New Majoritarian Constitutionalism

Abstract

Ever since Alexander Bickel coined the phrase “countermajoritarian difficulty,” commentators have frequently described the Supreme Court as either a “majoritarian” or “counter-majoritarian” institution. In this heuristic dichotomy, the Justices either base constitutional law on their own independent and subjective interpretations or they rely on extrinsic indicators to determine constitutional meaning. In practice, however, this dichotomy is neither clearly evident, nor clearly applied, and a third approach—“New Majoritarian” Constitutionalism—has emerged. Under new majoritarian constitutionalism, the Court considers (1) the actual decisions of courts and juries; (2) legislative trends; (3) executive branch practices; and (4) geographic disparities within various jurisdictions. This model of majoritarianism accepts the traditional idea that constitutional decisions must be grounded in conventional lawmaking sources and that interpretations of vague constitutional language should accord with broadly held, majoritarian positions. This approach, however, creatively uses traditional indicators to a far greater extent than others. This Article provides a new typology of majoritarian constitutional theories that reorients our understanding of the role of objective indicators of meaning, with major implications for scholarship and doctrine. In addition to its descriptive power, new majoritarianism has important normative implications—promoting institutional process values such as stability and transparency, while reinforcing the centrality of coordinate branch dialogue in evolving constitutional meaning