Law Commons^™

Mediated Popular Constitutionalism, Barry Friedman

Michigan Law Review

There are divergent views in the legal academy concerning judicial review, but at their core these views share a common (and possibly flawed) premise. The premise is that the exercise of judicial review is countermajoritarian in nature. There is a regrettable lack of clarity in the relevant scholarship about what "countermajoritarian" actually means. At bottom it often seems to be a claim, and perhaps must be a claim, that when judges invalidate governmental decisions based upon constitutional requirements, they act contrary to the preferences of the citizenry. Some variation on this premise seems to drive most normative scholarship regarding judicial …