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Boston University School of Law




A generation ago, the pressing question in constitutional law was the countermajoritarian difficulty.' Americans insisted their government was a democratic republic and took that to mean rule by a majority of elected representatives in various offices and bodies, federal and local. Yet courts whose members had not won election presumed to override the actions of executive and legislative officers who had. The conventional answer to this apparent paradox was the Constitution, which arguably owed its existence to the people directly. Judicial review was justified, accordingly, when court decisions were rooted firmly in the particular text, structure, or historical backdrop of the Constitution. Courts' nonmajoritarian power was otherwise unexplained and unexplainable. Today, we are smarter, if not wiser. We, or most of us,' have abandoned false hopes that the Constitution can be squared with majoritarianism and that appeals to literal text, inferences from ,structure, or "original intent" can offer neat answers to the countermajoritarian riddle.



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