpretations of
the here and now; it exercises control, not in behalf of the prevailing majority, but against it. . . .
[That] is the reason the charge can be made that judicial review is undemocratic.”).
2. Marbury v. Madison, 5 U.S. 137, 177 (1803).
3. See generally BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS
INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009)
[hereinafter FRIEDMAN, WILL OF THE PEOPLE]; MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL
RIGHTS: THE SUPREME COURT AND THE STR UGGLE FOR RACIAL EQUALITY (2004) [hereinafter
KLARMAN, FROM JIM CROW]; JEFFREY ROSEN, THE MOST DEMOCRATIC BRANCH: HOW THE COURTS
SERVE AMERICA (2006); CASS R. SUNSTEIN, A CONSTITUTION OF MANY MINDS (2009); Barry
Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993) [hereinafter Friedman,
Dialogue]; Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolution, 82 VA. L. REV.
1 (1996) [hereinafter Klarman, Rethinking Civil Rights].
4. See THE FEDERALIST NO. 48 (James Madison), NO. 49 (Alexander Hamilton or James
Madison) (finding necessary “some more adequate defense . . . for the more feeble, against the
more powerful” and identifying a representative republic with a truly separate judiciary as one
such defense, especially against the passions of the public controlling the gover nment); 1
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 244 (3d ed. 2000) (describing the
Supreme Court as “a principally counter-majoritarian institution charged with protecting the
rights of individuals from democratic excesses”); see also LAURENCE H. TRIBE & MICHAEL C. DORF,
ON READING THE CONSTITUTION 66 (1991) (noting that value choices are endemic to judicial
interpretations of concepts like “liberty”). See generally JESSE H. CHOPER, JUDICIAL REVIEW AND THE
NATIONAL POLITICAL PROCESS: A FUNCTION AL RECONSIDERATION OF THE ROLE OF THE SUPREME
COURT (1980) (arguing that the Supreme Court’s insulation from politics best enables it to
protect minorities from the pressures of the majority and current events); MICHAEL J. PERRY, THE
CONSTITUTION, THE COURTS, AND HUMAN RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF
CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY (1982) (finding the Court, despite its lack of
electoral accountability, to be essential to protect minority rights).
5. See Obergefell v. Hodges, 135 S. Ct. 2584, 2612 (2015) (Roberts, C.J., dissenting)
(arguing that the decision as to whether same-sex couples should be permitted to marry
constitutionally lay not with the Court but “with the people acting through their elected
representatives”); Boumediene v. Bush, 553 U.S. 723, 801 (2008) (Roberts, C.J., dissenting)
(criticizing the replacement of “a review system designed by the p eople’s representatives” with
one “defined by federal courts”); Klarman, Rethinking Civil Rights, supra note 3, at 17–18 (arguing
that the Supreme Court rarely acts as a counter-majoritarian force, instead “identif[ying] and
protect[ing] minority rights only when a majority or near majority of the community has come to
deem those rights worthy of protection”); Suzanna Sherry, Issue Manipulation by the Burger Court:
Saving the Community From Itself, 70 MINN. L. REV. 611, 613 (1986) (describing the Supreme Court’s
invalidation of state or federal statutes as “enforcing its own will over that of the electorate”).

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