As I have discussed in previous posts and a recent paper, public choice has freed originalism from the countermajoritarian difficulty by showing that it is an interpretative method well suited to enforce a constitution that is in its formation and essence anti-majoritarian. But many scholars are resistant to the truths of public choice and continue to be attracted to the essentially majoritarian paradigm of Progressivism. Their difficulty is that the modern Court has often invalidated the actions of majorities without any substantial support in the text of the Constitution. Thus, scholars have attempted to square the circle to preserve the Progressive paradigm by showing that the Court’s actions can meet some definition of majoritarianism and do not reflect judicial usurpation of the political process. Here is a thumbnail sketch (and critique) of three of the most prominent attempts.
John Hart Ely and Democracy and Distrust. In my view the strongest way of meeting the countermajoritarian difficulty is John Hart Ely’s Democracy and Distrust. Ely dismisses clause bound originalism but sees judicial review as justified when it reinforces and refines democratic outputs. Thus, anti-discrimination principles are to be enforced, because they prevent the political process from being distorted by racial and gender stereotypes. Similarly, free speech permits people to deliberate and thus reinforces democracy.
But Democracy and Distrust famously does not justify Griswold or Roe v. Wade, because it is difficult to see these decisions as reinforcing the democratic process rather than providing substantive rights. Thus progressives who today almost universally want to preserve a jurisprudence that expands what they consider to be core human rights need other theories to address the countermajoritarian difficulty.