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Dismissing most of the instances of counter-majoritarian interventions by the Courts as marginal, it has been argued that the principled core to the countermajoritarian difficulty has been understood in overstated terms; the factoring in of the Court’s ability to align itself with public opinion feeds into its popular legitimacy and thus, in practice, waters down the countermajoritarian difficulty. Also, the inability of the courts to defend civil liberties and civil rights during a national existential threat has been cited as a case in point to demonstrate the simultaneity of majority support for, as well as judicial acquiescence to, limitations on liberty during extraordinary situations.
Normative approaches to constitutional interpretation such as representation-reinforcement, originalism, and living constitutionalism have been demonstrated to assume counter majoritarian capacities far greater than that the Courts in practice are capable of exhibiting. It has also been proposed that the Supreme Court be viewed as a third legislative chamber.
Representation-Reinforcement recognizes that only a “special justification of representation-reinforcement” might render the practice of substituting the constitutional views advanced by unelected judges for those of the elective officials democratic, wherein representation-reinforcement essentially conveys the idea that in the event of failure of the democratic mechanisms, the warrant for judicial intervention can be located in the Constitution. The Carolene Products case had considerably echoed the above view expressing that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”
“Judicial intervention” herein does not provide for rudimentary imposition of fundamental values, but rather seeks to promote the rubric of participational orientation that is entirely consistent with representative democracy. Representation-Reinforcement recognizes the unacceptability of the countermajoritarian difficulty, and thus restricts the judicial role to policing democratic mechanisms used for representational processes. Nonetheless, majoritarian influences downplay the countermajoritarian or minority-defending role of the judiciary under the theory, as has been exemplified by the degeneration of a principle affirming protection to “discrete and insular minorities” into a constitutional rule, at most, seldom applied to constrain majoritarian politics.
The transformation of the meaning of Brown v. Board of Education into the color-blindness principle primarily employed to maintain the status quo has thwarted race conscious efforts to aid racial minorities, as has been observed in Parents Involved in Community Schools v. Seattle School District No. 1 wherein race conscious efforts aimed at enhancing the level of integration of public schools were considered to be in contravention of the core of Brown, that had found racially segregated public schools to be unconstitutional as they are “inherently unequal”. The collapse of the distinction between race conscious remediation and racial discrimination and their similar conceptual treatment has led to both of them being assigned the same standard of review.
Originalism refers to theories of constitutional interpretation that emphasize the relatively concrete understanding and practice of the Framer’s generation.
Given the widening gulf between originalist positions and contemporarily acceptable views, reconciliation between constitutional interpretation and originalism is confounded by recent developments such as Brown, which present significant variations from the core legitimating principle of original intent, but nonetheless cannot be overruled on the basis of an original understanding. In so far as insistence upon original intent as the only legitimate yardstick for judicial adjudication entails an extensive repudiation of the current constitutional order, the theory is usually supplemented by stare decisis to account for specificities of constitutional adjudication.
If stare decisis not be factored in, only either a misstatement of the original understanding or a generalized statement of the original understanding to the effect that it is rendered operationally empty, could enable originalism to account for transformations of historical reality. The process of supplementation not only renders the counter-majoritarian claims of originalism overdrawn, but also raises other discomforting questions such as, “If the Court legitimately may prevent inquiry into original understanding in order to maintain transformative change, does this concession also license prospective disregard of original understanding when the Court is satisfied that change is necessary to maintain systemic equilibrium?”
Furthermore, originalism as a theory of constitutional interpretation inheres sufficient indeterminacy, and thus permits constitutional adjudication in complete harmony with the median of public opinion, and eventually leads to frustration of the judicial counter-majoritarian function.
III) Living Constitutionalism
Living Constitutionalism invokes evolving standards of society and seeks to incorporate current values and practice in constitutional interpretation.
The practice of living constitutionalism entails the coherentist exercise of bringing together raw public opinion or pre-interpretive public intuition alongwith legal materials such as judicial precedent and constitutional provisions in equilibrium. Herein, the contestability of “principles of political morality” feeds into the judicial exercise and renders living constitutionalism susceptible to majoritarianism, thereby restricting its counter-majoritarian scope. Though living constitutionalism does not lead to blunt channelization of public opinion, it does place overdrawn counter-majoritarian demands on judges that they might not meet.
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