The Counter-Majoritarian Problem and the Pathology of Consitutional Scholarship
![handle is hein.journals/illlr95 and id is 943 raw text is: Copyright 2001 by Northwestern University School of Law P.n j n' U.SJA
Northwestern University Law Review Vol. 9S. N-N 3
THE COUNTER-MAJORITARIAN PROBLEM AND
THE PATHOLOGY OF CONSTITUTIONAL
SCHOLARSHIP
Barry Friedman
INTRODUCTION
It seems that among some legal academics the counter-majoritarian
problem simply will not go away. Despite a growing literature indicating that
this particular lens on judicial review is profoundly flawed, many constitu-
tional theorists still insist on seeing their world through it.' It is a puzzle why
the counter-majoritarian problem is so enduring in the legal academy.
The goal of this Article is to point out and explain a certain pathology
to much of constitutional scholarship. Constitutional scholars cannot help
being normative.2 Yet there is grave discomfort with normativity. This twin
compulsion toward, and lack of comfort with, normativity is what fuels the
obsession with the counter-majoritarian problem. And it is what often leads
us in our own scholarship to act as if we are doing something other than be-
ing simply normative.
Professor of Law, New York University School of Law. I would like to thank Ed Baker, Lee Ep-
stein, John Ferejohn, Tracey George, Lewis Komhauser, and Michael Seidman for comments or assis-
tance with this Article. Thanks as always to Lisa Mihajlovic and Jeremy Saks for splendid assistance.
I For a sampling of modem works framed against counter-majoritarian concerns, see, for e-ample,
MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 180 (1999) (fearing that ask-
ing the Court to do what you want, under the guise of interpreting the Constitution is rather openly
antidemocratie); Akhil Reed Amar, The Supreme Court. 1999 Term-Foreword: The Document and
the Doctrine, 114 HARV. L. REV. 26,40.41 (2000) (cataloging major breakdowns ofdemocratic delib-
eration in the Supreme Court's decision-making process); Cass R. Sunstein, The Supreme Court. 1995
Term-Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4,7-8 (1996) (advocating the Court's
decisional minimalism in appropriate instances because it promotes reason-giving and ensures that
certain important decisions are made by democratically accountable actors).
2 The point is put well in Louis Michael Seidman, Our Unsettled Constitution: A New Defense of
Constitutionalism and Judicial Review 10-12 (2000) (unpublished manuscript, on file with author).
Seidman explains that even those projects self-described as pragmatic or anti.theoretical in nature
reveal themselves as normative through the ends to which they are put-indeed, through their very task
of convincing others. [C]onstitutional theory is in some sense inevitable, then, as is its normativity.
Id. For the impact of this inevitability on Professor Bennett's theses, see infra Part If. The principal ob-
server of the normativity of legal scholarship undoubtedly is Pierre Schlag. See, eg., Pierre Schlag.
Normative and Nowhere to Go, 43 STAN. L. REv. 167 (1990); Pierre Schlag, Normativity and the Pall-
tics ofForm, 139 U. PA. L. REV. 801 (1991).](ViewImageLocal?handle=hein.journals/illlr95&div=33&collection=journals&method=preview&ext=.png&size=3)
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The Counter-Majoritarian Problem and the Pathology of Consitutional Scholarship
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