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”).