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Contribution to Book
The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order
Faculty Scholarship
  • Mark A. Graber, University of Maryland School of Law
Document Type
Book Chapter
Publication Date
1-1-2008
Keywords
  • judicial review,
  • democracy,
  • accountability
Comments

Reprinted, with permission, from the Annual Review of Law and Social Science, Volume 4 © 2008 by Annual Reviews www.annualreviews.org

Abstract
This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and either explain how the political system as a whole might be redesigned to better deliver those goods or accept second-best constitutional goods that can actually be delivered by some attainable combination of political institutions.
Disciplines
Citation Information
4 Annual Review of Law and Social Science 361 (2008).